Requesting, Considering, and Deciding: Deferred Action and the Discretionary State

• In Event: Precarity and the State in Latin America

Abstract

In liberal legal regimes, subjects are construed as rights-bearing individuals who can stake legal claims that are then adjudicated by the state. Alongside this liberal legal model of state-subject relations, however, is another, in which subjects approach the state as a sovereign that can exercise discretion in response to their requests. In the United States, the recent prominence of deferred action as a temporary and partial remedy for unauthorized immigrants creates an opportunity to explore this alternative model, and to consider what sorts of subject-state relationships are created in this highly discretionary area of law. Deferred action is available, at the U.S. government’s discretion, to unauthorized immigrants (most often from Spanish-speaking countries) who are low enforcement priorities, and who therefore may be permitted to remain legally in the United States, with work authorization but without legal status, on a temporary and revocable basis. Deferred action is at the heart of the 2012 Deferred Action for Childhood Arrivals (DACA) program as well as the Executive Relief that President Obama announced in November 2014 and that has been stalled due to a court injunction. Based on analyses of legal and administrative documents related to deferred action, as well as interviews with advocates in immigrant-serving organizations and with potential applicants for Executive Relief, this paper analyzes the forms of subjectivity produced through requests for deferred action, the relationships that these subjects have with state officials, the ways that subjects resist or seek to reformulate these relationships, and the nature of the discretionary state itself.

Author

• Susan Bibler C Coutin, University of California/Irvine