The Stateless in the United States
Center for Migration Studies
May 28, 2013
The proposed Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744) includes provisions to regularize the status of stateless persons within the United States (S. 744, Sec. 3405). These provisions follow a recent report from the UN High Commissioner for Refugees (UNHCR) and the Open Society Justice Initiative highlighting the precarious legal and socioeconomic status of stateless persons living within the United States. The report emphasizes that the United States lacks a consistent legal framework for dealing with stateless individuals, leaving many in protracted deportation proceedings and exposing many more to exploitation by employers, landlords and law enforcement officials (UNHCR and Open Society Justice Initiative 2012).
The stateless have no formally recognized nationality or citizenship. As a consequence, they cannot avail themselves of the legal and diplomatic protections of any country. They exist, in a sense, outside the formal realm of the nation-state. For this reason, UNHCR—the international agency tasked with combatting statelessness—has referred to stateless persons as “legal ghosts” (UNHCR 2011, 2).
Individuals can become stateless either by law (de jure) or by circumstance (de facto). One of the largest stateless groups in the world is the Rohingya of Myanmar. That nation’s laws do not count the mostly-Muslim Rohingya among the ethnicities eligible for citizenship and the Rohingya are therefore de jure stateless (Green and Pierce 2009, 34). De facto statelessness can occur in a number of ways. The country in which an individual was born—such as Yugoslavia—may cease to exist and a former citizen may not meet the citizenship or nationality requirements set by the successor state(s). De facto statelessness may also arise when an individual is unable to offer sufficient documentary evidence of his or her nationality. This is the primary concern with “doubly undocumented” Mexican migrants in the United States, whose lack of legal status in the United States is further complicated by their lack of birth registration in Mexico, on which consulates often rely to establish citizenship and to issue travel documents to deportees (CMS 2012).
Reliable data on the number of stateless persons in the United States is lacking. UNHCR notes that there are at least several hundred, but the real number could be far higher (UNHCR 2012). Representative Lamar Smith (R-TX), for example, claimed that between 2009 and 2011 the United States government released almost 10,000 deportees after their purported countries of origin refused to take them back (US House of Representatives Committee on the Judiciary 2011). With no legal status in the United States and no country willing to grant them legal status, such people could be considered de facto stateless (Price 2012, 26).
Mikhail Sebastian is arguably the most famous stateless person in the United States. Born in the former Soviet Union, Sebastian sought asylum in the United States in the early 1990s, but was denied. The United States could not deport him because Armenia—the successor state in whose territory Sebastian was born—did not recognize his citizenship, leaving him stateless. After a four-day New Year’s vacation to American Samoa in 2012, Sebastian was barred from reentering the mainland United States by immigration officials, who claimed he had self-deported. It took nearly 14 months for Sebastian to gain permission to return to his home in Los Angeles and this occurred only after extensive interventions by lawyers, government officials, human rights advocates and university groups, as well as a social media campaign via Twitter, Tumblr, YouTube and CNN iReport.
The 1954 Convention on the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness oblige signatory states to treat stateless persons the same as other resident aliens, particularly with regard to work authorization and the issuance of identity and travel documents. They also require states to confer nationality upon individuals born in their territory who would otherwise be stateless at birth and prohibit states from allowing citizens to renounce their nationality if doing so would render them stateless. Because this last prohibition conflicts with the US legal tradition of voluntary renunciation of citizenship, the United States has not become a signatory of either convention, though US State Department officials have asserted that this fact “does not in any respect undermine [the United States’] commitment” to combating statelessness (Green and Pierce 2012, 35).
Indeed, the United States does have legal protections in place to reduce the chance of its citizens and residents being rendered stateless. Most notably, the principle of jus soli, enshrined in the Fourteenth Amendment, ensures that any child born in US territory is automatically a US citizen, even if the child’s parents are stateless. US law also recognizes the principle of jus sanguinis, ensuring that—with some exceptions—children born abroad to US citizens are also eligible for US citizenship.
Despite these protections, the United States nevertheless has a history of fostering statelessness. The 1857 Dred Scott decision, for example, denied that Africans and their descendants even had the capacity to take on a nationality, condemning them, in the words of Linda Kerber, to “permanent statelessness” (Kerber 2005, 733). In the nineteenth and twentieth centuries, the government routinely stripped women of their US citizenship if they married foreign husbands (Kerber 2005, 735).
More recently, in 2001 and 2011, the US Supreme Court upheld the Immigration and Nationality Act’s provision of different rules by which US citizen men and women can pass on their citizenship to children born abroad, particularly when the parents are unmarried and one parent is not a US citizen or national (8 U.S.C. Sec. 1409; Tuan Anh Nguyen v. INS; Flores-Villar v. United States). These rules impose a higher burden of evidence and stricter deadlines on US citizen men looking to recognize their foreign-born children as citizens (8 U.S.C. Sec. 1409) and because some countries do not recognize citizenship descent through the mother, such rules could easily render certain children stateless at birth if their fathers fail to meet the INA’s requirements (Kerber 2005, 738-740).
Because the United States lacks a consistent legal framework for recognizing stateless persons and addressing their specific political and economic needs, stateless persons in deportation proceedings are typically treated the same as other non-US citizens, even though stateless persons have no country to which they can be deported. These deportation proceedings can lead to long periods of detention, though under two recent Supreme Court rulings—Zadvydas v. Davis in 2001 and Clark v. Martinez in 2005—stateless persons can no longer be held in detention indefinitely. As a result of these cases, after six months of detention, the burden shifts to the US government to prove that the removal of a non-citizen in deportation proceedings is possible in the reasonably foreseeable future (Kerwin and Yin 2009). This standard prevents stateless persons and other detainees from becoming “lifers”—that is, non-US citizens held indefinitely in detention facilities awaiting the unlikely or impossible prospect of deportation (Kerwin 1998, 650; Kerwin and Lin 2009).
Stateless persons in removal proceedings are typically detained for ninety days, during which time a country of removal is assigned to them—even if there is no reasonable expectation that deportation will succeed (8 U.S.C. Sec. 1231(a)(2)). After ninety days, a judge may order the detainee released under an order of supervision, which requires the individual to check in regularly with immigration officials and to continue to seek to obtain travel documents from different countries (8 CFR Sec. 241.13(h))—an endeavor that is likely to prove futile (UNHCR 2012, 20-21, 26).
Nonetheless, an order of supervision usually allows a stateless person to work legally in the United States, albeit after completing a yearly application and paying annual processing fees. In that respect, stateless individuals under orders of supervision are more fortunate than those without them. Once a stateless person’s deportation case is dropped, he or she loses work authorization. He or she may remain in the United States, but lacks any formal legal status and has no right to work. The same situation applies to stateless individuals who have yet to come in contact with immigration officials—without legal status, they cannot be legally employed (UNHCR 2012, 26-27).
In recent years, government agencies and officials have taken some preliminary steps to address the issue of statelessness. The State Department now includes statelessness as a subsection in its annual “Country Reports on Human Rights Practices” and US diplomats have encouraged countries like Vietnam to naturalize their resident stateless populations (Green and Price 2009, 34). The Department has also utilized its official blog to draw attention to the plight of stateless persons around the world.
Elected officials have recently shown interest in addressing statelessness as well. Senator Patrick Leahy (D-VT) and three other senators co-sponsored the Refugee Protection Act of 2013 (S. 645), which—among other reforms—would provide a pathway for de jure stateless persons to obtain lawful status in the United States (S. 645, Sec. 17). The proposed Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744) closely mimics the provisions called for by the Refugee Protection Act in relation to stateless persons, empowering the Attorney General or the Secretary of Homeland Security to provide conditional lawful status to stateless persons. This status would allow stateless persons to work in the United States and they could adjust to lawful permanent residence and later to citizenship (S. 744, Sec. 3405).
The lack of a viable legislative framework for dealing with statelessness sets the United States apart from other developed nations. Spain and France, for example, issue residency permits to those deemed stateless (UNHCR and Asylum Aid 2011, 69), while Sweden—though not explicitly acknowledging statelessness—grants special status to foreigners in need of protection who are unable to return to their home country (Kohn 2012). These measures are grounded in the 1954 and 1961 conventions against statelessness, as well as in the Universal Declaration of Human Rights, which declares that all individuals have the right to a nationality (UDHR, Article 15).
In a world dominated by nation-states, a person’s nationality is the practical source of individual and collective rights and freedoms. For this reason, Hannah Arendt, Chief Justice Earl Warren and others have observed that without a nationality, a person has no “right to have rights” (Blitz and Sawyer 2011, 289; Price 2012, 56). As UNHCR and the Open Society Justice Initiative emphasize in their report, regularization of status is therefore crucial if the situation of stateless persons in the United States is to improve. With comprehensive immigration reform on the national agenda, the time may be ripe for the United States to address the status of stateless persons within its territory.
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