EXECUTIVE SUMMARY on STATELESSNESS in the U.S.
Gerald F. Witherspoon, Sr. 20160622
Statement of Current Policy: There is currently no provision under U.S. law that provides stateless individuals a path to acquire lawful status or become naturalized citizens. The current policy is to treat stateless individuals like anyone else seeking refugee protection. That is, to receive protection they may be recognized as a refugee under U.S. law. Stateless individuals, nevertheless, must demonstrate a well-founded fear of persecution on the account of a protected ground – but in the country of their “last habitual residence” as opposed to in their country of nationality (United Nation High Commissioner for Refugees 2012). When unsuccessful, stateless individuals are required to obtain travel documents to return to their country of origin and subjected to the same 90 day detention other refugees face after a final order of removal. U.S. law provides that non-citizens following a final order of removal have the right to release after six months if they can demonstrate there is no significant likelihood of removal in the reasonably foreseeable future. However, upon release, these individuals must routinely appear before an immigration judge, submit to medical and psychiatric examinations, testify under oath to their nationality, daily activities and associations, continue seeking travel documents, request permission to travel, and provide notice of address change. Without a lawful immigration status, they are not eligible for any state, local, or federal benefits and cannot work lawfully (UNHCR 2012).
Reasons for Initiating Changes: U.S. Courts have consistently found that statelessness does not automatically qualify individuals to receive the protection of asylum (UNHCR 2016). Vague definitional qualifications and a lack of defined and uniform procedures in immigration courts continue to leave these individuals vulnerable to discretionary policies and practices. Because of a lack of policies that specifically address statelessness, U.S. immigration laws and judges are left to decide the fate of these individuals. Stateless individuals, properly defined, obviously cannot obtain travel documents, return to their last country of habitual residence, or demonstrate a significant likelihood of removal. Thus, the currently vague and discretionary policies and practices lead to indefinite and unjust detention and an order of supervision that is oppressive in terms of freedom of movement (UNHCR 2012).
Policy Options to be Considered 1-5: 1) Therefore, I am calling on the Department of State to encourage Congress to enact or advance legislation such as the Refugee Protection Act (RPA) that provides a means for legally enforcing the rights contained in international legal instruments. 2) Embrace and apply the definition of statelessness in a manner consistent with Article 1(1) of the 1954 Convention definition of statelessness. 3) Amend existing laws to allow non-citizens who have been classified as stateless to be exempt from a final order of removal, the subsequent 90-day detention period, and order of supervision. In difficult cases, the time period for determining a lack of statelessness and a country for removal should not exceed 90 days. 4) Establish a written uniform guidance for determining statelessness to be utilized by immigration officials and immigration judges to include discriminatory denationalization as automatic grounds for a determination of statelessness. 5) Establish an independent judicial review to ensure final orders of removal, subsequent detention, denials of employment authorization, and orders of supervision have followed uniform guidance.
Cons and Pros of Each Option: 1) Many may fear non-citizens or illegal immigrants may attempt to abuse the law to gain U.S. citizenship. The political implications here are simple: Policymakers and legislators have been preoccupied with the Syrian Refugee Crises and how to respond appropriately to their constituents. A massively increasing percentage of American citizens are experiencing “national security anxiety” after the Paris attacks and are increasingly against accepting Syrian refugees (McElvein 2016). As understandable as this may be, unfortunately, majority of these citizens cannot rightfully distinguish between refugees – in general and, stateless individuals, who are not only outside of their country of nationality, but have been stripped from or born without a nationality altogether. Impressively, this political risk has been mitigated as the RPA contains a provision whereby “Individuals who have lost their nationality as a result of their voluntary action or knowing inaction after arrival in the United States” are not eligible to seek status (UNHCR 2012). Further, considering the minimal economic cost of accepting 100,000 Syrian refugees, the cost of providing protection to stateless individuals (assumed to be a significantly smaller population in the U.S.) would pose no substantial threat. Still further, the security threat logic tied to illegal immigrants coming to commit terrorist attacks should be disregarded entirely as the policy options I am proposing today apply specifically and only to stateless individuals already present within the U.S. 2) The definition of statelessness contained in the RPA may be too narrow to capture an individual who is without nationality due to discriminatory citizenship laws. However, applying the definition contained in Article 1(1) of the 1954 Convention would assure stateless individuals would be properly defined and afforded the protections they deserve. The preoperational explication and construct validity of the word statelessness derived in the 1954 Convention’s definition can and should be utilized to minimize the political temptations to marginalize segments of the stateless population. 3) Other non-citizens seeking refugee protection may consider it unfair that certain non-citizens are not subjected to the same restrictions when seeking protection and citizenship. Nevertheless, the clear distinction between those who qualify as stateless and those who do not, would feasibly offer a legal remedy to potential conflict. 4) Immigration officials (within agencies such as the CBP, DHS, and ICE) and judges may feel they are being forced to submit to short-sightedness. However, current policies have allowed a lack of nationality to lead to indefinite detentions of stateless individuals. By balancing this injustice, non-citizens – who are confident of their eligibility and would no longer fear indefinite detainment, would be incentivized to seek lawful citizenship. Immigration officials and judges would then be afforded more opportunity and time to focus on the excessive amount of illegal immigrants that need to be detained and deported. The economic costs of training immigration officials and judges to consistently identify stateless individuals would be more than off-set by reducing the cost associated with unnecessary detainment. 5) Judiciaries may perceive their legitimate authority as under investigation, but a transparent and accountable legal system will ensure the U.S. fulfills its commemoration pledges made in 2011 at the UNHCR ministerial meeting. Therefore, prideful match-making amongst political bureaucracies should take a backseat to the needs of the most vulnerable populations.
Recommended Course of Action: By adopting all five policy options that I have laid out today, in purview of good will toward mankind and compliance with international law, the United States government will demonstrate the political will to follow through on the pledges it makes to the international community. By adopting all five policy options, the U.S. government will demonstrate its capacity to work with Congress to enact legislation that creates a more just environment wherein stateless individuals – lacking nationality receive the protection they deserve. And finally, by adopting all five policy options, the U.S government will honor its ratified obligations under international instruments such as the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination, and the 1967 Protocol to the 1951 Convention Relating to the Status of Refugees.
Reasoning for Selecting Course of Action: Dividing families through incoherent asylum, nationalization, and immigration laws creates more internal hostility amongst would-be citizens who would otherwise strive to become peaceful and productive members of society. By maintaining an environment where stateless individuals are fearful of exposure, cannot support them-selves or loved ones lawfully, are vulnerable to discrimination and poverty, the incentive to join criminal networks increases, thereby decreasing U.S. national security. At a time when terrorism is considered the biggest threat we face, illegal immigration is causing socioeconomic and political unrest, and terrorists are increasingly forging alliances with organized criminal networks, we cannot afford to have individuals with nowhere else to go, hiding in our shadows. Again, current U.S. policy is not a result of a lack of legal infrastructure or legal framework, but it is clearly a lack of political will to prioritize the rights of these stateless individuals under U.S. law. Please consider how life, liberty, and the pursuit of happiness is only a dream to individuals who have been denied their right to a nationality. With your help, it becomes a reality. Thank you.
McElvein, Elizabeth. What do Americans really think about Syrian refugees? March 4, 2016. http://www.brookings.edu/blogs/markaz/posts/2016/03/04-syrian-refugees-us-public-opinion-mcelvein (accessed June 25, 2016).
Refugees, United Nations High Commissioner for. Citizens of Nowwhere. UNHCR, 2012.