No Country for Some Men?: Statelessness in the United States and Lessons from the European Union
| Jurisdiction | United States,Federal,European Union |
| Citation | Vol. 43 No. 1 |
| Publication year | 2014 |
No Country For Some Men?: Statelessness in the United States and Lessons from the European Union
Lia G. Melikian*
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I. INTRODUCTION...............................................................................282
II. BACKGROUND ON STATELESSNESS................................................285
A. De Jure and De Facto Statelessness........................................285
B. Theories of Citizenship.............................................................286
C. Early Developments in International Law...............................287
III. ANALYSIS........................................................................................290
A. U.S. Laws and Policies.............................................................290
1. Current Legal Framework.................................................291B. E.U. Laws and Policies ............................................................ 297
2. Attempted Legislation........................................................294
a. Comprehensive Immigration Reform..........................294
b. Refugee Protection Act................................................296
c. Problems with Proposed Language ............................ 296
1. European-Specific Treaties................................................ 298C. Lessons from the European Union...........................................306
2. Differences in Nationality Laws Among EU Member States.....................................................................................300
a. France: Double Jus Soli and the Expulsion of Roma.....3003. Statelessness Determination Procedures...........................305
b. The United Kingdom: Revoking Citizenship from Terror Suspects...........................................................301
c. Slovenia: A State in Transition....................................304
d. Estonia: Where the Stateless Have Rights...................305
IV. CONCLUSIONS.................................................................................307
A. Implications of Proposed Legislation Passing.........................307
B. Implications of Proposed Legislation Not Passing and the Alternatives...............................................................................307
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In a bizarre turn of events, Mikhail Sebastian found himself trapped on American Samoa in December 2011.1 He was not trapped because he was arrested or kidnapped, or any of the other reasons one might expect; rather, Sebastian was trapped due to his stateless status.2 Sebastian, who had been living in the United States for over fifteen years, took what he thought would be a four-day vacation, and ended up pleading with the U.S. to allow him to return to his home in Los Angeles.3
In 2004, Ibrahim Parlak, a Kurdish man, had been living in the U.S. for over twenty years after being granted asylum in 1992.4 Parlak had married an American woman. They had a daughter together, and he was the proud owner of a cafe in a small town in Michigan.5 He was living the American dream. But Parlak's idyllic world was flipped on its head in July 2004, when the Department of Homeland Security arrested Parlak, accused him of falsifying his asylum documents, and threatened to deport him to Turkey.6 U.S. authorities revoked Parlak's green card, and threw him in detention pending his deportation.7
Tatiana Lesnikova, a sixty-one-year-old grandmother and piano teacher, has been stateless and living in the U.S. for over twenty years.8 In 1992, Lesnikova escaped with her youngest son from Ukraine, where she had been
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persecuted for her political beliefs, and applied for asylum in the U.S.9 In 1997, Lesnikova's application was denied; however, she had nowhere to be deported, as neither Ukraine nor Russia recognized her as a national due to their post-Soviet nationality laws.10
A stateless person is an individual who is not considered a national by any State under the operation of its laws.11 A 2013 report by the Office of the U.N. High Commissioner for Refugees (UNHCR) estimated that there are at least ten million stateless individuals in the world today,12 with over 600,000 in Europe13 and an undetermined number living in the U.S.14 U.S. law does not afford these individuals any protections, let alone the ability to acquire any sort of permanent status.15 In the European Union, nationality laws vary from country to country. Stateless persons are often denied crucial benefits of citizenship, such as access to health services, education, and legal employment.16 The international community has ignored such violations for far too long. With no official status, stateless persons are deprived of their basic human rights and are subject to deportation, imprisonment, or worse.17
Mikhail Sebastian eventually was allowed to go back to his home in the United States—fifteen months later.18 By enlisting the help of attorneys and
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various news organizations, as well as the UNHCR, Sebastian was able to convince U.S. officials to allow him to return.19 But Sebastian remains stateless today, living in constant fear of detainment with no available path for obtaining permanent legal status.20
For Ibrahim Parlak, his American dream has become a nightmare.21 Turkey would not admit Parlak back into the country, and his applications for residency in other countries have been denied.22 Eventually, following a public outcry, Parlak was released "under a strict, supervised status."23 This status comes with severe limitations on Parlak's freedom: "He cannot go anywhere without permission. He must be on call from immigration service at all times. He cannot leave the country. He must call in whenever asked, no matter what time of the day or night."24 Periodically, legislation to grant Parlak citizenship is introduced in Congress but, thus far, these efforts have been fruitless.25 Parlak remains in a limbo and expresses little hope of ever obtaining a legal status in the U.S. again.26
Tatiana Lesnikova and her youngest son also remain stateless today.27 In a 2010 interview with Laura Bowman, Lesnikova remarked: "To be stateless . . . means to be nobody. We have no rights."28 Lesnikova is unable to travel to see her closest family members because she cannot obtain travel documents.29 She is ineligible for social security even though she pays taxes.30 She must check in with the Department of Homeland Security by telephone once a month and in person every six months.31 And, on top of all of this, she says that she still lives in fear of being "arbitrarily jailed" at any moment.32
In evaluating the policies of the United States and the European Union, Part II will provide additional background information on statelessness, including how it has progressed over time, the early developments in the law, and its potential impact. Part III will then provide the foundation for the
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current legal framework for both the U.S. as well as the E.U., and discuss the advantages and disadvantages of each. In conclusion, Part IV will examine the most effective legal policy for the U.S. going forward and advocate for the passage of comprehensive immigration reform.
Statelessness is a condition, caused by governments, that occurs when no state recognizes a person as its citizen under the operations of its law.33 Effectively, such an individual is not entitled to the protections of any state.34 Statelessness can happen anywhere in the world, but how statelessness effects an individual varies because legal regimes throughout the world differ considerably.35
A. De Jure and De Facto Statelessness
Depending on the country, statelessness can occur in many different situations, including: birth to stateless parents;36 when a state ceases to exist;37 through transnational surrogacy agreements, which can leave a child without citizenship due to conflicts of law;38 as well as situations where individuals are unable to establish their nationality.39
There are two categories of statelessness: de facto and de jure.40 De jure statelessness is when no state considers the individual to be a national based on its own laws.41 This can occur when a state ceases to exist and there is no successor state, a situation recognized by both the 1954 Convention on the Status of Stateless Persons (the 1954 Statelessness Convention)42 and the 1961 Convention on Reducing Statelessness (the 1961 Statelessness
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Convention).43 De facto statelessness, on the other hand, occurs when a person is either denied diplomatic protection or assistance by their country once they are outside of it,44 or is prevented from seeking it due to practical considerations like fear of persecution.45 There are no real solutions for either category as of yet in international law.46 Because de jure statelessness occurs less frequently,47 de facto statelessness will be the primary focus of this Note.
B. Theories of Citizenship
A state's nationality laws are key factors in whether or not an individual will become stateless.48 Each state has the power to determine its own nationality laws, but such sovereignty makes it difficult to address statelessness at an international level.49 In addition, this deference to states may result in intentional discrimination against a particular group.50
The two most frequently used principles for granting citizenship are jus soli and jus sanguinis,51 with some countries using both.52 Jus soli, meaning "law of the soil," refers to individuals who are born on state territory and are entitled to the citizenship of that state.53 Jus sanguinis, which means "law of blood," refers to an individual who is entitled to the same citizenship of their parents.54 This varies from country to country—the U.S. uses somewhat of a mix of jus sanguinis and the rule of jus soli,55 while many European countries use jus sanguinis.56 The use of jus sanguinis tends to be more
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