Stateless in the United States: current reality and a future prediction.

• Author: Price, Polly J.
• Position: I. Introduction through II. The Present Problem of Statelessness, p. 443-484

ABSTRACT

Statelessness exists in the United States--a fact that should be of concern to advocates of strict immigration control as well as those who favor a more welcoming policy. The predominant reasons for statelessness include the presence of individuals who are unable to prove their nationality and the failure of their countries of origin to recognize them as citizens. Migrants with unclear nationality, already a problem for the United States, obstruct efforts to control immigration by the deportation of unauthorized aliens. These existing problems of national identity will increase exponentially if birthright citizenship in the United States is amended to exclude the children of undocumented aliens. Contrary to common assumptions, proposed changes to U.S. citizenship law would exacerbate statelessness into the next generation when no fallback nationality is available.

TABLE OF CONTENTS I. INTRODUCTION II. THE PRESENT PROBLEM OF STATELESSNESS A. Statelessness as an International Sociopolitical Concern B. Statelessness in the Western Hemisphere 1. De Jure Statelessness in the Americas 2. De Facto Statelessness in the Americas a. Latin America b. The United States III. EXPANDING STATELESSNESS BY RESTRICTIONS ON BIRTHRIGHT CITIZENSHIP A. The U.S. Political Landscape B. Birthright Citizenship Restrictions and Statelessness in the United States C. The Meaning and Consequences of Expanded, Multigenerational Statelessness IV. CONCLUSION V. APPENDIX I. INTRODUCTION

In the United States today, there are an unknown number of persons whom no nation will claim as citizens or nationals. Unless the United States apprehends and attempts to deport these persons, the public is unlikely to know about them, and they are likely to continue to live in the shadows--undocumented both from the perspective of U.S. immigration law and with respect to their countries of origin. (1) The attempt to control unauthorized immigration by deporting migrants brings this statelessness to light because no country will take them. There are thousands of persons that the United States has been unable to deport in the last several years alone. (2) Many others are also likely to be effectively stateless, given that 12 million unauthorized migrants are thought to be living in the United States today. (3)

The harm of statelessness, as described below, is significant both to the individual and to the United States. But at present this statelessness at least is limited to one generation, because under existing practices of territorial birthright citizenship, the children of unauthorized immigrants are automatically awarded U.S. citizenship at birth if born in the United States. (4)

The incidence of statelessness would be exacerbated exponentially if the lack of nationality continues into subsequent generations. Proposals to amend the rule of territorial birthright citizenship in the United States--the jus soli--aim to deny citizenship to the children of persons who are in the country illegally. Citizenship for these children would instead follow the jus sanguinis, meaning citizenship by descent from a parent. (5) These children would then, like their parents, be subject to "control" through deportation. The proposals rest on the assumption that the children of illegal migrants would retain the nationality of their parents, and thus would not present problems of statelessness. But as this Article will demonstrate, some children born in the United States would in fact be stateless, with no recognized nationality at birth. This is true even though the great majority of undocumented persons in the United States themselves come from jus soli nations with jus sanguinis traditions governing births outside of the country. (6)

The prediction that restrictions on birthright citizenship in the United States could lead to statelessness has been acknowledged in some of the academic literature on this subject. (7) But there is as yet no full explanation of why statelessness would occur. This Article documents the various ways in which statelessness already occurs in the United States, and it also explains in detail why statelessness will increase under a limited jus soli.

Unauthorized immigration is perceived as a major social, economic, and political issue in the United States. Restrictions on U.S. birthright citizenship are among the many proposed and ongoing efforts to deal with unauthorized immigration. Statelessness, already present in the United States, would be increased by these restrictions because (1) statelessness already exists in the Western Hemisphere, from which many, if not most, unauthorized migrants come to the United States, and (2) new restrictions will extend statelessness to second or subsequent generations, as well as create statelessness for some children even when the parent has a recognized nationality. The United States would create a new class of persons who cannot be deported, thereby frustrating the primary objective of restrictions on birthright citizenship.

This Article also fills a void in previous scholarship by showing where and why statelessness already exists in the Western Hemisphere (including the United States). It is widely recognized that differences in how nations award citizenship at birth can lead to statelessness, and that statelessness of some magnitude probably exists in every country in the world. The pure form of jus soli in theory minimizes statelessness because the location of one's birth is generally easier to prove than is the nationality of one's parents (and often the nationality of a parent of a parent). Thus, the 1961 Convention on the Reduction of Statelessness (1961 Convention) favors jus soli by stipulating that an important measure to avoid statelessness at birth is to provide nationality to children born in the territory who would otherwise be stateless. (8)

The comparative perspective provided here also serves an important function. Relatively stable national boundaries and governments should produce no statelessness on the basis of conflict-of-nationality laws for migrations of persons within the Western Hemisphere (from one jus soli birth nation to another). The fact that effective statelessness is an existing problem in parts of the Americas is noteworthy in its own right, but it is particularly significant when considering proposed modifications to existing rules awarding citizenship at birth in the United States.

This Article proceeds as follows. Following a background section on the concept of statelessness, it evaluates the causes and prevalence of statelessness already existing in the United States and other parts of the Western Hemisphere. It proceeds to show how statelessness would increase if the United States should alter its birthright citizenship rules, using the Birthright Citizenship Act of 2013 as an example for this proposed change. In its latter sections, this Article explains the mechanisms that would create statelessness for children and why statelessness is an undesirable result both for the individuals involved and for the United States.

2. THE PRESENT PROBLEM OF STATELESSNESS

1. Statelessness as an International Sociopolitical Concern

   Stateless is a term used in international legal instruments to denote individuals and populations with no enforceable assertion of a nationality. (9) Whether someone is stateless ultimately depends on the viewpoint of the state with respect to the individual or group of individuals. (10) Identifying stateless persons can prove difficult. (11) An estimated 12 million persons are believed to be stateless throughout the world. (12) But the State Department warns that because the data are unreliable, it is impossible to know whether those numbers are growing or shrinking. (13)

   The problem of statelessness has been substantial enough to attract international attention since at least 1954. Two international conventions constitute the primary framework for definitions of and responses to statelessness: the 1954 Convention Relating to the Status of Stateless Persons (1954 Convention), and the 1961 Convention. (14) In addition, the 1989 Convention on the Rights of the Child obligates signatory states to ensure that every child acquires a nationality. (15) Several regional human rights treaties also address statelessness, including the American Convention on Human Rights. (16) The American Convention, which the United States signed in 1977 but has never ratified, states: "Every person has the right to the nationality of the state in whose territory he was born if he does not have the right to any other nationality. (17)

   The 1954 Convention set out a definition of statelessness and listed a number of rights that stateless persons should have. Among other obligations under the 1954 Convention, contracting states must treat stateless persons the same as lawful aliens in that country, including access to wage-earning employment, housing, public education, and public relief, (18) Upon request, contracting states are also obligated to issue travel and identity documents to stateless persons within their territory. (19) Further, stateless persons are not to be expelled except on "grounds of national security or public order." (20)

   The 1961 Convention attempted to strengthen international intervention to reduce statelessness, including a UN mandate. Among other provisions, the 1961 Convention specifies the circumstances in which contracting states should award legal status to stateless persons, including granting citizenship to persons born within their borders who would otherwise be stateless. (21)

   A related international agreement is the Convention Relating to the Status of Refugees. (22) Designed to protect persons fleeing persecution in their own countries, the Convention defines persons needing protection as well as the responsibilities of the states to which they have fled. (23) The Convention recognizes that while some refugees may not have a...