United States: The treatment of stateless persons living in the United States (US) with no legal status; whether they are subject to detention by immigration authorities, and if so, whether such detentions can be challenged through the courts; the rights of such individuals if they are not in detention, such as the right to work; whether there is a mechanism to provide legal rights to stateless persons when the US has no place to deport them; whether a stateless person's status changes if he or she has minor children who are US citizens by birth

In a February 2005 paper about statelessness, Refugees International reported that "several thousand ... individuals held in U.S. immigration detention facilities are believed to be stateless" (14 Feb. 2005).

In 15 October 2008 correspondence, a lawyer with Refugees International provided the following information about the treatment of stateless persons living in the United States (US) with no legal status:

Generally, stateless individuals in the US with no legal status (i.e, they are ineligible for asylum status, withholding of removal, relief under the Convention against Torture) are quite vulnerable, though there are some procedural protections against indefinite detention. For instance, stateless individuals can challenge the basis of their detention under the habeas corpus statute. See 28 U.S.C. § 2241 (c)(3) ("The writ of habeas shall not extend to a prisoner unless he is in custody in violation of the Constitution or laws or treaties of the United States."). They are also covered by the Due Process Clause of the U.S. Constitution, which provides that no one shall be deprived of life, liberty, or property without due process of law. See e.g. Plyler v. Doe, 457 U.S. 202, 210 (1986); Mathews v. Diaz, 426 U.S. 67, 77 (1976) (specifying that the Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent).

In cases of aliens (including stateless persons) who were admitted to the US but subsequently ordered removed, US law prohibits detention for more than six months once removal is no longer foreseeable. See Zadvydas v. Davis, 533 U.S. 678, 699 (2001). After a period of six months, if "an alien provides good reason to believe that there is no significant likelihood of removal in the reasonable future, the Government must furnish evidence sufficient to rebut that showing." Id. at 680. Whether a period is "reasonable" is subject to review by the federal courts. "The habeas court must ask whether the detention in question exceeds a period reasonably necessary to ensure removal." Id. at 700. If removal is not reasonably foreseeable, then the detainee is released under supervised conditions "that are appropriate in the circumstances." Id. See 8 U.S.C. § 1231(a)(3) (specifying provisions of supervised release). If the alien violates these orders of supervised release, however, he may be detained again. On the other hand, if removal is reasonably foreseeable, "the habeas court should consider the risk of the alien's committing further crimes as a factor potentially justifying confinement within that reasonable removal period." Id. The common view of stateless persons is that their removal is not reasonably foreseeable because, being stateless, no state is willing to claim them. In those cases, they would be released under terms of supervision.... In some cases, however, ongoing negotiations between the U.S. and other countries about removal of a stateless individual may lead a court to construe removal as reasonably foreseeable. See Zadvydas v. Davis, 533 U.S. 678, 702 (2001) (vacating and remanding two cases to lower courts to consider whether ongoing negotiations on repatriation or removal of de facto stateless persons are likely to bear fruit). But because "reasonable foreseeability" in these constitutional safeguards are not clearly defined, stateless persons may still face long periods of detention.... Moreover, the extent to which stateless persons in detention have access to legal representation is unclear. A stateless person can in principle obtain work authorization if the Attorney General "makes a specific finding that the alien cannot be removed due to the refusal of all countries . . . to receive the alien or the removal is otherwise impracticable or contrary to the public interest." 8 U.S.C. § 1231 (a)(7). But without legal status, the stateless individual is not able to travel or access social and health services funded by the government. Job opportunities are also likely to be limited.

Information about whether there is a mechanism to regularize a stateless person's status or whether a stateless person's status changes if he or she has minor children who are US citizens by birth could not be found among the sources consulted by the Research Directorate.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Refugees International. 15 October 2008. Correspondence from a lawyer.
_____. 14 February 2005. M. Lynch. Lives on Hold: The Human Cost of Statelessness. [Accessed 30 Sept. 2008]

Additional Sources Consulted

Oral sources: Specialists contacted at the Office of the United Nations High Commissioner for Refugees (UNHCR), the United States Committee for Refugees and Immigration (USCRI), the Midwest Immigrant & Human Rights Center (MIHRC), Amnesty International USA, and Human Rights First did not respond within the time constraints of this Response.

Internet sites, including: Amnesty Internatonal (AI), Freedom House, Human Rights First, Human Rights Watch (HRW), UNHCR, United States Committee for Refugees and Immigration (USCRI).