Ghosts in America: Working Towards Building a Legal Framework for Stateless Individuals in the United States.

• Author: Ejima, Asako

Table of Contents Abstract Table of Contents Introduction Part One: Understanding Statelessness A) Causes of Statelessness 1) State succession 2) Arbitrary denial or deprivation of nationality 3) Technical causes B) Consequences of Statelessness C) International legal framework protecting stateless individuals Part Two: International Responses to Statelessness A) The UNHCR's #IBelong Campaign B) Countries that have adopted Statelessness Determination Procedures C) Countries That Could Do More Part Three: Statelessness in the United States A) Statelessness under United States Immigration Law B) Current approaches to statelessness 1) "Recalcitrant" countries and visa sanctions 2) Order of supervision 3) Repatriation agreements Part Four: Policy Recommendations for the United States A) A New State for the Stateless B) Indefinite Detention C) A Legislative Solution D) A Needs-Focused Solution 1) Legal status 2) A release from psychological, emotional, and mental insecurity 3) Economic Stability 4) Freedom to Travel Conclusion Introduction

There are "ghosts" living in the United States. (1) And they present an intractable problem for both the international community and the United States. "Ghosts" are refugees in a foreign country who have no country to call home. (2) "Ghosts" is an appropriate name for these individuals because they and their needs are invisible to the States they live in and the international community as a whole.

Tatianna Lesnikova is one of these ghosts. (3) In 1992, Tatianna and her son David fled Ukraine because she feared for her son's safety under the new Ukrainian government. (4) Soviet officials had taken and institutionalized Tatianna's eldest son for speaking out against the government and although the Soviet Union had collapsed, the new Ukrainian government was controlled by many of the same people who had been in charge under the Soviets. (5) When Tatianna arrived in the United States, she filed for asylum but was denied by United States immigration authorities who did not find her fears of oppression credible. (6) After an appeal process that lasted a decade, her final appeal was denied in 2002. (7) During that decade, Tatianna established a life in Springfield, Massachusetts where she made a living as a piano teacher and certified nurse thanks to a special work permit that was renewed once a year. (8)

One morning, Tatianna and her son were handcuffed, shoved in a van, and detained for nearly three months by the Department of Homeland Security (DHS). (9) She had not committed a crime. (10) She was just simply without legal status. (11) United States immigration officials tried to deport Tatianna and her son, but they found that she was not given citizenship by Ukraine because she and her family left Ukraine before they fulfilled the residency requirements necessary for citizenship. (12) Because she does not have legal status in any country, she was deemed non-deportable and released after months of detainment. (13) This experience left her traumatized and left the country with an alien who was not entitled to be here but had nowhere to go. (14)

People like Tatianna are called "legal ghosts." (15) These individuals, who are sometimes also referred to as "nonindividuals" and "nowhere individuals," are stateless. (16) Today, an estimated 12 million individuals around the world are stateless, which means that they are not considered nationals by any State. (17) Although solid statistics are unavailable, their numbers could range anywhere from several hundreds to four million in the United States. (18) Stateless individuals present a challenge to international and state law because countries that want to deport them have no place to send them, and yet they are reluctant to confer upon them a path to citizenship or permanent residence if they are not eligible for such relief under their own country's immigration law. (19) Despite this tension, it is in the best interest of the United States to establish a legal framework that protects stateless individuals. The gap in humanitarian protections for stateless individuals unnecessarily taxes the United States immigration system. (20) Removing a person who has nowhere else to go is taxing on immigration resources, court resources, and detention facilities. (21)

Not only does this present a legal problem for both domestic and international law, it also presents a human problem for the stateless individual. (22) Because stateless individuals are not considered legal residents of where they live, they have limited access to birth registration, identity documentation, education, health care, legal employment, property ownership, political participation, and freedom of movement. (23) They may also face other barriers including travel restrictions and social exclusion. (24) As a result, they experience increased vulnerability to sexual and physical violence, human trafficking, exploitation, and forcible displacement. (25)

The tragedy of statelessness is that it is a man-made problem. (26) And so far, neither the international community nor the national authorities have adequately addressed it. On an international scale, a collective action problem hinders global cooperation towards reducing the number of stateless individuals as individual countries hesitate to confer their nationality onto stateless individuals, hoping that another country will instead. (27) On a domestic scale, the current immigration framework used by United States immigration authorities is deaf to the specific political and economic needs of stateless individuals. (28) Unfortunately, the problem of statelessness is intractable without an international agreement on state responsibility for stateless individuals. (29)

In Part One, I explain the causes of stateless persons. First, I summarize the political determinants of statelessness; including, state succession, arbitrary discrimination, and technical causes. Then, I will put a human face on statelessness by talking about the consequences of statelessness. In Part Two, I describe the international legal framework that has proven to be ineffective at providing an international solution. International cooperation to improve the status of stateless individuals and reduce or eliminate statelessness has enjoyed limited success for several reasons. (30) First, the biggest obstacle to an international solution is a collective action problem resulting from the tension between international law and individual State sovereignty. (31) Many countries would identify statelessness as a problem, but no country alone is ready to be a part of the solution or take on burdens unless other countries do as well. (32) Although there is a basic international humanitarian concern for other humans, (33) States retain (and want to retain) the right to determine nationality as part of State sovereignty. (34) In other words, while individual States have an interest in diminishing the problem of statelessness, they would rather not be the ones to grant a particular stateless group citizenship. (35) Instead, they would rather avoid the political costs of welcoming stateless individuals and would prefer to have other States take on the responsibility of nationalizing new groups of individuals. (36) As a result, while international legal frameworks currently exist to prevent statelessness, their weaknesses and historically low rate of commitment to implementation and enforcement have made them largely ineffective in solving the plight of stateless individuals. (37) The international community has also considered protections for refugees and the statelessness separately despite their similarities with the prioritized focus on refugees. (38) As a result, the development of protections for stateless individuals has lagged behind protections for refugee populations. (39) Additionally, stateless individuals who should have qualified for refugee protections have been denied those protections because the two categories are being considered separately. (40) In practice, however, there is substantial intersectionality between being stateless and being a refugee. (41) And fourth, statelessness has been largely perceived as a "technical problem" that can be solved by remedies involving the "harmonization of laws and co-ordination [of] rules" by many scholars rather than a human rights issue. (42) Consequently, international solutions that solely focus on technical solutions while ignoring the human rights implications of statelessness have been largely unproductive. (43)

Although the United Nations High Commissioner for Refugees (UNHCR) has been dedicating itself to ending statelessness by 2024, (44) individual countries should put a more active effort into establishing domestic legal frameworks to alleviate statelessness. Currently, individual State responses to statelessness have been inconsistent and often contradictory to the UNHCR's efforts to end statelessness. (45) While countries like Spain and France have established residency permit programs to confer legal residence to stateless individuals, (46) other countries like Australia have been placing stateless individuals in indefinite detention. (47)

In Part Three, I start to explore options for the United States in the face of international inaction. Currently, the United States lacks a consistent legal framework for recognizing stateless individuals and have largely ignored their political and economic needs. (48) Stateless individuals are currently not recognized or protected under United States immigration legal framework. (49) Furthermore, despite being a recipient of a substantial number of stateless individuals, the United States has mostly adopted unwelcoming approaches to stateless individuals. (50) Stateless individuals unable to obtain legal status through the existing immigration legal framework often find themselves subjected to a life living in limbo. (51) Although they are unable to...