United States of America

KEY ISSUES 

• There are no official statistics on statelessness in the U.S., but a 2020 mapping study estimated as many as 218,000 people to be affected by or at risk of statelessness in the country. 
• Stateless people in the U.S. can struggle to regularise their immigration status and to obtain identity documents, which has a knock-on effect for exercising other rights, including exposing them to the risk of prolonged or indefinite immigration detention. 
• U.S. law does not provide for a definition of statelessness nor a statelessness determination procedure. 
• In August 2023, the Department of Homeland Security (DHS) issued new internal guidance on statelessness, fulfilling a pledge made in 2021 to adopt administrative measures to better identify and protect stateless people. 
• In 2022, a legislative bill was introduced to Congress that, if passed, will establish a protection status, permanent residency, and a pathway to citizenship for stateless people. 
• The U.S. is not a party to either the 1954 or 1961 Statelessness Conventions. 

STATELESSNESS IN THE UNITED STATES 

The United States is understood to have a substantial stateless population and is marked by an asterisk (*) in UNHCR’s global statistics, denoting that there is information about stateless people in the country but no reliable data. The country has no dedicated mechanism for identifying statelessness and no official statistics for statelessness exist. A report published in 2020 by the Center for Migration Studies estimates that as many as 218,000  people are affected by or at risk of statelessness in the U.S. – a figure far higher than was previously thought. The profile of those affected reflects a diverse immigrant community, including Rohingya, Bidoon, former Soviet Union citizens, Palestinians, and Kurds.  

Many stateless people in the U.S. have no way to acquire identity documents. If they have access to documents, they often struggle to meet the requirements to renew these documents over time. Even for individuals who qualify for relevant documents, statelessness may negatively impact their ability to obtain Green Cards, travel documents, work authorizations, drivers licenses, city ID cards, and other documents. 

Lack of identity documents can have a devastating effect on stateless people - restricting their movement, preventing them from working or attending university and making it difficult to apply for credit cards, bank accounts, cell phones and any other services that require an ID card. Many stateless people are not legally employable due to a lack of work authorization in the U.S. and have to rely on unregulated employment opportunities. In these jobs, they are routinely subject to unsafe working conditions, exploitation, enduring overtime and minimum wage violations, discrimination, and retaliation for speaking out on their treatment. In some cities, even accessing buildings or other spaces may be difficult due to the need to show an ID card. Likewise, encounters with government agents or police officers are a constant concern for stateless people. 

U.S. law contains no definition of statelessness, and there is no procedure in place for the identification or protection of stateless people. However, in 1st August 2023, the Department of Homeland Security (DHS) issued updated internal guidance for the U.S. Citizenship and Immigration Services (USCIS) on how to deal with stateless people present in the United States, including through clarification on the definition of statelessness. The guidance is effective from 30 October 2023, and provides that USCIS staff are to be trained on the identification of stateless people, using a clear assessment process and evidentiary standards. USCIS has also stated that this guidance will allow more comprehensive data collection on the number of stateless people in the U.S., that will in turn help USCIS understand the barriers they face in their interaction with the immigration system. The issuance of this guidance fulfils a commitment made by the DHS in December 2021, and was welcomed by the stateless-led civil society organisation United Stateless, as well as U.S. Senator Ben Cardin, who announced the guidance would have “real, tangible impacts” on the roughly 200,000 people stateless in the country. However, both noted the need for a “comprehensive, long-term solution for stateless persons” such as could be achieved through the enactment of the Stateless Protection Act, put forward by Senator Cardin and Congressman Jamie Raskin in 2022. If passed into law, this Act would establish protection status, permanent residency, and a pathway to citizenship for stateless people in the USA. 

THE RIGHT TO NATIONALITY IN THE UNITED STATES 

The Fourteenth Amendment of the U.S. Constitution provides for citizenship to be acquired jus soli, by anyone born in the territory. Nationality is generally also available via jus sanguinis (by descent) for children born to U.S. citizens abroad. However, gender-based distinctions apply, with the law requiring a prior period of 10 years’ physical presence in the country for a U.S. citizen father to be entitled to transmit nationality to a child born abroad, if that child is born out of wedlock. Remarkably, in the 2017 case of Sessions v. Morales-Santana, the U.S. Supreme Court “resolved” the problem of discrimination by mandating an extension of the residency requirement for unwed U.S. citizen mothers to pass on their nationality to children born abroad, choosing to apply a more burdensome standard on mothers, as opposed to easing the burden on fathers. This has increased the risk of statelessness for children born abroad.  

Children born through assisted reproductive technology or international surrogacy arrangements may also be at risk of statelessness due to the requirement of a biological connection to a U.S. citizen parent. The U.S. State Department has reportedly rejected citizenship applications of children of same-sex couples, who were born abroad through a surrogate parent, on the false account that they are born out of wedlock, even if the parents are legally married in the U.S. In February 2019, news outlets also reported that tens of thousands of adoptees may never have received U.S. citizenship due to the complexity of international adoption procedures. While the Child Citizenship Act of 2000 had sought to address this issue, it only applied to future adoptees and so failed to resolve the situation of those adopted prior to the Act’s effective date. However, in 2022, the Adoptee Citizenship Act was passed, rectifying this gap through retroactive application, regardless of whether the child was over the age of 18 when 2000 Act took effect. 

The Immigration and Nationality Act (INA) provides a pathway to naturalization that requires non-citizens to first acquire lawful permanent residence. It can be challenging for stateless people to adjust their status to lawful permanent resident as a crucial step towards acquiring nationality in the U.S., because this can require leaving and re-entering the country, something that is not possible for most stateless people.  

DENATIONALISATION IN THE U.S. 

In 1958, the U.S. Supreme Court handed down a ruling in the case of Trop v. Dulles that described involuntary deprivation of nationality as “a form of punishment more primitive than torture”. Nevertheless, denationalisation has been an ongoing practice, particularly affecting naturalised U.S. citizens. Indeed, since the 1990s, in step with the increased interaction between the criminal and immigration systems in the U.S., successive administrations have expanded the use of denaturalisation to a growing array of cases, including those involving “national security”, sex crimes, and most aggressively, individual cases of alleged immigration fraud. An in depth study into U.S. policy, practice and rhetoric around citizenship, published in late 2019 under the title “Unmaking Americans”, uncovered a budget reallocation of $207.6 million from naturalisation processing to immigration enforcement, including denaturalisation and deportation and that a dedicated team had been formed with the intention of referring approximately 1,600 people for prosecution (i.e. to effect denaturalisation) after reviewing an estimated 700,000 immigration files for evidence of fraud. The report also concluded that this operation selectively targeted people on the basis of national origin, laying bare a pattern of discrimination against minorities. 

There have also been cases in which U.S. citizens by birth have had their citizenship challenged and documents denied. Actions by the Trump Administration, in particular, strained the practice of jus soli or birthright citizenship. Various news outlets reported in 2018 that, increasingly, the U.S. State Department was denying issuing passports to Americans born near the U.S.-Mexico border, throwing their birth certificates and citizenship into question. This has taken place against a backdrop of political attacks on citizenship by birth in the form of “policy proposals and surrounding rhetoric regarding the status of children born in the United States to non-citizens”.  

STATELESSNESS AND IMMIGRATION DETENTION IN THE U.S. 

Stateless people face a risk of prolonged or indefinite immigrant detention in the U.S. In the 2001 case of Zadvydas v. Davis, the Supreme Court held that ‘undeportable’ aliens cannot be held in detention for longer than 6 months without a hearing unless there are special circumstances. The right of detained immigrants to due process was later confirmed in Clark v. Martinez. However, due to the lack of an identification procedure, detention and removal officers may be unconvinced that an individual is stateless and therefore ‘undeportable’. In such cases, officers may declare the person to be uncooperative, or otherwise find their removal reasonably foreseeable, such that the 6-month limit on detention will not apply. In other cases, a stateless person may be released from detention on an order of supervision. Under such an order, the person will often be required to report monthly to immigration authorities, sometimes for years, even though there is no legal pathway to resolve their case. Often these reporting requirements are arbitrary and onerous, governed by vague administrative regulations and policies that leave great leeway for discretion to individual detention and removal officers. 

With the coming into force of updated internal policy guidance by the US Citizenship and Immigration Service, effective from 30 October 2023, statelessness will be a factor in the discretionary decisions taken by immigration officers, including for the determination of immigration benefits and parole in place. By introducing clarity to the immigration assessment process and raising awareness of statelessness generally throughout the legal profession, civil society is hopeful that these guidelines will “[ensure] fair and consistent treatment for stateless individuals within the immigration system” and has labelled them as a positive first step towards lasting legal status for stateless people within the U.S. However, this new guidance applies only to affirmative applications before USCIS and not U.S. Immigration and Customs Enforcement (ICE). As such, stateless people who are currently in removal proceedings, under orders of removal or orders of supervision, or in ICE detention are largely unaffected by the guidance change. 

The content on this page was reviewed by United Stateless 

[Last updated: September 2023] 

Cover image by Varun Yadav