Civil Society Can Move Forward on Statelessness in the United States

Refugees International President Eric Schwartz delivered a keynote address at the “Conference on Statelessness in the United States and Emerging Challenges in Nationality,” organized by America’s Network on Nationality and Statelessness, the UNHCR, and the Open Society Justice Initiative on Monday, November 5, 2018.

While Schwartz points out that the administration has taken action that risks exacerbating statelessness in the United States, he also outlines an actionable advocacy effort that civil society can undertake to move forward on this critical issue.

I am delighted to join you today to discuss statelessless and, in particular, “current and future challenges of statelessness in the United States and how civil society can strategically advance the issue.” I will confess that many of you are probably better positioned to address this issue than am I, especially as it related to the United States—but you’ve asked me to speak, and I’ll do my best.

In preparing for this address, I of course consulted the excellent report produced some years ago by both the Open Society Justice Initiative and UNHCR, Citizens of Nowhere, Solutions for the Stateless in the United States, and I deeply appreciate the good work of both OSF and UNHCR, including UNHCR’s resources for immigration attorneys.

In seeing myself quoted in the report, I was reminded of my own participation nearly a decade ago in what I believe may have been the first major Washington, DC conference on statelessness. I did so in my then-role as U.S. Assistant Secretary of State for Population, Refugees, and Migration. And I’ll repeat what I said then: it is incumbent upon public officials in the United States to engage in these issues and seek solutions, because of the moral imperative to alleviate human suffering and avoid despair and misery, and the strong interest in promoting U.S. leadership on international humanitarian and migration issues.

In those remarks, I noted that most of us seldom think twice about showing identity documents to travel freely, to enroll in school, to get a job, to open a bank account, to get married, or to register the birth of our children, and that for stateless persons, those aspects of daily life remain an ongoing challenge. And I argued at the time that the government needed first, to create greater awareness within the administration, the Congress, and the public about this issue, including by doing better in terms of data collection; that the Department of State needed to strongly support the capacity of UNHCR in this area, as well as encourage other UN agencies to incorporate the needs of stateless persons into their development and related activities; that U.S. administrations should ensure this issue is a priority in engagement with other governments dealing with statelessness challenges; and that the United States should be prepared to use its refugee admissions program strategically to attempt to address issues related to statelessness.

most of us seldom think twice about showing identity documents to travel freely, to enroll in school, to get a job, to open a bank account, to get married, or to register the birth of our children, and that for stateless persons, those aspects of daily life remain an ongoing challenge

In short, and, again, as I said a decade ago, without the right to have rights, stateless people are among the most vulnerable in the world.

All of that remains true today. And in a time at which identify politics, nationalism, and chauvinism, have reared their ugly heads in the politics of this country and around the world, I’d make another point: that positive movement on the issue of statelessness offers us the opportunity to present a vision of tolerance, of inclusion, which is sadly missing from our political life—and is extremely difficult just now to introduce into our broader debate about immigrants and refugees. It seems to me, this is an opportunity that we ought to seize.   

OK, so what can and should the United States be doing on these issues?

Of course, it would be wonderful if the United States would accede to the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. There is really no good reason that the United States could not move forward on both.

The 1954 Convention in many respects echoes the format and the provision of rights reflected in the 1951 Convention Relating to the Status of Refugees and its Protocol. In areas like education, public relief, employment, social security, and related issues, it provides in some cases treatment of stateless persons not less favorable than that accorded to aliens generally in the same circumstances and, in other cases, treatment equivalent to those accorded nationals. That seems like a convention worth ratifying.

without the right to have rights, stateless people are among the most vulnerable in the world

And the 1961 Convention seeks to reduce statelessness by articulating principles and standards for the granting of citizenship—many if not most of which are already part of U.S. law.

I think that accession to these conventions should remain an objective of the advocacy community around the issue of statelessness. But I am not certain that accession—as valuable as that might be—should be the highest priority for civil society in the final two years of this four-year presidential administration. Laying the groundwork for such accession, perhaps, but pressing hard at this moment—I’m not so certain. The reason is obvious: the current administration’s position on migration-related issues, not to mention multilateralism as reflected in these two treaties, is unequivocally hostile.    

More than that, and beyond possible administration hostility to two new treaties, I am deeply concerned by actions of the administration that risk accentuating the challenge of statelessness in the United States.

The most obvious threat involves the president’s expressed desire to seek revocation of the constitutional provision that a country of citizenship of a child is determined by the place of birth. This sentiment flies in the face of a central tenet of the 1961 Convention on the Reduction of Statelessness. It would dramatically enhance the likelihood that individuals born in the United States might be rendered stateless. To be sure, as Neal Katyal and George Conway made clear in a recent piece in the Washington Post, the president’s desire to accomplish this objective either by executive action or by legislation is not likely to pass constitutional muster. But none of that means that the president’s perspectives on this issue should not be a cause of great and grave concern. As we witnessed in the case of the president’s executive orders on immigration, courts are inclined to give the president broad authorities, and even in those cases where the president is clearly overstepping his authority, it often takes time for courts to undue damage that has been done. In addition, the president’s sentiments on this issue risk having a demonstration effect on other governments hosting stateless population.

Beyond the citizenship issue, I’m deeply concerned about vigorous administration efforts to go back many years, in some cases decades, to challenge naturalizations due to alleged fraud. This is not to say that the government has no right to take such action, but rather that this particular choice about prosecutorial priorities seems curious and unwarranted, and risks increasing the incidence of statelessness and impacting the descendants of individuals who are subject to such scrutiny.

So, in the context of an administration that is not likely to be receptive to the idea of presenting statelessness conventions to the Senate for consent to ratification, and in fact is inclined to act in ways that risk exacerbating statelessness, what can civil society undertake do to move forward on the statelessness issue?

I believe the answer lies in large measure with advocacy toward Congress. Whatever the alignment of the Senate and the House after tomorrow, I believe there are good reasons to press Congress hard to move on some of these issues. I also think it will be critical to build coalitions between Republicans and Democrats, and, in the case of statelessness, I believe this is feasible, based on several elements of this issue that are unique.

First, unlike other migration issues, the challenges do not seem quite as overwhelming. Whatever the number of stateless persons in the United States, the totals will be relatively modest. In other words, this is a discrete population and it could be important to members of Congress that—whatever benefits are accorded to this population—the numbers are not likely to amount to hundreds, or even tens of thousands.

Second, the lack of status for stateless persons creates conditions of vulnerability about which both Democratic and Republican members of Congress have been deeply concerned in recent years. For example, women without access to status, without access to employment, without access to education, are far more susceptible to trafficking—an ill that has captured the attention and concern of elected officials from both sides of the political aisle.

Third, the causes of statelessness are often linked to the kinds of human rights violations that both Democratic and Republican members of Congress have sought to combat. Whether it is the denial of status in other countries due to gender discrimination or because a child had been born out of wedlock, these are the kinds of human rights issues that resonate with many of our elected officials.

Finally, and related to the point I’ve just made, I believe an appeal can be made to members of Congress based on the notion that the United States must practice at home what we are preaching abroad. If, for example, members of Congress will be urging—as they may well at some point be urging—the government in a place like Bangladesh to provide rights to the stateless Rohingya, then the argument can effectively be made that we need to be prepared to provide status to a far fewer number of stateless people in our midst.

So if these are some of the reasons why there ought to be interest—or at least lack of strong opposition—on the statelessness issue, what are the components of a desiderata for the next Congress, and what are the elements of an advocacy approach.

The components of a desiderata are rather straightforward, it seems to me.

First, draft legislation which could effectively serve as implementing legislation for statelessness treaties that the United States has yet to ratify.

I would not only consider a free-standing bill pulled out of the statelessness provisions of the immigration reform legislation that was not enacted, but I would also provide a stronger admonition—or direction—to the Secretary of State, the Secretary of Homeland Security, and the Attorney General about recognizing stateless individuals and providing relief that includes a path to citizenship. I believe that with bipartisan support of the kind I believe may be feasible—for the reasons I have outlined—such legislation might garner broad support in the Congress.

Second, in the absence of legislation, advocates ought to prepare a model administrative relief package for consideration by members of Congress with oversight over DHS, and modelled on the recommendations of UNHCR, the Open Society Justice Initiative, and other experts. The components of such an administrative package have already effectively been articulated by these groups, including training for immigration judges on recognition of statelessness and relevant international law and standards, enhanced collection of statistical data, and defined procedures for relief that include release, access to employment, and access to information on processes and procedures impacting stateless persons.

Third, members of Congress should ask the Department of State and DHS to jointly prepare an update on statelessness worldwide and in the United States, with a particular focus on the human costs and the implications for vulnerable populations, as well as information on the estimated numbers at home and abroad. The State Department should also be asked to present treaty ratification packages for the statelessness convention, or to articulate why such packages are not feasible.

Finally, the Trump administration should be called to account for practices and policies that have negative implications for the reduction of stateless—and in particular, its positions on birthright citizenship and denaturalization.

The obvious vehicle for promoting this desiderata would be congressional hearings, perhaps in different committees and in different houses of Congress.

The key, it seems to me, is to effectively market these objectives to a small bipartisan group of members on each side of the aisle and from both houses of Congress. I believe that such an effort is feasible and would offer the prospect of a brighter future not only for the stateless population of the United States but for the many millions of stateless persons around the world.