Another critical consideration for stateless individuals during the Master Calendar – or pleadings – phase of hearings is the designation of a country of removal. Being stateless affects the practicality of eventual removal; however, when designating a country of removal, neither the immigration courts nor the BIA systematically consider a respondent’s statelessness. In fact, it is often the case that neither the respondent (in pro se proceedings) nor respondent’s counsel have made nationality/statelessness a substantive issue through pleadings to the factual allegations. Moreover, in the context of asylum claims, an individual respondent or counsel may as a matter of legal strategy decline to designate a country of removal. Practice Point With regard to cases of arriving individuals, in actual practice, there is often no “designation” of a country of removal. In these cases, the IJ does not ask for a designation, and the order of removal may state only that the noncitizen is “ordered removed,” without naming a country of removal because, as noted in the statutory language, it is the Department of Homeland Security (DHS) that determines the country of removal, not the court. This is a critical step in removal proceedings. On the one hand, this is an opportunity to form the record by asserting statelessness. On the other hand, failure of a stateless respondent to timely designate a country of removal may lead to ICE designating the country of removal. This may in turn impact discussion of the stateless respondent’s claim on the merits. It can also have consequences if the IJ orders removal, as the stateless person may be subject to prolonged, perhaps even indefinite, detention. The process of designating a country of removal is different for “arriving aliens”130—i.e., non-U.S. citizens who are found inadmissible at an official port of entry to the United States—than it is for all other respondents.131 2. Designation for “Arriving” Individuals Designation of the country of removal for an individual categorized as an “arriving alien” occurs in three steps. The first country that is designated is “the country in which the alien boarded the vessel or aircraft on which the alien arrived in the United States.”132 If that country is unwilling to accept her, DHS is required to designate one of three countries: (1) The individual’s country of citizenship or nationality; (2) The individual’s country of nativity; or (3) The individual’s country of residence.133 As with all other respondents, as detailed below, if removal to the enumerated countries is “impracticable, inadvisable, or impossible,” DHS ultimately must seek removal to any “country with a government that will accept the [individual] into the country’s territory.”134 It is important to note that the individual has no say in designating the country of removal if she is categorized as “arriving.” Implications of this process for stateless individuals and strategic considerations for them and their counsel are discussed in detail below. See INA § 241(b)(1). INA §241(b)(2); 8 U.S.C. §§ 1231(b)(2). 132 INA §241(b)(1)(A). But see INA §241(b)(1)(B) (applying the limitation that only natives, citizens, subjects, and nationals of foreign territory contiguous to the United States or adjacent islands may be removed to those countries or territories). 133 INA §241(b)(1)(C)(i)-(iii); see also 8 C.F.R. §§ 241.15(e), 1240.10(f) (stating that acceptance of the receiving country is not required under these sections). 134 INA §241(b)(1)(C)(iv). 130 131 30