368 Fisher
Finally, a substantial literature theorizes the role of discretion in U.S.
administrative and immigration law16 and analyzes its application in
practice.17 This Article builds on each of these strands to analyze the
potential of executive, rather than legislative, action to improve the
situation of stateless people in the United States.
This Article contains four Parts and a Conclusion. Part I describes
the international law of statelessness, the human rights challenges
that stateless people in the United States often face, the minimal legal
protections afforded to stateless people in the United States, and the
reasons that the U.S. government should take executive action to
address statelessness. Part II outlines the considerable role of discretion
in U.S. immigration adjudications. Many immigration benefits require
a noncitizen to show that they meet eligibility requirements and that
the noncitizen merits a favorable exercise of discretion.18 Government
agencies also exercise prosecutorial discretion in civil immigration
enforcement when they grant temporary reprieves, such as deferred
action and parole, from immigration enforcement.19
Part III presents the Article’s proposal. After addressing
preliminary considerations in identifying stateless individuals, it argues
that adjudicators should consider statelessness as a positive factor in
discretionary analysis for immigration benefits and in the exercise of
prosecutorial discretion. Part IV evaluates the potential of this proposal
to address the challenges that stateless people face. It concludes that
considering statelessness as a discretionary factor in immigration
adjudications and enforcement would address some of the humanitarian
challenges that stateless individuals in the United States face. Ultimately,
16
17
18
19
(2013).
Several works provide constitutional and legal theories of the role of discretion in
administrative and immigration law. See generally Kanstroom, supra note 9; Hiroshi
Motomura, The President’s Dilemma: Executive Authority, Enforcement, and the Rule of
Law in Immigration Law, 36 Immigr. & Nat’y L. Rev. 143, 166 (2015) [hereinafter
Motomura, President’s Dilemma]; Adam B. Cox & Cristina M. Rodríguez, The
President and Immigration Law Redux, 125 Yale L.J. 104 (2015).
Shoba Sivaprasad Wadhia, Darkside Discretion in Immigration Cases, 72 Admin. L. Rev.
367 (2020) [hereinafter Wadhia, Darkside Discretion]; Shoba Sivaprasad Wadhia,
Demystifying Employment Authorization and Prosecutorial Discretion in Immigration
Cases, 6 Colum. J. Race & L. 1 (2016) [hereinafter Wadia, Demystifying Employment];
Nicole Hallett, Rethinking Prosecutorial Discretion in Immigration Enforcement, 42
Cardozo L. Rev. 1765 (2021); Juliet P. Stumpf, D(e)volving Discretion: Lessons from
the Life and Times of Secure Communities, 36 Immigr. & Nat’y L. Rev. 1259, 1265–75
(2015).
See infra Part II.A., pp. 17–18.
See infra Part II.C.