Case Western Reserve Journal of International Law 53 (2021)
Ghosts in America: Working Towards Building a Legal Framework for
Stateless Individuals in the United States
establishing rules for administrative review, reopening proceedings, and
judicial review. 351
There are many attractive aspects of S. 744. First, and most
importantly, it would create a pathway for a stateless person who does
not qualify as a refugee to submit to a very similar process and acquire
rights very similar to that of a refugee. 352 Next, it also makes stateless
individuals that apply for stateless status eligible for work authorization
as soon as they are determined to be prima facie eligible. 353 The bill
provides an opportunity for a stateless person to become eligible for
travel documents, which would allow stateless individuals reunify with
their families. 354 Finally, it provides a path to citizenship by providing
the opportunity to a stateless individual to adjust their status to Lawful
Permanent Resident (LPR) and obtain their green card after one
year. 355
S. 744 2.0 would include necessary improvements to S. 744 so that
it is even more effective at providing legal protections to stateless
individuals in the United States. First, S. 744 fails to specify the
standard of proof for establishing that one is a “stateless person” under
the law. 356 Ambiguity regarding a standard of proof leaves room for the
courts and the BIA to set a high standard of proof. 357 A high standard
of proof would place a heavy burden on the stateless individual to prove
a negative (that they do not have legal status in any country) and put
them in a situation where they may be unable to obtain the required
documentation from their originating country that shows they are not
citizens of that country. 358
S. 744 2.0 is a politically desirable option for the United States to
adopt while it waits for an international solution to statelessness. It
works within the realm of the United States’ existing immigration legal
framework while also harmonizing with the international legal
framework, the Statelessness Convention, and the recent guidance
published by UNHCR in the Statelessness Handbook. 359 Unfortunately,
it is arguably not a politically viable option. S. 744 was a bipartisan
351. Baluarte, supra note 20, at 372.
352. Id. at 373.
353. Id. at 376; Border Security, supra note 350.
354. See Baluarte, supra note 20, at 377.
355. See generally Border Security, supra note 350; Baluarte, supra note 20, at
377.
356. Baluarte, supra note 20, at 380.
357. Id. at 385.
358. Id.; see also Bianchini, supra note 124.
359. Baluarte, supra note 20, at 378.
395