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GEORGETOWN IMMIGRATION LAW JOURNAL
[Vol. 29:351
statelessness. The section then goes on to explain how refugee law has been
incorporated into U.S. immigration law, while the law of statelessness has
not, and suggests that the U.S. experience with asylum law could be
instrumental in efforts to identify and protect stateless persons.
The second section describes how the failure of U.S. immigration law to
account for stateless persons has created a legal limbo that engulfs an
unknown number of stateless persons today. This section lays plain the
inefficiencies of a system that conducts removal operations against persons
who cannot practically be removed. The section further highlights the
inhumanity of conducting such operations against internationally protected
persons, and illustrates the human suffering that often results when they are
kept in mandatory immigration detention and then monitored on immigration
parole for the rest of their lives. Finally, this section explains how U.S.
asylum law is ill-suited to provide necessary protection for stateless persons,
and lends emphasis to the call for complementary protection under U.S.
immigration law for this population.
The third section of this article analyzes the proposed U.S. mechanism to
protect stateless persons under the standards of the international law of
statelessness. This analysis relies in part on an analogy to the U.S. experience
with asylum protection, highlighting those areas in which international
guidance has been crucial to establishing the proper scope of refugee
protection. The section follows the framework provided by recently issued
United Nations High Commissioner for Refugees (UNHCR) guidance on
statelessness protection and scrutinizes the definition of “stateless person” set
forth in SB 744, the legal status contemplated for this protected group, and
the determination procedures that must be implemented. This section demonstrates how a failure to follow international standards could give way to
restrictive statutory interpretations and burdensome standards of proof and
evidence that could undermine the goal of the law.
The legal and factual complications inherent in making statelessness
determinations require both a contextualized understanding of the problem of
statelessness as well as analytical precision. International guidance on
statelessness protection provides both, and there are important reasons for the
United States to follow this guidance. First, the legal limbo to which stateless
persons are currently condemned in the United States perpetuates the
deleterious effects of human rights violations that stateless persons have
often suffered at the hands of foreign powers. Additionally, detaining
stateless persons as if they were removable, and conducting futile efforts to
deport them squanders the resources of an overburdened system of immigration regulation. In effect, the stateless legal limbo distracts U.S. immigration
authorities from their work to further the national security while they
inadvertently contribute to the dehumanization of an internationally protected people. The United States should promulgate a system of protection
Electronic copy available at: https://ssrn.com/abstract=2796321