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full explanation of why statelessness would occur. This Article
documents the various ways in which statelessness already occurs in
the United States, and it also explains in detail why statelessness
will increase under a limited jus soli.
Unauthorized immigration is perceived as a major social,
economic, and political issue in the United States. Restrictions on
U.S. birthright citizenship are among the many proposed and ongoing
efforts to deal with unauthorized immigration. Statelessness, already
present in the United States, would be increased by these restrictions
because (1) statelessness already exists in the Western Hemisphere,
from which many, if not most, unauthorized migrants come to the
United States, and (2) new restrictions will extend statelessness to
second or subsequent generations, as well as create statelessness for
some children even when the parent has a recognized nationality.
The United States would create a new class of persons who cannot be
deported, thereby frustrating the primary objective of restrictions on
birthright citizenship.
This Article also fills a void in previous scholarship by showing
where and why statelessness already exists in the Western
Hemisphere (including the United States). It is widely recognized
that differences in how nations award citizenship at birth can lead to
statelessness, and that statelessness of some magnitude probably
exists in every country in the world. The pure form of jus soli in
theory minimizes statelessness because the location of one's birth is
generally easier to prove than is the nationality of one's parents (and
often the nationality of a parent of a parent). Thus, the 1961
Convention on the Reduction of Statelessness (1961 Convention)
favors jus soli by stipulating that an important measure to avoid
statelessness at birth is to provide nationality to children born in the
territory who would otherwise be stateless. 8
The comparative perspective provided here also serves an
important function. Relatively stable national boundaries and
governments should produce no statelessness on the basis of conflictof-nationality laws for migrations of persons within the Western
Hemisphere (from one jus soli birth nation to another). The fact that
effective statelessness is an existing problem in parts of the Americas
is noteworthy in its own right, but it is particularly significant when
considering proposed modifications to existing rules awarding
citizenship at birth in the United States.
This Article proceeds as follows. Following a background section
on the concept of statelessness, it evaluates the causes and
prevalence of statelessness already existing in the United States and
8.
See Convention on the Reduction of Statelessness art. 1, 1 1, Aug. 30, 1961,
989 U.N.T.S. 175 [hereinafter 1961 Convention] ("A Contracting State shall grant its
nationality to a person born in its territory who would otherwise be stateless.").