attention to the problem of “facially race-neutral policies or rhetoric that nonetheless result in
racialized exclusion.”103
Article 1(2) of the CERD acknowledges that states can and do make distinctions between citizens
and non-citizens with respect to the enjoyment of human rights. However, such distinctions
“must be interpreted narrowly and in accordance with international human rights law and
standards relating to the prohibition of racial discrimination and equality before the law.”104
The qualified legitimacy of such distinctions, however, does not absolve states from scrutiny
regarding the underlying purpose or effect of discrimination between “citizens” and “aliens”:
Foreignness should not be reduced to nationality or national origin alone. In much of
the world, non-white migrants are far more vulnerable to discrimination and
intolerance than white migrants, irrespective of nationality. Refugees and migrants
are targeted for discrimination on the basis of their nationality and national origin
combined with other social categories, the most important of which include race,
ethnicity, religion and class.105
The intersection of foreignness, race, religion, class, and other social categories, on the one
hand, and nationality, on the other, lies at the heart of the human rights risks and abuses
detailed in this report. It is argued that the current structure and functioning of the executive
branch offices responsible for administering access to proof of nationality permit the rapid
institutionalization of a form of ad hoc collective suspicion that links perceived “foreignness”
with fraudulent conduct. This feature of the U.S. administrative state tilts the legal and social
burdens of proving equal entitlement to citizenship disproportionately against certain communities, without sufficient oversight and safeguards. A parallel can also be drawn between this
facet of citizenship in the U.S. and the case study of the Dominican Republic, considered
below, where, through a combination of administrative practice and political rhetoric, the
Haitian minority population gradually became synonymous with fraudulent status in public
perception and, eventually, under the law.
Avoidance of statelessness. A second element of scrutinizing the impacts of deprivation is
considering whether it could lead to statelessness. Numerous international courts and tribunals, in accordance with the consistent view of the U.S. Supreme Court, have recognized the
pernicious impact that statelessness has on an individual. The experience of statelessness is
repeatedly described as an offense against human dignity.106
The ICCPR, Article 24(3), and the Convention on the Rights of the Child (CRC), Article 7, both
address children’s right to acquire a nationality. The HRC has examined cases in which states
deny documentation to children born on the territory, finding that such practices may violate
Article 24(3) by denying children protection and, in many cases, the ability to prove
32
UNMAKING AMERICANS
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