Protecting Stateless Refugees in the United States

This article proposes a more complete and nuanced consideration of statelessness in asylum adjudication procedures in the United States and the possibility of reopening previously denied asylum claims for this purpose. The article proceeds in four parts, beginning with a discussion of statelessness in the United States. Next, the article describes the international protection frameworks for both refugees and stateless persons and identifies important points of intersection between these frameworks. Then the article argues that discriminatory denationalization that renders a person stateless triggers refugee protection, thereby making victims of such deprivation eligible for asylum in the United States. The article concludes that stateless refugees should be able to reopen their previously denied asylum claims to make these arguments and pursue protection

The Risk of Statelessness: Reasserting a Rule for the Protection of the Right to Nationality

A global effort to combat statelessness and defend the universal right tonationality is currently underway. Nevertheless, questions persist about the proper scope of the right to nationality, the appropriate form of statelessness protection, and the legal limits of state discretion to deny or deprive an individual of nationality. These questions have animated a heated transnational debate about statelessness in Hispaniola, where the government of the Dominican Republic has designed a legal system that excludes persons of Haitian descent from Dominican nationality. Central to this conflict is a question about whether actions by the Dominican state leave persons of Haitian descent stateless -without nationality anywhere in the world

A New Narrative of Statelessness

Statelessness: A Modern History by Dr. Mira Siegelberg offers a meticulous reconstruction of the varied contributions of artists, scholars, and policy makers to the understanding of statelessness in the years between the First and Second World Wars. Siegelberg situates statelessness in some of the most prominent debates about international law and relations in modern history, most notably whether the individual is an appropriate subject of international law and whether a political order beyond the confines of the nation-state is desirable

Family in the Balance: \u3cem\u3eBarton v. Barr\u3c/em\u3e and the Systematic Violation of the Right to Family Life in U.S. Immigration Enforcement

The United States systematically violates the international human right to family life in its system of removal of noncitizens. Cancellation of removal provides a means for noncitizens to challenge their removal based on family ties in the United States, but Congress has placed draconian limits on the discretion of immigration courts to cancel removal where noncitizens have committed certain crimes. The recently issued U.S. Supreme Court decision in Barton v. Barr illustrates the troubling trend of affording less discretion for immigration courts to balance family life in removal decisions that involve underlying criminal conduct. At issue was the “stop-time rule” for measuring the requisite seven years of continuous residence for LPR cancellation of removal. A sharply divided court read the relevant statute very differently, and a five-justice majority interpreted the stop-time rule to further limit the discretion of immigration judges to consider noncitizens’ family ties as a defense against removal. However, modern international law doctrine suggests that customary international law is the law of the United States and should be applied to resolve questions of statutory meaning under the Charming Betsy rule of statutory interpretation. This Article lays plain the systematic nature of the violations of the human right to family life in the U.S. system of removal and argues that the U.S. Supreme Court erred when it failed to mitigate this harm in Barton v. Barr

Family in the Balance: Barton v. Barr and the Systematic Violation of the Right to Family Life in U.S. Immigration Enforcement

The United States systematically violates the international human right to family life in its system of removal of noncitizens. Cancellation of removal provides a means for noncitizens to challenge their removal based on family ties in the United States, but Congress has placed draconian limits on the discretion of immigration courts to cancel removal where noncitizens have committed certain crimes. The recently issued U.S. Supreme Court decision in Barton v. Barr illustrates the troubling trend of affording less discretion for immigration courts to balance family life in removal decisions that involve underlying criminal conduct. At issue was the “stop-time rule” for measuring the requisite seven years of continuous residence for LPR cancellation of removal. A sharply divided court read the relevant statute very differently, and a five-justice majority interpreted the stop-time rule to further limit the discretion of immigration judges to consider noncitizens’ family ties as a defense against removal. However, modern international law doctrine suggests that customary international law is the law of the United States and should be applied to resolve questions of statutory meaning under the Charming Betsy rule of statutory interpretation. This Article lays plain the systematic nature of the violations of the human right to family life in the U.S. system of removal and argues that the U.S. Supreme Court erred when it failed to mitigate this harm in Barton v. Barr

The Role of National Human Rights Institutions in State Strategies

human development, human rights

Refugees Under Duress: International Law and the Serious Nonpolitical Crime Bar

Congress intended that the serious nonpolitical crime bar under United States asylum law have the same meaning and scope as the 1F(b) Refugee Convention exclusion clause. The Supreme Court has repeatedly held that it was the intent of Congress to not only replicate the language of the provisions of the Refugee Convention in United States law, but to incorporate the full extent of the meaning of such language and bring the United States into compliance with its treaty obligations. Accordingly, when Congress reproduced exactly the language of the Article 1F(b) exclusion clause in the INA, it intended for that provision of United States law to have the same meaning, scope, and limitations as Article 1F(b). The UNHCR, international refugee law experts, and national jurisdictions that apply the provisions of the Refugee Convention in asylum adjudications agree that Article 1F(b) includes a duress exception, and United States authorities should find that the same exception exists under United States asylum law. The United States government’s failure to abide by congressional intent in applying statutory law contravenes the balance of power envisioned by the Constitution and undermines the rule of law as a result domestically and globally

Life after Limbo: Stateless Persons in the United States and the Role of International Protection in Achieving a Legal Solution

Stateless persons are not recognized as citizens by any country, and as such, their enjoyment of fundamental human rights depends on the good faith of host countries, and their basic human security and dignity are often subject to the whims of immigration authorities. Despite this intense level of vulnerability, U.S. immigration law does not explicitly recognize statelessness, nor does it provide for humanitarian protection to relieve stateless persons of their suffering. Rather, stateless persons are treated like any other unauthorized migrants in the United States; when they are ordered removed, they are mandatorily detained while immigration officials undertake efforts to execute those orders. Such removal efforts are futile in the case of stateless persons, and when they are ultimately released from detention, they are cast into a legal limbo in which they spend the rest of their lives on immigration parole, uncertain as to what their future may hold. This article argues that it is imperative to establish a protection mechanism for stateless persons in the United States, and critically analyzes a proposal by the U.S. Senate to establish a mechanism for the protection of stateless persons under the Immigration and Nationality Act (INA) as part of its 2013 comprehensive immigration reform bill, the Border Security, Economic Opportunity, and Immigration Modernization Act (SB 744). This article relies on the international law of statelessness as a benchmark for this critique, and argues that that the proposed mechanism may fail to meaningfully address the statelessness problem in the United States if it is not tethered to the international protection framework