Think Immigration: USCIS Policy Changes Open New Opportunities for Immigration Lawyers to Support Stateless People

As immigration professionals, you may have encountered a stateless person: someone who no State considers as its national under the operation of its law. Stateless individuals likely lack passports or other identity documents. They often face challenges in accessing employment and basic services like health care and education.

Take Sergei, from the former Soviet Union. His country no longer exists and none of the independent states that were established after the fall of the USSR recognize him as a citizen. But when he tried to claim asylum in the United States back in the 1990s, it was denied. Now, for the past 30 years, he has been under an order of supervision, reporting to an ICE officer every year. He is unable to leave the United States, yet constantly reminded that he isn’t allowed to stay. Sergei has no criminal record. He has been paying taxes and contributing to his community. Retired and facing chronic health problems, he figured out ways to access health care and income support despite his status and has even taught other members of the stateless community how to do this for themselves.

Another member of the stateless community, Rose, was adopted from Mexico at birth. Her adoption was never legally completed, and her U.S. citizens parents always told her that she was actually their biological daughter. Only after attempting to get a copy of her birth certificate from her state vital records department was she told that no such record exists, and that her birth was never properly registered in any country. Now Rose is in her forties with two teenage children and a career as a teacher. Despite believing that she was a U.S. citizen her whole life, she is now worried about being detained or deported.

Though most stateless individuals in the United States were born elsewhere, the estimated 200,000 stateless individuals in the United States are often unable to travel back to their home countries. If ordered removed from the United States, they cannot be deported. This has been especially common because, until recently, the United States offered no immigration relief for stateless people based on their statelessness.

In December 2021, Secretary of Homeland Security Mayorkas announced a commitment for the Department to improve the status of stateless people in the United States. In October 2023, implementing that policy, USCIS amended its Policy Manual, indicating that USCIS will consider stateless people for temporary discretionary relief like deferred action and parole in place. These steps were in response to advocacy from United Stateless, a national organization led by stateless people whose mission is to build and inspire community among those affected by statelessness, and to advocate for their human rights.

This opens important opportunities that immigration lawyers should be aware of, because they offer new avenues of relief. We wrote a detailed guide for immigration practitioners to understand this new USCIS guidance.

Under USCIS policy, individuals who are not recognized as citizens by any state can be considered for discretionary relief. The USCIS policy mentions statutory forms of immigration relief, including asylum, temporary protected status, and T and U visas. It also includes deferred action and parole in place. Our practice advisory provides detailed information on how attorneys can support their clients in applications for both forms of relief. The new USCIS policy offers some peace of mind to Rose because, as a stateless person, she may receive deferred action. If approve, deferred action will help her get a government-issued ID, security in her job, and assurance that she won’t be separated from her family.

For immigration lawyers to assist stateless clients in accessing relief, they first need to screen their clients for indicators of statelessness. These include lack of birth certificates, travel documents, and other identity documents; birth in a country that no longer exists or territory that is now claimed by a different state than at the client’s time of birth; and documentation from a government that it refuses to recognize a person as its national (even where the state’s nationality law indicates that the person should be a national).

We encourage attorneys to learn more about statelessness and to implement screening questions that identify stateless individuals. Attorneys representing stateless clients can contact United Stateless to ask for assistance in the unique ways that statelessness impacts a client’s need for relief.

Statelessness is often misunderstood. In fact, many stateless people themselves do not realize they are stateless. Immigration officials can respond with skepticism when an applicant or respondent asserts a claim of statelessness. But now, for the first time, USCIS has a process for determining whether a person is stateless.

The USCIS policy has its limitations: it does not apply to noncitizens with final orders of removal or who are in removal proceedings. Despite a commitment on behalf of the entire Department of Homeland Security, to date, Immigration and Customs Enforcement (ICE) has not taken steps to implement Secretary Mayorkas’ commitment. Thus, Sergei, who everyone agrees is stateless, cannot take advantage of the new USCIS policy, unless ICE is willing to reopen and dismiss his case, which they have so far not expressed a willingness to do.

Nor does the USCIS policy create a permanent form of immigration relief for stateless noncitizens in the United States; only Congress can do that. The Stateless Protection Act would address this gap.

While we urge ICE to follow the DHS commitment, we also urge immigration lawyers to embrace the immigration relief that USCIS has announced.

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AILA members seeking to learn more about how they can help stateless individuals, an upcoming FREE roundtable can be your guide: Supporting Stateless Clients on July 31, 2024.

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