Born into Statelessness: Unintended Consequences of the End of Birthright Citizenship

In October 2018, in response to growing Central and South American migrant population fleeing violence and approaching the United States, President Trump made a drastic statement that he would seek to end jus soli, or birthright citizenship, through an Executive Order. Lindsey Graham, a Republican Senator from South Carolina, lauded the President’s statement, and indicated that he intended to introduce legislation to the same effect. If successful, this new citizenship law could have a devastating impact on children born in the United States to Central and South American individuals, leaving thousands of them stateless.

As a matter of international law, states are free to determine who is or is not a national of their country without interference from the international community or international law, except in the case of stateless persons. The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness are the two primary international instruments guiding the rights of individuals and the actions of states with regard to nationality. Many international instruments affirm the right an individual has to nationality. Specifically, the 1954 Convention defines a stateless person as someone “who is not considered as a national by any State under operation of its law.” The 1961 Convention requires that states grant nationality to those born on their territory who otherwise would be stateless, and prohibits states from withdrawing nationality from an individual when that individual would then be rendered stateless. Accordingly, under international law, the United States government is free to end, or further restrict, birthright citizenship but only in accordance with the provisions in the 1961 Convention.

Issues arise in practice when the domestic laws of nations conflict, leaving individuals in situations of de facto statelessness. According to the Pew Research Center, about 250,000 children were born in the United States to non-citizen immigrant parents in 2014, with many born to parents who lacked legal status. Because of the domestic laws of the countries from which these immigrants originate, children born to immigrant parents in the United States may lack citizenship of their state of origin. They would therefore be rendered stateless if the United States were to curtail birthright citizenship, in contravention of the 1961 Convention.

For example, the law of Brazil stipulates that individuals born abroad to a Brazilian parent are eligible to acquire citizenship after becoming an adult only if their parent registered their birth with the Brazilian authorities or if they returned to live in Brazil as a child. If the individual is not registered or does not reside in Brazil before the age of majority, he or she is not entitled to Brazilian citizenship, regardless of the nationality of his or her parents. As of 2014, there were approximately 336,000 Brazilian immigrants in the United States.

There are several issues with these requirements of affirmative action on the part of the parents or child. First, to register a child with the authorities of their own birth country, parents must first demonstrate their own citizenship, which may prove problematic. Parents could do this by showing a passport, birth certificate, or identity card. However, these individuals may have fled their homes quickly without such documents, and would therefore risk being unable to register their children even if they desired to do so.

Second, even if the child of Brazilian parents wished to acquire Brazilian citizenship, the decision is entirely in the hands of his or her parents. His or her parents must be the ones to register the child’s birth with the relevant authorities; no other adult is eligible to do this and the child himself cannot make himself known to authorities later in order to qualify for citizenship. If this is not done, the child must return to reside Brazil before the age of majority. For most children, this is a decision entirely out of their control.

Therefore, should the U.S. end birthright citizenship, children born in the U.S. of Brazilian parents would be at risk of de facto statelessness by no fault of their own. This example is meant to be illustrative, though not exhaustive. Many groups of immigrants in the United States would be forced into similarly precarious positions. The domestic laws of many Central and South American countries require parents located out of the country to register their children’s births with the national authorities in order for them to be eligible for citizenship. There are many reasons why parents fleeing violence, persecution, and economic crises may not wish to register the birth of their children. Whatever the reason, innocent children without a choice would suffer as a result of this change of law. Without careful consideration of the potential impact of this change to US birthright law, many children residing in the United States would be rendered de facto stateless and vulnerable as a result.  

Possible U.S. Policy Change on Unaccompanied Minors and the International Legal Obligation of Non-refoulement

The last few weeks have seen numerous reports on the growing number of unaccompanied minors seeking entry to the United States through the Mexican border. The reasons for the uptick in crossings are numerous and complex, and, like the question of whether the children meet the definition of refugees, are not the focus of this post. My question here is a simpler one: whether the adjudication mechanisms under consideration in response to this crisis afford these children a fair hearing focused on a determination of credible fear and other harm which, if identified, would trigger international protection. If the contemplated changes do not comport with a good faith application of the principle of non-refoulement, we run the risk that the U.S. will be in breach of its international obligations.

A “fast-track” process eases the short-term administrative and resource burden at the risk of returning children in need of protection, and would violate the principle of non-refoulement. Non-refoulement, or a prohibition on forcible return, compels States to ensure that no person is forcibly returned to a place where they face persecution, torture or inhuman treatment. In the context of refugee law, States have an obligation of non-refoulement until a negative refugee status determination has been made and States have a good faith obligation to ensure that this takes place. Refoulement can be explicit or it can be constructive, but the UNHCR has stated that it applies at the border, even before an entry is made.

While U.S. law does not explicitly recognize the obligation of non-refoulement, U.S. Immigration Law has a number of built-in protections to prevent the return of individuals to countries where they may face persecution, inhuman treatment or torture, including “withholding from removal” (where removal proceedings are ongoing and there is a high probability that life or freedom would be threatened upon return) and “asylum” for refugees physically present within the US.

There are also multiple mechanisms specific to minors in the immigration system under U.S. law. The Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), created a two-tiered system that separates arrivals into two groups: citizens of contiguous countries (mainly Mexico) and citizens of non-contiguous countries.  Children from non-contiguous countries or children who are found to be vulnerable to trafficking, who express a credible fear, or who are deemed unable to make a determination on voluntary return, are turned over to the Office of Refugee Resettlement for formal deportation proceedings. During this time, they are able to make an asylum claim and seek relief under the withholding provision, in addition to other forms of relief. As immigration courts remain backlogged, the children are placed with families while proceedings are pending. This takes anywhere from a year and half to five years to resolve. Minors arriving from contiguous countries (Mexico or Canada) who are deemed capable of requesting voluntary return and do not fit the risk criteria are processed within 48 hours and returned “home.”

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