The Immigration and Nationality Act defines “refugee” with reference to persons who have no nationality, or in other words, persons who are considered stateless. See INA §101(a)(42)(A); 8 USC §1101(a)(42)(A) (referring to “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided”). Asylum regulations defining persecution also specifically refer to stateless applicants. See 8 CFR §208.13. This article explains statelessness in the context of asylum law.
Statelessness alone does not warrant asylum
The INA does not define statelessness, though it contemplates the availability of refugee status for persons with “no nationality.” See INA §101(a)(42)(A). Courts have interpreted that provision to mean that “statelessness alone does not warrant asylum”—instead, stateless applicants, just like applicants who identify a nationality, “must demonstrate the same well-founded fear of persecution under INA § 101(a)(42)(A).” See Najjar v. Ashcroft, 257 F.3d 1262, 1293 (11th Cir. 2001) (citing Faddoul v. INS, 37 F.3d 185, 190 (5th Cir. 1994)). Instead of having to show persecution (or a well-founded fear of persecution) from their country of nationality, stateless persons must apply for asylum with reference to their country of “last habitual residence.”
Because U.S. law does not view statelessness alone as warranting asylum, courts have analyzed the viability of the country designated for a person’s removal—specifically, whether or not that country would accept the person, once removed—separate from the merits of an asylum claim. In Fedosseeva v. Gonzales, 492 F.3d 840 (7th Cir. 2007), the applicant Tatiana Fedosseeva was a Russian-born person from Latvia who applied for asylum in the U.S. The immigration judge (IJ) denied her asylum claim because she allegedly could not prove past persecution or a well-founded fear of future persecution. Id. at 846. On appeal, Tatiana argued the IJ’s denial was in error because she would be stateless if removed—if she was removed, neither Latvia nor Russia would accept her return. Id. at 845. The appeals court found that argument “irrelevant” at the merits stage:
Even assuming that she is stateless, that fact is not a ground for asylum. See Zahren v. Gonzales, 487 F.3d 1039, 1041 (7th Cir. 2007). To be eligible for asylum, Fedosseeva must demonstrate that she is a “refugee.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). … Once an alien has been denied asylum, the alien can designate a country of removal. 8 U.S.C. § 1231(b)(2)(A); Zahren, 487 F.3d 1039, 1040. … Questions about whether the designated country will accept the alien are to be dealt with by the Attorney General after, and independent of, the asylum case. 8 U.S.C. § 1231(b); see also Zahren, 487 F.3d 1039, 1041.Fedosseeva v. Gonzales, 492 F.3d 840 (7th Cir. 2007)
Last habitual residence
The INA does not define “last habitual residence,” but at least one federal court of appeals has connected its definition with the one used in 8 C.F.R. § 214.7(4)(i), which defines “habitual residence” for determining citizenship of the territories and possessions of the United States as the “place of general abode or a principal, actual dwelling place of a continuing or lasting nature.” See Paripovic v. Gonzales, 418 F.3d 240, 245 (3d Cir. 2005); 8 C.F.R. § 214.7(4)(i). The Paripovic court also upheld the immigration judge’s interpretation of “habitual” as “relate[d] to the amount of time [the applicant] spent there,” id.—which may mean “established by long use” or “usual,” id. (citations omitted).
Standards of review
When courts review issues of last habitual residence as purely factual questions, they do so under the substantial evidence test. See, e.g., Najjar v. Ashcroft, 257 F.3d 1262, 1294 (11th Cir. 2001) (“The ‘last habitual residence’ designation is a question of fact. As such, we review this conclusion under a deferential substantial evidence test.”). But courts also may resolve issues involving a person’s last habitual residence under the mixed standard of review if the issue involves questions of statutory interpretation. See Paripovic v. Gonzales, 418 F.3d 240, 243 (3d Cir. 2005) (“Because the last habitual residence issue can be resolved in our case only by both determining the facts of the case and deciding what the applicable law means, we review the determination under a mixed standard of review.”); see also Delvoye v. Lee, 329 F.3d 330, 332 (3d Cir. 2003) (reviewing the determination on a child’s “habitual residence” under the Hague Convention on the Civil Aspects of International Child Abduction as a mixed question of law and fact).
The “test country”
In determining an applicant’s country of last habitual residence, courts consider the country which an applicant lists in her asylum application as the country where she last feared persecution—sometimes referred to as the “test country.”
For example, in Tesfamichael v. Gonzales, 469 F.3d 109 (5th Cir. 2006), Senait, the applicant, was born and lived in Ethiopia. The Ethiopian government deported her to Eritrea after Eritrea gained independence. Senait eventually reached the U.S. and sought asylum as a refugee from Ethiopia (instead of Eritrea) who feared persecution from the Ethiopian government. The Bureau of Immigration Appeals (BIA) denied her request because it considered her instead a firmly resettled citizen of Eritrea with no fear of persecution from Eritrea.
The reviewing court affirmed BIA’s findings that the relevant ‘test country’ for Senait’s application was Eritrea, as her last habitual residence for the four (4) years before she came to the U.S. The court also noted it was significant Senait indicated in her application that “the last address in the country where [she] feared persecution” was Eritrea, not Ethiopia:
Significantly, Senait’s asylum application indicates that she perceived Eritrea to be her test country. The form asks: “Please list your last address where you lived before coming to the U.S. If this is not the country where you fear persecution, also list the last address in the country where you fear persecution.” (Emphasis added). Senait furnished addresses in South Africa and Eritrea; she omitted Ethiopia. Further, when asked if she feared harm if returned to her “home country,” she responded by invoking hardships in Eritrea, not Ethiopia.Tesfamichael v. Gonzales, 469 F.3d 109, 116 (5th Cir. 2006)
When statelessness can rise to the level of persecution
Past persecution per se
As discussed above, to qualify for asylum, stateless persons must establish past persecution or a well-founded fear of persecution in their country of last habitual residence. U.S. law does not view statelessness as enough by itself to warrant protection. However, statelessness may be a central part of an asylum claim if the circumstances by which a person became stateless rise to the level of persecution, thereby meeting the elements of that person’s asylum claim.
For example, where a government forcibly revokes a person’s citizenship because of a protected ground—i.e., because of that person’s race, religion, nationality, membership in a particular social group, or political opinion—then that denationalization can rise to the level of past persecution per se.
In Stserba v. Holder, 646 F.3d 964 (6th Cir. 2011), the applicants were Estonian citizens who were ethnically Russian. They sought asylum based on past persecution and fear of future persecution in Estonia—Estonia had denationalized them for a certain period, even though they were born in Estonia, due to their ethnicity. See id. at 971. The Sixth Circuit Court of Appeals recognized that revocation of citizenship may rise to persecution especially where the revocation renders persons stateless. Id. at 973 (“Although not every revocation of citizenship is persecution, ethnically targeted denationalization of people who do not have dual citizenship may be persecution.”). The court recognized the possibility of per se harms from denationalization without requiring inquiry into the day-to-day adverse ramifications of statelessness. Id. at 974. The court said: “[B]ecause denationalization that results in statelessness is an extreme sanction, denationalization may be per se persecution when it occurs on account of a protected status such as ethnicity.” Id. Another court also rejected BIA’s requirement that an applicant must show harms more than just the denationalization itself, especially when denationalization was due to ethnicity, when proving persecution. See Haile v. Holder, 591 F.3d 572 (7th Cir. 2010).
Other courts have signaled the possibility of finding that revocation of citizenship due to religion or political opinion also may be persecution per se. See Haile v. Holder, 591 F.3d 572 (7th Cir. 2010) (“From the correct premise that a change of citizenship incident to change in national boundaries is not persecution per se, it does not follow that taking away a person’s citizenship because of his religion or ethnicity is not persecution.”); Ahmed v. Kesiler, 504 F.3d 1183 (9th Cir. 2007) (finding that the applicant, who as a Bihari minority was rendered stateless and resettled by the Bangladeshi government when Bangladesh became independent, “was targeted and persecuted on account of his political opinion”).
Well-founded fear of future persecution
Finally, courts may also view statelessness as a variable when considering whether an applicant has a well-founded fear of persecution in the future. In Ouda v. Immigration & Naturalization Service, 324 F.3d 445 (6th Cir. 2003), the applicant, Ouda, was ethnically Palestinian and born in Kuwait. She and her family fled Kuwait to Bulgaria after Kuwaiti officials threatened to kill them unless they left the country due to their Palestinian ethnicity. Id. at 448. Ouda eventually reached the U.S. and sought asylum from persecution in Kuwait—but BIA denied her request, partly by determining she could not be persecuted by Kuwait because she would not be allowed to reenter Kuwait at all. Id. at 452. The court of appeals reversed and remanded that BIA opinion, recognizing instead that asylum applicants could argue “that a country’s refusal to accept them is further evidence of persecution.” Id. at 453 (citing Al Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001); Faddoul v. INS, 37 F.3d 185 (5th Cir. 1994)).
Table of Authorities
- INA §101(a)(42)(A); 8 USC §1101(a)(42)(A)
- 8 C.F.R. § 214.7(4)(i)
- Ahmed v. Kesiler, 504 F.3d 1183 (9th Cir. 2007)
- Al Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001)
- Delvoye v. Lee, 329 F.3d 330 (3d Cir. 2003)
- Faddoul v. INS, 37 F.3d 185 (5th Cir. 1994)
- Fedosseeva v. Gonzales, 492 F.3d 840 (7th Cir. 2007)
- Haile v. Holder, 591 F.3d 572 (7th Cir. 2010)
- Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001)
- Ouda v. Immigration & Naturalization Service, 324 F.3d 445 (6th Cir. 2003)
- Paripovic v. Gonzales, 418 F.3d 240 (3d Cir. 2005)
- Stserba v. Holder, 646 F.3d 964 (6th Cir. 2011)
- Tesfamichael v. Gonzales, 469 F.3d 109 (5th Cir. 2006)
- Zahren v. Gonzales, 487 F.3d 1039, 1041 (7th Cir.2007)