118 S3987 IS: Stateless Protection Act of 2024 U.S. Senate 2024-03-20 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

II118th CONGRESS2d SessionS. 3987IN THE SENATE OF THE UNITED STATESMarch 20, 2024Mr. Cardin (for himself, Mr. Durbin, Mr. Padilla, Ms. Hirono, Mr. Welch, Mr. Markey, Ms. Warren, and Mr. Wyden) introduced the following bill; which was read twice and referred to the Committee on the JudiciaryA BILLTo protect stateless persons in the United States, and for other purposes.

1.

Short title

This Act may be cited as the Stateless Protection Act of 2024.

2.

Findings; sense of Congress

(a)

Findings

Congress makes the following findings:(1)The International Covenant on Civil and Political Rights, to which the United States is a party, provides that every child has the right to acquire a nationality, and numerous other treaties and the Universal Declaration of Human Rights recognize the right to a nationality.(2)Statelessness is an abhorrent affront to human dignity and may lead to the violation of human rights. (3)The Supreme Court of the United States has recognized that denationalization, as a form of punishment, is more primitive than torture.(4)Government action and inaction causes statelessness; therefore, governments have the power to resolve and prevent statelessness.(5)The United Nations High Commissioner for Refugees—(A)is a United Nations agency responsible for identifying stateless persons, preventing and reducing statelessness, and protecting stateless persons; and (B)estimates that there are at least 10,000,000 stateless persons worldwide.(6)A 2020 study conducted by the Center for Migration Studies found that there are approximately 218,000 individuals living in the United States who are stateless or at risk of statelessness.(7)Stateless individuals live in all 50 States, and many such individuals have lived in the United States for years or decades without relief.(8)Despite the presence of stateless persons in the United States, there is no law relating to the identification of stateless persons in the United States or to provide stateless persons with a path to legal status.(9)Stateless persons often—(A)live without the means to work legally or to travel; and(B)face barriers in opening bank accounts, pursuing higher education, accessing justice, and obtaining health care.(10)If detained for removal from the United States, a stateless person is often subjected to prolonged detention and, in some instances, cannot be removed because no country recognizes the person as its national.(b)

Sense of Congress

It is the sense of Congress that to resolve statelessness and its related human suffering, lost potential, and societal impacts, the United States should—(1)provide a legal status to protect stateless persons; and(2)urge the international community to take strong action to prevent statelessness globally.

3.

Protection of stateless persons in the United States

(a)

In general

Chapter 5 of title II of the Immigration and Nationality Act (8 U.S.C. 1255 et seq.) is amended by inserting after section 245A the following:

245B.

Protection of stateless persons in the United States

(a)

Definitions

In this section:(1)

Competent authority

With respect to a foreign state, the term competent authority—(A)means the authority responsible for—(i)conferring nationality on, or withdrawing nationality from, individuals; or(ii)in the case of nationality having been acquired or withdrawn automatically, clarifying the nationality status of an individual; and(B)includes a Federal, local, or regional government entity, a consular official, and a government official at any level, notwithstanding any process by which a decision by such an entity or official may later be overridden.(2)

Noncitizen

The term noncitizen has the meaning given the term alien in section 101(a).(3)

Operation of law; operation of its law

The terms operation of law and operation of its law—(A)refer to the consideration by a competent authority of a state with respect to whether an individual is a national of that state, including under the legislation, ministerial decrees, regulations, orders, judicial case law, and customary practices of the competent authority; and(B)include situations in which the position of the competent authority of a state differs from the law of the state as written, if the position of the competent authority of the state that an individual is not a national of the state is determinative.(4)

Relevant association

The term relevant association means an individual’s connection to a state through—(A)birth on the territory of the state;(B)direct descent from 1 or more individuals who are nationals of the state;(C)marriage to an individual who is a national of the state;(D)adoption by an individual who is a national of the state; or(E)habitual residence in the state.(5)

Stateless person

The term stateless person means an individual who is not considered as a national by any state under the operation of its law. (6)

Frivolous application

The term frivolous application means an application that—(A)contains a fabricated material element;(B)is premised upon false or fabricated evidence, unless the application would have been granted without the false or fabricated evidence;(C)is filed without regard to the merits of the claim; or(D)is clearly foreclosed by applicable law. (b)

Mechanisms for regularizing the status of stateless persons

(1)

Stateless protected status

(A)

Principal applicants

Notwithstanding any other provision of law, the Secretary of Homeland Security shall provide stateless protected status to a noncitizen who—(i)is a stateless person present in the United States;(ii)applies for such relief;(iii)has not performed a potentially expatriating act under section 349 after the date of the enactment of this section, unless the noncitizen had acquired or had a reasonable expectation that the noncitizen would acquire a foreign nationality or citizenship; (iv)except as provided in paragraph (2) of this subsection—(I)is not inadmissible under section subparagraph (C), (E), (G), or (H) of section 212(a)(2) or section 212(a)(3) (other than subparagraph (D)); and(II)is not removable under section 237(a)(4); (v)is not described in section 241(b)(3)(B)(i); (vi)is not otherwise ineligible for stateless protected status under this section; and (vii)is not a stateless person because the noncitizen has voluntarily relinquished United States nationality under section 349. (B)

Treatment of spouse and children

Notwithstanding any other provision of law, the Secretary of Homeland Security shall provide stateless protected status to a noncitizen who—(i)is present in the United States;(ii)is the spouse or child of a noncitizen described in subparagraph (A), if such spouse or child is not otherwise eligible for admission under that subparagraph;(iii)applies for stateless protected status under this section;(iv)is accompanying, or following to join, such noncitizen;(v)established the qualifying relationship to such noncitizen before the date on which such noncitizen applied for stateless protected status;(vi)except as provided in paragraph (2) of this subsection—(I)is not inadmissible under section subparagraph (C), (E), (G), or (H) of section 212(a)(2) or section 212(a)(3) (other than subparagraph (D)); and(II)is not removable under section 237(a)(4); and(vii)is not described in section 241(b)(3)(B)(i).(C)

Stateless protected status

Noncitizens with stateless protected status shall—(i)receive relevant protections against deportation, removal, and detention, as described in paragraph (3);(ii)be authorized for employment incident to status; and(iii)be issued a travel document, as described in paragraph (5).(D)

Concurrent grant of lawful permanent residence

(i)

In general

Notwithstanding any other provision of law, immediately on granting stateless protected status to a noncitizen, the Secretary of Homeland Security may adjust the status of the noncitizen to that of a noncitizen lawfully admitted for permanent residence, provided that the noncitizen is admissible (except as otherwise provided in clause (ii)) as an immigrant under this chapter.(ii)

Admissibility

(I)

In general

The grounds of inadmissibility under paragraphs (4), (5), (7)(A), and (9)(B) of section 212(a) shall not be applicable to any noncitizen seeking adjustment of status under this section. (II)

Waiver available

A noncitizen seeking adjustment of status under this section may request a waiver of inadmissibility under paragraph (2).(iii)

Exception

The Secretary of Homeland Security may not adjust the status of a noncitizen with stateless protected status who is described in section 241(b)(3)(B)(i).(iv)

Treatment of spouse and children

The Secretary of Homeland Security may adjust the status of a spouse or child granted stateless protected status under subparagraph (B) to that of a noncitizen lawfully admitted for permanent residence even if the principal applicant concerned is ineligible for adjustment of status. (2)

Waivers

(A)

In general

Notwithstanding any other provision of law, with respect to a noncitizen applying for stateless protected status or adjustment of status under this section, the Secretary of Homeland Security may waive any applicable provision of section 212(a) (other than subparagraph (A), (B), (C), (E) or (F) of paragraph (3) of that section) and section 237(a)(4)(F)—(i)for humanitarian purposes;(ii)to ensure family unity; or(iii)if such a waiver is otherwise in the public interest.(B)

Factors

In making a determination under subparagraph (A), the Secretary of Homeland Security shall consider all relevant factors, including—(i)mitigating and aggravating factors of the basis for inadmissibility;(ii)the duration of the noncitizen’s residence in the United States; and(iii)the degree to which the noncitizen’s removal, or the denial of the noncitizen’s application, would result in hardship to the noncitizen or the noncitizen’s parent, spouse, child, or adult son or daughter.(3)

Release from post-order detention

A grant of stateless protected status to a principal applicant under subsection (b)(1)(A) shall—(A)in the case of such an applicant who is detained pursuant to an order of removal, trigger immediate release from the custody of the Secretary of Homeland Security;(B)be considered to establish that there is no significant likelihood of the individual's removal in the reasonably foreseeable future; and(C)establish a presumption that travel documents are not available for the individual.(4)

Employment authorization while application pending

(A)

In general

During the 150-day period after the date on which an application for status under this section is submitted, the Secretary of Homeland Security may authorize the applicant to engage in employment in the United States.(B)

Mandatory employment authorization

If the Secretary of Homeland Security has not issued a decision within the 150-day period beginning on the date on which an application for status under this section is submitted, the Secretary of Homeland Security shall authorize the applicant to engage in employment in the United States until the date on which a decision is issued on the application for stateless protected status.(5)

Travel documents

(A)

In general

The Secretary of Homeland Security shall provide to any noncitizen granted relief under this section, a travel document that facilitates the noncitizen’s ability to travel abroad and to be admitted to the United States upon return. (B)

Validity

The minimum period of validity for a document issued under subparagraph (A) shall be—(i)in the case of such a noncitizen who is 16 years of age or older, 10 years; and(ii)in the case of such a noncitizen who is under 16 years of age, 5 years.(6)

Frivolous applications

(A)

In general

At the time of filing an application for stateless protected status or adjustment of status under this section, the Secretary of Homeland Security shall advise the noncitizen of the privilege of being represented by counsel and of the consequences, under subparagraph (D), of knowingly filing a frivolous application under this section.(B)

Effect of withdrawal of application

(i)

In general

A noncitizen may request that the noncitizen's application for status under this section be withdrawn, prior to the adjudication of the application. (ii)

Effect of consent to withdrawal

If the Secretary of Homeland Security consents to the withdrawal of the noncitizen's application, the application shall be considered denied without prejudice to any future application. (iii)

Effect of decline to consent to withdrawal

If the Secretary of Homeland Security declines to consent to the withdrawal of the noncitizen's application, the application shall be adjudicated on its merits. (iv)

Prohibition on negative inference

In determining whether an application under this section is frivolous, the Secretary of Homeland Security may not draw a negative inference from a noncitizen's request to withdraw the application.(C)

Denial

The denial of an application for stateless protected status or adjustment of status under this section shall not be construed to establish that the application was frivolous.(D)

Consequence of filing a frivolous application

If the Secretary of Homeland Security determines that a noncitizen has knowingly made a frivolous application for status under this section and the noncitizen has received notice under subparagraph (A), the noncitizen shall be permanently ineligible for stateless protected status or adjustment of status under this section, effective as of the date on which a final determination on such application is made.(c)

Evidentiary matters

(1)

In general

In determining if an individual is a stateless person under this section, the Secretary of Homeland Security may consider and obtain any credible evidence relevant to the application, including information from—(A)the Department of State, including the Bureau of Population, Refugees, and Migration and the Bureau of Democracy, Human Rights, and Labor; and(B)relevant international and foreign bodies, the United Nations High Commissioner for Refugees, the Law Library of Congress, nongovernmental organizations, and the competent authorities of other countries.(2)

Designation of specific groups of stateless persons

(A)

In general

The Secretary of Homeland Security, in consultation with the Secretary of State, may designate 1 or more groups the members of which shall be presumed to be stateless persons for purposes of this section.(B)

Presumption

(i)

In general

A noncitizen shall be presumed to be a stateless person if the noncitizen—(I)belongs to a group designated under subparagraph (A); and(II)applies for stateless protected status under this section.(ii)

Rebuttal

The presumption under clause (i) may be rebutted if the Secretary of Homeland Security finds, by clear and convincing evidence, that the individual concerned is considered as a national of any state under the operation of its law.(C)

Revocation

The Secretary of Homeland Security may revoke the designation of a group under subparagraph (A) as of any date on which the Secretary determines that members of the group are no longer stateless persons.(3)

Standard of proof

(A)

In general

An applicant shall have the burden of establishing, by the preponderance of the evidence, that the applicant is eligible for a grant of stateless protected status, adjustment of status, or a waiver of inadmissibility under this section.(B)

Assessment of nationality

The nationality of an individual shall be assessed as of the date of adjudication of an application under this section, without regard to future possible acquisitions of nationality.(4)

Submission of documentary evidence

(A)

Supporting documents from applicant

An applicant for relief under this section shall submit, as part of the application for such relief—(i)a full and truthful account, to the best of the noncitizen’s knowledge, of such noncitizen’s legal status with regard to any state in which the applicant was born or resided before entering the United States or with which the applicant has a relevant association; and(ii)all evidence reasonably available, including any valid or expired travel document.(B)

Evidence available to Secretary of Homeland Security

(i)

In general

If the Secretary of Homeland Security determines that an applicant is not a stateless person, the Secretary shall submit to the applicant and, if relevant, to the applicant’s counsel, any information or evidence available to the Secretary (other than information or evidence initially provided by the applicant) regarding the legal status of the applicant in the applicant’s country of birth or prior residence or any country with which the applicant has a relevant association, including information on the relevant laws and practices of the countries concerned.(ii)

Inapplicability to certain information

Clause (i) shall not apply to information that is classified or otherwise protected from disclosure by law.(C)

Consideration of response

The Secretary of Homeland Security may consider as substantial evidence that an individual is not considered by a state to be national of the state the following:(i)In a case in which the Secretary of Homeland Security requests, from a state with which a noncitizen has a relevant association, information with respect to the noncitizen’s nationality status, a lack of response from the competent authority of such state during the 120-day period beginning on the date of such request.(ii)A pro forma response from the state that lacks an application of the law or facts to the particular individual.(iii)For non-recalcitrant states, the refusal of the state to accept the noncitizen for deportation or removal.(d)

Fees

The Secretary of Homeland Security may not charge a noncitizen any fee in connection with an application for, or issuance of, stateless protected status under this section, employment authorization, or travel documents. (e)

Jurisdiction and review

(1)

In general

The Director of U.S. Citizenship and Immigration Services shall have jurisdiction over an application for stateless protected status and adjustment of status filed by a noncitizen under this section. (2)

Review

An initial denial of an application for relief under this section shall be subject to review by the Administrative Appeals Office of U.S. Citizenship and Immigration Services.(f)

Effect on removal proceedings

With respect to a noncitizen in removal proceedings who files a nonfrivolous application for relief under this section, the Attorney General shall administratively close the removal proceedings pending the adjudication of the application.(g)

Applicants with final orders of removal

(1)

Stay of removal

(A)

In general

An applicant for stateless protected status or adjustment of status under this section who has been issued a final order of removal, deportation, or exclusion may request a stay of removal, deportation, or exclusion. (B)

Consideration of request

With respect to an individual who requests a stay under subparagraph (A), if the Secretary of Homeland Security determines that the application for relief is nonfrivolous, the Secretary shall automatically stay the execution of the final order of deportation, exclusion, or removal, and the stay will remain in effect until a final decision is made on the applications.(C)

Effect of denial

If such an application is denied, the stay of such a final order shall be deemed lifted as of the date on which such denial becomes final upon—(i)dismissal of an appeal;(ii)waiver of appeal by the noncitizen; or(iii)expiration of the time allotted for an appeal if the noncitizen does not file an appeal within that time.(2)

Termination

On the approval of an application for stateless protected status or adjustment of status under this section to a noncitizen in removal proceedings or with an order of removal, deportation, or exclusion, the proceedings or order of removal, deportation, or exclusion shall be deemed canceled by operation of law as of the date of the approval.(h)

Exclusion from numerical limitations

Individuals provided status under this section shall not be counted against any numerical limitation under sections 201, 202, or 203.(i)

Rule of construction

Except as provided in subparagraph (b)(1)(B), nothing in this section may be construed to authorize or require the admission or parole of any noncitizen into the United States.(j)

Reports

(1)

In general

Not later than 240 days after the date of the enactment of this section, and every 90 days thereafter, the Secretary of Homeland Security shall provide to the Committee on the Judiciary and the Committee on Foreign Relations of the Senate and the Committee on the Judiciary and the Committee on Foreign Affairs of the House of Representatives a briefing on—(A)the number and outcome of applications submitted under each of paragraphs (1), (4), and (5) of subsection (b) since such date of enactment, disaggregated by—(i)the country of birth of the applicants; and(ii)the fiscal year in which the applications were received; and(B)with respect to applications adjudicated during the 180-day period immediately preceding the date of the briefing, the median processing time, by application type.(2)

Public availability

The Secretary of Homeland Security shall publish on the internet website of the Department of Homeland Security the information described in each report submitted under paragraph (1).(k)

Publication of guidance

Not later than 120 days after the date of the enactment of this Act, the Secretary of Homeland Security shall issue on the internet website of the Department of Homeland Security public guidance and application instructions relating to the requirements of this section.(l)

Regulations

Notwithstanding chapter 5 of title 5, United States Code (commonly known as the Administrative Procedures Act), the Secretary of Homeland Security may issue such regulations as the Secretary considers appropriate to carry out this section.(m)

Exemption from Paperwork Reduction Act

During the 1-year period beginning on the date that is 120 days after the date of the enactment of this section, the requirements under chapter 35 of title 44, United States Code, shall not apply to any collection of information required under this section or any rule promulgated by the Secretary of Homeland Security to implement this section.

.(b)

Technical and conforming amendments

(1)

Table of contents

The table of contents for the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting after the item relating to section 245A the following:Sec. 245B. Protection of stateless persons in the United States..(2)

Naturalization

Section 316 of the Immigration and Nationality Act (8 U.S.C. 1427) is amended by adding at the end the following:(g)The requirements of subsection (a) shall apply to an individual who adjusts status to that of a lawful permanent resident under section 245B of this Act, except that such an individual shall be eligible for naturalization if—(1)during the 3-year period immediately preceding the date on which the individual files his or her application for naturalization, the individual has resided continuously within the United States after having been lawfully admitted for permanent residence; (2)during such 3-year period, the individual has been physically present in the United States for 1 or more periods totaling not less than 18 months; and(3)the individual who has resided within the State or within the district of U.S. Citizenship and Immigration Services in which the individual filed the application for not less than 90 days..(3)

Qualified noncitizen

Section 431(b) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1641(b)) is amended—(A)in paragraph (7), by striking , or and inserting a comma;(B)in paragraph (8), by striking the period at the end and inserting , or; and (C)by adding at the end the following:(9)a noncitizen in stateless protected status under section 245B of the Immigration and Nationality Act..

4.

Programs to prevent statelessness

Subject to the availability of appropriations, the Secretary of Homeland Security and the Secretary of State shall jointly engage in and support activities and efforts aimed at preventing and reducing statelessness, which may include—(1)conducting an assessment of United States citizenship law to determine and propose amendments to any provision of law that results in statelessness or a delayed acquisition of nationality that increases the risk of statelessness;(2)conducting studies on the profiles and number of stateless people living in the United States;(3)implementing programs—(A)to promote inclusive and nondiscriminatory nationality laws and practices in other countries, with particular attention to the prevention of human rights violations and atrocity crimes; and(B)to encourage other countries to establish stateless status determination and protection legislation; and(4)awarding grants to universities, international organizations, and nongovernmental organizations to accelerate research, education, curricula, and knowledge on nationality law and practice and statelessness.

5.

Updating citizenship relinquishment provisions

(a)

Loss of nationality by native-Born or naturalized citizens

(1)

In general

Section 349(a) of the Immigration and Nationality Act (8 U.S.C. 1481(a)) is amended—(A)by striking paragraph (6); and(B)by redesignating paragraph (7) as paragraph (6).(2)

Conforming amendment

Section 351(a) of the Immigration and Nationality Act (8 U.S.C. 1483(a)), is amended by striking paragraphs (6) and (7) and inserting paragraph (6).(b)

Effective date; applicability

The amendments made by this section—(1)shall be effective on the date of the enactment of this Act; and(2)shall apply to any pending renunciation request under section 349(a) of the Immigration and Nationality Act (8 U.S.C. 1481(a)) with respect to which a final decision has not been made.