Discretion in Immigration Law: A Partial Remedy for Stateless People in the United States

Abstract

International law defines a stateless person as someone “who is not considered as a national by any state under the operation of its law.” Although thousands of stateless live in the United States, no law or policy provides lawful immigration status or relief to stateless people based on their statelessness. This Article argues that the U.S. executive branch should consider a noncitizen’s statelessness as a positive factor in discretionary adjudications of immigration benefits and in the exercise of prosecutorial discretion when granting temporary reprieves from enforcement, evaluating detention, and providing work authorization. This proposal falls squarely within existing legal authority and would address many of the humanitarian needs of stateless people. However, its discretionary nature will lead to inconsistent implementation. Only legislation will provide stateless people a pathway to lawful permanent residence and citizenship.

Keywords: statelessness, U.S. immigration law, discretion