Undocumented immigrant from the Soviet Union, Yugoslavia or Dutch Antilles? A 2001 Supreme Court ruling says you’re in luck.
President Donald Trump’s long-promised deportation force is getting to work. Last Monday, Feb. 13 the Department of Homeland Security announced that 680 people were detained over the past week as federal agents raided homes and workplaces in Austin, Chicago, Los Angeles, New York, and other cities. But there is one category of undocumented immigrant that the Trump administration will have trouble deporting: stateless people whose home countries no longer exist.
The loophole dates back to the bizarre case of Kestutis Zadvydas, who was born to Lithuanian parents in a displaced persons camp in 1948 in post-war Germany and later emigrated to the US as a child. The US government sought to deport him in 1994 after he served a two-year sentence in Virginia for possessing a half-kilo of cocaine. But both Germany and Lithuania denied that he was a citizen of their countries, and he was detained for three years. The US Supreme Court later ruled, in Zadvydas v. Davis, that the government cannot indefinitely detain immigrants under order of deportation whom no other country will accept–or if their home country has simply vanished.
New countries pop up with some frequency. South Sudan seceded from Sudan in 2011, and Kosovo declared independence from Serbia in 2008. The globe is littered with aspiring nation states: Scotland, the Caucasian breakaway republics of Abkhazia and South Ossetia, Catalonia in northeastern Spain, and Veneto, the watery, city-state dream of gondoliers and bankers. Every time a country is born, it means decades of headaches for officials at US Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security.
This predicament will sound familiar to viewers of the 2004 film “The Terminal.” In the movie, Tom Hanks’ character, Viktor Navorski, lands in New York hours after a coup in in Krakozhia, his fictional Balkan homeland. Now a stateless man, he spends the better part of a year in the international departures terminal at John F. Kennedy Airport. Navorski cheerfully makes the best of his time in immigration limbo, earning quarters by returning luggage carts and wooing a pretty flight attendant.
The film’s villainous customs supervisor is alternately perplexed and infuriated at his inability to deport him–a frustration common to law enforcement officials dealing with real-life Victor Navorskis.
“People think we can just put someone on a plane and then kick them out in Moscow or wherever,” a Homeland Security official told me last fall. In reality, Homeland Security often spends years negotiating with countries to convince them to accept aliens that may not technically be their citizens, such an ethnic Serb born in Yugoslavia.
Just how many stateless people like Viktor Navorski are in the US? The figure is unclear. In a December 2012 report, the UN High Commissioner for Refugee found that between 2005 and 2010, there were 1,087 asylum requests in the US from people listed as stateless. Between fiscal years 2009 and 2014, records show that ICE succeeded in removing hundreds of people with obsolete passports, including the Soviet Union (309), Czechoslovakia (168), and the Netherlands Antilles (24).
But statelessness plays a part in only a small percentage of Zadvydas cases, an ICE official told me. The most important implication of the Supreme Court’s decision is that aliens typically cannot be detained for more than six months while awaiting deportation. Cuba, Somalia, China, and India are among the countries that Homeland Security tags as the slowest to accept their citizens back, which then lets them walk free.
Immigration hardliners have railed against Zadvydas for this reason for years. Since 2013, 8,275 criminal aliens were released under this judicial precedent, according to statistics touted last year by the House Committee on Government Oversight and Reform.
“The decision has been a flash point for anti-immigrant forces,” says Judy Rabinovitz, who masterminded the litigation strategy that won the Zadvydas v. Davis case in 2001 and is now a deputy director of the ACLU Immigrants’ Rights Project.
What will be the next independence movement to raise a flag, declare a new country, and confound ICE agents for decades?
Your move, West Papua.