Social Security Program Operations Manual System (POMS), Section RS
02640.040 Stateless Persons
RS 02640.040 Stateless Persons
A. DEFINITIONS
There are two classes of stateless persons:
- DE JURE—Persons who do not have nationality in any
country.
- DE FACTO—Persons who have left the country of which
they were nationals and no longer enjoy its protection and assistance.
They are usually political refugees. They are legally citizens
of a country because its laws do not permit denaturalization
or only permit it with the country's approval.
B. POLICY
1. De Jure Status
Once it is established that a person is de jure stateless, he/she
keeps this status until he/she acquires nationality in some country.
Any of the following establish an individual is de jure stateless:
- a “travel document” issued by the individual's country of
residence showing the:
- holder is stateless; and
- document is issued under the United Nations Convention
of 28 September 1954 Relating to the Status of Stateless
Persons. (The document shows the phrase “Convention of 28
September 1954” on the cover and sometimes on each page.)
- a “travel document” issued by the International Refugee
Organization showing the person is stateless.
- a document issued by the officials of the country of former
citizenship showing the individual has been deprived of citizenship
in that country.
2. De Facto Status
Assume an individual is de facto stateless if he/she:
- says he/she is stateless but cannot establish he/she is
de jure stateless; and
- establishes that:
De facto status stays in effect only as long as the conditions
in b. continue to exist. If, for example, the individual returns
to his/her country of nationality, de facto statelessness ends.
3. Residents of Hong King
and Macau
The following applies to residents of Hong Kong for months before
July 1997 and without a time restriction to residents of Macau.
Consider as stateless any person who:
- resides in Hong Kong or Macau; and
- alleges citizenship in China, Taiwan or Nationalist China
(The Republic of China).
Consider him/her stateless only as long as he/she resides in
Hong Kong or Macau.
Do not consider him/her stateless if he/she states he/she
is a citizen of The People's Republic of China (PRC).
Effective July 1997, the PRC took control of Hong Kong. Thus,
residents of Hong Kong can be considered stateless for months after
June 1997 only if they meet the criteria in
RS 02640.040B.1. or
RS 02640.040B.2.
Newman-Green v. Alfonso Larrain, 490 U.S. 826 (1989)
Petitioner Newman-Green,
Inc., an Illinois corporation, brought this state law contract action
in District Court against a Venezuelan corporation, four Venezuelan
citizens, and William L. Bettison, a United States citizen domiciled
in Caracas, Venezuela. Newman-Green's complaint alleged that
the Venezuelan corporation had breached a licensing agreement, and that
the individual defendants, joint and several guarantors of royalty payments
due under the agreement, owed money to Newman-Green. Several years of
discovery and pretrial motions followed. The District Court ultimately
granted partial summary judgment for the guarantors and partial summary
judgment for Newman-Green. 590 F.Supp. 1083 (ND Ill.1984). Only Newman-Green
appealed.
At oral argument before
a panel of the Seventh Circuit Court of Appeals, Judge Easterbrook inquired
as to the statutory basis for diversity jurisdiction, an issue which
had not been previously raised either by counsel or by the District
Court Judge. In its complaint, Newman-Green had invoked 28 U.S.C. §
1332(a)(3), which confers jurisdiction in the District Court when a
citizen of one State sues both aliens and citizens of a State (or States)
different from the plaintiff's. In
order to be a citizen of a State within the meaning of the diversity
statute, a natural person must both be a citizen of the United States
and be domiciled within the State. See Robertson v. Cease, 97 U.S. 646,
648-649 (1878); Brown v. Keene, 8 Pet. 112, 115 (1834). The problem
in this case is that Bettison, although a United States citizen, has
no domicile in any State. He is therefore "stateless" for purposes of
§ 1332(a)(3). Subsection 1332(a)(2), which confers jurisdiction in the
District Court when a citizen of a State sues aliens only, also could
not be satisfied because Bettison is a United States citizen. [490 U.S.
829]
When a plaintiff sues more
than one defendant in a diversity action, the plaintiff must meet the
requirements of the diversity statute for each defendant or face dismissal.
Strawbridge v. Curtiss, 3 Cranch 267 (1806).{1} Here, Bettison's "stateless"
status destroyed complete diversity under § 1332(a)(3), and his United
States citizenship destroyed complete diversity under § 1332(a)(2).
Instead of dismissing the case, however, the Court of Appeals panel
granted Newman-Green's motion, which it had invited, to amend the complaint
to drop Bettison as a party, thereby producing complete diversity under
§ 1332(a)(2). 832 F.2d 417 (1987). The panel, in an opinion by Judge
Easterbrook, relied both on 28 U.S.C. § 1653 and on Rule 21 of the Federal
Rules of Civil Procedure as sources of its authority to grant this motion.
The panel noted that, because the guarantors are jointly and severally
liable, Bettison is not an indispensable party, and dismissing him would
not prejudice the remaining guarantors. 832 F.2d at 420, citing Fed.Rule
Civ.Proc. 19(b). The panel then proceeded to the merits of the case,
ruling in Newman-Green's favor in large part, but remanding to allow
the District Court to quantify damages and to resolve certain minor
issues.{2}
[Newman-Green
v. Alfonso Larrain, 490 U.S. 826 (1989)]
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)
We recognize at the outset that we are confronted here with an
issue of the utmost import. Deprivation of citizenship -- particularly
American citizenship, which is "one of the most valuable rights
in the world today," Report of the President's Commission on Immigration
and Naturalization (1953), 235 -- has grave practical consequences.
An expatriate who, like Cort, had no other nationality becomes a
stateless person -- a person who not only has no rights as an American
citizen, but no membership in any national entity whatsoever.
Such individuals as do not possess any nationality enjoy,
in general, no protection whatever, and if they are aggrieved
by a State, they have no means of redress, since there is no
State which is competent to take up their case. As far as the
Law of Nations [372 U.S. 161] is concerned, there is, apart
from restraints of morality or obligations expressly laid down
by treaty . . . , no restriction whatever to cause a State to
abstain from maltreating to any extent such stateless individuals.
1 Oppenheim, International Law (8th ed., Lauterpacht, 1955),
§ 291, at 640.{14} The calamity is "[n]ot the loss of specific rights,
then, but the loss of a community willing and able to guarantee
any rights whatsoever. . . ." Arendt, The Origins of Totalitarianism
(1951), 294. The stateless person may end up shunted from nation
to nation, there being no one obligated or willing to receive him,{15}
or, as in Cort's case, may receive the dubious sanctuary of a Communist
regime lacking the essential liberties precious to American citizenship.{16}
[372 U.S. 162]
B. The Perez and Trop Cases
The basic principles
here involved, the gravity of the issue, and the arguments bearing
upon Congress' power to forfeit citizenship were considered by the
Court in relation to different provisions of the Nationality Act
of 1940 in two cases decided on the same day less than five years
ago: Perez v. Brownell, 356 U.S. 44, and Trop v. Dulles, 356 U.S.
86.
In Perez, § 401(e), which imposes loss of nationality for "[v]oting
in a political election in a foreign state or participating in an
election or plebiscite to determine the sovereignty over foreign
territory," was upheld by a closely divided Court as a constitutional
exercise of Congress' power to regulate foreign affairs. The Court
reasoned that, since withdrawal of citizenship of Americans who
vote in foreign elections is reasonably calculated to effect the
avoidance of embarrassment in the conduct of foreign relations,
such withdrawal is within the power of Congress, acting under the
Necessary and Proper Clause. Since the Court sustained the application
of § 401(e) to denationalize Perez, it did not have to deal with
§ 401(j), upon which the Government had also relied, and it expressly
declined to rule on the constitutionality of that section, 356 U.S.
at 62. There were three opinions written in dissent. The principal
one, that of THE CHIEF JUSTICE, recognized
that citizenship may not only be voluntarily renounced through
exercise of the right of expatriation, but also by other actions
in derogation of undivided allegiance to this country,
id. at 68, but concluded that "[t]he mere act of voting in a
foreign election, however, without regard to the circumstances attending
[372 U.S. 163] the participation, is not sufficient to show a voluntary
abandonment of citizenship," id. at 78.
In Trop, § 401(g), forfeiting the citizenship of any American
who is guilty of
[d]eserting the military or naval forces of the United States
in time of war, provided he is convicted thereof by court martial
and as the result of such conviction is dismissed or dishonorably
discharged . . . ,
was declared unconstitutional. There was no opinion of the Court.
THE CHIEF JUSTICE wrote an opinion for four members of the Court,
concluding that § 401(g) was invalid for the same reason that he
had urged as to § 401(e) in his dissent in Perez, and that it was
also invalid as a cruel and unusual punishment imposed in violation
of the Eighth Amendment. JUSTICE BRENNAN conceded that it is
paradoxical to justify as constitutional the expatriation
of the citizen who has committed no crime by voting in a Mexican
political election, yet find unconstitutional a statute which
provides for the expatriation of a soldier guilty of the very
serious crime of desertion in time of war,
356 U.S. at 105. Notwithstanding, he concurred because "the requisite
rational relation between this statute and the war power does not
appear . . . ," id. at 114. Justice Frankfurter, joined by three
other Justices, dissented on the ground that § 401(g) did not impose
punishment at all, let alone cruel and unusual punishment, and was
within the war powers of Congress.
[Kennedy
v. Mendoza-Martinez, 372 U.S. 144 (1963)]