What the REAL ID Act means for Stateless People in the United States

By Nikolai Levasov, a founding member of United Stateless

Illustration: Mawa Rannahr

The life of a stateless person in the U.S. is extremely difficult. Stateless persons are vulnerable individuals who are not recognized as citizens of any country. Because the US has not signed and ratified the International Conventions on Statelessness, nor established its own protection mechanisms, stateless people struggle to survive by living with severe restrictions created and imposed on them by Federal and State Governments. In addition to existing limitations on international travel that often lead to lifelong family separation, there is a concern that many stateless individuals will encounter issues boarding domestic airplanes and entering federal buildings unless they hold specially labeled IDs, as mandated by the REAL ID Act. The final implementation of this federal Act is a ticking time bomb for many stateless persons and it is set to go off on October 1st 2021.

The REAL ID Act sets new standards for identification issuance and bans owners of current ID cards and driver’s licenses from accessing Federal facilities, entering nuclear power plants, and boarding federally regulated commercial aircrafts if they do not meet the new criteria. The REAL ID Act was passed by the U.S. Congress in 2005 in response to national security concerns following recommendations of the 9/11 Commission. It has taken fifteen years for the REAL ID Act to be properly enforced by the federal government due to states’ needs to prepare their citizenry for these additional requirements. According to the Department of Homeland Security website, the applicant must provide documentation showing their full legal name, date of birth, social security number, two proofs of residence address, and proof of lawful status. Individual states may impose additional requirements and the application process varies from state to state. This new type of ID, labeled with a star or other special symbol, will essentially widen the gap between those who are privileged and those who are denied their human rights in the United States.

“This new type of ID, labeled with a star or other special symbol, will essentially widen the gap between those who are privileged and those who are denied their human rights in the United States.”

Photo: US Department of Homeland Security

United Stateless, a national organization led by stateless people with the mission to build and inspire community among those affected by statelessness and to advocate for their human rights, has started to receive concerns from stateless individuals who experience issues renewing their State IDs and driver’s licenses. Our main concerns are for two groups of stateless persons living in the US — those who are undocumented and those who live under a U.S. Department of Homeland Security (DHS)-issued Order of Supervision and Withholding of Removal.

Undocumented stateless persons without any immigration status or relief, or proof thereof, are automatically excluded from the application process for a REAL ID. This group will no longer exercise their right of free movement by air in the United States, which is a violation of Article 13 (1) of the Universal Declaration of Human Rights. They will also be banned from entering federal buildings. This will result in situations where a stateless person will not be able to board an airplane to visit their relative in a distant state, visit their loved one in federal prison, or even travel by plane to a mandatory court hearing as a victim or witness of a crime.

There are concerns with another large group of stateless persons who live under an Order of Supervision and Withholding of Removal. Even though this group is eligible for certain documents allowing them to obtain a REAL ID card, those recently released from immigration detention centers often don’t have a single piece of unexpired identification on them due to prolonged detention periods, inhibiting their ability to obtain a REAL ID.

In addition to REAL ID State documents, the Transportation Security Administration (TSA) will continue to accept foreign government-issued passports and U.S. Citizenship and Immigration Services Employment Authorization Cards (I-766). Stateless persons cannot obtain foreign passports or any other types of travel documents from any consulate due to lack of nationality. The only option would be to obtain an Employment Authorization Document (EAD). Stateless persons who are placed on Order of Supervision and Withholding of Removal are eligible for the Employment Authorization Document. This, however, makes the EAD card the only travel document available for stateless persons, including those who are disabled, retired or simply want to exercise their right not to work.

The EAD application process is quite pricey and bureaucratic. While the EAD card is valid for only one year, the applicants have to apply up to six months prior to its expiration date to make sure that card will be renewed on time. EAD cards are not cheap either. According to U.S. Citizenship and Immigration Services, the filing fee is $495 (biometric fees included) per application. Stateless persons report that administrative delays often create time lapses between expired and new cards.

One stateless person shared that in September of 2019 they received a New York State (NYS) ID issued for 12 months only. Additionally, the NYS Department of Motor Vehicles (DMV) clerk labeled it as “not for federal purposes” due to “lack of a foreign passport”. This type of document cannot be used for boarding an airplane or entering federal buildings after October 1st 2021. According to the NYS DMV, all applicants have to present at least one document from the following list: U.S. Passport, U.S. Birth Certificate, Permanent Resident Card I-551, Valid Foreign Passport, Certificate of Naturalization, Valid U.S. Employment Authorization Card with Valid Foreign Passport, with U.S. VISA, I-94, or I-551 stamped, or Valid U.S. Employment Authorization Card with I-797 Notice of Action and Foreign Passport with DHS Certification. Similar requirements are set up in Connecticut, Idaho, Maine, New Hampshire, New York, Ohio, and Washington DC that potentially exclude certain stateless individuals from the application process.

Many stateless persons are denied their human right to a nationality and, as an extension of this, cannot enjoy other human rights. With the implementation of the REAL ID Act, stateless persons in the U.S. will continue to be treated unequally until the U.S. Government recognizes their special status and implements internationally recognized protection measures into legislation. Such measures are outlined in The Citizens of Nowhere report, published in 2012 by the UN High Commissioner for Refugees, which recommends establishing a stateless status determination procedure, granting temporary permission to reside in the United States, refraining from arbitrary detention of stateless individuals, and providing an automatic, fee-exempt identity and work authorization document that does not require annual renewal to individuals determined to be stateless. Until then, initiatives such as the REAL ID Act, while initially intended to strengthen homeland security, will violate the human rights of the vulnerable stateless population on its territory.

We’re a national organization led by stateless people. We build and inspire community among those affected by statelessness and advocate for their human rights.