Towards a Less Arbitrary Unequal: Designating Last Habitual Residence in Stateless Asylum Claims in the U.S.

Jamila Odeh
Third-year student at University of Michigan Law School.

Two-year-old Yazan is not a citizen of Syria like his parents, or of Lebanon, his birthplace.[1] He is one of the 80,000 stateless[2] children worldwide.[3] In the chaos of fleeing from war, Yazan was born with no way to prove national origin.[4] Luckily, his refugee status was already recognized,[5] affording surrogate national protection unavailable to many stateless people.[6]

Under the 1951 Convention Relating to the Status of Refugees,[7] stateless refugees are defined in a clause that is parallel to but distinct from the clause for individuals with a nationality:[8]

“The term refugee shall apply to any persons who . . . owing to well-founded fear of being persecuted for [a convention reason] … is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence [(CFHR)] . . . is unable or, owing to such fear, is unwilling to return to it.”[9]

The Convention made status possible for stateless persons.[10] Yet, understanding which stateless persons are refugees is complex. Claimants like Yazan, a toddler who already resided in three countries, present additional difficulties.[11]

Determining Status for people with multiple CFHR is this Note’s focus. Part I introduces an outlier in U.S. case law and the traditional U.S. method. Part II explores international case law and the use of CFHR. Part III argues for the consistent reference approach to CFHR,[12] a less arbitrary alternative for U.S. law.

I. Ouda and Najjar: County of Last Habitual Residence in U.S. Law

The applicant in Ouda v. Immigration and Naturalization Service[13] shares significant similarities with the applicants in the cases assessed in Part II[14]—they were all stateless Palestinians[15] born in Kuwait, where they lived for over twenty years.[16] They all fled around the start of the Gulf War.[17] Each applicant also lived in one or more additional countries for about two years, then moved to the country where they sought asylum.[18]

In Ouda, the court demonstrated confusion about applying the U.S. country of reference test.[19] U.S. law defines its reference point as “any country in which such person last habitually resided. . .[20] Ouda fled Kuwait to Bulgaria but could not legally reenter either.[21] The Immigration Judge (IJ), the Board of Immigration Appeals (BIA), and presumably the Sixth Circuit agreed that she faced no persecution in Bulgaria.[22] The IJ decided Bulgaria was her country of last habitual residence.[23] This choice aligned with the government’s argument that last habitual residence means immediately prior country of residence.[24] It is also supported by the replacement of the word “former,” with “last” in the U.S. definition.[25]

Ouda appealed, arguing that she never had citizenship in Bulgaria and could not return.[26] The BIA reasoned that IJ error would be harmless; alleged persecution in Kuwait was irrelevant, as return there was impossible.[27] The Sixth Circuit reversed, finding no reason at law to prevent an applicant from claiming asylum despite nonreturnability.[28] It also a found well-founded fear of persecution for a convention reason in Kuwait.[29] The court did not explain why Kuwait served as the reference point beyond rejecting BIA reasoning.[30]

Ouda is an outlier,[31] but Najjar v. Ashcroft illustrates the dominant understanding of U.S. law. [32] Najjar, also a stateless Palestinian,[33] lived in Saudi Arabia for thirteen years, Egypt for eight,[34] and in United Arab Emirates (UAE) for two immediately prior to seeking asylum in the U.S.[35] Utilizing the same logic as the government in Ouda[36] the IJ, BIA, and Eleventh Circuit agreed that his last habitual residence was UAE.[37]

The Najjar approach can force arbitrary outcomes. Najjar’s country of reference did not reflect his closest national relationship.[38] Worse, if Najjar was persecuted in Egypt or Saudi Arabia, but not UAE, he may have been returned to his persecutors in violation of the duty of non-refoulement.[39] If the Ouda court followed Najjar, Ouda have would been deprived of status because of her brief stay in Bulgaria.[40] The Najjar approach may also offer unnecessary protection.[41] For example, imagine Najjar was persecuted in UAE but could have been protected in Egypt or Saudi Arabia. Comparing the U.S. to other jurisdictions adds depth to this basic description of Ouda and Najjar.

II. CFHR in Other Jurisdictions    

CFHR has two uses as a point of reference: the well-founded fear inquiry and the alternative protection inquiry. One connects well-founded fear of persecution to status, and the other a caveat to status based on protection. The two questions are independent, but for each country of reference should be determined with a consistent approach.

An analogy between internal flight alternative (IFA) doctrine and the question alternative protection for stateless applicants clarifies the term CFHR. Although the stateless portion of the definition references ability to return instead of the availment of protection,[42] CFHR accounts for protection in some way.[43] Goodwin-Gill explained that CFHR “necessarily seem[s] to imply some degree of security, status, of entitlement to remain and to return.”[44] Similarly, Hathaway contended that CFHR “give[s] rise to a bond…that approximates in critical respects the relationship between a citizen and her state.”[45] Thus, the question of return for stateless applicants must be understood in light of the expectation that return to a CFHR affords meaningful protection.

Hathaway’s insistence on IFA protection as “existence of some affirmative defense or safeguard,”[46] should be applied rigorously to inquiries about CFHR as alternative protection. There are “two key clauses” in the definition, “the well-founded fear clause…and the protection clause…the clearest textual home for IFA is in the protection clause.”[47] The danger is conflating the clauses, placing an inappropriate onus on the applicant.[48] For the same reason, it is inappropriate to attach legal returnability to an assessment of well-founded fear.[49] Asking a stateless applicant to run or hide from persecution before providing protection puts a high burden on the applicant, unrooted in the Convention. Moreover, the stateless applicant is formally rightlessness, elevating her risk on return.[50] The idea that CFHR accounts for meaningful protection informs the background for the consistent approach.

The case Thabet v. Canada contemplated an array of interpretations of CFHR, which provides a roadmap to the consistent approach to CFHR.[51] The facts resembled Ouda,[52] but the second CFHR was the U.S.[53] This Note alters Thabet’s march through CFHR interpretations by artificially separating methods into the component parts of use for well-founded fear inquiry and alternative protection inquiry. The difficulty in pulling the issues apart reflects conceptual weakness in the review of stateless applicants.

To locate the country of reference for well-founded fear there are two basic methods. The first designates a single reference point by some arbitrary measure or proxy for the significance of state ties.[54] CFHR as last residence, discussed with Najjar, is an example of designating a single reference.[55] Importantly, any iteration of naming a single CFHR will not respect the duty of non-refoulement.[56] The second approach to the well-founded fear inquiry allows any CFHR to be the county where well-founded fear is established.[57] This method was adopted in Thabet for the first prong.[58] It removes some arbitrariness.[59] In addition, someone with multiple citizenships can have fear with respect to one and qualify, so it is a sensible way to make the statelessness clause more parallel to the citizenship clause. This method better identifies those whom need protection for a convention reason, and is well aligned to the Convention’s object and purpose.

The method of designating the country of reference for the second prong, alternative protections, is highly contested. Grahl Madsen, rejecting the principle behind protection alternatives for stateless applicants altogether, advocated that CFHR is the place from which a person fled “in the first instance.” Once established, it “remains irrespective of subsequent residence changes.”[60] Yet, if that person were persecuted again in a different country, the persecution creates a renewed first instance and therefore a new country of reference. Thus, there is an implicit understanding any CFHR may establish well-founded fear and no CFHR may establish alternative protection.

Al-Anezi is an example of the Grahl-Madsen approach in Australian case law. The case features the same fact pattern presented in Ouda and Thabet,[61] the stateless Palestinian applicant was born and lived in Kuwait for some time and lived in two other CFHR. The court felt multiple CFHRs unfairly decreased chances of status by providing more possibilities for alternative protection, placing stateless individuals in a worse position than nationals. [62] Thus, once the applicant established well-founded fear in Kuwait, the court did not inquire about protection alternatives at other CRHR.[63]

In contrast, Hathaway’s second prong approach, adopted by Thabet,[64] exhausts all CFHRs.[65] The Convention requires applicants with dual or multiple citizenship to show inability to find protection in any other country of citizenship. Hathaway avoids favoring stateless by allowing applicants to circumvent protection elsewhere.[66]

The consistent reference approach to CFHR demands that the two prongs, well-founded fear and alternate protection, are balanced. The prongs are assessed separately,[67] and CFHR is approached consistently for each. For example, if all CFHR may be considered for well-founded fear, the same would be true of protection alternative inquiry. There is an inverse relationship: the first prong can help and the second prong can hurt applicants. It is essential not to allow slippage in the CFHRs considered for each inquiry.[68] In the U.S., the arbitrary standard mixed with the most uneven structure may have increased confusion about CFHR determinations.[69] The Thabet test was well-formed as two separate questions, and it utilized all former residences as its consistent reference.

III. What Was There All Along

The judicial decision in Ouda could be read several ways.[70] The court decoupled returnability and well-founded fear.[71] The judge remarked that as “actual deportability of an alien is irrelevant to the issue of whether the alien qualifies as deportable, it stands to reason that the actual deportability of an alien is equally irrelevant to the issue of whether she qualifies as a refugee.”[72] The logic is upside-down, but the idea remains. The declaratory nature of status creates a duty to protect. Perhaps the judge dismissed the need for forward-looking risk because of the U.S. presumption of continuing status based on past persecution.[73]

Alternatively, the decision could be chalked up to a choice that Ouda’s relationship with Bulgaria was not significant enough. It is plausible given that the reasoning and citations all addressed the relationship between deportability and well-founded fear.[74]

The final explanation could make the U.S. approach less arbitrary. The issue of designating a country of last habitual residence can be sidestepped by showing either well-founded fear with respect to none or all potentially relevant countries.[75] In practice, the IJ, BIA, and Circuit Courts regularly do fact-specific inquiries about a claimant’s relationship with various countries down to the minutia of travel accommodations.

The Court, aware that the applicant most recently lived in Bulgaria for two years, citing to Najjar, found that Kuwait was the last habitual residence. It seems possible that the judge simply read the term “last” to mean before.[76] The U.S. statutory language modifies country with “any last,” leaving a plural understanding open. The Ouda decision may open the door—even just a crack—to a less arbitrary way to designate the country of reference in the U.S.

IV. Conclusion

The consistent reference approach to CFHR is a more balanced way to adjudicate stateless applicants. The consistent approach may also aid in keeping well-founded fear and protection inquiries separate. It does not dictate the content of CFHR, except that the well-founded fear and alternate protection assessments occur with respect to the same countries of reference.


[1] Somini Sengupta & Hwaida Saad, As Refugees Flee, Thousands of Children Have No Country to Call Their Own, NY Times (Nov. 5, 2015),


[2] A stateless person is “a person who is not considered as a national by any State under the operation of its law.” Convention Relating to the Status of Stateless Persons, Art.1, Sept. 28, 1954, 360 U.N.T.S. 15,

[3] Rep. of the U.N. High Commissioner for Refugees, at 10, U.N. Doc. A/74/12 (2017),

[4] Sengupta & Saad, supra note 1. Yazan’s mother could not declare paternal nationality, illustrative of the sexism often involved. See generally, Maryellen Fullerton, The Intersection of Statelessness and Refugee Protection in U.S. Asylum Law Policy, 2 J. Migration and Hum. Sec. 144, 148–49,

[5] Sengupta & Saad, supra note 1.

[6] The Convention Relating to the Status of Stateless Persons, Sept. 28, 1954, 360 U.N.T.S. 15, may also protect stateless persons. Yet, far fewer states ratified it. David C. Baluarte, Life After limbo: Stateless Persons in the United States and the Role of International Protection in Achieving a Legal Solution, 29 Geo. Immigr. L. J. 351, 357–58 (2015),

[7] Convention relating to the Status of Refugees, Jul. 28, 1951, 189 U.N.T.S. 137 [hereinafter Refugee Convention]; Protocol relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267 [hereinafter Refugee Protocol].

[8] Refugee Convention, Art. 1(A)(2). See Guy S. Goodwin-Gill & Jane McAdam, The Refugee in International Law 67–70 (2007); Hathaway & Foster, supra note 8, at 64–75.

[9] Refugee Convention, Art. 1(A)(2) (emphasis added); Kate Darling, Protections of Stateless Persons in International Asylum and Refugee Law, 21 Int’l J. Refugee L. 742, 750 (2009).

[10] The Convention also set a higher bar for Stateless applicants. See Darling, supra note 9, at 743 (“Even at its most generous, the international refugee protection regime requires more of stateless persons than it does of nationals who seek refugee status.”).

[11] Sengupta & Saad, supra note 1.

[12] This Note coins consistent reference approach as a descriptive term.

[13] 324 F.3d 445 (6th Cir. 2003).

[14] See infra Part II.

[15] The small exception is the Bedouin applicant in Al-Anezi v. Minster for Immigration and Multicultural Affairs, 92 FRC 283 (Aus. 1999),,AUS_FC,3ae6b7617.html. Bedouin are semi-nomadic people. Although they may not identify with Palestinian nationality, they historically lived in the Negev region of Palestine. See Emanuel Marx, Bedouin of the Negev, 7 (1967).

[16] See Ouda, 324 F.3d at 447; Al-Anezi, 92 FRC 283, (Aus. 1999) at ¶ 2–8; Thabet v. Canada, 1 F.C. 685 (C.A. 1998).

[17] See Ouda, 324 F.3d at 447; Al-Anezi, 92 FRC 283 at ¶ 2–8; Thabet, 1 F.C. 685 (C.A. 1998).

[18] See Ouda, 324 F.3d at 447; Al-Anezi, 92 FRC 283 at ¶ 2–8; Thabet, 1 F.C. 685 (C.A. 1998).

[19] See Ouda, 324 F.3d at 448; Sarah B. Fenn, Note, Paipovic. v. Gonzales: Defining Last Habitual Residence for Stateless Asylum Applicants, 40 U.C. Davis L. Rev. 1545, 1562 (2007),

[20] 8 U.S.C. § 1101(a)(42)(A) (2012), This is potentially distinct from CFHR, and arguably a Convention violation. See, Joan Fitzpatrick, The International Dimension of U.S. Refugee Law, 15 Berkeley J. of Int’l L. 1 (1997),

[21] Ouda, 324 F.3d at 447–48.

[22] Ouda, 324 F.3d at 448–450, 453.

[23] Id. at 448–50; Fenn, supra note 19, at 1562.

[24] Ouda, 324 F.3d at 449–50. See, 8 USC § 1101(a)(42)(A); Hathaway & Foster, supra note 8, at 73.

[25] Compare, Refugee Convention, Art. 1(A)(2), with 8 U.S.C. § 1101(a)(42)(A).

[26] Ouda, 324 F.3d at 449. Applicant’s argument is nonsensical as Kuwait, the correct reference point in her view, suffers identical deficiencies. See, Hathaway & Foster, supra note 8, at 69 (discussing the controversial usage of legal returnability as an indicator of CFHR).

[27] Id. at 450. Cf. Fenn, supra note 19, at 1561.

[28] Ouda, 324 F.3d at 452 (“we can find no support for the proposition that an asylum applicant is precluded from seeking asylum in the United States should it prove to be the case that the country from which she seeks asylum will not take her back if the INS tries to deport her.”).

[29] Ouda, 324 F.3d at 454.

[30] Id. In a sense, it is like the court is simply saying why not.

[31] See e.g. Najjar v. Ashcroft, 257 F.3d 1262, 1294–95 (11th Cir. 2001); Hathaway & Foster, supra note 8, at 72. But see, Fenn, supra note 19, at 1564 (suggesting the U.S. approach was never well-settled).

[32] 257 F.3d 1262 (11th Cir. 2001).

[33] Id. Najjar’s facts deviate from this comment’s other examples. His first asylum and withholding hearings were done ex parte, in camera, due to an FBI terror investigation of the applicant. Id. at 1274. The case was eventually heard on public evidence, id.

[34] Id. at 1294.

[35] Id.

[36] Ouda, 324 F.3d at 449–50.

[37] Najjar, 257 F.3d at 1294.

[38] 257 F.3d at 1294; Hathaway & Foster, supra note 8, at 73 (discussing Najjar).

[39] See Refugee Convention, Art. 33.

[40] Ouda, 324 F.3d at 449–50. Not a refugee and not deportable is a common predicament for stateless U.S. asylum applicants. Baluarte, supra note 6, at 352–353.

[41] Hathaway & Foster, supra note 8, at 72.

[42] Refugee Convention, Art.1(A)(2).

[43] Goodwin-Gill & McAdam, supra note 9, at 526.

[44] Id.

[45] Hathaway & Foster, supra note 8, at 67.

[46] Id. at 765 (quoting Hathaway and Foster).

[47] Refugee Protection at International Law: UNHCR’s Global Consultations on International Protection 365 (Erika Feller et al. eds. 2003).

[48] Id. at 25–26; Hathaway & Foster, supra note 8, at 335–41.

[49] The court in Thabet rejected its glossed version of Hathaway’s argument that tied unlikelihood of forward-looking fear to the issue of returnability. As the court correctly pointed out this short-cut does not work in all cases. For example, when persecution is expulsion and forward-looking risk may be faced abroad.

[50] Darling, supra note 9, at 756 (“However, the stateless person’s condition of rightlessness, a condition that makes all other fundamental human rights effectively precarious, remains persistent and protracted.”).

[51] 1 F.C. 685, 686 (F.C.A. 1998).

[52] See supra p. 3.

[53] Id.

[54] One such proxy may be an individual’s choice to reside with the intent to remain, supported with understanding “habitual” with a durability. See, The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, 57 (Andreas Zimmerman et al. eds., 2011).

[55] See supra Part I. The Canadian court rejects this approach for its lack of adherence to the Convention. Thabet, 1 F.C. at [694]. (“[I]t leaves open the possibility that a person may be returned to a persecuting state…).

[56] See infra Part I.

[57] Thabet, 1 F.C. at [695–96].

[58] Id.

[59] Id.

[60] Thabet, 1 F.C. at [695].

[61] See supra Part I.

[62] Al-Anezi, 92 FRC at para 22. The court added that stateless persons lacked “reciprocal rights and duties” to their country of residence. Id. at para 23.

[63] Id. at para 22.

[64] Thabet, 1 F.C. at [695]; But see, Guy S. Goodwin-Gil, Stateless Persons and Protection under the 1951 Convention; Refugees, Beware of Academic Error! (1992) (critiquing the introduction of the second prong portion of the Hathaway test and its original returnability language as needlessly complicating matters for applicants).

[65] Hathaway & Foster, supra note 8, at 72.

[66] Refugee Convention, Art 1(A)(2).

[67] Cf. Refugee Protection at International Law: UNHCR’s Global Consultations on International Protection 26 (Erika Feller et al. eds. 2003) (making a similar point about internal protection alternatives).

[68] See e.g. Himri v. Ashcroft, 378 F.3d 932 (9th Cir. 2004), modified, No. 03–71152, 2004 WL 1879255 (Aug. 24, 2004). Applying different standards for designating countries of removal. Compare, 8 USC § 1101(a)(42)(A), with  8 USC § 1231(b).

[69] See e.g. Paripovic v. Gonzales, 418 F.3d 240, 241-42, 245 (3d Cir. 2005) (narrowing inquiry down to only temporal considerations); Ouda v. INS, 324 F.3d 445, 449-50 (6th Cir. 2003).

[70] Ouda, 324 F.3d at 450.

[71] Ouda, 324 F.3d at 449–50.

[72] Id. at 452.

[73] Id. at 453.

[74] Id.

[75] See, Fenn, supra note 19, at 1564.

[76] Reading ambiguity between possible meanings is easier with the Convention language “former/dernier.”


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