Going Beyond U.S. Immigration Law to Accept Climate Migrants

13 April 2021 – by Caroline Foley

Introduction

Imagine traveling almost 1,000 miles by foot with your family to have access to drinkable water, leaving behind your community to venture into an unknown land. Eric, his wife, and two children, an indigenous Mayan family from Guatemala were forced to do just that. When the family arrived in the U.S., their two children were diagnosed with anemia. Further test results also showed high levels of lead, which were most likely a result of the rainwater they collected and consumed. When it stopped raining, they had no choice but to walk 2 miles to bring water home. They also tried to dig 20 meters into the ground to find water, but to no avail. At last, they turned to their mayor for help, but unfortunately that, too, failed.^[1]

The adverse farming conditions brought by droughts have worsened the crisis in the area in Central America known as the “Dry Corridor.” According to UNICEF, the effects of climate change disproportionately impact particularly indigenous families.^[2]  In the San Marcos department in Guatemala, indigenous peoples are faced with droughts caused by climate change that have affected water supplies for human consumption and irrigation. Many parts of Guatemala face desertification, because rainfall is expected to decrease by 60 percent, and the amount of water keeping soil moist may drop by as much as 83 percent.^[3] A study predicts that as many as 680,000 climate migrants might be forced to move from Central America and Mexico to the United States between now and 2050.^[4] More generally speaking, extreme weather events are the leading cause of migration around the world. The Internal Displacement Monitoring Center estimates that 21.5 million people per year, on average, over the past decade have had to flee their homes due to storms, floods, wildfires, droughts, and other weather events^[5]. These events have increased in severity and frequency due to climate change.

Despite the alarming numbers, one of the difficulties in “making a case” for climate migrants is to draw the line between when conflict is created and/or fuelled by climate change, or when it is driven by other factors, such as those of political nature and poverty. In the example of Guatemalans who migrated to the United States, poverty and violence are often cited as the push factors, when often they were a product of the droughts caused by climate change.

Neither does the  U.N. refugee definition cover their ‘status.’ However, there are regional expansions of the “refugee” definition in Latin America and Africa that are gradually becoming accepted  by international organizations and countries; and should, therefore, also be adopted by the United States to address the regional climate migration crisis in Central America.

I. Current Immigration Law in the U.S.

U.S. refugee policy used to recognize that those displaced by “natural calamity” deserved protection. The 1953 Refugee Relief Act defined a refugee as “any person in a country or area which is neither Communist nor Communist-dominated, who because of persecution, fear of persecution, natural calamity or military operations is out of his usual place of abode and unable to return thereto… and who is in urgent need of assistance for the essentials of life or for transportation.”^[6] However, the 1980 Refugee Act subsequently eliminated “natural calamity,” and instead adopted the United Nation definition of a refugee, which makes no reference to natural disasters.

Currently, in the United States, there are few options for migrants who left their country primarily because of climate change. One of the options available only applies to migrants who are already living in the United States when the natural disaster takes place, and the other option has not been recognized by any Federal Court in the United States.

1. Temporary Protected Status

Temporary Protected Status (TPS) is granted to individuals who are unable to return to their countries due to “ongoing conflict, environmental disasters, or extraordinary and temporary conditions.”^[7] The Secretary of Homeland Security has the discretion to decide when to designate a country for TPS. Although they often consult with the Department of State and the National Security Council, the Secretary’s decision as to whether or not to designate a country for TPS is not subject to judicial review. A TPS designation is a very short-term resolution as individuals will be protected six, twelve, or eighteen months at a time. At least 60 days prior to the expiration of TPS, the Secretary may extend or terminate a designation based on the conditions in the foreign country. If the Secretary decides against renewing the TPS designation for a certain country, all TPS beneficiaries from that country return to the immigration status held prior to receiving TPS and can become subject to removal. Overall, the benefits of TPS status is limited and only benefit a small portion of climate migrants.^[8]

2. Asylum Law

Another narrow option in U.S. immigration law is asylum law. To qualify for asylum, the individual must be fleeing persecution based on “race, religion, nationality, membership in a particular social group, or political opinion.”^[9] Most of the  litigation happens in the context of “membership to a particular group.”Advocates and practitioners are creative in expanding this category before immigration judges and the Board of Immigration Appeals. However, the category of “accepted” particular social groups is limited to only a small portion of asylum seekers, which became even smaller once Donald Trump assumed office. In effect, legal practitioners have been unable to expand “membership in a particular social group” to include people affected by climate change.^[10]

Returning to our initial case, people like Eric do not qualify for TPS nor asylum, neither can they return to Guatemala due to both the land conflict and climate-induced water shortage. There is an ongoing push to expand TPS so as to include migrants who are currently not in the U.S. at the time of designation, and to advocate for a broader definition for a “particular social group.” I will attempt to look at how some regions have dealt with local migration within the continent and how, or if, the U.S. could adopt a regional approach and/or a broaden the refugee definition.

II. International Framework for Refugees

Africa and Latin America have acknowledged that the UN Definition of a refugee as per the 1951 Convention fell short in helping migrants displaced within their continents. They have both pushed for bolder policies to expand the definition in order to protect a migrant’s basic right to life.

The Organization of African Unity Convention (“OAU”) of 1969 is a regional expansion to the 1951 United Nations Convention.^[11] A specific purpose of the 1969 OAU Convention was to provide additional refugee protection. The broader refugee criteria included in Article I(2) of the 1969 OAU Convention protects people who migrate as a result of “events seriously disturbing public order in either part or the whole” of the country of origin.

It should be noted that the factors that pushed the need for the 1969 OAU Convention are no longer restricted to Africa. The 1969 OAU Convention does not define or limit the concept of “events seriously disturbing public order”. The language allows for interpretations reflecting the ongoing developments in the continent.^[12] Although the Convention is silent as to whether victims of natural disasters can legitimately be considered as refugees, the Convention operates as a human rights protection, and “events seriously disturbing public order in either part or the whole of his country of origin or nationality”,^[13] can be construed to cover this category.

The OAU Convention inspired the Cartagena Declaration which incorporates a similarly worded extended refugee definition, as well as the doctrine of the Inter-American Commission on Human Rights.^[14]  The Declaration recognized the need to protect persons displaced by the unrest in Latin America during the 1980s, which was instrumental in responding to the people displaced by the coup d’etats and generalized government violence that happened in the region. The Declaration’s interpretation is informed by international and regional human rights and humanitarian law, especially the norms and standards of the 1969 American Convention on Human Rights, and the evolving case law of the Inter-American human rights bodies.

While not a treaty, the 1984 Cartagena Declaration is similar to the OAU in that in Conclusion III(3) it recommends that refugees include “persons who have fled their country because their lives, security or freedom have been threatened by … other circumstances which have seriously disturbed public order”.^[15] Although the Cartagena Declaration is not legally binding, most Latin American countries have adopted its broader refugee definition by incorporating it within their domestic law or through practice. Even the countries that have not adopted it, have recognized its crucial role in protecting displaced persons in the region, including the United States. This version of the  refugee definition has also been recognized by the Inter-American Court of Human Rights^[16], and the General Assembly of the Organization of the American States.^[17]

It is important to note that national refugee agencies are in charge of interpreting and applying the refugee definition in the Declaration. Mexico and Brazil, for example, have granted refugee status under the broad definition of the Declaration to more than 53,000 and 46,000 Venezuelan Refugees.^[18] In December 2014, 28 countries across the Americas convened in Brasilia to mark the 30^th anniversary of the Cartagena Declaration.^[19] At the end of the meeting, officials adopted the Brazil Declaration and Plan of Action, agreeing to further the work begun in Cartagena and move toward implementing solutions for displaced persons.^[20] The Declaration is currently incorporated by 16 countries and we can see a continuous increase in commitments. While no country in Latin America as of today has interpreted the Cartagena Declaration to grant refugee status based on the effects of climate change and disasters, due to the ongoing developments, it has still been listed, along  with the 1969 OAU Convention, as an example of progress with regard to regional refugee protection.^[21]

III. Moving forward

Assessing claims for international protection based on climate change is extremely complex when attempting to apply the  UN 1951 Convention, the OAU Convention, and the Cartagena Declaration. Although, there is currently no real intention to change the  refugee definition, there is certainly a lot of advocacy and conversation happening around the need to recognize climate migrants by the United Nations and country leaders.

For example, in 2020, the UN Human Right Committee in Teitiota v. New Zealand clarified that people seeking asylum are not required to prove that they would face immediate harm if deported back to their home countries because climate-related events can occur suddenly, or over time. Most importantly, Committee members underlined that the international community must assist countries adversely affected by climate change.^[22] Furthermore, given that the risk of an entire country becoming submerged under water is one of extreme nature, the conditions of life in such a country may become incompatible with a right to life with dignity before the risk is realized.^[23] Although the decision is not binding to the United States, it is a step in the right direction.

Another effort has been the creation of the Migration, Environment and Climate Change Division at IOM, which oversees and supports all policy projects on environment- and climate change-related migration. One of IOM’s goals in managing environmental migration includes providing assistance to affected populations during a disaster and facilitating migration as a climate change adaptation strategy.^[24] While the IOM partners with the UNHCR on the issue of resettlement, climate migrants are not a priority as they do not  don’t fall within the 1951 refugee definition.^[25]

As for the current refugee program in the United States, participants in the climate migrant resettlement program could be eligible to apply for lawful status if the program was tied to a regional compact on climate displacement like Cartagena or OAU Convention. Though this may not immediately result in greater resettlement opportunities, it could expand protection.

In October 2020 the United Nations High Commissioner for Refugees (UNHCR) issued the Legal Considerations regarding claims for international protection made in the context of the adverse effects of climate change and disasters^[26]. The UNHCR established that “people displaced by the adverse effects of climate change and disasters can be refugees under regional refugee criteria” under the “circumstances that have seriously disturbed the public order” prong of the Cartagena Declaration and OAU Convention.^[27]

In this regard, the UNHCR concluded that the key question in making a decision regarding eligibility of refugee status under this ground, is whether human dignity has been violated, and if so, whether the state is unwilling or unable to address it. Looking at the refugee definition more broadly, UNHCR concludes that climate change may have significant adverse effects on state and societal structures, individual well-being and the enjoyment of human rights. Additionally, it recognizes that a narrow focus might “fail to recognize the social and political characteristics of the effects of climate change and their interaction with other drivers of displacement”.^[28] 

The UN has defined a “disturbance” to public order occurs when there is a disruption to the normal and stable functioning of this order.^[29] The “serious” threshold may embrace quantitative and qualitative dimensions and must be assessed on a case-by-case basis, taking into account the nature and duration of the disruption and its consequences on the security and stability of the state and society therein.^[30] Whether a disturbance to public order stems from human or other causes is not determinative for concluding a serious disturbance of public order; the central concern is the effect of a given situation. Accordingly, the principal inquiry at the time of assessing a claim for refugee status is whether a serious disturbance to public order exists as a matter of fact, based on an assessment of available evidence.

Both under Cartagena and OAU Convention, the refugee definition requires “circumstances which have seriously disturbed public order”. As such, climate change or a disaster must have an effect on the person’s place of habitual residence and force the person to leave their country. The document gives the criteria to analyze whether the climate change that unfolds is a risk of harm: how the disaster unfolds and develops; the geographical proximity of the disaster to the person’s place of habitual residence; how it affects their life, physical integrity, liberty and enjoyment of other human rights; and how the State responds.^[31]

Lastly, the document highlights that if there is a real risk of being subjected to serious harm, that person has the right to be protected from irreparable harm by Articles 6 (right to life) and 7 (prohibition of torture and cruel, inhuman or degrading treatment or punishment) of the International Covenant on Civil and Political Rights.^[32] In addition to the UNHCR report, the Rio Declaration on Environment and Development, also highlights the link of healthy environment and human rights when it stated that human beings need to be at the center of concerns for sustainability and should be entitled to a healthy life in “harmony with nature.”^[33]

Conclusion

The Biden’s administration has taken an interest in the protection of climate migrants. On February 4, 2021, the Biden administration ordered a report on climate change and its impact on migration, including forced migration, internal displacement, and planned relocation, to be submitted in 180 days.^[34] This report will include options for protection and resettlement of individuals displaced directly or indirectly from climate change and mechanisms for identifying such individuals. Most importantly, the Biden administration requests that the report looks at opportunities to work collaboratively with other countries to respond to “migration resulting directly or indirectly from climate change”.^[35]

It is crucial that the United States, as well as the rest of the world, recognize how interconnected we are, especially to neighboring countries. The Cartagena Declaration and OAU Convention, although imperfect, are a step towards realising our shared responsibility within our continents to protect families like Eric’s.

This article is part of our Spring 2021 collaboration with students from the International Human Rights Clinic at the Western New England University.

---

---

References

[1] The author of this piece worked on this immigration case personally. The names were changed to protect anonymity.

[2]John Vidal, How Guatemala is Sliding into Chaos in the Fight for Land and Water, The Guardian (Aug. 19, 2018), https://www.theguardian.com/world/2018/aug/19/guatemala-fight-for-land-water-defenders-lmining-loging-eviction.

[3] Abraham Lustgarten, The Great Climate Migration has Begun, NY Times, https://www.nytimes.com/interactive/2020/07/23/magazine/climate-migration.html (last visited Apr. 1, 2021).

[4] Id.

[5] Erol Yayboke, A New Framework for U.S. Leadership on Climate Migration, CSIS (Oct. 23, 2020), https://www.csis.org/analysis/new-framework-us-leadership-climate-migration.

[6] Maria Cristina Garcia, Does the United States Need a Climate Refugee Policy?, Historical Climatology (Apr. 25, 2019), https://www.historicalclimatology.com/features/does-the-united-states-need-a-climate-refugee-policy.

[7] See footnote 4.

[8] Temporary Protected Status: https://www.uscis.gov/humanitarian/temporary-protected-status

[9] Convention and Protocol Relating to the Status of Refugees (1951 & 1967), https://www.unhcr.org/3b66c2aa10.html.

[10]Shea Flanagan, “Give me your Tired , your Poor, your Huddled Masses”: The Case to Reform Asylum Law to Protect Climate Change Refugees, De Paul J. for Soc. Justice (2019), https://via.library.depaul.edu/cgi/viewcontent.cgi?article=1202&context=jsj#page=23.

[11] Persons covered by the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and by the Cartagena Declaration on Refugees (Apr. 6, 1992), https://www.unhcr.org/en-us/excom/scip/3ae68cd214/persons-covered-oau-convention-governing-specific-aspects-refugee-problems.html.

[12]Legal Considerations Regarding Claims for International Protection Made in the Context of the Adverse Effects of Climate Change and Disasters, UNHCR (Oct. 1, 2020), https://www.refworld.org/docid/5f75f2734.html.

[13] Id.

[14] Summary Conclusions on the Interpretation of the Extended Refugee Definition in the 1984 Cartagena Declaration (Oct. 2013), https://www.unhcr.org/53bd4d0c9.pdf.

[15]  Cartagena Declaration 1984: https://www.oas.org/dil/1984_cartagena_declaration_on_refugees.pdf

[16]Advisory Opinion OC-25/18, Inter-American Court of Human Rights (May 30, 2018), https://www.refworld.org/docid/5c87ec454.html.

[17] Proteccion de los Solicitantes de la Condicion de Refugiado y de los Refugiados en las Americas, OAS (Jun. 5, 2012), https://www.oas.org/es/sla/ddi/docs/AG-RES_2758_XLII-O-12_esp.pdf.

[18] The Cartagena Refugee Definition and Venezuelan Displacement in Latin America, International Migration (Dec. 2, 2020),  https://onlinelibrary.wiley.com/doi/10.1111/imig.12791?af=R.

[19]Regional Refugee Instruments & Related, Brazil Declaration and Plan of Action, 3 December 2014, available at: https://www.refworld.org/docid/5487065b4.html.

[20]Marissa Esthimer, Protecting the forcibly Displaced: Latin America’s Evolving Refugee and Asylum Framework, Migration policy Institute (Jan. 14, 2016), https://www.migrationpolicy.org/article/protecting-forcibly-displaced-latin-america-evolving-refugee-and-asylum-framework.

[21] The Cartagena Declaration at 35 and Refugee Protection in Latin America, E-International Relations (Nov. 22, 2019), https://www.e-ir.info/2019/11/22/the-cartagena-declaration-at-35-and-refugee-protection-in-latin-america/.

[22] UN Human Rights Ruling could Boost Climate Change Asylum Claim, UN News (Jan. 21, 2020),  https://news.un.org/en/story/2020/01/1055671.

[23] Ioane Teitiota v. New Zealand, CCPR/C/127/D/2728/2016, UN Human Rights Committee (Jan. 7, 2020), https://www.refworld.org/cases,HRC,5e26f7134.html.

[24] Migration, Environment and Climate Change Division, IOM, https://www.iom.int/migration-and-climate-change.

[25] See footnote 4.

[26] See footnote 11.

[27] Id.

[28] Id.

[29] Key Concepts on Climate Change and Disaster Displacement, UNHCR, www.unhcr.org/protection/environment/5943aea97/key-concepts-climate-change-disaster-displacement.html.

[30] Id.

[31] See footnote 11.

[32]International Covenant on Civil and Political Rights, OHCHR (Dec. 16, 1966), https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.

[33]Report of the United Nation Conference on Environment and Development (Aug. 12 1992), https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF.151_26_Vol.I_Declaration.pdf.

[34]  Executive Order on Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migtation: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/04/executive-order-on-rebuilding-and-enhancing-programs-to-resettle-refugees-and-planning-for-the-impact-of-climate-change-on-migration/

[35] Id.