Scholar argues that the United States may need to amend its asylum laws to include climate refugees.
President Donald J. Trump has ordered his Administration to build a border wall to prevent immigrants from entering the United States illegally. His decision to withdraw the U.S. from the Paris Agreement took effect earlier this month. These two policy actions are more closely linked than they might seem at first glance.
The World Bank predicts that climate change could displace over 140 million people by 2050. Will the United States have a responsibility to provide relief to some of these victims of climate change?
Recent law graduate Shea Flanagan argues that it will. Indeed, she says that Congress should expand the Immigration and Nationality Act (INA) to allow the federal government to grant asylum to people forced to leave their home countries due to climate disasters and altered climate conditions.
The United States currently offers Temporary Protected Status (TPS) to people fleeing an “environmental disaster” such as an “earthquake, flood, drought, or epidemic.” The Attorney General must determine that the disaster resulted in a “substantial, but temporary, disruption of living conditions.” Flanagan argues that TPS would not provide adequate protection to so-called “climate migrants.”
The problem with TPS is that it is designed, as its name suggests, to be temporary, Flanagan explains. TPS can be revoked by the United States government if the protected person fails to register with the Attorney General annually, if the protected person fails to remain in the United States continuously since TPS status was granted, or if the state the protected person emigrated from no longer meets the conditions to qualify for TPS. TPS also does not provide a path to legal residence.
Flanagan instead proposes granting asylum for climate migrants. Asylum is available for people who are either fleeing their home country due to past persecution or who are fearful that that there is a “reasonable possibility” of being persecuted in the future. People granted asylum in the United States can bring their families with them, work, and apply for a green card after one year of United States residence.
Under the current law, refugees can only obtain asylum in the United States if they meet certain requirements. For example, the refugee must be fleeing persecution based on “race, religion, nationality, membership in a particular social group, or political opinion.” In addition, the refugee must be unwilling or unable to appeal to his nation for protection.
Flanagan proposes two ways to extend asylum requirements to include climate migrants. One option would be to expand the definition of “membership in a particular social group” to include people suffering the consequences of climate change. Flanagan suggests that the benefit of this option is that it would not require any substantive changes to the law. Flanagan acknowledges, though, that the interpretation of this category of protection has “significantly narrowed” in the past few years, raising a question of whether judges would accept an expanded definition.
Second, Congress could add a new category of asylum to the INA based on “environmental grounds,” Flanagan argues. The challenge, Flanagan concedes, would be to create a category that is sufficiently narrow to provide appropriate assistance to climate change refugees, but not too broad that it sweeps in non-climate environmental harms.
Flanagan argues that an appropriate definition would include “people who are forced to flee across national borders due to climate change-related forces that render their home country uninhabitable.”
Some climate migrant advocates argue against “reducing” the issue of climate migration to a “climate refugee” status. The International Organization for Migration’s Dina Ionesco explains that many climate migrants move within a single country and do not cross international borders. Furthermore, Ionesco argues that creating a climate refugee status could result in complicated legal procedures that force people into overly restrictive categories, take too much time, and inevitably leave out people in need that do not fall within a given category.
Similar concerns arose in New Zealand several years ago when the government created “humanitarian visas” aimed at assisting Pacific Islanders displaced by the consequences of climate change. New Zealand revoked these visas six months later, because “Pacific Islanders did not want them,” says one report. Instead, Pacific Islanders reportedly wanted New Zealand to “reduce emissions, support adaptation efforts, and provide legal migration pathways,” arguing that refugee status is a “last resort.”
Other critics of a special climate refugee status argue that countries responsible for the majority of carbon emissions should provide assistance to countries affected by climate change by paying into the “Green Climate Fund” created by 194 sovereign nations that participated in the United Nations Framework Convention on Climate Change. The fund could then be used for climate adaptation and mitigation. The United States pledged $3 billion to this fund, but it only delivered $1 billion because President Trump withdrew the U.S. pledge in 2017.
President Trump argued that the Green Climate Fund was costing the United States “a vast fortune.” That same year, the United States was deemed to be “historically responsible for more emissions than any other country.”
The United States has a moral duty to “mitigate the harm of its global emissions,” and offering climate migrants a “safe haven” through asylum is one way the United States can help to fulfill this moral responsibility, Flanagan concludes.
