Climate Change, Asylum and Refugee Status: Jeffrey S. Chase

Jeffrey S. Chase, Nov. 22, 2021 - White House Issues Report on Climate Change and Migration

"On October 21, the White House issued a Report on the Impact of Climate Change on Migration which contains a few noteworthy passages relating to the law of asylum.

On page 17, the White House report acknowledges that existing legal instruments for addressing displacement caused by climate change are limited.  Encouragingly, the report advises that “the United States should endeavor to maximize their application, as appropriate” to such displaced individuals.

The report next cites both the 1951 Refugee Convention and the 1967 Protocol and their application to climate-induced displacement, referencing recent UNHCR guidance on the topic.  The report then offers three examples in which climate change issues might arise in the asylum context.

 First, the report recognizes that where “a government withholds or denies relief from the impacts of climate change to specific individuals who share a protected characteristic in a manner and to a degree amounting to persecution, such individuals may be eligible for refugee status.”

Secondly, the report acknowledges that “adverse impacts of climate change may affect whether an individual has a viable relocation alternative within their country or territory.”  This language relates to the regulatory requirement that in order to have a well-founded fear of persecution, an asylum applicant could not avoid persecution by relocating within their country of nationality “if under all the circumstances it would be reasonable to expect the applicant to do so.”1

The applicable regulations instruct that:

adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties. Those factors may, or may not, be relevant, depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate.2

While the regulatory language is broad and non-exhaustive, the specific mention of climate change factors in the White House report is most welcome, as such circumstances might not otherwise jump out at immigration judges and asylum officers as being relevant to the relocation inquiry.

Thirdly, the White House report states that “[c]limate activists, or environmental defenders, persecuted for speaking out against government inaction on climate change may also have a plausible claim to refugee status.”

Although not specifically cited in the White House report, UNHCR issued guidance on the topic in October 2020.3  Practitioners should file both the White House report and the UNHCR guidance with EOIR and DHS in appropriate cases, as the latter clearly served as an influence for the former, and provides greater detail in its guidance.4  For instance, in discussing how climate change factors can influence internal relocation options, the UNHCR document at paragraph 12 makes clear that the “slow-onset effects of climate change, for example environmental degradation, desertification or sea level rise, initially affecting only parts of a country, may progressively affect other parts, making relocation neither relevant nor reasonable.”  This detail not included in the White House report is important; it clarifies that the test for whether relocation is reasonable requires a long view, as opposed to limiting the inquiry to existing conditions, and specifically flags forms of climate change that might otherwise escape an adjudicator’s notice.

Also, in paragraph 10, the UNHCR document’s take on the White House report’s third example is somewhat  broader, stating that “[a] well-founded fear of being persecuted may also arise for environmental defenders, activists or journalists, who are targeted for defending, conserving and reporting on ecosystems and resources.”5  UNHCR’s inclusion of journalists as potential targets, and its listing of “defending, conserving, and reporting” as activities which a state might lump into the category of “speaking out” and use as a basis for persecution, should be brought to the attention of adjudicators.

Given how early we are in the process of considering climate change issues in the asylum context, the above-cited language in the White House report is important, as it provides legitimacy to theories still unfamiliar to the ears of those adjudicating, reviewing, and litigating asylum claims.  It is hoped that EOIR and DHS will immediately familiarize its employees who are involved in asylum adjudication with the report.  And as EOIR and DHS consider next steps in developing guidance and training, it is hoped that they will consider a collaborative approach, including in the discussion those outside of government who have already given the topic a great deal of thought.6 

Copyright 2021 Jeffrey S. Chase.  All rights reserved.

Notes:

1.  8 CFR 208.13(b)(2)(ii).

2. Id.

3. UN High Commissioner for Refugees (UNHCR), Legal considerations regarding claims for international protection made in the context of the adverse effects of climate change and disasters, 1 October 2020, https://www.refworld.org/docid/5f75f2734.html, at para. 12.

4. Although UNHCR’s views on interpreting the 1951 Convention and 1967 Protocol are not binding on the U.S. Immigration Courts, they have been found by the BIA to be “useful tools in construing our obligations under the Protocol.”  Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).  See also INS v. Cardoza-Fonseca, 480 U.S. 421, 438-39 (1987).

5. Id. at para. 10.

See, e.g. “Shelter From the Storm: Policy Options to Address Climate Induced Displacement From the Northern Triangle,” https://www.humanrightsnetwork.org/climate-change-and-displaced-persons."

Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals. He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award. Jeffrey is also a past recipient of AILA’s Pro Bono Award. He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.