JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW
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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:
- 8 CFR 208.13(b)(2)(ii).
- Id.
- 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.
- 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).
- 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.
NOVEMBER 22, 2021
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The Need For Full-Fledged Asylum Hearings
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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.
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https://www.theguardian.com/commentisfree/2021/nov/11/climate-refugees-far-right-crisis?CMP=Share_iOSApp_Other
Failing to plan for climate refugees hands a cheap victory to the far right
Zoe Williams
The climate crisis could cause mass displacement as land is left uninhabitable – nations have to work together to plan for this
Thu 11 Nov 2021 03.00 EST
Last modified on Thu 11 Nov 2021 03.02 EST
As scientists wrestle to predict the true impact and legacy of Cop26, one speech, given at a rally organised by Global Justice Now, insisted upon a perspective not data-driven but moral. Lumumba Di-Aping, a South Sudanese diplomat and former chief negotiator for the G77, said: “The first resolution that should be agreed in Glasgow is for annex I polluters to grant the citizens of small island developing states the right to immigration.”
It was a tactful way of putting it: annex I nations are those with special financial responsibilities in tackling the climate crisis. They have these special responsibilities because their early industrialisation created so much of the carbon burden. A more pugilistic diplomat might have said “the people who created this disaster have to offer sanctuary to those displaced by it”, but then, he wouldn’t be a diplomat.
Di-Aping went on to note article 3 of the UN Universal Declaration of Human Rights: “Everyone has the right to life, liberty and security of person.” “Small island states,” he concluded, “should not be drowned alive like Zealandia.”
. . . .
As old debates around the climate crisis and whether or not it is anthropogenic give way to consensus, new ambiguities and uncertainties are constructed around refugees: can they really be called the victims of environmental degradation? We will grapple with any other explanation – they’re actually economic migrants, or they’re the victims of civil strife, or they fell foul of a dictatorship, the one-bad-man theory of geopolitics – rather than trace these proximal causes back to their roots. Most political efforts, currently, are geared towards building a positive picture of a sustainable future; the alternative is despair or denial, neither of which are generative forces for change. A coherent, practical plan detailing the probable scale of displacement and figuring out a just distribution of the climate diaspora will look radical and unsettling.
One group is extremely comfortable on that territory, however: the far right. Steve Bannon sent a chill down the spine in 2015 when he talked about a “Camp of the Saints-type invasion into … Europe”. He made the reference again and again, until finally onlookers were forced to read the source: Jean Raspail’s racist novel of 1973, which one contemporary reviewer called “a major event … in much the same sense that Mein Kampf was a major event”. The title comes from a passage in the Book of Revelation about the coming apocalypse – civilisation collapses when the hordes arrive from the four corners of the Earth to “surround the camp of the saints and the beloved city” – and Raspail took up the idea; it was inevitable, he said, that “numberless disinherited people of the south would set sail one day for this opulent shore”.
Through Bannon and others, this idea has replicated, mutated and engulfed others, to become the “great replacement theory” of white supremacists, which Paul Mason describes in his recent book How to Stop Fascism as the toxic political view that “immigration constitutes a ‘genocide’ of the white race”. Feminists help it along by depressing the birth-rate, and cultural Marxists bring the mood music, by supporting both migrants and feminists.
Other far-right movements are sucked into the vortex of this wild but coherent theory, and yet more are spawned or shaped by it: the cosmic right (embodied in Jake Angeli, the QAnon figure in the animal-skin cap who stormed the Capitol in January, then went on hunger strike in prison because the food wasn’t organic), or the eco-minded white supremacists who make this explicit – you can be a humanitarian or an environmentalist. Choose one.
As fanciful and irrational as many far-right arguments are, they have a rat-like cunning. They find these spaces that are untenanted by mainstream debate – there will be climate refugees and they must be accommodated – and they run riot in them. Nations who ignore Lumumba Di-Aping aren’t doing anything to avert the consequences he describes: their silence merely creates an open goal for the professed enemies of a peaceful and prosperous future.
- Zoe Williams is a Guardian columnist
Read Zoe’s complete article at the link.
Usually White House Reports and other quasi-academic “White Papers” produced at public expense are accompanied by major press releases and momentary hoopla. Then, they are rapidly consigned to the “Dustbin of History.”
They are widely ignored by politicos and bureaucrats who all too often are pursuing policies with little or no empirical basis, but designed to appease or “fire up” some voting block or to further the institutional self-preservation upon which bureaucracies thrive, expand, and prosper, even at the expense of the well-being of the governed!
This report, however, is one that deserves to be the basis for policy action! Too bad it isn’t!
Obviously, an Administration that failed to restore existing refugee and asylum systems, continues to subject migrants to due process denying “star chambers,” thinks “die in place” is an acceptable and effective refugee policy, and wrongly views asylum as a “policy option” rather than a well-established legal and human right, is playing right into the hands of Bannon, Miller, and their 21st Century nihilist movement! It’s also an Administration that didn’t learn much from World War II and the Cold War.
And, on future inevitable and predictable forced migrations, the world isn’t going to get much leadership from a rich nation that can’t even deal fairly, generously, and efficiently with today’s largely predictable, potentially very manageable, refugee situations. Many are situations that our nation either created or played a significant role in creating. See, e.g., environmental migration.
There is actually “room at the inn” for everyone and creative ways for nations to work together to resettle refugees of all types while prospering and working together for the benefit of humanity. Sure, they contradict the nationalist myths upon which many past and current refugee and migration restrictions are based.
Clearly, the realistic, constructive, humane solutions necessary for survival aren’t going come from the racist far right! And, currently the Biden Administration’s failure to stand up for the legal, moral, and human rights of asylum seekers and other referees isn’t doing the job either! Constructive, democratic, moral leadership and courage, oh where, oh where, have you gone?
