Climate Migrants Lack a Clear Path to Asylum in the US

With crossings expected to surge when the Covid-related closure of the U.S.-Mexico border to migrants ends, activists are pushing for a new immigration pathway for people who are impacted by climate disasters.

The Intergovernmental Panel on Climate Change has called climate change a “threat multiplier” that puts compounding pressure on people to move within or outside country borders, and the activists are calling on the Biden administration and Congress to recognize this growing reality by supporting legislation and other efforts to expand legal pathways for climate-displaced people to migrate into the U.S. 

Under current law, people impacted by climate may apply for asylum or refugee status in the U.S. only if they can show that the central reason they are fleeing their home country is that they faced or have reason to fear future persecution due to race, religion, nationality, political opinion or membership in a particular social group.

“The ideal solution is a complementary system of protection in addition to refugee and asylum law enacted through Congress that would guarantee a path to citizenship for people impacted by climate disasters,” said Julia Neusner, associate attorney of refugee protection at Human Rights First, a non-profit policy center based in New York City and Washington.

She notes, however, that efforts through Congress are slow and that the passage of a bill that expands refugee protections to people impacted by climate is unlikely to happen soon. 

In the absence of legislation, 75 immigration policy experts asked the Biden Administration last year to use its executive authority “to offer aid and protection to those fleeing the effects of climate change worldwide” by granting “parole” to otherwise ineligible migrants and allowing them to remain in the country legally on humanitarian grounds.  

“It is getting to the point where, around the world, we see the climate change impacts overriding a lot of people’s ability to adapt, whether it’s because they don’t have access to what they need, or because things are so severe that there really are not solutions to the challenges they’re facing,” said Rebecca Carter, the acting director of climate resilience practice at the World Resources Institute, a global research non-profit based in Washington. 

A Deadly Toll

The border crisis isn’t new. Central Americans, Haitians, Mexicans and others have been making their way to the U.S. border voluntarily and involuntarily due to worsening violence and persecution for years, and Covid-19 exacerbated the need for people to uproot their lives and migrate. But research shows that the conditions motivating migration to the U.S. are deepening from the impacts of climate change in migrants’ home countries, inevitably resulting in growing displacement across international borders. 

Since the U.S. closed its land ports of entry to almost all migrants more than two years ago, the country’s backlog of pending immigration cases grew to its largest size in history. More than 1.7 million people have been expelled without due process under Title 42, a protocol that allows the Center for Disease Control and Prevention to block non-residents from entering the U.S. under certain conditions to protect public health.

The CDC announced in April that it planned to lift the order, saying that it was no longer necessary for mitigating the spread of Covid-19. After the announcement, more than 20 Republican-led states filed lawsuits in federal court in Louisiana in an attempt to keep the rule in place. On Friday, the judge blocked the Biden administration from ending the order for now.

Proponents of the rule argue that lifting it will lead to an influx of illegal immigration. Mayors in U.S. cities along the border have expressed concerns over the health and safety risks from a surge in migrants as they continue to try to recover from the pandemic as well as deal with an inability to provide shelter to the many asylum seekers they expect to settle on the U.S. side of the border.

The Department of Homeland Security is preparing for upwards of 18,000 migrants a day without Title 42 in place.

The public health order was enacted by the Trump administration in 2020 to mitigate the spread of Covid-19, despite pushback from some CDC officials citing no scientific basis to justify the order. The order prompted human rights advocates to argue that it was used as an excuse to limit immigration and that the halt in immigration doesn’t align with the increasing reality of climate change, which has only exacerbated the forces driving people to seek asylum.

The number of people attempting to migrate into the U.S dipped at the beginning of the pandemic and has generally been increasing since. They reached a record high last year at the U.S.-Mexico border. Most of the migrants were from Mexico and the Northern Triangle countries of Honduras, Guatemala and El Salvador.

Many of the people migrating north try to cross the border illegally, trekking through the increasingly hot southwestern desert. At least 650 people died last year, many from harsh environmental conditions, while attempting to cross the U.S.-Mexico border, the highest death toll along the border since the International Organization for Migration started tracking the number in 2014. 

Thousands of people from Central America and Haiti are waiting along the Mexican side of the border in makeshift campsites and migrant shelters. Some of them have been waiting for more than two years. Some have faced violence and discrimination in Mexico as they wait.

Who Is a Climate Migrant?

The term “climate refugee” refers to those displaced by climate change but isn’t recognized in international law. The U.N. Refugee Agency refers to them as “persons displaced in the context of disasters and climate change,” and the International Organization on Migration defines them as “environmental migrants” or “environmentally displaced people.”

Climate Refugees Face Hurdles to Asylum Title 8 and Title 42

Their numbers are vast and growing. An IPCC report released earlier this year stated that more than 3.3 billion people live in areas highly vulnerable to climate hazards. In the most extreme climate scenarios, more than 30 million migrants would head toward the U.S. border over the course of the next 30 years, according to a 2020 report by the New York Times Magazine. East and Southeast Asia are seeing more tropical cyclones, the Pacific Islands are quickly being submerged as sea level rises and frequent, intensifying hurricanes are striking Central America. About 21.5 million people relocate as a result of suddenly onsetting weather hazards every year.

Rep. Nydia Velazquez (D-N.Y.) and Sen. Edward Markey (D-Mass.) reintroduced a bill last year aimed at addressing climate-driven displacement and supporting people displaced by global warming.

“Women, children, Indigenous people, and people of color are the most likely to be affected by climate migration, making them even more vulnerable to conflict, violence, and persecution,” said Sen. Markey in a statement introducing the proposed bill for the first time in 2019. “The United States needs a global strategy for resilience and a plan to deal with migration driven by climate change. We cannot allow climate-displaced persons to fall through the cracks in our system of humanitarian protections simply because they do not meet the definition of refugee.”

The bill has been sitting in committee since April, and its passage is unlikely any time soon, according to Carrie Rosenbaum, an immigration law professor at the University of California Berkeley. The immigration crisis is treated as a national security problem and not a humanitarian one, and both Republicans and moderate Democrats “don’t want more immigration, period,” said Rosenbaum, one of the immigration attorneys who signed the letter to the Biden administration last year. 

Elizabeth Keyes, the director of the University of Baltimore’s Immigrant Rights Clinic, said that while the proposed legislation known as the Climate Displaced Persons Act is a worthy pursuit, the challenge will be that migrants don’t fit neatly into definitions of a climate displaced person.

Determining who meets that definition is complex. Research shows that peoples’ decisions to migrate aren’t sudden, said Robert McLeman, a professor of environmental studies and geography at Wilfrid Laurier University in Waterloo, Ontario, noting that they often come after years of slow-onset disasters. 

Most do not want to migrate. If they do end up displaced, the relocation is usually within country borders, and they often return to their homes, said McLeman, who coauthored an IPCC report released in March dealing with climate change impact, adaptation and vulnerability.

The Internal Displacement Monitoring Centre estimated that of the 38 million displacements within country borders worldwide last year, 23.7 million of them resulted from climate disasters, including extreme temperatures, storms, cyclones, hurricanes and wildfires. The centre noted that not all of the environmental events in these categories were caused by climate change. Upwards of 216 million people around the world are expected to move within their country borders for climate-related reasons by mid-century, according to a report by the World Bank.

It is only after people try to adapt and are still left with no other options that they consider migrating abroad, researchers said. Sea level rise submerging the Pacific Islands is one of the few cases where climate change is the sole factor prompting migration into other countries, according to a report by the Brookings Institution, a nonprofit public policy organization based in Washington, D.C. 

Hein de Haas, a Dutch sociologist and one of the founding members of the International Migration Institute at the University of Oxford, warned that there is no direct correlation between climate change and mobility. The poorest populations in the poorest countries are less likely to move than those who are slightly better off, and climate and weather are not the only factors that determine people’s decision to migrate, he told the EUobserver.

Carter, of the World Resources Institute, said that climate change is rarely the only factor for migration. Data shows that the impacts of climate change “can be a real push for people” and can lead to greater instability and violence, she said. 

A Safety Net for Climate Refugees

In Honduras, for example, weather extremes have caused a chain reaction of pressures to migrate. Farmers in Honduras that are part of Central America’s dry corridor are battling droughts that have disastrous impacts on cultivation, Inside Climate News reported. This leads to dwindling food supplies, creating destabilization and conflict inside the country and in surrounding countries.

Keyes, one of the 75 experts who signed the letter, said that she also sees the linkage of climate change with instability and violence in Central America, where a majority of her clients are from, as resources and arable land in the region diminish due to drought, hurricanes and other extreme climate events. She started seeing more cases that involved climate issues about three or four years ago.

“It’s not that people are not coming to me saying I’m affected by climate, but when you dig around the context, climate is driving a lot of either general violence or specific land disputes, so land-related asylum claims are becoming much more common,” said Keyes.

Organized crime heightened by tensions over natural resources is a big driver of migration in the region, said Neusner, of Human Rights First. Farmers who are extorted to give a portion of their income to violent gangs, for example, find themselves in life-or-death situations when droughts and floods devastate their farms, which is happening more frequently and more intensely as a result of climate change. According to the International Committee of the Red Cross, 60 percent of the most climate-vulnerable countries in the world are also affected by armed conflict, including violence from organized crime.

“Because organized crime controls so much of many people’s lives, especially in the northern triangle and in Mexico, there are many people whose persecution has been made a lot worse by climate disasters,” said Neusner. 

Temporary Solutions 

In the absence of an asylum process for climate migrants, Keyes said that the U.S. could expand eligibility to more countries to apply for Temporary Protective Status, a designation that enables citizens of certain nations torn by armed conflict or devastated by hurricanes, earthquakes and other environmental disasters to legally remain in the U.S. until it is deemed that they can return home safely. 

But Keyes said that while such protective status could help, it is not a solution to the bigger problem of climate-displaced migrants being unable to seek long-term protection in the U.S. in a safe and fair way. Temporary Protective Status doesn’t provide a path for permanent residency or citizenship, she said, and is only available to people already in the U.S. In 1998, the U.S. designated Hondurans and Nicaraguans as eligible for Temporary Protective Status after Hurricane Mitch, a storm that killed more than 8,600 people, struck the two countries.

Biden has expanded temporary protection since he took office, and there have been legislative efforts to provide a path for permanent residency and citizenship to TPS holders, but they have been unsuccessful so far.

The 75 immigration experts who wrote to Biden last year also called for an expansion of Temporary Protective Status and a process called Deferred Enforced Departure in which “climate-displaced persons” would not be subject to removal from the U.S. for a specific period of time. But the experts also noted the temporary nature of Biden’s executive powers under current law.

“Because the U.S. refugee system was not necessarily designed to receive climate-displaced persons, existing U.S. refugee mechanisms do not adequately meet their needs,” the experts wrote. “In the United States, current executive powers lend themselves only to temporary solutions. These temporary solutions can help meet urgent immediate need for protection, but we emphasize that climate-displaced persons need statutory protection that recognizes the long-term nature of their displacement.”

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Following two executive orders by President Biden to address the climate crisis impacts in the U.S. and abroad, the National Security Council released a report in October that recognized the relationship between climate change and migration, and they highlighted the importance of supporting efforts that enable people to stay as safe as possible in their home countries.

The report mentions the need to fund resilience and adaptation projects in countries that are also those most vulnerable to the impacts of climate change. These also happen to be the countries that have contributed the fewest greenhouse gas emissions, and ultimately are the least responsible for the impacts of climate change.

In their letter to Biden, the 75 experts clearly focused on what the U.S. should be doing for climate migrants, as opposed to adaptation and mitigation efforts in their countries of origin. The experts called on the Biden administration to put climate migrants among others with top priority in the asylum process. And they recommended that the U.N. revise its own resettlement criteria to also give higher priority to climate migrants.

“These measures would not only signal to other nations that the United States stands ready to do its part in the fight against climate change,” they wrote, “but they would also improve our relationships with nations disproportionately affected by climate change and related disasters.”  

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