News & Resources
Written by José G. Miranda, a supervising attorney in the Climate Department at IRAP.
As climate change and environmental disasters increasingly contribute to displacement and new patterns of internal and international migration, there are a growing number of lawyers, organizers, and directly-impacted people working to expand policy and legal frameworks to protect climate-displaced individuals both in the U.S. and internationally. Earlier this month, the U.S. federal court system dealt these efforts a setback that, while notable, must not deter this critical work.
On July 1, 2024, the U.S. Court of Appeals for the First Circuit issued an opinion in Cruz Galicia v. Garland, No. 23-1910 (1st Cir. July 1, 2024), marking the first time any U.S. court of appeals has ruled on a climate change-focused asylum claim. The court held that “climate refugees” did not constitute a particular social group for lack of social distinction, and denied Mr. Cruz Galacia’s petition seeking review of a Board of Immigration Appeals’ decision to deny his asylum application. Mr. Cruz Galacia asserted that he and his family fled Guatemala due to “droughts, storms and the Covid-19 pandemic,” and he argued that they “[would not] be protected by the government and that they [would] starve” if returned to their country of origin. This decision sets a negative precedent for climate-displaced people seeking asylum in the U.S., but it should not dishearten proponents of expanding existing refugee protection policy and legal frameworks to protect people displaced by climate change. (To read a thorough synopsis on the decision, check out “Explainer: Cruz Galicia v. Garland on climate-related asylum” by the Center for Gender & Refugee Studies).
First, there are stronger case theories U.S.-based lawyers seeking to establish favorable climate-based asylum case law can and should assert. As a starting point, because current U.S. law only protects those fleeing persecution due to their race, religion, nationality, membership in a particular social group, or political opinion, 8 U.S.C. 1101(a)(42), climate impacts alone are unlikely to qualify an applicant for protection. Climate impacts that intersect with other forms of persecution, however, present much more promising openings. Consider the hypothetical asylum claims below based on two real-life cases. The applicants’ names were changed to protect their identities.
- Tomas is a Maya Achi farmer impacted by land degradation in Guatemala. The Guatemalan government, which historically carried out a genocide against the Maya Achi people, has implemented policies that deny their basic needs, and currently supports agribusiness, mining, and hydropower interests that pollute the Department of Baja Verapaz, where the Maya Achi have lived for generations. Climate change disproportionately affects Baja Verapaz and has contributed to the desertification of Maya Achi land. Here, discriminatory government actions in combination with climate impacts made it unsustainable for Tomas to sustain his main way of life – farming – forcing him to leave Guatemala and seek asylum in the U.S.
- Patricia is an indigenous Miskito woman who was displaced by narcotraffickers after Hurricanes Eta and Iota devastated her ancestral lands in the Mosquito Coast along the eastern coast of Honduras in 2020. After the hurricanes destroyed homes, devastated crops, and crippled the local economy, many Miskito families were driven into poverty and food insecurity. In the wake of the disasters, the Honduran government failed to provide aid to the Miskito people, opening the door for narco-trafficking organizations to seize control of their land. Once the narco-traffickers dispossessed Miskito families of their land and displaced them from their homes, the narco-traffickers engaged in aggressive deforestation to establish cattle-ranching operations that serve as a cover for their drug trafficking infrastructure. Patricia filed a police complaint against the narco-trafficking organizations, but she received no help from the police and faced threats of violence from the narco-traffickers. Here, climate change and government inaction coalesced with persecutory actions by narco-traffickers, compelling Patricia to flee Honduras and seek asylum in the U.S.
Importantly, in both examples, climate impacts are one of several factors that cause displacement and, thus, not the sole basis for seeking asylum. Indeed, both examples offer case theories, e.g., persecution on account of membership in a historically marginalized group, and/or on account of race, which on their own form the basis for a strong asylum claim. Thus, case theories that thoroughly explain how climate impacts intersect with other forms of persecution – yet present strong asylum claims independent of climate impacts – are much more likely to expand U.S. asylum law than are theories that focus only on climate impacts.
Additional analyses and frameworks for establishing a nexus to protected grounds in asylum cases involving climate change impacts include UNHCR’s “Legal Considerations Regarding Claims for International Protection Made in the Context of the Adverse Effects of Climate Change and Disasters,” which outlines key legal considerations for the applicability of international refugee and human rights law in cases of climate-related displacement. Resources on the applicability of U.S. refugee and asylum law in cases where climate change impacts contribute to cross-border displacement include IRAP’s practice guide, “U.S. Refugee Protection Claims Related to Climate Change and Environmental Disasters” and CGRS practice advisories, “Analyzing Asylum Claims for Individuals Fleeing Climate Change or Environmental Disasters” and “Investigating Climate-Related Aspects of Fear-of-Return Claims.”As the impacts of climate change accelerate and advocates continue to push for rules and policies that offer safety and security for climate-displaced people, negative legal precedents will likely occur. Worse yet, anti-immigrant movements, the border surveillance industry, fossil fuel profiteers, and other actors will continually seek to shift the blame away from climate change to falsely paint people migrating as threats. In the face of such adversity, we must practice hope not in a way that ignores such serious challenges, but in a disciplined manner so as to sustain long-term struggle.
Cruz Galicia v. Garland should not deter climate and migration justice advocates in their push to adapt legal and policy frameworks to a changing climate, because U.S. based court decisions alone should not be the sole measure of success for their effort. There are presently critical conversations happening in other venues about how to address climate displacement. In April and May 2024 in Barbados and Brazil, respectively, a historic set of hearings took place before the Inter-American Court of Human Rights aimed at clarifying the scope of State obligations in responding to the climate emergency via international human rights law. IRAP in collaboration with partner advocates filed an amicus curiae (“friend of the court”) brief and offered testimony about how the court could meet its human rights obligations in the context of the climate emergency. At least 50 amicus briefs were submitted to the court calling for the expansion of human rights legal frameworks to protect climate-displaced people. Further, there are promising endeavors taking place, such as the Climate Justice Collaborative, which seek to center the leadership of those directly-impacted by the climate crisis in developing a response to climate displacement.
Taken as a whole, these efforts represent openings advocates can use to counteract setbacks like the Cruz Galicia decision and build the legal protections necessary to protect people displaced by climate change.
This blog post is provided for informational purposes only and does not constitute attorney-client advice. Please consult an attorney about how the visa backlogs may affect your immigration case. If you would like legal information about immigration processes in multiple languages, or to request help from IRAP, please use IRAP’s Legal Information website.
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This publication is from July 2024 and does not reflect legal changes since publication. Please see IRAP’s Legal Practitioner Resources page for newer resources and additional information for legal practitioners.
