A PATH TO CLIMATE ASYLUM UNDER U.S. LAW

Clarifying the extent to which existing legal regimes afford protection to climate migrants must be part of an effective and coordinated response to climate change. This Note argues that climate refugees, a group which it narrowly defines as those who meet the requirements of the 1951 Refugee Convention because they have experienced climate change–induced harm amounting to persecution, should qualify for asylum under U.S. immigration law. To establish an initial asylum claim, climate refugees must demonstrate persecution on account of one of the Refugee Convention’s five protected grounds. Either membership in a particular social group or nationality could be an appropriate basis. In the context of climate change, the accumulation of slow- and rapid-onset harm inflicted by high-emitting actors in the Global North, against which climate refugees’ governments are unable or unwilling to protect them, should constitute persecution. Actual or constructive knowledge of the relationship between high-emitting activities, climate change, and damage to climate-vulnerable populations should establish a nexus between persecution and the protected ground. Successfully meeting these criteria establishes a well-founded fear of future persecution, which the U.S. government may rebut. To overcome such a refutation, climate refugees should argue for humanitarian asylum based on their fear of experiencing “other serious harm” if repatriated, which provides an opportunity to introduce the full range of evidence of climate change– related harm. While most climate migrants will not meet the criteria for climate asylum, those who qualify should benefit from this established form of protection.

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*J.D. Candidate 2025, Columbia Law School. Thanks to Professor Camille Pannu for her support and to the staff of the Columbia Law Review for their diligent editorial work.

Introduction

The immense scale of predicted climate migration demands an effective and coordinated international response. 1 See Juergen Voegele, Foreword to Viviane Clement, Kanta Kumari Rigaud, Alex de Sherbinin, Bryan Jones, Susana Adamo, Jacob Schewe, Nian Sadiq & Elham Shabahat, World Bank, Groundswell Part 2: Acting on Internal Climate Migration, at xvii (2021), http://hdl.handle.net/10986/36248 (on file with the Columbia Law Review) (predicting that climate change will internally displace 143 million people in sub-Saharan Africa, South Asia, and Latin America alone by 2050); UN, The Sustainable Development Goals Report 2020, at 37 (2020), https://unstats.un.org/sdgs/report/2020/The-Sustainable-Development-Goals-Report-2020.pdf [https://perma.cc/H33L-DPDM] (claiming that, if water stress remains “unmitigated,” water scarcity could displace 700 million people by 2030); Paula Beltran & Metodij Hadzi-Vaskov, How Climate Shocks Are Linked to Cross-Border Migration in Latin America and the Caribbean, IMF (Dec. 8, 2023), https://www.imf.org/en/News/Articles/2023/12/08/cf-how-climate-shocks-are-linked-to-cross-border-migration-in-latin-america-and-the-caribbean [https://perma.cc/YN76-8R7U] (demonstrating that acute climate change events have an appreciable impact on migration from Latin American countries); Cesia Chavarría, Alejandro Cartagena, Alberto Cabezas & Pablo Escribano, In Central America, Disasters and Climate Change Are Defining Migration Trends, Int’l Org. Migration, https://environmentalmigration.iom.int/blogs/central-america-disasters-and-climate-change-are-defining-migration-trends [https://perma.cc/‌B4MN-39L4] (last visited Aug. 5, 2024) (discussing increased migration from Central to North America due to climate change–induced natural disasters). One component of this effort must be clarifying the application of existing international legal regimes to this novel context—perhaps most saliently, the extent to which the protections of international refugee law can encompass climate migrants. 2 See Jane McAdam, Climate Change, Forced Migration, and International Law 39–51 (2012) [hereinafter McAdam, Climate Change] (discussing the application of existing international legal regimes to climate migrant protection).

As for any other category of displacement, the standard governing refugee status in the context of climate migration emerges from the 1951 Convention Relating to the Status of Refugees (“Refugee Convention”) and its 1967 Protocol. 3 Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 [hereinafter Refugee Convention]; see also Protocol Relating to the Status of Refugees, Dec. 16, 1966, 606 U.N.T.S. 267 [hereinafter Refugee Protocol]. The Refugee Convention originally applied only to events that occurred before January 1, 1951, and allowed each signatory to decide whether it had an obligation to refugees from outside of Europe. See Refugee Convention, supra, art. 1, ¶ B.1(1), 189 U.N.T.S. at 154. The Protocol removed these temporal and geographic restrictions, recognizing “that new refugee situations have arisen since the convention was adopted” and “it is desirable that equal status should be enjoyed by all refugees covered by the definition in the Convention.” See Refugee Protocol, supra, at 268. The Refugee Convention defines a refugee as an individual who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion,” is outside their country of origin, and, due to such fear, is “unwilling to avail [them]self of [its] protection.” 4 Refugee Convention, supra note 3, art. 1, ¶ A(2), 189 U.N.T.S. at 152. To be legally considered refugees and eligible for asylum, climate migrants thus face three central challenges: they must have (1) experienced harm amounting to persecution (2) on account of (3) one of these five protected grounds. 5 See id. (establishing these three elements of the “refugee” definition under international law). Though persecution has no precise definition in this context, “a threat to life or freedom” based on one of the protected grounds “is always persecution.” 6 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, ¶ 51, HCR/1P/4/ENG./REV.4 (2019) [hereinafter UNHCR Handbook]; see also Matter of Laipenieks, 18 I. & N. Dec. 433, 457 (B.I.A. 1983) (adopting identical language). As a crime against humanity under international criminal law, persecution is more precisely defined as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” Rome Statute of the International Criminal Court art. 7, ¶ 2(g), July 17, 1998, 2187 U.N.T.S. 90, 94. The second requirement, termed the “nexus,” demands that such persecution be inflicted because of one of the protected characteristics. 7 See UNHCR Handbook, supra note 6, ¶¶ 66–67 (examining the requirement that persecution be experienced on account of one of the protected grounds).

There is widespread recognition that some climate migrants will meet the Refugee Convention’s standard but little agreement as to the precise context it governs. 8 See infra section I.B. Some types of climate change–related 9 This Note adopts the following definition for climate change: “a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods.” UN Framework Convention on Climate Change, art. 1, ¶ 2, May 9, 1992, 1771 U.N.T.S. 107, 168. asylum claims correspond more naturally to conventional understandings of the protection that the Refugee Convention offers. For instance, President Joe Biden’s Administration has recognized that a government’s discriminatory withholding of climate change relief from particular groups might amount to persecution. 10 See The White House, Report on the Impact of Climate Change on Migration 17 (2021), https://www.whitehouse.gov/wp-content/uploads/2021/10/Report-on-the-Impact-of-Climate-Change-on-Migration.pdf [https://perma.cc/6UQ7-UVVT] [hereinafter Climate Migration Report] (“For example, if 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.”); see also Christel Cournil, The Inadequacy of International Refugee Law in Response to Environmental Migration, in Research Handbook on Climate Change, Migration and the Law 85, 102 (Benoît Mayer & François Crépeau eds., 2017) (“[A]nother example could include governments that persecute through the denial of assistance to specific groups of people affected by an environmental disaster.”). Similarly, the U.N. High Commissioner for Refugees (UNHCR) accepts that the Refugee Convention extends to situations in which climate change increases the risk of persecution or violence. 11 See Kristy Siegfried, Climate Change and Displacement: The Myths and the Facts, UNHCR U.K. (Nov. 15, 2023), https://www.unhcr.org/uk/news/stories/climate-change-and-displacement-myths-and-facts [https://perma.cc/UZ6C-RLTF] (recognizing that the Refugee Convention may afford protection when “an individual’s risk of facing persecution or violence is increased by climate change”). For example, refugees who fled from northern Cameroon to neighboring Chad in 2021 after conflict erupted due to climate change–induced water scarcity would fall within the ambit of the Refugee Convention. 12 Id. In this region, temperatures increased 1.5 times more quickly than the global average, impacting an estimated 80% of farmland. The surface area of Lake Chad, the body of water supporting the region, decreased by up to 95% over the past sixty years due to rain scarcity. The violent conflict between pastoralists and a group of fishermen and farmers displaced eleven thousand people to Chad between August and September 2021. To support their livelihoods, the latter resorted to trapping rainwater in trenches, in which the pastoralists’ cattle were frequently trapped. Aristophane Ngargoune, Climate Change Fuels Clashes in Cameroon that Force Thousands to Flee, UNHCR (Sept. 9, 2021), https://www.unhcr.org/news/stories/climate-change-fuels-clashes-cameroon-force-thousands-flee [https://perma.cc/XE7X-SJMD]. However, these limited categories exclude what might be termed “climate asylum”: qualification for asylum on the basis that climate change–based harm, for which a set of international high-emitting actors are responsible, amounts to persecution, against which climate migrants’ own governments are unable or unwilling to protect them.

In the absence of an international agreement reconciling climate migration and refugee status, examining domestic legislation implementing the Refugee Convention better facilitates actual consideration of the potential success of a climate asylum claim. In the United States, the Immigration and Nationality Act (INA) incorporates and expands upon the language of the Refugee Convention. 13 The INA distinguishes between asylum and refugee status, awarding the former to applicants within the territorial United States and the latter to those abroad. See 8 U.S.C. § 1101(a)(42) (2018) (defining “refugee”); id. § 1158 (establishing provisions for asylum); see also id. § 1157 (articulating criteria for admitting refugees). As amended by the Refugee Act of 1980, it establishes a burden-shifting framework for an asylum claim, introducing additional elements: (1) the applicant must establish past persecution, which creates a presumption of a well-founded fear of future persecution; (2) the government may rebut this presumption by proving either that country conditions have changed or that the applicant could reasonably relocate within their country of origin; and (3) the applicant, by prevailing on a claim of humanitarian asylum, may overcome the rebuttal. 14 See Refugee Act of 1980, Pub. L. 96-212, 94 Stat. 102 (codified as amended in scattered sections of 8 U.S.C.) (amending the INA to bring the United States into compliance with the Refugee Convention and its Protocol). Federal appellate courts have characterized this as a burden-shifting framework. See, e.g., Mejia-Lopez v. Barr, 944 F.3d 764, 768–69 (8th Cir. 2019) (explaining that establishing past persecution as part of an asylum claim provides a “rebuttable presumption of a well-founded fear of [future] persecution”). But it may, in practice, function more as a balancing test for cases in which the government alleges reasonable internal relocation and the applicant seeks humanitarian asylum based on “other serious harm.” See infra section III.B.1. Prior scholarship has explored strategies for establishing past persecution under the INA but has largely neglected to evaluate this framework as a whole. 15 For scholars that have examined only the initial asylum claim, see, e.g., Jessica B. Cooper, Environmental Refugees: Meeting the Requirements of the Refugee Definition, 6 N.Y.U. Env’t L.J. 480, 486–87 (1998) (arguing that “environmental refugees” meet the criteria of the Refugee Convention based on “government-induced environmental degradation”); Shea Flanagan, “Give Me Your Tired, Your Poor, Your Huddled Masses”: The Case to Reform U.S. Asylum Law to Protect Climate Change Refugees, 13 DePaul J. for Soc. Just. 1, 22–32 (2019) (proposing either the addition of a sixth “environmental” protected ground or recognition on the basis of a particular social group); Barbara McIsaac, Domestic Evolution: Amending the United States Refugee Definition of the INA to Include Environmentally Displaced Refugees, 9 U. Mia. Race & Soc. Just. L. Rev. 45, 69–72 (2019) (recommending an amendment to the INA to encompass environmental refugees); see also Julia Toscano, Climate Change Displacement and Forced Migration: An International Crisis, 6 Ariz. J. Env’t L. & Pol’y 457, 476–78 (2015) (rejecting the possibility that the Refugee Convention might afford protection to environmentally displaced people and recommending the development of a new international agreement). In particular, it has failed to consider the role of humanitarian asylum, the discretionary grant of protected status in the absence of a future fear of persecution, in combating challenges raised by the U.S. government. 16 See infra section III.B (exploring potential government rebuttals, such as the argument that an applicant’s own government has taken substantial steps to mitigate and adapt to the impacts of climate change).

Considering this burden-shifting framework collectively, this Note argues that U.S. asylum law is capable of providing—and, applied justly toward humanitarian ends, must provide—protection for climate refugees. It first introduces international discourse surrounding climate asylum and its relationship to the United States’ burgeoning response to climate migration. It then examines the initial and humanitarian asylum claims in turn, countering potential rebuttals and outlining a successful claim.