Previously, I wrote about how the U.S. has no legal instrument that provides legal status for climate migrants. The lack of such status incentivizes climate migrants to enter or remain in the U.S. illegally. Thus, to mitigate the effects of the migrant crisis, I propose that the U.S. adopt a new legal status tailored to climate migrants. Specifically, I propose a unique hybrid status for climate migrants, which combines aspects of refugee status and temporary protected status (“TPS”).[i] At a minimum, such status must have three key elements for legislation to appropriately address climate migrants: (1) a narrow definition of “climate migrant”, (2) mandatory application of legal status, and (3) conferral of the same rights refugees’ receive.[ii]
To begin, passing legislation that addresses climate migrants will be politically challenging, thus any definition for climate migrants should be narrow in scope to lessen concerns of climate migrants flooding America. During my research, I found an appropriately tailored definition of “climate migrants” created by Frank Biermann and Ingrid Boas. Biermann and Boas defined “climate migrant” as:
“… people who have to leave their habitats, immediately or in the near future, because of sudden or gradual alterations in their natural environment related to at least one of three impacts of climate change: sea-level rise, extreme weather events, and drought and water scarcity”.[iii]
This definition is sufficiently narrow because it limits legal relief to climate migrants fleeing only particular types of climate change induced natural disasters.[iv] It also limits legal relief to those whose natural environment becomes so degraded that they have no choice but to leave.[v] Therefore, this definition does not cover populations fleeing political or economic turmoil, who may be covered under refugee status. However, this definition is broad enough to provide coverage to peoples not just permanently effected but temporarily too.
If a climate migrant meets the narrow definition established above, then the climate migrant’s determination of her legal status should be not discretionary. This is because, mandatory application lessens the influence of bias on the application process. Moreover, it creates an immigration process that is far more predictable for the government and applicants. As seen in TPS[vi], discretionary admissions are unpredictable and run the risk of denying entire populations coverage. Consequently, I propose that domestic legislation providing legal status to climate migrants must provide mandatory determination of legal status, which provides a more predictable and neutral process.
As mentioned above, it is also necessary for any successful proposal of a new hybrid status to explicitly grant the climate migrants the same legal rights refugees receive. Refugee rights consist of the ability to: bring family to the U.S., work in the U.S., seek permanent residency status, and travel abroad.[vii] When applied to climate migrants this means that after a climate migrant has gained their legal status, she may file a Relative Petition to bring her spouse and unmarried children under twenty-one years old to the U.S..[viii] Similarly, a climate migrant may work immediately upon arrival to the U.S.. [ix] Likewise, once a climate migrant has achieved legal status and wants to travel outside the U.S., she may upon obtaining documentation akin to the Refugee Travel Document in order to return to the U.S.[x] Just as with refugees, lacking such a document may make the climate migrant unable to re-enter the U.S. Lastly, climate migrants may apply for a green card one year after coming into the U.S.. [xi] Such a conferral of refugee rights onto climate migrants is apprioaite, because climate migrants and refugees are similarly situated due to the difficulty for either group to return to their home country.[xii] Moreover, the conferral of any lesser rights would be far from ideal for climate migrants. For example, the lesser rights conferred under TPS do not allow for applicants to travel abroad or gain permanent resident status.[xiii] Such restrictive rights would risk climate migrants becoming second-class citizens.[xiv]
Admittedly this proposal has flaws. Looking to the narrowly tailored definition, there are challenges with adopting Biermann and Boas’s definition. It may be difficult for climate migrants to prove that they meet the definition’s requirements, because, as with refugee status, relief may be granted or denied based solely on the whims of officials who review the applications.[xv] However, the immigration system addresses this potential problem by creating a strict set of criteria for each form of relief, and this approach could be applied to climate migrant legislation too.[xvi] To create the strict set of criteria for climate migrants, the Legislature would have to define each element of the Biermann and Boas’s definition in great detail.[xvii] If the requirements are clear and strict, then officials have less discretion to act arbitrarily or out of bias while reviewing applications. Thus, the legislators would have to explicitly list the definition’s requirements just as they did with requirements to meet refugee status under INA § 331(1), 8 U.S.C. § 1101(a)(42). Once accomplished, this proposed relief will be limited and clear. Lastly, there are weaknesses with mandatory application as some critics will claim this protection goes too far.[xviii] However, allowing for such discretion would make this proposal lose much of its value and force. Such discretionary relief would make the application process far less predictable and thus harder for both the official and climate migrants. Moreover, mandatory relief reduces the risk that individual officials granting or denying relief without explanation.[xix] In conclusion, despite these weaknesses, this proposal still serves as a solid starting point for the domestic creation of a climate migrant immigration status to mitigate the coming climate migrant crisis.
[i] DeGenaro, supra note 10, at 1040.
[ii] Id. at 1040-1044 (discussing how these three minimums are necessary for any successful climate migrant status).
[iii] Frank Biermann & Ingrid Boas, Preparing for a Warmer World: Towards a Global Governance to Protect Climate Refugees, 10 Global Envtl. Pol. 60, 67-69 (2010).
[iv] See Id. (discussing what weather events would qualify).
[v] DeGenaro, supra note 1, at 1041.
[vi] See INA § 244(a)(1); 8 U.S.C. § 1254a(a)(1).
[vii] Refugees, U.S. Citizenship and Immigration Services (March 23, 2017), https://www.uscis.gov/humanitarian/refugees-asylum/refugees.
[xii] DeGenaro, supra note 1, at 1043.
[xiii] INA § 244(a)(1)(A); 8 U.S.C. § 1254a(a)(1)(A); see also Temporary Protected Status, U.S. Citizenship and Immigration Services (March 6, 2017) https://www.uscis.gov/humanitarian/temporary-protected-status.
[xiv] DeGenaro, supra note 1, at 1043-1044 (citing See Horoshi Motomura, Americans In Waiting: The Lost History of Immigration and Citizenship in the United States, 151, 160-167 (2006) (arguing United States immigration policy has created a distinction between citizens and noncitizens in a way that discriminates against even lawful immigrations and the only way to cure this is to integrate immigrant populations); see also Kevin R. Johnson, Open orders?, 51 UCLA L. Rev. 193, 216-18 (2003) (outlining harms of stigmatizing immigrants); see also Orde F Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the Police, 91 Iowa L. Rev. 1449, 1450 (2006) (citing Plyler v. Doe, 457 U.S. 202, 218-19 n. 18 (1982)).
[xv] Id. at 1042; Id. at 1012-1016 (discussing the process to apply for refugee status).
[xvi] Id. at 1042.
[xviii] DeGenaro, supra note 1, at 1043.