Climate Change Cross-Border Migration and the Biden Administration: What the Future Holds?

INTRODUCTION

President Biden has put the climate crisis at the center of America's foreign and national policy. He has taken an affirmative approach to prioritizing environmental justice and climate action ¹ through his Executive Order (EO) 14013, which aims to extend protection to immigrants adversely impacted by climate change and other environmental challenges in their country of origin. The EO 14013, titled “Rebuilding and Enhancing Programs To Resettle Refugees and Planning for the Impact of Climate Change on Migration,” aims to integrate climate action within its policy mandate under the Immigration and Nationality Act. ² According to the EO, the first step to integrating climate change and migration is preparing a report “on climate change and its impact on migration, including forced migration, internal displacement, and planned relocation.” ³

This Report, titled “Report on the Impact of Climate Change Migration, 2021” (“The Report”), can have substantial policy implications for policies concerning the cross-border migrants in events of disasters, climate change, and other environmental challenges. The Report was released in October 2021 and will be foundational for the future United States' immigration policy concerning immigrant and refugee protection. It highlights that “climate-related migration has potentially significant implications for international security, instability, conflict, and geopolitics.” ⁴

Both the Report ⁵ and Conference of Parties 26 ⁶ confirmed the linkages between the movement of people and climate change. ⁷ The governments should engage in policies to alleviate “migration pressures at the source.” ⁸ The Intergovernmental Panel on Climate Change (“IPCC”) recognized that one of climate change's many adverse impacts is forced migration, which is highly likely to happen. ⁹ Overall, the IPCC states that there is medium evidence but high agreement that “climate change is projected to increase the displacement of people.” ¹⁰ Despite the recognition ¹¹ and efforts to develop laws and policies on cross-border migration due to climate change, ¹² no binding law has surfaced internationally or nationally in the United States.

The linkages between human mobility and climate change can be complex. ¹³ The 2019 decision by the Human Rights Committee in Teitiota's case, ¹⁴ also recognized by the Report, ¹⁵ exemplifies one of such complexities. ¹⁶ The Committee could not rule that Teitiota and his family were refugees due to a lack of sufficient evidence to prove a danger to their life, even if the adverse effects of climate change were recognized in the decision. ¹⁷ The scholars recognize that migration “may speed up when a critical climate threshold is reached,” such as extreme weather events and projected sea-level rise, but the projections remain “highly uncertain.” ¹⁸ Although there is no accepted definition of climate migrants, the Report refers to individuals whose “movement is triggered” in a vast part “by the effects of climate change.” ¹⁹

The U.S. Department of Defense previously assumed that the intra- and interstate migration associated with climate change is linked with negative human security impacts in destination countries. ²⁰ The Report is a step forward after the commitment of President Biden to the Paris Agreement and covers immigrants and foreigners affected by climate change, environmental challenges, and disasters. ²¹ The United States cannot continue to fail to acknowledge and adapt to the risks posed by climate change-related migration, which may create challenges for the United States in future. ²²

Through this commentary, the author analyzes the Report, which extensively discusses existing frameworks that protect immigrants fleeing environmental disasters and if these existing frameworks will be sufficient to cover such foreigners. The Report does not discuss existing laws detrimental to immigrants or refugees coming to the United States. However, it states that the government should help people recover rapidly and allow for safe returns to their homes while reducing climate risks, addressing the root causes of migration, supporting climate adaptation, and harnessing the potential positive development impact of migration. ²³

THE UNITED STATES HAS HISTORICALLY PROTECTED IMMIGRANTS AND FOREIGNERS FLEEING ENVIRONMENTAL CHALLENGES IN THEIR COUNTRY OF ORIGIN

The EO 14013 states that the United States has been a front-runner in protecting foreigners as refugees and accepting immigrants into the country. In the first U.S. immigration law, named the Refugee Relief Act of 1953, the policymakers included protection for people affected by “natural calamity.” ²⁴ The Act of 1953 was one of the first national laws after the 1951 Refugee Convention, and the United States went beyond the Convention by adding “natural calamity” to its refugee protection laws. There is a lack of information to ascertain if these provisions were applied to people fleeing natural disasters. ²⁵

However, in 1958, the United States protected people fleeing disasters and environmental challenges in other countries through domestic laws such as the Azorean Refugee Act 1958. The law protected people displaced due to natural calamities, that is, volcanic eruptions and earthquakes. The Act of 1958 protected foreigners and immigrants fleeing a natural disaster as “refugees,” which is not an accepted norm under international law. ²⁶ The 1958 law led hundreds of thousands of Azoreans to migrate to the United States due to environmental and economic challenges in their country of origin. ²⁷ After 1958, there is no information if foreigners were allowed entry into the United States if they fled natural disasters or calamities in their country of origin.

Today, it is a law that “the Attorney General shall not deport or return any alien… to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.” ²⁸ This law, in its current form, does not apply on people fleeing environmental disasters or climate change, because, first it does not include “natural calamity” as a driver for movement, such as the Azorean Act. Second, the environment and climate change are neither persecutors nor agents of persecution.

In the past, race, color, and ethnicity have played a significant role in immigration-related legislation, enacting and enforcing legislation aimed at curbing or allowing migration. ²⁹ The 1958 Azorean Act was extended to allow immigration for Europeans who suffered from natural calamity. Such a provision has never been extended to non-Europeans who have suffered worse disasters such as the 2004 Tsunami. Scientific observations support the claim that Asia has faced more disasters than any other continent since the 1970s ³⁰ ; however, the U.S. protection regime has remained silent. The other laws in the United States have produced “criminalized aliens” by continuously adopting and applying the concept of “criminal alien hood” through enforcement programs and practices at the border and interior. ³¹ Also discussed in sections further, specific laws in the United States apply to aliens and undocumented immigrants, with the only effect of criminalizing them.

PROTECTION OF IMMIGRANTS AND FOREIGNERS FLEEING CLIMATE CHANGE IN THEIR COUNTRY OF ORIGIN WITHOUT RECOGNITION AS A REFUGEE

The U.S. Immigration laws currently have provisions for “humanitarian parole” or “humanitarian visa,” which can be given to people affected by environmental emergencies in their country of origin. ³² After the Haitian earthquake in 2010, ∼900 Haitians were allowed in the United States under this law. ³³ Under this provision, people can temporarily enter and stay in the United States.

Suppose a disaster or natural calamity strikes in a country whose nationals are present on American soil during a disaster. In that case, the U.S. government can grant protection to such people under its “Temporary Protected Status” (TPS) clause within the National Immigration Law of 1990. ³⁴ The TPS protects the existing immigrants on the soil of the United States by providing them work visas, permission to stay, and protection from departure for at least 18 months. ³⁵ TPS is a legislative power or the rule of law available to the secretary of Homeland Security. TPS protected many nationals but not all countries in similar situations. ³⁶ There is no recorded rationale for why TPS was given to certain countries and not others, and it can be construed as discriminatory. ³⁷

Since 2000, tsunamis and earthquakes have hit the Global South nations such as India and Pakistan. However, no Tsunami-affected country received TPS status even though catastrophic disasters occurred in many nations. The silence of the U.S. administration to protect Tsunami-affected immigrants underscores arbitrariness and lack of a uniform reason to grant or not to grant TPS protection. The U.S. administration's unreasonable sidelining of certain developing countries in Asia contradicts the concept of environmental justice and nondiscrimination based on national origin. Although scholars argue that after the 9/11 terrorist attacks in the United States, a discriminatory attitude toward non-White immigrants has increased, this cannot solely be attributed to 9/11.

Currently, the TPS protects immigrants from Haiti due to earthquakes, Nicaragua and Honduras due to flooding and damage from Hurricane Mitch, ³⁸ Nepal from environmental disasters from magnitude 7.8 earthquake, ³⁹ and El Salvador due to devastation from a series of earthquakes, ⁴⁰ among others. It is unclear why these countries were designated TPS, whereas others with similar circumstances were not. These TPS-designated country immigrants in the United States were threatened by the Trump Administration, which determined to terminate TPS designations for El Salvador, Nicaragua, Honduras, Nepal, and Haiti. ⁴¹ The termination of TPS designation for El Salvador, Haiti, and Nicaragua was put on hold due to Ramos v. Neilsen, 2020. ⁴² Similarly, the ending of TPS for Haiti stayed in Saget v. Trump, 2019 ⁴³ and for Honduras and Nepal in Bhattarai v. Nielsen, 2019. ⁴⁴

Post these lawsuits, the Department of Home Land Security has extended TPS designation for these countries. ⁴⁵ The courts in the United States decided to protect these immigrants under the TPS designations. Their future, however, is uncertain. The questions about their legal status in the United States remain to be addressed. President Biden has hinted at looking at possibilities to integrate the TPS-designated immigrants into the United States as nationals. ⁴⁶ However, a concrete plan remains to be seen yet.

A similar provision known as “Deferred Enforced Departure (DED)” is the executive power of the President of the United States to stay the removal of immigrants present on U.S. soil for a designated period. ⁴⁷ It is discretionary, constitutional authority of the Pre-sident, through which it conducts its foreign relations with other countries. ⁴⁸ The TPS and DED exist currently and are being used by the Biden Administration to chart the course for protecting immigrants whose home countries are affected by violence, for example, Myanmar and Venezuela. ⁴⁹ The Administration has not, until now, applied TPS or DED to protect people fleeing environmental challenges, disasters, or climate change.

Climate change, sea-level rise, and other disasters are predicted to displace millions globally, causing a humanitarian and national-security crisis. ⁵⁰ Climate change is already causing extreme weather events in coastal states in the United States, such as Hawaii and Louisiana, with high-intensity rainfalls and flooding. ⁵¹ In 2016, the South and North American Nations prepared Guide for Protection for persons moving across borders in the context of disasters. ⁵² It benefits foreigners seeking to travel or enter a foreign country for temporary protection and assistance aftermath of a disaster and also foreigners already present in a foreign country when their country of origin is affected by a disaster. ⁵³

The guide proposes that governments could use regular migration categories to protect such foreigners or could use special migration categories or use of refugee categories. ⁵⁴ This proactive framework can guide regional protection for people forced to migrate due to climate change and environmental challenges. The regional American nations, including Honduras, El Salvador, and Nicaragua, are already TPS-designated countries due to natural calamities. A regional commitment can facilitate an orderly movement of persons and respect for the human rights of migrants in the region.

EXISTING NUANCES OF THE U.S. IMMIGRATION AND REFUGEE LAWS

Although the aforementioned laws reflect that the U.S. immigration and refugee protection laws are inclusive and nondiscriminatory, that is only on the surface. Other laws intersect with the conditions for refugee status and permission for immigrants to enter and stay in the United States. One such law is the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). ⁵⁵ This law is perceived as discriminatory because it reduces the ability of noncitizens to access welfare schemes and the judicial system for justice and employment opportunities.

IIRIRA “unjustly changed the rules for international visa processing,” allowed the U.S. government to produce more criminalized immigrants in the United States and consequently removed them from the territory of the United States. ⁵⁶ The Report also recognizes these nuances, often politicized by actors, exacerbating social, political, and economic challenges. ⁵⁷ Majorly a “lack of the bipartisan agreement on humane border procedures and immigration policies” ⁵⁸ increases challenges for immigrants.

The history that people from other countries being protected in the United States also follows a parallel history of legal exclusion of people from particular nationalities. For example, in 1892, the Chinese Exclusion Act allowed the United States to discriminate against immigrants from China unfairly. Under the Immigration Act of 1917, people from the Asia-Pacific region were banned from entry into the United States. ⁵⁹ Although the Immigration and Nationality Act (INA) consolidated the immigration laws in one statute, it still preserves the bias based on “national origins” by fixing quotas based on nationalities. ⁶⁰

In addition to IIRIRA, the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) also contribute to the criminalization of immigrants. ⁶¹ Congress had amended the INA by introducing AEDPA, and the combined effect of AEDPA and IIRIRA “greatly increased the list of crimes that constitute” “aggravated felonies” and “forces judges to recharacterize misdemeanours and non-aggravated felonies as aggravated felonies for immigration purposes.” ⁶² Although the judges and authorities can exercise jurisdiction when charging immigrants and deciding if they should be convicted of aggravated crimes, the harshness of these laws does not fade away under discretion. ⁶³

Many “anti-immigrant” events have fuelled semantics, and these laws have discriminatory effects on immigrants and permanent U.S. residents. ⁶⁴ Louis-Charles and Teron have analyzed previous Trump's executive actions that discriminated against the African and Asian nations with Muslim majority populations to prevent Muslims from mass emigration to the United States. ⁶⁵ They highlight that there is generally a higher sociopolitical willingness to accept and integrate people fleeing environmental disasters in their country of origin. However, there have also been “anti-muslim policy and xenophobic sentiments by the U.S. political administration,” leading to a “clear evolution of terror hysteria” among the general masses. ⁶⁶

INCLUSION OF IMMIGRANTS AND FOREIGNERS WITHIN ENVIRONMENTAL JUSTICE COMMUNITIES

The Report acknowledges that ensuring equity and inclusion is vital to providing an effective policy to protect climate migrants. ⁶⁷ One of the ways for inclusions can flow from the “economic inclusion” of the target group. ⁶⁸ In the United States, the term Environmental Justice refers to the “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.” ⁶⁹

The White House Environmental Justice Advisory Council has included immigrants within the policy to protect people's environment and promote sustainable economic development. ⁷⁰ Environmental justice, climate change, and cross-border migration are linked and may be covered by a “forward-looking migration policy.” ⁷¹ This would entail the equitable distribution of environmental burdens and benefits. ⁷² Biden Administration has made it clear that it will adopt an all-government-wide approach to implement its environmental justice program.

In contrast, it is unclear whether they will include immigration policies within their environmental justice framework. However, there are hints that they may consist of specific programs dedicated to protecting those displaced due to climate change internally and internationally. The Report discusses the inclusivity of the most vulnerable communities. However, the challenges of including all stakeholders, especially the new immigrants, in its environmental justice program can be challenging.

Saad has argued for a “Justice Framing” to understand and protect people migrating due to environmental factors. ⁷³ A “Justice Framing” should address risks to human rights, exposure to cultural loss or extinction, adaptation burdens, and historical injustices. ⁷⁴ To manage all four, Saad has argued for social insurance schemes, creating an immigration category for climate migrants, increasing financial support for climate migrants and increasing the participation of affected communities when designing policy and institutional responses. ⁷⁵ Saad has focused on investing in communities migrating and affected by climate change.

CONCLUSION AND WAY FORWARD

The Report recognizes linkages between climate change and migration and recommends the need for a national framework integrating it, which could help millions of climate change-induced displaced persons, uphold American foundations as a land of immigrants, and allow the United States to align its climate action with the Paris Agreement. Although the national legislative or executive framework for climate change-induced cross-border migrants is yet to unfold, the Biden administration seems committed to implementing an action plan for climate change and migration. The Climate Change Education Act of 2021 is one of the many steps that the Administration has taken for climate action. ⁷⁶ The recent Inflation Reduction Act of 2022 is considered the largest climate action investment ever in the United States ⁷⁷ and is likely to allow a greener-economic development in the United States.

These policy and legislative actions taken by the Biden Administration, however, does not directly cover cross-border migration due to climate change or environmental factors. The Administration is likely to lay out more pathways on these issues in the coming months. One challenge to designing a domestic framework for climate change cross-border migrants will be to decide if the Administration wants to allow entry to all foreigners and immigrants from all nationalities, fleeing climate change and environmental challenges in their country of origin. The challenge of what is the number of climate change displaced persons/foreigners who can be allowed in the United States was also discussed in a Bill introduced before the Senate in 2021. ⁷⁸ The subliminal issues of nationality, religion, race and ethnicity may play an important role in admission of displaced foreigners and immigrants in practice.

In the words of Louis-Charles and Teron, a more straightforward framework in the context “will aid in the combat against unconstitutional policies that explicitly discriminate and creates de facto ethnic and religious litmus tests for travel and entry to, and movement within, the United States.” ⁷⁹ The Report will have long-term implications that will likely create ripple effects within and beyond the United States. The Biden Administration could also divest and invest in communities outside the United States to protect people from disasters, climate change, and other environmental challenges. Currently, the U.S.’ neighbors are continuously impacted by extreme weather events, due to which the borders are burdened with displaced people and displaced persons, making climate change cross-border migration a time-sensitive issue.