Think Immigration: First Circuit Decision on “Climate Refugees” Must Not Discourage Advocates’ Efforts to Help

As climate change and environmental disasters increasingly contribute to displacement and internal and international migration, a growing number of lawyers, organizers, and directly impacted people are working to expand policy and legal frameworks to protect climate-displaced individuals both in the United States and internationally. Last 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 denying his asylum application. Mr. Cruz Galacia asserted that he and his family fled Guatemala due to “droughts, storms, and the Covid-19 pandemic,” and argued that they “[would not] be protected by the government and that they [would] starve” if returned to Guatemala. This decision sets a negative precedent for climate-displaced people seeking asylum in the United States, but it should not dishearten proponents of expanding existing refugee protection policy and legal frameworks to protect people displaced by climate change. (For a thorough synopsis on the decision, read “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, may. Consider the following asylum claim based on a real-life case. The applicant’s name was changed to preserve anonymity.

Francisco is a Garífuna environmental defender from a coastal community in Honduras. The Garífuna people are a distinct minority who suffer discrimination and whose ancestral lands have been illegally appropriated by the Honduran government. Several Garífuna communities are at risk of disappearance due to sea level rise, and most communities are located in areas facing environmental risk. Francisco advocated before local and national agencies on behalf of his community, pushing for investment in climate adaptation and resilience measures. Francisco also publicly criticized the government’s illegal appropriation of ancestral lands. Due to his activism, Francisco received several threats against his safety from anonymous sources. He raised the issue multiple times before the local police, but officers failed to investigate. Francisco fled to the U.S. after being kidnapped, beaten and assaulted.

Importantly, in Francisco’s case climate impacts are one of several factors that cause displacement and, thus, not his sole basis for seeking asylum. Indeed, the case offers theories, e.g., persecution on account of membership in a historically marginalized group, race, and/or political opinion, 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 resources on how U.S. refugee and asylum law may apply in cases where climate 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 advisory, “Analyzing Asylum Claims for Individuals Fleeing Climate Change or Environmental Disasters.”

As the impacts of climate change accelerate and advocates continue to push for rules and policies that offer safety for climate-displaced people, negative legal precedents will likely occur. Worse yet, anti-immigrant movements, the border surveillance industry, fossil fuel profiteers, and others 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 are not the sole measure of success. There are presently critical conversations regarding how to address climate displacement happening in other venues. In April and May 2024 in Barbados and Brazil, respectively, historic 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 brief and offered testimony about how the court can and should expand human rights legal frameworks to protect climate-displaced people. At least 50 other amicus briefs called for the same. 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.

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