Unseen and Unprotected: The Ongoing Struggle of Climate Refugees in the United States
by Isaiah Gonzales and Professor Siu Tip Lam
I. Introduction
As climate change accelerates, environmental disasters will leave millions homeless. Recent projections from the World Bank estimate that by 2050, over 216 million people could be displaced by climate-related events. This looming crisis raises critical questions about legal recognition for climate refugees under U.S. asylum law, and the broader international community’s responsibilities. It also raises the need for the United States to develop a robust climate refugee resettlement plan, as these are not unique occurrences, but rather our new reality.
The urgency of this topic stems from COP27 agreement, which established a framework for addressing loss and damage associated with the adverse impacts of climate change, reflecting a growing global acknowledgment of the plight of those displaced by environmental factors. Extreme weather events like Hurricanes Helene and Milton are becoming more frequent and severe. With legal protections remaining inadequate, the need for a robust legal framework to support climate refugees has never been more pressing. It is time the United States, as historically the largest emitter of greenhouse gases, investigates ways it can support those displaced by environmental destruction caused by climate change.
II. Factual Background
A. Historical Background of Climate Change
The scientific consensus on climate change is undeniable. According to the Intergovernmental Panel on Climate Change (IPCC), human activities have significantly warmed our planet, leading to profound changes in the Earth’s systems. Our own actions have ultimately caused the demise and destruction of homelands, from islands in the Pacific Ocean to Florida.
Recent catastrophic events illustrate this urgency. Unprecedented flooding in Barbados and Brazil in May 2024 displaced thousands, while floods in Pakistan in 2022 displaced approximately 8 million people. These events are not isolated occurrences, but rather serve as a clear look into our future and the increasing displacement of peoples by natural disasters.
B. History of Asylum Law in the United States
U.S. asylum law has evolved since the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol. The Refugee Act of 1980 incorporated international standards into U.S. law, offering protection to individuals facing persecution based on specific grounds and increased the amount of refugee visas. Directly responding to the aftermath of the Vietnam War and the urgent need for comprehensive refugee protection, Congress enacted the Refugee Act of 1980 to address the humanitarian crisis overwhelming Asia. Through the codification of asylum law in the Immigration and Nationality Act (INA), Congress defined refugee as a person who “is outside any country of such person’s nationality . . . and who is unable or unwilling to return to . . . that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
C. Cruz Galicia v. Garland: First Circuit Denial of Climate Refugee Status
The narrowly defined “refugee” in the INA does not provide any protections to people displaced by ongoing environmental disasters. The recent case of Cruz Galicia v. Garland, 106 F.4th 141 (1st Cir. 2024), underscores the limitations of U.S. asylum law regarding climate refugees. In Cruz Galicia v. Garland, the First Circuit Court upheld the denial of asylum for individuals fleeing environmental disasters, asserting that environmental degradation does not equate to persecution as defined by the INA. Respondent, Mr. Cruz Galicia, cited droughts and severe storms in Guatemala as reasons for his family’s flight, highlighting a gap in current legal protections. While Mr. Cruz Galicia’s claim does not rise to the level necessary to meet the standard for an asylum claim, it serves as a pivotal moment and demonstrates a need for a special climate refugee immigrant status in our immigration system. Ultimately, the First Circuit’s decision demonstrates that the antiquated U.S. immigration asylum legal framework does not account for the realities of climate change. Individuals like Mr. Cruz Galicia have little to no protection from the destruction of their homelands by climate change.
D. Case Study: Climate Displacement in New Zealand
Courts in other countries implementing the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol have similarly rejected claims for asylum on the basis that climate refugee is not a protected category. A recent case out of New Zealand illustrates the urgency of addressing the issue of climate refugees on humanitarian grounds. In 2014, a family from Tuvalu sought refugee status in New Zealand because rising sea levels threatened their home. Although their claim was ultimately rejected, they were granted residency on humanitarian grounds, illuminating the complexities of legal recognition for climate-displaced individuals. This case highlights the necessity for the international community to formalize a legal framework to address climate-induced displacement. By securing global commitment, countries can ensure humanitarian aid for climate refugees and prevent similar situations in the future.
III. Legal Background
Thus, the central question remains for immigration advocates and stakeholders within our immigration system—what can the U.S. do to address this looming climate crisis? As described above, the current immigration framework, specifically Section 208 of the INA, 8 U.S.C. § 1158, provides asylum protection for persons who fear returning to their home because of past or future persecution based on their race, religion, nationality, political opinion, or membership within a particular social group. This demonstrates that climate refugees fit nowhere within the statutory framework of the INA, leaving them vulnerable to removal to their home countries that have been destroyed by climate change.
A. International Response
Several countries are beginning to recognize the plight of climate refugees. In May 2022, Argentina launched a three-year humanitarian visa program for individuals from Mexico, Central America, and the Caribbean displaced by sudden climate disasters. This initiative allows those forced to leave their homes due to hurricanes, floods, extreme rainfall, earthquakes, and tsunamis to secure initial residence, with the option to apply for permanent status while receiving community support for integration. The European Union is also researching and discussing ways in which they can codify a special visa category for climate refugees, but have fallen short of providing a foundational plan.
More importantly, the Paris Agreement commits the 195 signatory nations to combatting climate change through economic and political means. This historic agreement demonstrates a pledge to protecting vulnerable populations, including climate migrants. It states that “[a]cknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights,…rights of… migrants.”
Additionally, Article 8 of the agreement addresses the adverse impacts of climate change by calling for cooperation to avert, minimize and address the associated loss and damage. To that effect, the 2022 COP27 in Dubai reached an agreement to create a loss and damage fund for vulnerable countries affected by climate disasters. As the world’s leading polluter and a signatory to the Paris Agreement, the U.S. should commit to addressing the climate refugee humanitarian crisis within our immigration system.
IV. Analysis
A. Potential Legal Frameworks for Protection
To address these challenges, the U.S. should look to international agreements, like the Paris Agreement and the COP27 framework on loss and damages, to bolster protections for displaced persons. The U.S. could consider amending the INA to include climate refugees and establishing a visa category for climate refugees similar to the one set up in Argentina. This could involve incorporating language such as “a well-founded fear of displacement due to climate change.” Congress must amend immigration laws now, as it did in 1980, to ensure protection for climate refugees and address the urgent humanitarian need.
The United States’ formal recognition of climate refugees is a crucial step toward addressing this ongoing issue. Some members of Congress have already introduced legislation to address the climate refugee crisis. Ahead of the 2023 COP28, Senator Edward Markey of Massachusetts and several other senators, including Senator Bernie Sanders, introduced the Climate Displaced Persons Act to create a U.S. resettlement pathway for climate refugees. Just as other non-immigrant visas are codified in the INA, Congress must implement a climate refugee visa to protect vulnerable communities and remain committed to its promise to the Paris Agreement.
V. Conclusion
It is crucial for U.S. law to explicitly recognize climate displacement as legitimate grounds for asylum or humanitarian protection under the INA. Strengthening international cooperation through treaties and bolstering existing frameworks, including those established at COP27, is necessary to tackle the realities of the climate crisis. Ultimately, the global community must act on its moral obligation to protect those most vulnerable to the impacts of climate change. As climate change continues to reshape our world, the legal frameworks governing refugee status must evolve to ensure that no one is left behind in the struggle for survival. The urgency of the situation cannot be overstated—we must act now to create a safer, more just future for all.
Author Bios
Isaiah Gonzales, a third-year law student, is a passionate advocate for immigration rights, inspired by his heritage as a descendant of Mexican immigrants. His goal of becoming an Immigration Judge reflects his commitment to justice in the immigration system. In the summer of 2024, he interned with the Vermont Asylum Assistance Project (VAAP), gaining valuable experience in asylum law and discussing migration patterns in an NBC interview. Isaiah also serves as the Student Bar Association (SBA) President for the 2024-2025 academic year, making history as the first Latino in this role. He previously co-chaired the Latin American and Caribbean Law Students Association (LALSA) and is a Symposium Editor for the Vermont Journal of Environmental Law, helping organize the “Climate Justice, LIVE!” symposium. As a Student Ambassador and Co-Chair of the Diversity Admissions Subcommittee, he promotes representation in the legal field.
Professor Siu Tip Lam is the Director of the U.S.-Asia Partnerships for Environmental Law at Vermont Law & Graduate School. She came to Vermont Law & Graduate School from the Massachusetts Attorney General Office, where she was an assistant attorney general in the Environmental Protection Division for 11 years. During her tenure there, she enforced state environmental laws and litigated throughout the Massachusetts court system, including the Massachusetts Supreme Judicial Court. Prior to that, she practiced law with the Boston firm of Brown, Rudnick, Freed & Gesmer as a litigation associate. She graduated from Harvard-Radcliffe College with a bachelor’s degree in East Asian Studies and received her JD from Northeastern University Law School. She speaks Mandarin Chinese and Cantonese and came to the United States from Hong Kong as a child.