Extending refugee definitions to cover environmentally displaced persons displaces necessary protection

Iowa Law Review

Volumn 94, Issue 3, 2009, Pages 1107-1136

  Moberg, Kara K ^a  

^a UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

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[No Author keywords available]

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EID: 67650166190     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (245)

1. Jane Resture, Tuvalu and Global Warming, http://www.janeresture.com/ oceania-warmingl/index.htm (last visited Feb. 22, 2009).
2. CIA, The World Factbook: Tuvalu, https://www.cia.gov/library/ publications/theworld-factbook/geos/tv.html (last visited Feb. 22, 2009) [hereinafter World Factbook].
3. Patrick Barkham, Going Down, GUARDIAN, Feb. 16, 2002, available at http://www.guardian. co.uk/environment/2002/feb/16/ weekendmagazine.globalwarming.
4. Id.
5. World Factbook, supra note 2
6. see also N. Z. Ministry of Foreign Affairs & Trade, New Zealand's Immigration Relationship with Tuvalu, http://www.mfat.govt.nz/Foreign- Relations/Pacific/NZ-Tuvalu-immigration. php (last visited Feb. 22, 2009) [hereinafter Immigration Relationship] (clarifying the lack of an agreement between New Zealand and Tuvalu that would allow Tuvaluans access to New Zealand immigration laws based on climate change).
7. Saufatu Sopoanga, Prime Minister & Minister of Foreign Affairs of Tuvalu, Statement at the 58th Session of the United Nations General Assembly (Sept. 24, 2003), available at http://www.un.org/webcast/ga/58/ statements/tuvaeng030924.htm
8. see also Barkham, supra note 3 (discussing nationals' "ferocious[] loyal[ty] to the islands" and desire to remain in Tuvalu).
9. Barkham, supra note 3. The author notes how scientists and locals expect current weather conditions to affect Tuvaluan life: Like the government, and the scientists at the Intergovernmental Panel on Climate Change, who predict a sea-level rise of up to 88cm in the next century, [Hilia Vavae, Director of Tuvalu's Meteorological Office] believes the islands will not simply be swamped by water. It is far more likely that the ferocity and frequency of storms and high tides will simply make Tuvaluan daily life untenable. Id.
10. World Factbook, supra note 2. Tuvalu has very few exports, and the people make a living mainly through exploitation of the sea, reefs, and atolls. Id.
11. Barkham, supra note 3.
12. Jane Resture, Oceania and Global Warming, http://www.janeresture.com/ oceania-warming/index.htm (last visited Feb. 22, 2009)
13. BBC News, Country Profile: Tuvalu, http://news.bbc.co.uk/l/hi/world/asia- pacific/country-profiles/1249549.stm (last visited Mar. 31, 2009).
14. Barkham, supra note 3 ('"We were lucky to survive. If the water really rises and you cannot find anything to hold on to, the current will take you away and then you die.'" (quoting a Tuvalu national)).
15. Press Release, Tuvalu Meteorological Serv., Tuvalu Governor General Appealed for International Cooperation at the United Nations (Sept. 20, 2002) [hereinafter Tuvalu Press Release], available at http://informet.net/ tuvmet/global.html (citing the statement made by the Governor General of Tuvalu at the Fifty-seventh Session of the U. N. General Assembly).
16. N. Z. Dep't of Labour, Pacific Access Category, http://www.immigration. govt.nz/migrant/stream/live/pacificaccess/(last visited Feb. 22, 2009).
17. World Factbook, supra note 2.
18. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: IMPACTS,. ADAPTATION AND VULNERABILITY: CONTRIBUTION OF WORKING GROUP II TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE (MX. Parry et al. eds., 2007) [hereinafter IPCC], available at http://www.ipcc.ch/pdf/assessment-report/ar4/wg2/ar4-wg2- spm.pdf; James Owen, Arctic Expedition to Spotlight Warming Impact on Inuit Groups, NAT' l GEOGRAPHIC NEWS, Feb. 23, 2007, http://news.nationalgeographic.com/news/2007/02/070223-arctic-warming.html.
19. NICK BROOKS, CLIMATE CHANGE, DROUGHT AND PASTORALISM IN THE SAHEL, DISCUSSION NOTE FOR THE WORLD INITIATIVE ON SUSTAINABLE PASTORALISM (2006), http://cmsdata.iucn.org/downloads/e-conference- discussion-note-for-the-world-initiative-on-susta inable-pastoralism-.pdf.
20. Larry West, Scholars Predict 50 Million Environmental Refugees by 2010, ABOUT. COM, http://environment.about.com/od/globalwarming/a/ envirorefugees.htm (last visited Feb. 22, 2009).
21. See generally IPCC, supra note 15, at 7-22 (stating observations of existing effects and predictions of future effects of climate change on the natural and human environment).
22. Sopoanga, supra note 6.
23. Id.
24. Id.
25. Jeffrey D. Sachs, Climate Change Refugees (Extended Version) : As Global Warming Tightens the Availability of Water, Prepare for a Torrent of Forced Migrations, SCI. AM., June 2007, available at http://www.sciam.com/article.cfm?id=climate-change-refugees-extended&ref= rss.
26. Id.
27. Id.
28. Michael D. Mastrandrea & Stephen H. Schneider, World Book Online Reference Ctr., Global Warming, http://www.nasa.gov/worldbook/global-warming- worldbook.html (last visited Mar. 25, 2009) (reporting that scientists expect the Earth's temperature to rise an additional 10.4 degrees by 2100).
29. David Keane, The Environmental Causes and Consequences of Migration: A Search for the Meaning of "Environmental Refugees, "16 GEO. INT'L ENVTL. L. REV. 209, 211 (2004).
30. David Von Drehle & Jacqueline Salmon, Displacement of Historic Proportions, WASH. POST, Sept. 2, 2005, at Al. The Pew Center has warned: [A]lthough we cannot be certain global warming intensified Katrina per se, it clearly has created circumstances under which powerful storms are more likely to occur at this point in history (and in the future) than they were in the past. Moreover, it would be scientifically unsound to conclude that Katrina was not intensified by global warming. Pew Ctr., Katrina and Global Warming, http://www.pewclimate.org/specialreports/katrina. cfm (last visited Feb. 22, 2009).
31. Sandra Zellmer, A Tale of Two Imperiled Rivers: Reflections from a Post-Katrina World, 59 FLA. L. REV. 599, 600 (2007).
32. Von Drehle & Salmon, supra note 27.
33. Borgna Brunner, Infoplease, Hurricane Katrina: A Disaster and Its Catastrophic Aftermath, http://www.infoplease.com/spot/hurricanekatrina.html (last visited Feb. 29, 2009) ("Still, more than a third of New Orleans homeowners whose houses were flooded have taken out building permits, providing a sign of hope: slowly and painfully, the city is rebuilding itself").
34. Keane, supra note 26, at 213 (discussing the situation in El Salvador in which deforestation led to soil erosion and the disappearance of water reserves, preventing displaced persons from returning to their homes)
35. see also Aurelie Lopez, The Protection of Environmentally- Displaced Persons in International Law, 37 ENVTL. L. 365, 365 (2007) ("[E]nvironmental degradation is causing a large number of people to flee environments that no longer sustain life."). Lopez also discusses the environmental conditions of the African Sahel, which have "become intolerable for its human inhabitants, " resulting in 1.4 million sub-Saharan people migrating to the Ivory Coast. Id. at 370.
36. NORMAN MYERS, 13th ECONOMIC FORUM, ENVIRONMENTAL REFUGEES: AN EMERGENT SECURITY ISSUE (2005), available at http://www.osce.org/documents/eea/2005/05/14488-en.pdf.
37. Id.
38. Many academics and journalists incorrectly believe that an agreement exists between citizens of Tuvalu, who face the complete submersion of their island within the next fifty to ninety years, and New Zealand. See, e.g., Lopez, supra note 31, at 372 (stating that New Zealand's annual allowance of seventy-five Tuvaluan immigrants to New Zealand was in response to Tuvalu's plea for assistance in dealing with its environmental dilemma)
39. Rebecca Elizabeth Jacobs, Comment, Treading Deep Waters: Substantive Law Issues in Tuvalu's Threat to Sue the United States in the International Court of Justice, 14 PAC. RIM L. & POL'YJ. 103, 107 (2005) (stating that New Zealand responded to the Tuvaluan Prime Minister's request for environmental status for Tuvaluan citizens by allowing seventy-five Tuvaluans to relocate in New Zealand each year)
40. Phil Bartsch, ' Action Now' on Pacific Exodus, COURIER MAIL (Austl.), Oct. 9, 2006, at 7, available at http://www.climateimc.org/en/announcements/2006/10/09/pacific-exodus-likely- australiashould-take-environmental-refugees (stating that citizens of Tuvalu "have been able to enter New Zealand as environmental refugees displaced by climate change" since 2001)
41. Lisa Bryant, VOA News: Paris Conference to Discuss Climate Change, Rising Oceans, U. S. FED. NEWS, June 6, 2006 ("New Zealand agreed to take in as environmental refugees citizens of the Pacific nation of Tuvalu, who are leaving because of rising sea levels."). The New Zealand government, however, has denied the existence of any such agreement. Immigration Relationship, supra note 5 ("New Zealand does not have an explicit policy to accept people from Pacific island countries due to climate change. Stories circulated in the media stating that New Zealand has an agreement with Tuvalu to accept people displaced by rising sea levels due to climate change are incorrect.").
42. Infra Part II.
43. Infra Part III.
44. Infra Part IV.
45. Infra Part V.
46. Infra Part V.
47. Suzette Brooks Masters, Environmentally Induced Migration: Beyond a Culture of Reaction, 14 GEO. IMMIGR. L. J. 855, 865 (2000).
48. For the definition of refugee, see the Convention Relating to the Status of Refugees, July 28, 1951, 19 U. S. T. 6223, 189 U. N. T. S. 150 [hereinafter Refugee Convention], amended by Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U. S. T. 6223, 606 U. N. T. S. 267 [hereinafter Protocol]. For the signatories to the Refugee Convention and Protocol, see U. N. HIGH COMM'R FOR REFUGEES, STATES PARTIES TO THE 1951 CONVENTION RELATING TO THE STATUS OF REFUGEES AND THE 1967 PROTOCOL (2008), available at http://www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf
49. Refugee Convention, supra note 41, at 152.
50. For a more complete analysis of each component of the refugee definition, see infra Part III, which provides the interpretation that the United States uses.
51. See eanhee Hong, Note, Refugees of the 21st Century: Environmental Injustice, 10 CORNELL J. L. & PUB. POL'Y 323, 330 (2001) (discussing the UNHCR Handbook).
52. U. N. HIGH COMM'R FOR REFUGEES, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1 (ii) (1979) [hereinafter UNHCR HANDBOOK]
53. see also Luke T. Lee, The London Declaration of International Law Principles on Internally Displaced Persons, 95 AM. J. INT'L L. 454, 457 (2001) (discussing the omission of "natural or man-made disasters" from the definition of refugee)
54. Hong, supra note 44, at 330 (discussing the determination of refugee status as given in the UNHCR Handbook).
55. Hong, supra note 44, at 331 (citing JACQUES VERNANT, THE REFUGEE IN THE POST-W AR WORLD 5-7 (1953)).
56. See, e.g., MYERS, supra note 32 ("[E]nvironmental refugees... are people who can no longer gain a secure livelihood in their homelands because of drought, soil erosion, desertification, deforestation and other environmental problems, together with associated problems of population pressures and profound poverty.")
57. Philippe Cullet, Liability & Redress for Human-Induced Global Warming: Towards an International Regime, 43A STAN. J. INT'L L. 99, 103 (2007) (stating that changes in climate and the subsequent environmental consequences have resulted in millions of environmental refugees)
58. Franz Xaver Perrez, The Efficiency of Cooperation: A Functional Analysis of Sovereignty, 15 ARIZ. J. INT'L & COMP. L. 515, 567 (1998) (claiming that environmental degradation produces environmental refugees)
59. Sara C. Aminzadeh, Note, A Moral Imperative: The Human Rights Implications of Climate Change, 30 HASTINGS INT'L & COMP. L. REV. 231, 257 (2007) (discussing whether environmental refugees fall under the Refugee Convention's definition of refugee).
60. Lopez, supra note 31, at 366 ("The expression 'environmental refugees, 'though widely used for the past twenty years, is mistakenly applied.")
61. see also Keane, supra note 26, at 217 (noting that the use of "'environmental refugees' has been severely criticized for being legally meaningless and confusing").
62. See Jodi L. Jacobson, Environmental Refugees: A Yardstick of Habitability, in 86 WORLDWATCH PAPER 5, 5-6 (1988) (arguing that people forced to move due to environmental disruption caused by natural-resource degradation, natural disasters, or environmental accidents should receive legal refugee status)
63. Jessica B. Cooper, Student Article, Environmental Refugees: Meeting the Requirements of the Refugee Definition, 6 N. Y. U. ENVTL. L. J. 480, 519-23, 528 (1998) ("Environmental refugees do meet the requirements of the 1951 definition and they are deserving of the help and protections traditional refugees receive.")
64. Hong, supra note 44, at 338 (giving "several reasons" that EDPs should receive status as refugees).
65. See Brooke Harvard, Comment, Seeking Protection: Recognition of Environmentally Displaced Persons Under International Human Rights Law, 18 VILL. ENVTL. L. J. 65, 78-79 (2007) ("Recognizing the environmental causes of refugee movements and the staggering prediction of 50 million 'environmental refugees' by the year 2010, it is time to revise the understanding of the Refugee Convention to include this burgeoning group of displaced persons.")
66. see also Keane, supra note 26, at 223 (stating the importance of including "the relationship between people and the environment as part of [the] analysis" in migration laws)
67. Masters, supra note 40, at 867 (stating that including environmental displacement in the definition of refugee would "'dilute the refugee concept'" (quoting SARAH COLLINSON, DITCHLEY FOUND., CONFERENCE REPORT ON ITERNATIONAL MIGRATION AND POPULATION PRESSURES (1994), excerpted in The RPN Deliberately Avoids Using the Term 'Environmental Refugees, 'REFUGEE PARTICIPATION NETWORK (Jan. 1995), http://www.ftnreview.org/HTMLcontent/rpnl82.htm)).
68. Hong, supra note 46, at 324 ("Nations that ratified the Convention accepted its definition of refugee but are not required to admit those who acquire refugee status.").
69. See supra note 34 (describing the false belief that an agreement exists between Tuvalu and New Zealand).
70. Satvinder Juss, Toward a Morally Legitimate Reform of Refugee Law, 11 HARV. HUM. RTS. J. 311, 311 (1998) ("[R]ights of refugees today are uncertain and shrinking.")
71. see, e.g., id. at 326 (citing Ulrike Davy, Refugees from Bosnia and Herzegovina: Are They Genuine?, 18 SUFFOLK TRANSNAT'L L. REV. 53, 63-65, 72-75 (1995) (discussing Germany's denial of asylum to victims seeking protection from the former Yugoslavia because their claims of persecution were not original enough))
72. BBC News, Head-to-Head: Tory Immigration Plan, http://news.bbc.co.uk/l/ hi/uk-politics/4201539.stm (last visited Mar. 31, 2009) (supporting "asylum quotas and annual limits for other types of immigration" in the United Kingdom and quoting Sir Andrew Green, Migration Watch U. K. Chairman, who stated that "80% of the public want to see tighter immigration controls")
73. infra note 140 and accompanying text (describing the current trend in the United States to define refugee narrowly in asylum determinations).
74. See Keane, supra note 26, at 216-17 (analyzing the Organization for African Unity Convention, the Cartagena Declaration, and the San Jose Declaration-none of which provide "protection for environmental refugees" where there are no additional causes for the migration beyond environmental displacement-and citing a statement byJoAnn McGregor, Refugees and the Environment, in GEOGRAPHY AND REFUGEES: PATTERNS AND PROCESSES OF CHANGE 159 (Richard Black & Vaughan Robinson eds., 1993), to suggest that "political, economic and social changes" are necessary to receive refugee protections). For an argument that current humanrights laws should be extended to cover environmental violations, see generally Keane, supra note 26.
75. Cartagena Declaration on Refugees, Inter-Am. C. H. R., OEA/Ser. L/V/II.66/doc.10, rev. 1, at 190-93, art. III (1984).
76. Id.
77. International Covenant on Civil and Political Rights, G. A. Res. 2200A (XXI), art. 6 (1), U. N. Doc. A/6316 (Dec. 19, 1966), 999 U. N. T. S. 171 [hereinafter ICCPR].
78. International Covenant on Economic, Social, and Cultural Rights, G. A. Res. 2200A (XXI), art. 1, U. N. DOC. A/6316 (Dec. 16, 1966), 993 U. N. T. S. 3, 10 [hereinafter ICESCR].
79. PAUL SIEGHART, THE INTERNATIONAL LAW OF HUMAN RIGHTS 25-26 (1983).
80. ICESCR, supra note 58. On December 10, 2008, however, the U. N. General Assembly adopted an Optional Protocol to ICESCR which will enter into force after the ratification or accession of ten parties. Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, G. A. Res. 63/117 (LXIII), annex, U. N. Doc. A/RES/63/117 (Dec. 10, 2008)
81. see also id. art. 18 (stating the conditions for entry into force).
82. U. N. Treaty Collection, International Covenant on Civil and Political Rights, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&id= 322&chapter=4&lang=en (last visited Mar. 31, 2009). ICCPR's voting record shows that of the 162 states that have ratified the ICCPR, over sixty have included reservations. Id. The United States attached so many reservations to the ICCPR "that its implementation would have little domestic effect." Eleanor Roosevelt Nat'l Historic Site, Covenant on Civil and Political Rights, http://www.nps.gov/archive/elro/glossary/cov-civilpol- rights.htm (last visited Feb. 22, 2009)
83. see also Office of the High Comm'n for Human Rights, General Comment No. 24, U. N. Doc. CCPR/C/21/Rev. l/Add.6, ¶ 11 (1994), available at http://www.unhchr.ch/tbs/doc.nsf/0/ 69c55b086f72957ecl2563ed004ecf7 a?opendocument (listing the types of reservations adopted by the United States as "reservations which essentially render ineffective all Covenant rights").
84. Sumudu Atapattu, The Right to a Healthy Life or the Right to Die Polluted?, The Emergence of a Human Right to a Healthy Environment Under International Law, 16 TUL. ENVTL. L. J. 65, 98-99 (2002).
85. Id. at 71 ("[Environmental violations often involve groups and communities, are global in dimension, and sometimes affect even future generations.... The human rights machinery obviously cannot deal with such issues.").
86. Alison Lindsay Shinsato, Note, Increasing the Accountability of Transnational Corporations for Environmental Harms: The Petroleum Industry in Nigeria, 4 NW. U. J. INT'L HUM. RTS. 186, 202 (2005).
87. Id. ("[C]ataclysmic environmental destruction must occur before the claimants can argue on the basis of the right to life.").
88. Keane, supra note 26, at 214-15; see Shinsato, supra note 64, at 201 (discussing the European Court of Human Rights's finding that there is no right to a clean environment).
89. Atapattu, supra note 62, at 100.
90. Shinsato, supra note 64, at 201.
91. S. REP. NO. 96-256, at 141 (1979), as reprinted in 1980 U. S. C. CA. N. 141.
92. Id.
93. KAREN MUSALO ET AL., REFUGEE LAW AND POLICY: A COMPARATIVE AND INTERNATIONAL APPROACH 65 (3d ed. 2007).
94. 1980 Refugee Act, INA § 101 (a) (42) (A) (codified at 8 U. S. C. § 1101 (a) (42) (A) (2000)).
95. See INS v. Cardoza-Fonseca, 480 U. S. 421, 439 n. 22 (1987). The Court commented on how the international-law definition of refugee is not binding on U. S. courts: We do not suggest, of course, that the explanation in the [UNHCR] Handbook has the force of law or in any way binds the INS with reference to the asylum provisions of § 208 (a).... "[T]he determination of refugee status under the 1951 Convention and the 1967 Protocol... is incumbent upon the Contracting State in whose territory the refugee finds himself." Id. (quoting UNHCR HANDBOOK, supra note 45).
96. See 8 U. S. C. § 1158 ("[T]he Attorney General determines that such alien is a refugee within the meaning of section 1101 (a) (42) (A).").
97. See id. § 1157 (describing the U. S. program for admitting refugees)
98. id. § 1158 (detailing the system for approving asylees).
99. Id. § 1158 (a) (2) (C). "In contrast to asylum processing in the U. S., persons rejected by DHS/USCIS cannot appeal the decision. " Refugee Council USA, http://www.rcusa.org/index.php?page= adjudication-and-appeal (last visited Mar. 5, 2009)
100. see also infra notes 149-52 and accompanying text.
101. Before applicants are even eligible for the Overseas Refugee Program, the Attorney General must first determine that they meet the refugee definition under 8 U. S. C. § 1101 (a) (42). 8 U. S. C. § 1157 (c). The Attorney General then has discretion to admit "any refugee who is not firmly resetded in any foreign country, is determined to be of special humanitarian concern to the United States, and is admissible...." Id. (outlining the "[a]dmission by Attorney General of refugees"). The Cardoza-Fonseca Court stated: It is important to note that the Attorney General is not required to grant asylum to everyone who meets the definition of refugee. Instead, a finding that an alien is a refugee does no more than establish that "the alien may be granted asylum in the discretion of the Attorney General " Cardoza-Fonseca, 480 U. S. at 428 n. 5 (quoting INS v. Stevic, 467 U. S. 407, 423 n. 18 (1984)).
102. See 1980 Refugee Act, INA § 101 (a) (42) (A), 8 U. S. C. § 1101 (a) (42) (A) (giving the definition of refugee).
103. DEBORAH E. ANKER, LAW OF ASYLUM IN THE UNITED STATES 20 (Paul T. Lufkin ed., 3d ed. 1999) (citing Cardoza-Fonseca, 480 U. S. at 448).
104. Cardoza-Fonseca, 480 U. S. at 449.
105. Id.
106. Id. at 430 (distinguishing the standard that applies to withholding of deportation cases from asylum cases).
107. Id. at 431.
108. See id. at 440 (stating that under the U. N. definition of "well-founded fear, " "a 10% chance of being shot, tortured, or otherwise persecuted" would constitute a "well-founded fear, " and while the U. N. definition is not binding on Immigration and Naturalization Services, it is taken into consideration in determining the application of the refugee definition to applicants within the United States).
109. JAMES C. HATHAWAY, THE LAW OF REFUGEE STATUS 133-34 (1991).
110. See supra text accompanying notes 18-21 (establishing that climate change is occurring).
111. See 1980 Refugee Act, INA § 101 (a) (42) (A) (codified at 8 U. S. C. § 1101 (a) (42) (A) (2000)) (defining refugee).
112. Id.
113. Baballah v. Ashcroft, 367 F.3d 1067, 1074 (9th Cir. 2004) (citing Artiga Turcios v. INS, 829 F.2d 720, 723-24 (9th Cir. 1987)).
114. Id. at 1075 (quoting Chand v. INS, 222 F.3d 1066, 1074 (9th Cir. 2000)). The court further noted that Congress's removal of "physical" as a modifier of persecution indicates "economic persecution alone could sustain an asylum claim."
115. Id.; see also IRA J. KURZBAN, KURZBAN's IMMIGRATION LAW SOURCEBOOK 330 (9th ed. 2004) (citing Baballah v. Ashcroft, 335 F.3d 981, 990-91, amended by Baballah, 367 F.3d 1067) (stating that persecution exists where there is a "substantial economic deprivation constituting a threat to an individual's life or freedom").
116. Baballah, 367 F.3d at 1075 (citing Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969))
117. cf. Medhin v. Ashcroft 350 F.3d 685, 689 (7th Cir. 2003) (holding fhat economic harassment is not sufficient for a finding of past or future persecution).
118. Baballah, 367 F.3d at 1076 (citing Surita v. INS, 95 F.3d 814, 819 (9th Cir. 1996)).
119. IPCC, supra note 15, at 13.
120. RACHEL BAIRD ET AL., CHRISTIAN AID REPORT, HUMAN TIDE: THEREAL MIGRATION CRISIS 40-41 (Angela Burton ed., 2007), available at http://www.christianaid.org.uk/Images/human-tide3-tcml5-23335.pdf. The report states: During the past five years, farmers report rain disappearing in the middle of the growing season, which drastically reduces, if not totally destroys, their crops. This change in rainfall patterns is creating a new wave of migrants who are being driven from their homes in search of water, leaving the very old and the very young in the villages to cope as best they can. Id.
121. Id. (giving the examples of Oumou Karembé and Mariam Tapily, both of whom are in their late seventies and have been left with their eight and two grandchildren, respectively, due to their families' poor harvests that could not sustain their families).
122. See supra text accompanying notes 12-15 (describing how rising sea levels have displaced Tuvaluan citizens from their island homes in the southeast Pacific)
123. supra text accompanying notes 16-17 (describing how warmer temperatures in the African Sahel have displaced thousands who can no longer sustain life in desert-like conditions).
124. Id.
125. KURZBAN, SUPRA note 90, at 334 (citing Avetova-Elisseva v. INS, 213 F.3d 1192 (9th Cir. 2000)).
126. Cooper, supra note 49, at 519-20 (arguing that when governments do nothing to decrease climatic harms, they are knowingly harming "individuals by causing or contributing to the degradation of their environment, " therefore meeting the second prong of the persecution requirement).
127. Tuvalu Press Release, supra note 12
128. see also IPCC, supra note 15 (discussing the inevitability of climate change)
129. Alexandra Berzon, Tuvalu Is Drowning, SALON, Mar. 31, 2006, http://www.salon.com/news/feature/2006/03/31/tuvalu/print.html (discussing government workshops for citizens regarding the impacts of global warming and how it will affect them)
130. Elizabeth Pollock, Tuvalu: That Sinking Feeling-Global Warming, Rising Seas, FRONTLINE WORLD: ROUGH CUT, Dec. 6, 2005, http://www.pbs.org/frontlineworld/rough/2005/12/tuvalu-that-sin-l.html (giving the statement of Paani Laupepa, the Tuvaluan assistant secretary of foreign affairs, that the people of Tuvalu are being forced to relocate due to global warming and rising seas, something that the Tuvaluan government and people have no control over).
131. Juliet Eilperin, Climate Shift Tied to 150, 000 Fatalities: Most Victims Are Poor Study Says, WASH. POST, NOV. 17, 2005, at A20.
132. Mastrandrea & Schneider, supra note 25.
133. Id.
134. Cooper, supra note 49, at 524.
135. Tony Allen-Mills, Biofuel Gangs Kill for Green Profits, SUNDAY TIMES (London), June 3, 2007, available at http://www.timesonline.co.uk/tol/news/world/us-and-americas/article 1875709.ece.
136. Id.
137. BAIRD ET AL., supra note 94, at 25.
138. Id. at 35.
139. Id.
140. See id. at 35-36 (explaining how the Burmese army is shooting people and destroying their homes in an effort to force them to relocate out of the regions that will be flooded by the new dams).
141. Id at 36.
142. Allen-Mills, supra note 105.
143. BAIRD ET AL., SUPRA NOTE 94, AT 30.
144. id. at 25.
145. 1980 REFUGEE ACT, INA § 101 (A) (42) (A) (CODIFIED AT 8 U. S. C. § 1101 (A) (42) (A) (2000)).
146. ANKER, supra note 79, at 376-98
147. Cooper, supra note 49, at 521.
148. Cooper, supra note 49, at 521-23
149. See ANKER, supra note 79, at 379 ("[T]he particular social group ground is excessively open-ended and encompasses broad, vaguely defined or noncohesive societ al. groups.").
150. Matter of Acosta, 19 I. & N. Dec. 211, 212 (B. I. A. 1985), overruled on other pounds by Matter of Mogharrabi, 19 I. & N. Dec. 429 (B. I. A. 1987).
151. Acosta, 19 I. & N. Dec. at 211 (stating that the UNHCR Handbook is a "useful tool" in helping the court make its determinations on the refugee definition)
152. Zavala-Bonilla v. INS, 730 F.2d 562, 567 (9th Cir. 1984) ("The [UNHCR] Handbook has been treated by the [Board of Immigration Appeals] as a significant source of guidance....").
153. UNHCR HANDBOOK, supra note 45, ¶¶ 77-78.
154. Id.
155. See Cooper, supra note 49, at 522 (claiming that EDPs are part of a social group characterized by their lack of political power necessary to protect their own environments).
156. Gregor S. McCue, Note, Environmental Refugees: Applying International Environmental Law to Involuntary Migration, 6 GEO. INT'LENVTL. L. REV. 151, 157 (1993).
157. BAIRD ET AL., supra note 94, at 23
158. Eilperin, supra note 101
159. Climate Inst., Impact of Climate Change on Human Health, http://www.climate.org/topics/health.html (last visited Feb. 22, 2009).
160. See supra text accompanying notes 7-11 (discussing the specific harms to Tuvalu) ; supra text accompanying note 104 (discussing the circumstances specific to the African Sahel).
161. Anthony Oliver-Smith, Understanding Katrina: Disasters and Forced Migration in the 21st Century, SSRC, June 11, 2006, http:// understandingkatrina.ssrc.org/01iver-Smith/.
162. Id.
163. Id.
164. Rebecca Eaton, Note, Escape Denied: The Gretna Bridge and the Government's Armed Blockade in the Wake of Katrina, 13 TEX. WESLEYAN L. REV. 127, 137 (2000).
165. See supra text accompanying notes 105-06, 112-14 (discussing the situation in Colombia)
166. supra text accompanying note 108-11 (discussing the situation in Burma).
167. Matter of Acosta, 19 I. & N. Dec. 211, 233 (B. I. A. 1985).
168. Id.
169. Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986).
170. Id. at 1576-77
171. see also Raffmgton v. INS, 340 F.3d 720, 721-23 (8th Cir. 2003) (finding that "mentally ill female Jamaicans" is too large and diverse of a group to qualify as a social group for the purposes of meeting the refugee definition).
172. ANKER, supra note 79, at 380
173. see also supra text accompanying notes 134 (stating the courts' reluctance to grant asylum based on persecution on account of membership in a social group)
174. infra note 141 (discussing the reluctance in the United States to offer asylum protection)
175. supra Part I (discussing previous and current EDPs as well as estimations of future EDPs).
176. Pedro-Mateo v. INS, 224 F.3d 1147, 1151 (9th Cir. 2000) (denying classification as a social group to indigenous Indians in Guatemala).
177. 1980 Refugee Act, INA § 208 (b) (2) (B) (i) (codified at 8 U. S. C. § 1158 (b) (2) (B) (i) (2000)).
178. INS v. Elias-Zacarias, 502 U. S. 478, 482-83 (1992).
179. See supra Part III. A (discussing the different ways of analyzing governments' actions as persecution).
180. S. REP. NO. 89-748, at 17 (1965), AS REPRINTED IN 1965 U. S. C. C. A. N. 3328, 3335. The bill passed; however, the adopted public law did not include more in the refugee definition than "persons uprooted by catastrophic natural calamity as defined by the President who are unable to return to their usual place of abode." Pub. L. No. 89-236, 79 Stat. 911, 913 (1965).
181. See Executive Office for Immigration Review, Electronic Reading Room Information, http://www.usdoj.gov/eoir/efoia/foiafreq.htm (last visited Feb. 22, 2009) (compiling data on the numbers of asylum applications granted and denied by year). In 2002, 24% of asylum applicants received asylum. U. S. DEP'T OF JUSTICE, IMMIGRATION COURTS: FY 2002 ASYLUM STATISTICS (2002), available at http://www.usdoj.gov/eoir/efoia/FY02AsyStats.pdf. In 2007, only 23% of applicants received asylum status. U. S. DEP'T OF JUSTICE, IMMIGRATION COURTS: FY 2007 ASYLUMSTATISTICS (2007), available at http://www.usdoj.gov/eoir/efoia/FY07AsyStats.pdf.
182. Temporary Protected Status, 8 U. S. C. § 1254a (2000).
183. Id. (giving the definition and statutory limitations of TPS).
184. Harvard, supra note 50, at 77-78
185. see also 8 U. S. C. § 1254a (providing that the Attorney General can grant temporary protection to persons if there has been a natural disaster). TPS does not require the applicant to meet the definition of a refugee and therefore is outside the scope of this Note. In addition, it is not a true remedy to the problem of EDPs because it only offers temporary protection-it neither grants immigration rights to its recipients nor allows recipients to get on track to becoming lawful permanent residents. Id. For the statutory language regarding TPS, see id.
186. U. S. C. § 1254a.
187. Supra text accompanying note 53; see Part III (discussing the U. S. interpretation of refugee).
188. Lopez, supra note 31, at 391-92 (stating that most countries would be hesitant to even consider altering the long-standing definition).
189. See infra text accompanying note 172 (stating that the law only requires countries to offer refugees protection after they enter the country's borders).
190. See MUSALO ETAL., supra note 71, at 75-86 (explaining the Overseas Refugee Program, which applies to persons outside the country seeking protection in the United States, 8 U. S. C. § 1157, and the procedures for asylum and restriction on removal, which provide protection to persons within the United States, 8 U. S. C. § 1258). The number of aliens able to apply for protection under 8 U. S. C. § 1157 is limited in number and to certain situations in which refugees will be admitted. MUSALO ET AL., supra, at 75-76. These limitations do not apply to persons seeking resettlement from within the United States. Id. at 75.
191. MUSALO ET AL., supra note 149, at 75.
192. See id. at 75-76 (explaining how a person must fit into one of three priority categories and must also be approved in an interview). Overseas Refugee Program applicants must first prove to UNHCR representatives that they qualify for the refugee program and then must show that they are "in need of resettlement for specified and compelling reasons" of "special concern" to the United States or are a family member to a. U. S. citizen. Id. After proving that the applicant has met these criteria, a representative of the Department of Homeland Security's Bureau of Citizenship and Immigration Services must approve the refugee in an interview. Id. at 76.
193. Supra text accompanying note 76 (discussing the absence of the right to an appeal or to make a claim in international court for Overseas Refugee Program applicants).
194. Masters, supra note 40, at 867.
195. See BAIRD ET AL, supra note 94, at 26 (stating that the Intergovernmental Panel on Climate Change has predicted that by 2050 climate change will cause the displacement of at least one million people each year with a possibility of that number reaching twenty-six million per year).
196. See Press Release, U. N. Univ. Inst, for Env't & Human Sec, Ranks of 'Environmental Refugees' Swell, Calls Grow for Better Definition, Recognition, Support (Nov. 11, 2005), available at http://www.eurekalert. org/pub-releases/2005-ll/unu-rol00405.php (discussing the difficulty in discerning "'environmental refugees' from economic migrants" and refugees from evacuees).
197. See U. N. High Comm'n for Refugees [UNHCR], Executive Comm. of the High Comm'rs Programme, Progress Report on Resettlement, EC/59/SC/CRP.11 (June 2, 2008) [hereinafter Progress Report], available at http://www.unhcr.org/excom/EXCOM/484514632.pdf (discussing the lengdhy delays in making resetdement determinations for Overseas Refugee Program applicants and the "serious detrimental impact on the wellbeing of refugees who often have to wait in dangerous and difficult situations")
198. see also U. S. Citizenship & Immigration Servs., Frequently Asked Questions About Asylum, http://www.uscis.gov (follow "Services & Benefits"; then "Humanitarian Benefits"; then "Asylum"; then "Asylum Eligibility and Applications FAQ"; then "How Long Does the Process Take?") (last visited Feb. 22, 2009) [hereinafter USCIS FAQs] (stating that it could take up to 180 days after filing an asylum application before applicants receive a decision from the immigration court)
199. U. N. HIGH COMM'R for REFUGEES, UNHCR POSITION on the RETURN of ASYLUM-SEEKERS to GREECE UNDER THE "DUBLIN REGULATION" (2008), available at http://www.unhcr.org/protect/PROTECTION/482199802.pdf (stating that asylum applicants in Greece have a waiting period of two months to four years due to the backlog of asylum cases).
200. See Joe Chapman, Kennewick Family Returning to Russia After Being Denied Religious Asylum, TRI-ClTY HERALD (Kennewick, WA), Sept. 7, 2007, available at 2007 WLNR 17481063 (discussing the Korotkov family's ten-year wait after filing their application for asylum upon entering the United States and their ultimate rejection in 2007).
201. Progress Report, supra note 156, ¶[4.
202. Id. These numbers only consider the refugees that UNHCR determines need resettlement. That number is typically "less than 1% of [the] world's refugee population... in any given year." Manuel Castillo & James Hathaway, Temporary Protection, in RECONCEIVTNG INTERNATIONAL REFUGEE LAW 1, 6 (James Hathaway ed., 1997).
203. Progress Report, supra note 156, ¶8.
204. Masters, supra note 40, at 868.
205. Donald Kerwin, Migration Policy Inst., Revisiting the Need for Appointed Counsel, INSIGHT, Apr. 2005, at 6 ("Thirty-nine (39) percent of nondetained, represented asylum seekers received political asylum, in contrast to 14 percent of non-detained [sic], unrepresented asylum seekers. Eighteen (18) percent of represented, detained asylum seekers were granted asylum, compared to three percent of detained asylum seekers who did not have counsel.").
206. INA§ 208 (a) (2) (B) (codified at8U. S. C. § 1158 (a) (2) (B) (2000)).
207. USCIS FAQs, supra note 156 (follow the "Will I get a Work Permit" link) ("Asylum applicants cannot apply for employment authorization at the same time they apply for asylum.").
208. Refugee Convention, supra note 41
209. Protocol, supra note 41; 1980 Refugee Act, INA § 101 (a) (42) (A) (codified at 8 U. S. C. § 1101 (a) (42) (A)).
210. BAIRD et AL., supra note 94, at 23.
211. McCue, supra note 123, at 159.
212. BAIRDET AL., supra note 94, at 23; see also Shamini Naidu, Global Change, Planning a Climatic Future for Durban, SCI. SCOPE, Mar. 2006, at 13, available at http://www.csir.co.za/ publications/pdfs/sciencescope/SS-March-2006.pdf (stating that climate change will result in the "migration of people from other dryer areas in [South Africa,]... placing a greater burden on already stressed resources").
213. Press Release, U. N. Univ. Inst, for Env't & Human Sec, supra note 155..
214. See supra text accompanying note 124 (noting that climate change affects impoverished nations more often and more severely than wealthier nations).
215. Christian Aid, Indian Floods Appeal, http://www.christianaid.org.uk/ emergencies/current/india-floods/index.aspx (last visited Feb. 22, 2009) (reporting that the relief effort has failed to help several Dalits and indigenous tribes, which are groups that "are unlikely to be able to access support independently").
216. Refugee Convention, supra note 41, art. 25 (1).
217. MUSALO ET AL., supra note 71, at 74
218. Juss, supra note 53, at 313 (explaining that states can evade their asylum obligations through deterrent devices).
219. See juss, supra note 53, at 313 (describing stringent visa requirements as a deterrent device that states use to avoid asylum obligations).
220. See generally id. (describing a nation-centered system of asylum, which results in burden shifting if wealthier nations circumvent the system).
221. "Despite technological and scientific advances in prediction and mitigation, we have seen a serious increase in both mortality and economic losses from disasters since 1960, particularly in the developing world. Disasters are, in fact, increasing in impact and scope...." Oliver-Smith, supra note 126.
222. While the protection extended to EDPs should be based on their rights as human beings and not their economic value, governments have a valid concern with the potential harm that EDPs will have on their countries' economic prosperity and sustainability.
223. Supra Part I.
224. Michael M. Hethmon, Immigration Policy: Diversity, Mass Immigration, and National Security After 9/11-An Immigration eform Movement Perspective, 66 ALB. L. REV. 387, 409 (2003).
225. BAIRD ET AL., supra note 94, at 25
226. see also U. N. INTEGRATED REGL INFO. NETWORKS, SUDAN: CLIMATE CHANGE-ONLY ONE CAUSE AMONG MANY for DARFUR CONFLICT (June 28, 2007), http://www.irinnews.org/Report.aspx?ReportId=72985 [hereinafter SUDAN: CLIMATE CHANGE] ("[L]ack of essential resources threatens not only individuals and their communities but also the region and the international community at large." (internal citations omitted)).
227. SUDAN CLIMATE CHANGE, supra note 180.
228. Id.; see also Julian Borger, Scorched, GUARDIAN (U. K.), Apr. 28, 2007, available at http://www.guardian. co.uk/environment/2007/ apr/28/sudan. dimatechange ("Darfur may be seen as one of the first true climate-change wars.").
229. Borger, supra note 182.
230. Id.
231. Id.
232. Id.
233. See Wendy Vanasselt, Armed Conflict: Killing Governance, in WORLD RESOURCES 2002-2004: DECISIONS for the EARTH: BALANCE, VOICE & POWER 25 (2003) (reporting that wars destroy "croplands, forests, water systems, and other natural resources" and cause additional pollution).
234. Id.
235. Ashfaq Yusufzai, Pakistan: Afghan Refugee Camp Spared Closure Till Spring, IPS NEWS, Sept. 8, 2007, available at http://www.ipsnews.net/ print.asp?idnews=39192.
236. Id.
237. Keane, supra note 26, at 220.
238. SeeMcCue supra note 123, at 164 (stating that the destruction of trees to create space for refugee camps and to use for firewood causes deforestation and that water deficiencies cause sewage hazards). "Sudden mass migrations into a new ecosystem can often have devastating effects on local environment. Often, the host area will be only slighdy better off than the one that the migrants left because it is near their previous site and under the same kinds of environmental pressures." Id. at 163
239. see also Keane, supra note 26, at 219 (stating that refugee camps cause erosion, soil depletion, and decreased productivity of the land).
240. See juss, supra note 53, at 320 (discussing the burden of refugee camps on the land).
241. Berzon, supra note 100.
242. See, e.g., U. S. Re-Engagement in the Global Effort to Eight Climate Change, Hearing Before the H. Comm. on Eoreign Affairs, 110th Cong. 11-13 (2007) (statement of Eileen Claussen, President, Pew Center on Global Climate Change), available at http://www.pewclimate.org/what-s-being-done/in-the- congress/mayl507.cfm (recognizing elements that must exist before countries will participate in a climate-change framework)
243. Sheryl Gay Stolberg, Bush Calls for Global Goal for Cutting Emissions, N. Y. TIMES, May 31, 2007, at A2 (discussing the announcement of President Bush's desire to adopt a goal to curb emissions; the declaration of European leaders-Prime Minister Tony Blair (Britain), Chancellor Angela Merkel (Germany), and President Nicolas Sarkozy (France) -regarding the importance of addressing the climate change issue; and India and China's reluctance to accept emissions cuts but support of requests for a new treaty including emissions cuts)
244. Press Release, Office of the Governor, Governor Schwarzenegger Signs Landmark Legislation to Reduce Greenhouse Gas Emissions (Sept. 27, 2006), available at http://gov. ca.gov/index.php?/print-version/press-release/ 4111/(stating that California, which has the highest emissions in the United States, has become the first state in the United States to create enforceable programs to limit emissions and therefore help reduce climate change)
245. IPCC, supra note 15 (giving a report produced by approximately 600 authors from forty countries and reviewed by representatives from 113 governments during the 10th Session of Working Group II).