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Tag: Immigration

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Sanchez v. Mayorkas

Date: 7 June 2021

Court: United States Supreme Court

Citation: 141 S. Ct. 1809 (2021)

Short summary  

The U.S. Supreme Court foreclosed a pathway to permanent residency for certain Temporary Protected Status (TPS) recipients. TPS is commonly used to allow nationals of countries experiencing environmental disasters to temporarily live and work in the United States.

Summary by: Vanessa Rivas-Bernardy

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision

This decision is binding on all United States federal and state courts.

Key facts

In 2001, El Salvador experienced several severe earthquakes, and the U.S. government designated the country for Temporary Protected Status (TPS). TPS is a humanitarian relief program through which individuals in the United States who are nationals of certain countries designated by the U.S. president are granted permission to live and work in the United States for a fixed period of time. The president may designate countries experiencing unsafe living conditions, such as armed conflict or environmental disasters, for as long as those conditions last.

Petitioner Jose Santos Sanchez was a Salvadoran national who entered the United States in 1997 without inspection by an immigration officer at a port of entry. When El Salvador was designated for TPS, Sanchez applied and was granted TPS that same year, notwithstanding his entry to the United States without inspection as that typically does not preclude a grant of TPS.

In 2014, Sanchez applied for Lawful Permanent Residence (LPR) status under Section 1255 of the U.S. immigration code. Section 1255 governs the adjustment to LPR status by nonimmigrants, who are defined as foreign nationals with a temporary grant of lawful presence. It generally requires “an admission” into the country, which is defined as “the lawful entry of the [noncitizen] into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. 1255.

Previous instances

U.S. Citizenship and Immigration Services—the adjudicating agency—denied Sanchez’s application for lawful permanent residence, determining he was ineligible because he entered the country without inspection. Sanchez challenged the decision, and the district court found for Sanchez, reasoning that because Sanchez’s TPS conferred him with nonimmigrant status, he was eligible for Section 1255 adjustment. The Third Circuit Court of Appeals reversed the district court’s decision, holding that Sanchez was ineligible for permanent residency despite his TPS. Two other circuit courts of appeal shared the Third Circuit’s approach, while three had reached the opposite conclusion.

Summary of holding

The Supreme Court unanimously held that the petitioner was not eligible for LPR status. Although the TPS statute provides that TPS recipients who apply for permanent residency should be considered to have nonimmigrant status, which is the first requirement for Section 1255 adjustment of status, the Court held the admission requirement was a second, separate requirement that the petitioner did not satisfy. The Court reasoned that the TPS statute provision that confers recipients with nonimmigrant status “does not aid the TPS recipient in meeting 1255’s separate admission requirement,” as “[l]awful status and admission are distinct concepts in immigration law, and establishing the former does not establish the latter.” Thus, the Court concluded that a grant of TPS does not constitute an admission, so any TPS recipient who—like the petitioner—has not been lawfully admitted to the country is ineligible for permanent residency.

Potential takeaways for future climate migration litigation

  • Although TPS can be renewed, and although it provides work authorization and protection from deportation, it is a temporary status. While the decision in Sanchez v. Mayorkas does not implicate the president’s ability to designate or renew TPS, itforecloses the path to permanent residency for many TPS recipients. TPS recipients who have been “admitted” to the United States (by way of a student or visitor visa, for example) still may be eligible for permanent residency. But any recipient who entered the United States without inspection and has never been “admitted” to the country cannot, without going through any other immigration pathway, become an LPR. Future litigation and policy advocacy must seek lasting protection for beneficiaries of temporary and partial forms of relief like TPS.
  • TPS has been a powerful tool for providing quick and widespread relief to individuals from countries experiencing large-scale environmental disasters. Because the U.S. president has the authority to designate and renew TPS, the program can provide relief while avoiding the lengthy lawmaking process otherwise required to create new immigration benefits. Additionally, the requirements are relatively simple: Any national of a designated country who has been in the United States continuously since the country’s designation is eligible for TPS (provided they are not excluded by ineligibility criteria). As such, it is a fast way to confer benefits on relatively large populations, which is crucial for providing protection to individuals affected by rapid-onset disasters caused by climate change.
  • The Biden Administration acknowledged the above in its October 2021 report on the Impact of Climate Change Migration—the U.S. government’s first report addressing this nexus—which came out of President Biden’s February 2021 executive order (E.O. 14013) titled “Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migration.” Though many countries seriously impacted by climate change have not been designated for TPS, like Pakistan, the Biden Administration has extended several existing TPS designations and has designated new countries for TPS in the years since the report. Since TPS is a form of relief that already exists and is thus more politically and logistically feasible to implement than creating new immigration pathways, insofar as the Biden Administration follows through on its commitment to addressing climate change migration, it is likely to do so in part through continuing to expand TPS.
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 CAA de Bordeaux, 2ème chambre, 20BX02193, 20BX02195

Date: 18 December 2020

Court: Court of Administrative Appeal of Bordeaux 

Citations: N° 20BX02193, 20BX02195

Short summary  

In this judgement, the Court overturned the deportation order issued by the French department, Prefect of Haute-Garonne (“Prefect”), against Mr. Sheel on the grounds that it would subject him to a real risk of harm and even death given the high levels of air pollution in Bangladesh and the lack of access to adequate health care services, medication, and respiratory assistance equipment. 

Summary by: Jodie Tang 

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

Though an individual judgment, this decision holds immense weight in France because it was the first time the courts extended protection to someone fearful of returning home due to environmental conditions.  

Key facts 

Mr. Sheel, a name given to him by the media, is a Bangladeshi national who entered France in 2011 and lodged an asylum application. His application was rejected in 2013, but he was granted a temporary residence permit due to his state of health from 2015 to 2017. In June 2019, the Prefect refused to renew his residence permit and required Mr. Sheel to leave France within 30 days and return to Bangladesh. This decision was overturned by the Administrative Court of Toulouse, which was appealed by the Prefect to the Court of Administrative Appeal of Bordeaux. 

Mr. Sheel suffers from a severe form of asthma and sleep apnea. Throughout his cases, however, the Prefect argued that medical evidence submitted by Mr. Sheel was inadequate to establish that he would not receive appropriate healthcare services in Bangladesh to treat his respiratory disease. He responded that, regardless of where he lived in Bangladesh, he would be unable to access appropriate medication, could not operate respiratory assistance devices in Bangladesh’s hot climate, and would have difficulty avoiding harmful air pollution.

Previous instances

On 15 June 2020, the Administrative Court of Toulouse annulled the decree of 18 June 2019 issued by the Prefect, where he refused to renew Mr. Sheel’s residence permit, ordered him to leave France and return to Bangladesh. The Court also overturned the decision of 5 August 2019 by the Prefect where he refused to grant Mr. Sheel’s request for family reunification with his wife. The Court ordered the Prefect to grant Mr. Sheel a residence permit pursuant to provision 11° of Article L.313-11 of the Code for the Entry and Residence of Foreigners and the Right to Asylum (“Provision 11”) and ordered the State to pay 1,500€ to Mr. Sheel’s counsel.  

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Ioane Teitiota decision, CCPR/C/127/D/2728/2016

Date of judgement: 23 September 2020

Court: United Nations Human Rights Committee

Citation(s): CCPR/C/127/D/2728/2016; Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2728/2016

Short summary 

In its first ruling on a complaint by an individual seeking asylum from the effects of climate change, the United Nations Human Rights Committee found that states may not deport individuals who face climate change-induced conditions that violate the right to life.

Summary by: Makaela Fehlhaber

Link to original Judgement 

Click here to open the case in PDF format

Weight of decision 

This decision is significant in that it is one of the first to acknowledge climate change-induced conditions as drivers of asylum claims. The Committee is responsible for holding states to account for upholding the International Covenant on Civil and Political Rights, however, its decisions are not binding. 

Key facts

The applicant sought asylum (and in the alternative, to be regarded as a protected person) on environmental grounds and argued that this was within the scope of the 1951 Refugee Convention. 

Further, the applicant contended that deportation back to Kiribati would violate Art. 6 (the right to life) of the International Covenant on Civil and Political Rights. The applicant sought determination by the Committee on the basis that he had exhausted all available domestic remedies (para. 8.3), a fact not disputed by the State party. 

New Zealand’s primary arguments surrounded the lack of evidence put forth by the applicant to support the argument that there was an imminent risk to his right to life, and that the claim should be deemed inadmissible. 

The Committee was asked to determine whether New Zealand had breached its obligations under the ICCPR by deporting the applicant back to Kiribati on the basis that the evidence did not support a finding that the applicant would face the risk, or would likely face the risk of arbitrary deprivation of life upon his return to Kiribati. 

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AC (Tuvalu)

Date: 04 June 2014

Court: New Zealand: Immigration Protection Tribunal

Citation: AC (Tuvalu) [2014] NZIPT 800517-520

Short summary  

A family appealed their immigration cases to New Zealand’s Immigration and Protection Tribunal, claiming their rights to life and protection would be violated if returned to Tuvalu because of climate change impacts. The Tribunal dismissed their claims, finding that they could not meet their evidentiary burden in qualifying as protected persons, nor in demonstrating that the government of Tuvalu failed to meet its duty to address the known effects of climate change on its populace.

Summary by: Keri Pflieger 

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

The Immigration and Protection Tribunal is an expert forum administered by the New Zealand Ministry of Justice. It primarily assesses immigration and protection claims under New Zealand’s Immigration Act 2009, which codifies the Refugee Convention (§ 129), Convention Against Torture (§ 130), and the ICCPR (§ 131). The Immigration and Protection Tribunal’s decisions hold significant weight in New Zealand. Decisions may only be appealed to the domestic High Court on issues of law. 

Key facts

The Appellants were a Tuvaluan family (husband, wife, and two children) living in New Zealand who appealed the denial of their immigration cases and sought protected person status under New Zealand’s Immigration Act 2009.

The husband and wife each noticed the effects of climate change in Tuvalu, including increased land inundation, sea level rise, difficulties growing food, coastal erosion, and droughts. Prior to their departure from Tuvalu, they lost two late-term pregnancies, one of which they attributed to the quality of medical care in Tuvalu.

The husband and wife left Tuvalu for New Zealand in 2007, after the husband’s family home was demolished and the wife’s workplace shut down from insufficient funding.

The husband expressed fear for his family’s safety if returned to Tuvalu, due to minimal employment opportunities and lack of access to clean drinking water free from contamination. In addition to sharing her husband’s concerns, the wife also feared the quality of medical care facilities and availability of medicine access for her children, sea level rise’s negative effects on vegetation growth, and not having pathways to land ownership.

Previous instances

In November 2012, Appellants applied for refugee and/or protected person status. However, their claims were dismissed on 17 March 2013 by the Refugee Status Branch. Appellants appealed this dismissal under § 194(1)(c) of the Immigration Act 2009 with the Immigration and Protection Tribunal on 03 April 2014. This case, AC (Tuvalu), is the Tribunal’s assessment of that appeal.

AC (Tuvalu) is a joint appeal issued contemporaneously with AD (Tuvalu) [2014] NZIPT 501370-371. Under that appeal, appellants challenged deportation on humanitarian grounds under § 194(5) & (6), and § 196(6) & (7) of the Immigration Act 2009 to prevent separation of the husband’s family living in New Zealand. Appellants succeeded under that appeal.

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Refugee Review Tribunal of Australia 1168 

Date: 10 December 2009  

Court: Refugee Review Tribunal of Australia

Citation(s): 0907346 [2009] RRTA 1168

Short summary 

Australia does not have an obligation to accept climate migrants with no fear of specific persecution in their home country as refugees under its domestic adoption of the Refugee Convention. 

Summary by: Lucas Robinson  

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision 

This decision of the Refugee Review Tribunal of Australia bears moderate weight in immigration cases in the Commonwealth of Australia. 

Key facts 

The applicant was a citizen of Kiribati who arrived in Australia in 2007 and applied for a Protection visa under §65 of the Migration Act 1958 in May 2009. The application was denied by a delegate of the Minister for Immigration and Citizenship in August 2009. 

The applicant claimed that the environmental and economic changes in Kiribati caused by rising sea levels made it impossible for him to earn a living there. In his application, he claimed that some of the islands in Kiribati had already disappeared, and saltwater was springing up through the ground and spoiling the drinking well water, as well as devastating food crops. The applicant’s health had been directly impacted because of the loss of food crops on Kiribati.  

The applicant submitted that these impacts on him constituted persecution that should trigger protections under the 1951 Refugee Convention and the Migration Act 1958.  

Previous instances

The application for review by the RRTA was sought after the decision made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the applicant a Protection Visa under §65 of the Migration Act 1958. 

Summary of holding 

The RRTA affirmed the Minister’s decision not to grant the applicant a Protection Visa, finding that in the absence of a discriminatory motivation, Australia’s protection obligations were not triggered. The Tribunal held found that the continued production of carbon emissions that cause climate change is not sufficient to constitute persecution under the Refugee Convention as there was no evidence that the persecution the applicant was fearing was occurring because of his membership to any particular group (or any other protected ground for refugee status). People affected by climate change were not recognized as a cognizable group of people in need of protection. Because the applicant was not part of a particular group, he did not fit the convention definition of a refugee. 

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Montenegro v. Ashcroft

Date: 16 May 2002

Court: United States Court of Appeals, Third Circuit

Citation: 68 Fed. Appx. 290

Short summary  

A Guatemalan man petitioned for asylum in the United States after suffering persecution attributed to his labour union activity. An immigration judge found his testimony credible and granted the man and his family asylum, a decision ultimately upheld by a federal appeals court.

Summary by: Elisa D’Amico

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This decision is a binding part of the asylum case law developed in the Third Circuit (Delaware, New Jersey, Pennsylvania). Courts outside of the Third Circuit – including immigration and other federal courts – may find the case’s reasoning persuasive when evaluating similar asylum claims.

Key facts 

Werner Montenegro, born in Guatemala on in 1951 and began working as an agricultural internal auditor for a semi-public wheat growers association in 1982. During this period, Montenegro and others organized a labor union, which faced opposition from management led by Carlos Pac. He claimed to have faced assaults and threats in Guatemala due to his involvement in labor union activities, driven by economic scarcity in his sector.

Previous instances  

Immigration Judge Alberto Riefkohl found Montenegro’s testimony credible and granted him, along with his wife and son, asylum, recognizing their need for protection from “a group that the government is unwilling or unable to control.” However, the Board of Immigration Appeals (BIA) overturned the Judge’s decision, contending that the harm the family suffered did not meet the threshold for persecution.

Summary of holding 

On Montenegro’s appeal of the BIA decision, a panel of judges on the Third Circuit conducted a thorough examination of Montenegro’s testimony and supporting evidence. Based on evidence of past persecution linked to Montenegro’s labor union involvement, the court concluded that his claim was well-founded and merited protection under asylum laws. The case was remanded back to the Immigration Judge, directing him to grant asylum to Montenegro and his family.

The Third Circuit found that the BIA’s decision lacked proper support from the record, and its characterization of the evidence as “vague” was unjustified. For example, the court highlighted the attack on Mrs. Montenegro, Werner’s wife, which involved threats and physical violence in the presence of their young daughter. The court found this incident to be especially concerning and constituting persecution under the law.

Furthermore, the court explained that once an applicant demonstrates past persecution, as Werner Montenegro did, there is a presumption of a well-founded fear of persecution. The BIA failed to rebut this presumption with evidence showing a fundamental change in circumstances or the possibility of avoiding persecution through relocation. Thus, Montenegro’s eligibility for asylum was firmly established.

Therefore, the court vacated the BIA’s order and remanded the case for the Immigration Judge to grant the application for asylum. The court’s decision ensured that the Montenegro family received the protection they sought, recognizing the persecution they endured in their home country related to Montenegro’s sectoral efforts.

Potential takeaways for future climate migration litigation 

  • Montenegro v. Ashcroft may set precedent for asylum claims based on climate-induced poverty and violence. It recognizes the link between economic migration and persecution, allowing individuals to be granted asylum based on sector- or work-related persecution. This case highlights the significance of considering economic aspects in asylum cases, especially in regions facing resource scarcity and escalating tensions attributable to climate change.
  • As climate change worsens, placing increased pressure on the agricultural sector, this case may gain greater significance for individuals seeking asylum based on persecution associated with their sectoral involvement. By recognizing the impending stress on agricultural sector workers, the case sets a vital standard for courts to consider when evaluating the challenges faced by those displaced within this sector. For example, agricultural workers may confront heightened violence and persecution as a result of escalating resource competition driven by climate change. Challenges also extend to women engaged in informal agricultural work, who find themselves uniquely susceptible to exploitation and harassment amid climate-related internal displacement. Moreover, as climate change renders certain work and livelihoods unmaintainable, climate-afflicted migrants often find themselves moving as economic migrants, seeking alternative opportunities due to the adverse effects of climate change on their traditional occupations.
  • Advocates should also take note of how small-scale and Indigenous farmers face heightened persecution in the context of climate change, leveraging this and similar cases to advocate for more comprehensive asylum frameworks which recognize the nuanced ways environmental degradation, economic precarity, and pre-existing social vulnerabilities contribute to persecution.
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Hagi-Mohamed v Minister for Immigration & Multicultural Affairs [2001] FCA 1156

Date of judgement: 23 August 2001

 Court: Federal Court of Australia

Citation(s): [2001] FCA 1156

Short summary 

The Federal Court of Australia confirmed that internal relocation must be considered separately from the question of whether a well-founded fear of persecution exists in evaluating claims for protection under the 1951 Refugee Convention.

Summary by: Joseph Lavelle Wilson            

Link to original judgement 

Click here to open the case in PDF format

Weight of decision

This decision of the Federal Court bears moderate weight in the Commonwealth of Australia. 

Key facts

Ahmed Dahir Hagi-Mohamed, a citizen of Somalia, arrived in Australia on 15 September 1995. He filed an application for a protection visa under s. 36 of the Australian Migration Act 1958 (Cth) in November 1995, claiming that the Australian government had an obligation to protect him under the Convention Relating to the Status of Refugees 1951 (the Convention). The basis of his application was that he had a well-founded fear of persecution in his home country of Somalia, due to his membership of several social groups. 

Hagi-Mohamed claimed that he was a member of the particular social group (that of homosexual men), as well as a member of two clans – the Geledi clan and the Hawadle clan.

Previous instances

The Minister for Immigration & Multicultural Affairs and the Refugee Review Tribunal (RRT) rejected the application for protection. The RRT accepted that each group identified by Hagi-Mohamed was in fact a particular social group, and that he belonged to each one. The RRT found that the motivating reason for the persecution of Geledi clan members by Somalian militias was to take resources from the Geledi clan, specifically arable land and crops, rather than for the reason that they were members of the Geledi clan. The RRT also found that Hagi-Mohamed’s association with his mother’s clan, the Hawadle, did not put him at risk of persecution because there was evidence that other parts of Somalia were controlled by the Hawadle and he could be safe there. With respect to Hagi-Mohamed’s claim based on his homosexuality, the RRT found that although he did belong to the cognisable social group, that group did not face danger rising to the level of persecution under the Convention.

Hagi-Mohamed appealed to the Federal Court of Australia. Justice Stone issued a decision in favour of the government, which was subsequently appealed by Hagi-Mohamed and heard by Justices Wilcox, Weinberg, and Hely in the Federal Court of Australia. 

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