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Tag: ImmigrationLaw

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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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 I.L. v. Italian Ministry of the Interior and Attorney General at the Court of Appeal of Ancona 

Date: 24 February 2021 

Court: The Supreme Court of Cassation – Second Civil Section 

Citation: Ordinance N. 5022/2021 of the Italian Corte Suprema di Cassazione (Sez. II Civile) 

Short summary  

This case established that Italian trial judges should collectively assess situations of environmental, social or climate degradation in humanitarian asylum cases, including whether natural resources are subject to unsustainable exploitation in the country of origin of the individual seeking refuge. The specific matter was remanded to a lower court.  

Summary by: Mackenzie Stern 

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

As the highest court in Italy, this decision from the Court of Cassation is binding throughout Italy. It therefore sets out a test for all Italian trial judges to conduct in humanitarian protection cases which includes environmental, social, and climate degradation in addition to instances of armed conflict.  

Key facts 

IL, a citizen of the Niger Delta region of Nigeria left his home and sought international humanitarian protection in Italy. He fled in part due to armed paramilitary conflict in the region, which was exacerbated by environmental destruction, including numerous oil spills.  

Previous instances  

IL’s application for asylum was initially rejected by the Territorial Commission for the Recognition of International Protection, prompting an appeal to the Court of Ancona. Following a second rejection, IL appealed to the Court of Cassation, Italy’s highest appellate body.   

IL grounded his appeals on two theories. First, the courts below committed prejudicial error by failing to consider altogether the environmental disaster situation in the Niger Delta. Second, the trial judge violated the Consolidated Immigration Act (Legislative Decree) No. 286/1998 by not extending humanitarian protection based on this environmental disaster.  

Summary of holding 

The Court accepted IL’s appeal and referred the case back to the Court of Ancona. 

The Court determined that IL’s two grounds for appeal were well-founded. The Court acknowledged the existence of serious environmental instability in the Niger Delta, due to indiscriminate exploitation of the area by oil companies and ethnic-political conflicts. The Court found that the trial judge did not consider the context of environmental instability and widespread insecurity when considering eligibility for humanitarian protection.  

The Court held that: 

“It follows from the foregoing that if, as in the present case, the trial judge finds, in a specific area, a situation suitable for integrating an environmental disaster, or in any case a context of serious compromise of natural resources which is accompanied by the exclusion of entire segments of the population from their enjoyment, the assessment of the widespread dangerous condition existing in the applicant’s country of origin, for the purpose of recognizing humanitarian protection, must be conducted with specific reference to the particular risk for the right to life and dignified existence deriving environmental degradation, climate change or unsustainable development of the area.” (¶ 6) 

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RAD File No VB9-03573 

Date: 20 November 2019 

Court: Immigration and Refugee Board of Canada, Refugee Appeal Decision 

Citation: [2019] RADD No 2229 

Summary by: Madison Bruno 

Short summary  

The Refugee Protection Division (RPD) rejected a claim for refugee protection because it found an Internal Flight Alternative (IFA), Port Harcourt, within Nigeria. The Appellant claimed that the RPD erred in its IFA test because the alternate location was unsafe and unreasonable. The Refugee Appeal Board dismissed the appeal but accepted evidence regarding effects of climate change in Nigeria. 

Link to original judgement  

Click here to open the case in PDF format

Weight of decision  

The federal Immigration and Refugee Protection Act (IRPA) gives the Immigration and Refugee Board of Canada jurisdiction to hear and decide cases on immigration/refugee matters. Their decisions are persuasive but not binding precedent and are subject to judicial review at the Federal Court. 

Key facts 

Appellant alleged he was attacked by Fulani Herdsmen in 2016, following several altercations over their cattle drinking from his fishponds. He claimed that he was hospitalized for 14 months. Appellant fled Nigeria in 2018, travelled through the U.S., then arrived in Canada to seek refugee protection.  

Canada’s Refugee Protection Division rejected appellant’s initial application for asylum, prompting an appeal to the Refugee Appeal Board. 

Summary of holding 

The Refugee Appeal Board utilized a two-part legal test for assessing whether appellant had a reasonable Internal Flight Alternative (IFA): 

“First, the Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted, and/or no danger of torture, risk to life, or risk of cruel and unusual treatment or punishment in the proposed IFA.” (¶ 51) 

“Second, conditions in that part of the country must be such that it would not be unreasonable, in all the circumstances, for the claimant to seek refuge there.” (¶ 52) 

“Once an IFA has been identified, the Appellant is responsible for demonstrating that the IFA is unsafe or unreasonable.” (¶ 53) 

The Appeal Board then gave a summary of the documentary evidence regarding Fulani Herdsmen used by the Refugee Protection Division (RPD) in its original decision: 

“The NDP [National Documentation Package] states that climate change and insecurity in Nigeria’s northern region have triggered a southward migration of Fulani Herdsmen, resulting in conflict between local farmers and the Herdsmen as they search for land to graze their cattle. The conflicts occur primarily in Nigeria’s Middle Belt, including the states of Adamawa, Benue, Kogi, Kwara, Nasarawa, Niger, Plateau, Taraba, and the Federal Capital Territory.” (¶ 55) 

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Beauboeuf v. Canada

Date: 21 October 2016 

Court: Immigration and Refugee Board of Canada (Immigration Appeal Division) 

Citation(s): 2016 CarswellNat 8691  

Short summary  

A 71-year-old Haitian applicant successfully appealed a refusal letter denying her permanent residency in Canada. While she was originally denied a visa because of the potential for her health conditions to cause excessive demand on health or social services in Canada, she demonstrated compelling humanitarian and compassionate grounds that warranted special relief. A major element of her humanitarian and compassionate claim was the devastation ensuing from the 2010 earthquake in Haiti. 

Summary by: Erin Levitsky 

Link to original judgement  

Click here to open the case in PDF format

Weight of decision  

This decision is not binding on Canadian courts because it comes from a tribunal. It is persuasive, however, and the fact that it is an appeal decision gives it greater weight. 

Key facts 

The appellant, Yamiley Beauboeuf, and her husband were both born in Haiti and are both citizens of Canada. They have two sons who are also Canadian. The family lives in Ottawa.  

Following the devastating earthquake in Haiti in 2010, Beauboeuf’s mother, Rose Marie Yolaine Napoléon came to visit her family in Canada and never left. Beauboeuf and her husband co-sponsored Napoléon for permanent residence (PR) as a member of the family.

Previous instances 

In October 2012, Napoléon received a procedural fairness letter containing the opinion of a medical officer who determined that her medical condition—diabetic illness complicated by chronic kidney disease—might cause excessive demand on health or social services in Canada. Napoléon provided additional submissions and documents but Citizenship and Immigration Canada (CIC) ultimately issued a refusal letter in April 13 refusing her PR citing the same concern, pursuant to § 38(1) of the Immigration and Refugee Protection Act (IRPA). Beauboeuf appealed the decision. 

Summary of holding 

Rather than contest the legal validity of the refusal letter, the appellant argued there were “sufficient humanitarian and compassionate considerations, taking into account the best interests of the children directly affected by the decision and the other relevant circumstances of her case” (¶ 3) to justify special relief pursuant to ¶ 67(1)(c) of the IRPA. The Minister argued the threshold for relief based on humanitarian and compassionate grounds was not met. 

The Immigration Appeal Division (IAD) allowed the appeal, holding that while the refusal letter was legally valid, the humanitarian and compassionate considerations put forward were sufficient to warrant special relief. 

The IAD considered several factors to determine whether humanitarian and compassionate considerations were sufficient, including: 

“(i) the relationship of the sponsor to the applicant and the strength of that relationship; (ii) the reasons for the sponsorship; (iii) the overall situation of both the sponsor and the applicant; (iv) the family support in Canada; (v) the existence of dependency as between the applicant and the sponsor; (vi) the best interests of any children directly affected by the decision; and (vii) the objectives of the IRPA” (¶ 5). 

The IAD considered the fact that the main reason Beauboeuf sponsored her mother was to keep her alive. It held that being deported would be akin to a death sentence, as dialysis, the medical treatment she required, was not available in Haiti.  

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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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