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Tag: NaturalDisaster

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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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AV (Nepal) [2017] NZIPT 801125, 26 

Date: 22 September 2017 

Court: New Zealand Immigration and Protection Tribunal 

Citation(s): [2017] NZIPT 801125, 26 

Short summary 

Appellants, suffering from PTSD, claimed that they could not return to Nepal due to fear induced by the deadly 2015 earthquake. The Tribunal denied them leave to remain as they had not suffered from persecution resulting from actions of the State and did not meet the definition of a refugee under the 1951 Refugee Convention.  

Summary by: Lucas Robinson  

Link to Original Judgement

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Weight of decision 

The New Zealand Immigration and Protection Tribunal (NZPT) is an independent judicial body that was established under § 127 of the Immigration Act 2009. The Tribunal has jurisdiction to hear appeals against immigration and refugee decisions made by State bodies. As appealing to the High Court can only be made on a point of law, the NZPT decisions carry substantial weight in domestic law. 

Key facts 

Appellants, a married Nepalese couple, appealed the decision made by a refugee and protection officer that they were not to be granted refugee status in New Zealand. They argued that following the April 2015 earthquake in Nepal, they had been diagnosed with post-traumatic stress disorder (PTSD) and feared the prospect of returning to Kathmandu. The earthquake rendered their home unhabitable and for a period of time they slept in tents. However, although they partly repaired their home, evidence was offered that they often slept on the veranda due to the fear of aftershocks. Appellants argued that they both felt much safer residing in New Zealand where their son and his family had been granted residence status and had purchased a home. Additionally, the Appellants’ General Practitioner gave evidence indicating that the wife did in fact suffer from PTSD and that both of the Appellants suffered from physical injury on account of the earthquake, which had left them in chronic pain for some time.  

Summary of holding 

The Tribunal determined that the relevant tests were set out in the Immigration Act 2009 under § 194(1)(c). Namely, it must be found that appellants are refugees under the 1951 Refugee Convention, protected persons under the 1984 Convention Against Torture, or protected persons under the 1966 International Covenant on Civil and Political Rights (ICCPR) to receive asylum.  

In regard to the 1951 Refugee Convention, it was necessary for the Appellants to show, as per Article 1A(2), that “owing to a well-founded fear of being persecuted,” they were unable to return to Nepal on account of their “race, religion, nationality, or membership of a particular social or political group”.  The Tribunal followed the view in DS (Iran) [2016] NZIPT 800788, that “being persecuted” required serious harm arising from the sustained or systemic violation of internationally recognised human rights, demonstrative of a failure of state protection. Additionally, a fear of being persecuted is established as well-founded when there isa real, as opposed to a remote or speculative, chance of it occurring (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379). The Appellants acknowledged that they did not fear the Nepalese state itself, but rather the fear of future earthquakes and the prospect of returning to Kathmandu without the support of their children. In light of this, the Tribunal cited AF (Kribati) [2013] NZIPT 800413, a case that set out whilst natural disasters could involve human rights issues, the definition set out in the 1951 Refugee Convention still had to be satisfied.  

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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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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

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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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Kolyadenko and Others v. Russia

Date: 28 February 2012 

Court: European Court of Human Rights, Strasbourg  

Citation: [2012] ECtHR 338 (Application No. 17423/05)

Short summary  

Six Russian applicants brought a case before the European Court of Human Rights because their government failed to protect their property and possessions from a dangerous flood. The Court held that Russia violated these applicants’ rights under the European Convention on Human Rights by failing to take preventative measures and warn them of the risk of flooding.  

Summary by: Yusuf Lahham 

Link to Original Judgement

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Weight of decision  

The European Court of Human Rights (ECtHR) applies the European Convention on Human Rights (ECHR) and all Contracting States are bound by its judgments. As this case originated in an application against the Russian Federation, a then Contracting State to the ECHR, the judgment had the weight of directly applicable constitutional law in Russia. ECtHR decisions are also relevant to other States as they are viewed as a ‘living interpretation’ of the ECHR.  

Key facts 

The applicants, six Russian nationals, brought complaints to the ECtHR between the 21st of April and the 2nd of September 2005, relying on Articles 2, 8, and 13 of the ECHR and Article 1 of Protocol 1. The applicants live near the city of Vladivostok, in an area near the Pionerskaya river and water reservoir, which was heavily affected by a flash flood in August 2001. The applicants alleged that Russian authorities were responsible for the flood and that there had been inadequate judicial response afterwards.    

Vladivostok is located on the southeast coast of Russia, giving it a monsoon-influenced continental climate with humid summers. The month of August is often the rainiest and is marked by typhoons, and it is widely known that the floodplain of the Pionerskaya river is subject to periodic flooding during heavy rains. Between the 7th of June 1999 and the 27th of July 2001, various different authorities in charge of the reservoir and of the region highlighted the fact that the river channel was blocked and needed to be emptied to ensure that no dangerous flooding would occur. However, despite the various different warnings and orders to act, it is unclear whether any significant measures were actually taken.     

On the 7th of August 2001, a heavy rainstorm affected the area. It is estimated that the rain that fell was the equivalent of a full month’s rainfall. By 12 PM, the reservoir was releasing water at a rate of 167 cubic metres per second. Due to the sudden release of water from the reservoir, a nearby area was immediately flooded, engulfing the applicants’ homes. There was no local emergency warning in place and the water rose quickly to a level of 1.50 metres. All 6 applicants suffered damages to their properties and their possessions.      

Previous instances  

A criminal investigation was opened on the 9th of August 2001, and the director of the State-owned company which regulated the reservoir (the Water Company) had criminal proceedings brought against him. However, in January 2003, the criminal proceedings were discontinued. It was contended that the evacuation of water from the reservoir was appropriate given how much rain had fallen on that day, and that such an evacuation was necessary to mitigate the risk of the dam breaking and claiming many lives. An expert report, concluded in January 2003, found that the main reason for the flood was to the blocked channel of the Pionerskaya river, which was littered with waste and overgrown trees and bushes. Consequently, the investigative authorities ordered criminal proceedings to be brought against officials in Vladivostok. Proceedings were brought against officials on the grounds that they had given permission for housing construction in a water protected zone by the river. However, in July 2004, these proceedings were also discontinued for lack of evidence. The civil proceedings the applicants brought were also dismissed in 2004, leaving them with minimal compensation for their losses.  

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In re Katrina Canal Breaches Litigation 

Date: 18 November 2009

Court: United States District Court, Eastern District of Louisiana

Citation: 647 F. Supp. 2d 644

Short summary  

Hundreds of thousands of homes were lost in Hurricane Katrina and most homeowners’ insurance policies excluded them from compensation. This led many victims of Katrina to sue the United States government under the Federal Tort Claims Act (FTCA), alleging the U.S. Army Corps of Engineers (Corps) failed to properly maintain the Mississippi River Gulf Outlet, leading to the breach of one of New Orleans’ levees. The District Court held the U.S. was not immune from such a suit and held the Corps liable to some of the plaintiffs. This judgment was later reversed by the Fifth Circuit Court of Appeal, on the grounds that the U.S. has sovereign immunity under the FTCA from such claims. 

Summary by: David Cremins

Link to Original Judgement

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Weight of decision  

The ruling by the Eastern District of Louisiana District Court, insofar as its logic was affirmed by the Court of Appeals, holds precedential authority in the Fifth District (Texas, Louisiana, Mississippi) and persuasive authority in other U.S. Circuits (see, e.g., favourable analysis in the Northern and Central Districts of Illinois). However, this ruling has subsequently been read narrowly by the same Eastern District court (holding there must be “ample record evidence” the government neglected its duty to maintain waterways implicated in flooding).  

Key facts 

Under the Federal Tort Claims Act (FTCA; 28 USC §171), the U.S. government is immune from liability if its (in)action can be classified as a discretionary function (i.e., a policy decision left to an agency via legislation) rather than a specifically delegated ministerial duty not executed with due care.  

Under the Flood Control Act (FCA; 33 USC §702c), the U.S. government is immune from liability for damage stemming from its flood control efforts.  

The U.S. Army Corps of Engineers’ (Corps) were charged with construction, maintenance, and operation of the Mississippi River Gulf Outlet (MRGO), a navigational channel. This mandate was separate from the Corps’ efforts directed at flood control and levee construction and maintenance in southern Louisiana.  

Over decades, the Corps failed to prevent the MRGO from expanding well beyond its intended width, destroying wetlands which are protective against storm surges. This in contravention of the National Environmental Policy Act and despite repeated internal and external reports warning of the danger of not shoring up the MRGO’s banks. This failure was a substantial cause of the breach of a levee, leading to catastrophic flooding of St. Bernard parish in the New Orleans metropolitan area.  

Previous instances  

This case relies on Central Green v. United States (U.S. Supreme Court, 2001), wherein Justice Stevens held that the U.S. was not entitled to immunity under the FCA from damage caused by any and all flood waters. Instead, the government must show that flooding is connected with projects serving a primarily flood control purpose, in order for mismanagement of such projects to grant immunity.  

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Refugee Appeal No. 76374

Date: 28 October 2009

Court: New Zealand Refugee Status Appeals Authority

Citation: Refugee Appeal No. 76374

Short summary  

A refugee applicant from Burma claimed to have a well-founded fear of persecution by her home government because of her involvement with groups adverse to the government’s interests and aiding cyclone victims. She was granted asylum in part due to her disaster relief assistance activity. 

Summary by: Lucas Robinson

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This decision holds moderate weight in New Zealand with respect to cases in which an individual is persecuted for their political opinion as expressed via assistance following a climate disaster.  

Key facts 

The applicant was a woman from Rangoon/Yangon, Burma/Myanmar with children. She was a self-employed businesswoman until she went to New Zealand. While in her home country, the applicant became part of the pro-democracy movement. She helped Buddhist monks communicate about the situation in Burma during the late 90s into the 2000s. She would arrange the meetings and help the monks get to the location of the meetings. The applicant was also tasked with exchanging money on the black market multiple times.  

When Burma was hit by Tropical Cyclone Nargis in 2008, the applicant had to get more money from the black market to buy food rations and other disaster relief materials. The applicant assisted in distributing the disaster relief materials. 

The applicant moved to New Zealand in late 2008 and began speaking with family through videochat. While in New Zealand, associates of the applicant were arrested and given harsh sentences for their political activities. Also, while taking to her sister on video-chat, the applicant learned the government was arresting people who helped with disaster relief and that the government was inquiring about her.  

Previous instances

 The applicant was denied refugee status at her initial hearing because of a lack of well-founded fear of persecution. 

Summary of holding

The main issues presented were: Does the appellant-applicant have a well-founded fear of being persecuted? And, if so, is that fear recognized under the Refugee Convention?  

The appeals court found that the applicant had a well-founded fear of persecution because of the documented unjust punishments of other members of groups she belonged to. In particular, the government’s demonstrated interest in the applicant, and the likelihood she would suffer an unjust arrest and punishment if returned home, constituted this well-founded fear. Further, the court found that the applicant’s political opinion – one ground for relief under the Convention – encompassed her actions in aiding disaster relief efforts. As such, the applicant was granted refugee status.

By failing to take all these factors into consideration, the Prefect disregarded Provision 11 in its decision to deport Mr. Sheel.  

Potential takeaways for future climate migration litigation 

  • This case involves an individual who feared return to her home because of state persecution of individuals who assisted in disaster relief. It therefore shows how a government’s response, or lack thereof, to a natural disaster can indirectly trigger a ground for refugee protection. 
  • The Burmese government actively rejected support from outside entities for disaster relief after the cyclone. The government then began to punish those who tried to provide disaster assistance themselves, opening the door for claims of political opinion persecution in the context of climate disasters.  
  • The appeals court did not address whether suffering from the cyclone itself, and the government’s lack of adequate response, might constitute persecution, but, as in other cases in the region, the answer likely would have been no under the Refugee Convention.  
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Ontunez Tursios v. Ashcroft

Date: 13 August 2002

Court: United States Court of Appeals, Fifth Circuit

Citation: 303 F.3d 341 (5th Cir. 2002)

Short summary 

A Honduran man, fleeing targeted violence stemming from a land dispute and exacerbated by hurricane damage, was denied refugee status in the United States for failing to establish a nexus between his persecution and the grounds for asylum.

Summary by: David Cremins

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 Fifth Circuit (Louisiana, Mississippi, and Texas) and may be persuasive in other jurisdictions in the United States. 

Key facts

The applicant for asylum, Mr. Ontunez-Tursios, moved to the town of La Ceiba in 1994 and joined other campesinos in cultivating a piece of coastal land known as Las Delicias. In 1996, a group of businessmen, wishing to sell Las Delicias to Korean investors, challenged the campesinos possession of the land, unleashing a campaign of violence and intimidation against them, during which at least two campesinos were assassinated. Mr. Ontunez-Tursios found out he was on a hit list and, after being directly threatened several times, fled to the United States, where he applied for asylum in October 1999.

During this violent dispute over land possession, in October 1998 Hurricane Mitch devastated Honduras, including Las Delicias. The storm ruined Mr. Ontunez-Tursios’ land as well as key documentary evidence against the businessmen pursuing him and the other campesinos.

Previous instances

The immigration judge who first heard Mr. Ontunez-Tursios’ case denied him refugee status because his claim did not arise on account of the enumerated grounds for persecution. The Board of Immigration Appeals (BIA) agreed that he failed to show a nexus between his persecution and either his race, religion, nationality, membership in a particular social group, or political opinion, leading to this appeal before the Fifth Circuit.

Summary of holding

In a 2-1 panel decision, the Fifth Circuit affirmed the rulings below, finding that the BIA correctly dismissed Mr. Ontunez-Tursios’ contention that his leadership in the land conflict did not constitute a political opinion or membership in the particular social group of “land rights leaders”. Stripping away the context of land struggle and the impacts of Hurricane Mitch, the court held that his “evidence showed no motive of the persecutors other than a private, economic one.” The court further found that Mr. Ontunez-Tursios did not qualify for withholding of removal because he was at no risk of torture in his home country, and that the Honduran government had not implicitly or explicitly acquiesced to his persecution or torture.

Potential takeaways for future climate migration litigation

  • Increasingly, claims for asylum and other humanitarian protections will have to be considered in the context of climate change. The devastation wrought by Hurricane Mitch in Honduras provides an early example of how an already difficult situation – a violent battle over valuable land between the upper and lower classes in a society – is made worse following disasters. Advocates for climate migrants should note how fights over land and other forms of social violence intermix with a changing climate, including through slow-onset shifts in conditions.
  • As in other cases in jurisdictions around the world, the harm from the climate disaster itself – destruction of land and evidentiary documents – had no bearing on Mr. Ontunez-Tursios’ unsuccessful claim for asylum, even as it exacerbated his vulnerability in his home country.
  • Under United States law, the nexus prong – that persecution must be “on account of” one of the five grounds first laid out in the 1951 Refugee Convention – is often narrowly construed, such that even clear instances of persecutory violence, whether or not connected to climate change, do not qualify even sympathetic applicants such as Mr. Ontunez-Tursios for refugee status.
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