
United States of America
Immigration Law and Climate Change

This section was last reviewed in September 2024.
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Introduction
Climate change will create challenges for immigration law through the response to rising sea levels, changing weather patterns, and increased frequency of extreme weather events. Individuals are already being forced to flee climate-related disasters, and many more will be displaced in the coming decades as a result of climate change. Immigration law in the US in its current form is ill-equipped to deal with the challenges posed by climate change.
The U.S. southern border receives vast numbers of migrants each year; the number of border crossings increased from over 1.7 million in 2021 to 2.3 million in 2022.[1] Of migrants with either affirmative or defensive asylum cases, well over half are from Central and South America.[2] Further, the backlog of cases has skyrocketed in the last decade,[3] highlighting the U.S. asylum system’s unpreparedness to handle the growing influx of individuals displaced by climate change. With the World Bank estimating that there will be 143 million climate migrants from Latin America, sub-Saharan Africa, and Southeast Asia by 2050,[4] the U.S. immigration system will need to develop mechanisms to process far more claims than it can at its current capacity.
These numbers do not account for the internal displacement that will occur across the U.S. as certain domestic locations face increasingly frequent and dangerous natural disasters. Experts project significant movement from the southern half of the country towards California and the Northwest[5] as well as 12 million displaced from the coasts by 2030.[6] This displacement is ongoing; a month after Hurricane Katrina hit in 2005, 600,000 people were still displaced.[7] The wildfires in the Western United States are also displacing people, with over 31,000 homes lost in wildfires in California since 2017.[8] To address the enormity of the migration resulting from climate change that the globe will see over the next few decades, the U.S. immigration system must adjust.
Existing Framework
The U.S., while not a party to the 1951 Refugee Convention,[9] is a party to the 1967 Refugee Protocol.[10] The Protocol uses the 1951 Convention’s definition of a refugee, or “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”[11] The U.S. incorporated some provisions from the Protocol, including this definition, into U.S. law through the Refugee Act of 1980.[12] Notably absent from the definition is any mention of individuals displaced due to climate change, though a number of advocacy groups have called on the UN and the U.S. to build climate refugee status into their frameworks.[13]
Other domestic immigration avenues similarly fail to provide avenues for persons displaced by climate change to gain immigration status. For example, TPS, or Temporary Protected Status, allows the Secretary of Homeland Security to designate countries facing an environmental disaster.[14] TPS is only available, however, if the individual is already in the U.S. when the designation is made.[15] TPS is also designed to be temporary and doesn’t provide a path to legal status, giving it limited utility for protecting climate migrants in its current form.[16] DED, or Deferred Enforced Departure, is another temporary status given to countries experiencing natural disasters, but like TPS is extremely limited.[17] It applies only to people from an extremely short list of designated countries and allows them to stay in the United States if they are facing political or civic conflict or natural disaster. In addition, the duration of DED is limited—for example, presently people from Lebanon who satisfy the criteria may be entitled to DED, but only for a period of eighteen months.[18] Humanitarian Parole is another discretionary system allowing individuals temporary entry into the U.S. for “urgent humanitarian reasons or for significant public benefit.”[19] At present, humanitarian parole is utilized largely for urgent medical care, family reunification, and attendance at court proceedings.[20]
Aside from seeking refugee or asylum status, the only permanent migration option at present is for citizens of several nations likely to be impacted severely by climate change, such as Micronesia, Republic of Marshall Islands, and Palau through the Compact of Free Association.[21] While the Compact does not confer citizenship directly, migrants from Compact nations may apply for lawful permanent residency and ultimately citizenship through traditional processes.[22] Therefore, while the U.S. has a variety of immigration pathways, few accommodate those displaced by climate disasters, and those that do are temporary and fail to accommodate slow-onset climate disasters.
Recent Government Action
While current U.S. and international law doesn’t allow for refugee or asylum status based on climate displacement, the Biden administration has taken a few steps towards acknowledging and addressing how climate change will impact immigration. First, in a Presidential Memorandum issued in January of 2021, President Biden directed OMB (the Office of Management and Budget, which oversees the administrative state) to provide recommendations on incorporating intangible values, such as environmental stewardship and the interests of future generations, into the regulatory review process.[23] Traditionally, regulatory review centers cost-benefit analysis, which often fails to account for values without an obvious attached economic impact. Immigration-related agencies subject to OMB regulatory review may be able to use this signal to design regulations aligned with climate crisis mitigation and net zero goals.
The Biden administration also released Executive Order 14013 requiring the government to issue a report on climate change and migration.[24] This report was the first of its kind, making climate and immigration advocates hopeful that it would lead to action on climate migration.[25] Released in October 2021, the report recommended the administration establish a standing interagency working group on climate change and migration.[26] The White House included substantive recommendations as well, such as investing in resiliency measures and expanding legal pathways for climate migrants.[27] Prior to the 27th Conference of the Parties to the United Nations Framework Convention on Climate Change (“COP27”), the White House announced more initiatives to address climate migration, such as contributing USD $5 million to the Migration Multi-Partner Trust Fund and demonstrating a commitment to the Global Compact for Migration.[28]
Despite these positive movements in the U.S. climate migration space, advocacy groups are concerned these were merely statements that have not been followed up with action.[29] For example, despite calls from lawmakers to create an interagency working group on climate change and migration, none has been established, though some members of Congress have been pushing for its creation.[30] Additionally, the administration’s report to congress regarding 2023 refugee admissions barely mentioned climate change.[31] Further, there is much debate among advocates on how best to strengthen climate migration systems.
Immigration law litigation issues: The Refugee vs Migrant distinction
One key area of debate is whether advocates should work towards broadening the definition of “refugee” to include those displaced by climate change or instead develop a new framework for climate-related displaced persons. While integrating climate migration into existing refugee frameworks is appealing because the infrastructure already exists, a number of humanitarian groups have raised concerns with this model. First, refugee status excludes those experiencing internal displacement,[32] which could be problematic given that most climate-induced migration is likely to be internal.[33] Additionally, climate change is often one of many factors contributing to a decision to migrate and including climate migrants into refugee categories would necessitate distinguishing climate change as the primary factor in a migration decision.[34]
Another concern in the refugee or migrant debate is that refugee status comes with the right to non-refoulement, which prohibits returning refugees and asylum seekers from being returned to a country where they face persecution. Traditional migrants or displaced persons have no such right. This issue was illustrated in a 2016 communication by the Human Rights Committee, Ioane Teitiota v. New Zealand. Mr. Teitiota was facing removal back to Kiribati, and he argued his right to life would be violated if he was forced to return.[35] Ultimately, the Tribunal found New Zealand didn’t violate Mr. Teitiota’s right to life, but this litigation illustrates how the right to life is a possible pathway for climate migrant protection.[36]
While not directly related to migration, the Supreme Court of Hawai’i recently ruled Hawaiians have a “right to a clean and healthful environment, which encompasses the right to a life-sustaining climate system” protected in the state constitution.[37] Several other states have adopted “green amendments” protecting such a right, and advocates are pushing for the right in other states.[38] Hawai’i Electric Light Co.’s concurrence went even further; Justice Wilson’s opinion found the right to a life-sustaining climate incorporated in the due process right to life as well.[39] Practitioners can consider the legal avenues being developed in Teitiota and Hawai’i Electric Light Co. in their work. Expanding on these avenues may help strengthen legal protections for people impacted by climate change, such as climate migrants.
Despite the ongoing debate between expanding refugee status and developing a climate migration framework, humanitarian groups have provided a variety of specific recommendations within both avenues. Recommendations include both ways current practitioners can strengthen protections for climate migrants and policy recommendations to strengthen such protections systemically.
Using Immigration Law to Address Climate Change
Recommendations to align immigration law more closely with net zero goals and climate crisis mitigation efforts fall into three categories: addressing the root causes of climate migration, integrating climate change into existing immigration systems, and establishing new avenues for protecting climate migrants.
Addressing the Root Causes of Climate Migration
The White House report on climate migration provides several concrete examples for proactively addressing climate migration. In communities with significant volumes of critical minerals or high levels of fossil fuel extraction, the report recommends providing support to develop infrastructure to ensure stable local economies to allow communities to endure the transition away from a carbon-based economy.[40] The report also recommends directing existing sources of development and humanitarian funding towards transition work, for example to USAID programs designed to diversify livelihoods and prevent food insecurity.[41] Additionally, the U.S. could pay into the Green Climate Fund to help finance adaptation, resilience, and climate mitigation efforts.[42]
Accounting for Climate Migration in Existing Immigration Systems
Many climate migrant activists encourage including climate migrants in existing immigration systems, both domestically and globally. Within the U.S., there are proposals to incorporate climate migrants into five existing immigration systems: temporary protected status (“TPS”), asylum processing, refugee acceptance, humanitarian parole, and deferred enforced departure (“DED”).
- TPS: As previously discussed, TPS is available in extremely limited circumstances. Advocates have suggested expanding access to TPS to individuals not already within the U.S. when a TPS designation is made.[43] Some of these same groups have advocated for TPS to include not only sudden natural disasters, but also slow-onset environmental disasters and degradation.[44] Even with these changes, TPS would still provide only temporary relief. Groups have been advocating to build a path to legal residency into the TPS system,[45] and just last year a settlement in CARECEN v. Cuccinelli restored a path to permanent residency for TPS beneficiaries.[46] Practitioners should continue filing and utilizing such cases to expand protections for climate migrants. Finally, the Center for Strategic & International Studies, a bipartisan nonprofit based in D.C., suggested creating a version of TPS expressly for individuals displaced by climate-related disasters.[47]
- Climate refugee acceptance: Humanitarian and governmental groups have also proposed a number of asylum-related recommendations to explicitly accommodate climate migrants. One option is to add a new category for asylum on climate change-related grounds, which could be directly incorporated into the Immigration and Nationality Act (“INA”) – the primary domestic immigration legal framework.[48] This option aligns most closely with integrating climate migrants into existing immigration frameworks.
Further, the INA has been used to expand asylum to specific groups in the past. For example, Attorney General Garland issued regulations in 2021 clarifying the meaning of the final persecution category–membership in a particular social group–to include those fleeing domestic or gang violence.[49] Practitioners can make arguments to incorporate climate migrants into existing INA categories. Additionally, climate migrants are often displaced due to an intersection of issues, such as conflict and a natural disaster. In these situations, practitioners can highlight the relevance of climate displacement to expand case law on climate migration and develop precedent to build on in future.
Existing U.S. asylum law provides another possible avenue for climate migrants. Asylum may be granted in the absence of a current well-founded fear of persecution based on the severity of past persecution suffered or the reasonable possibility the individual will suffer “other serious harm” if returned.[50] In evaluating “other serious harm,” climate-related factors can be considered as this provision isn’t bound by the five persecution categories.[51]
The refugee infrastructure also offers opportunities to develop protections for climate migrants. The U.S. Refugee Admissions Program (“USRAP”), an association responsible for admitting refugees, works with UNHCR to identify populations for resettlement- but doesn’t consider climate considerations explicitly.[52] Including climate factors in this process could be an avenue to protect climate refugees within existing immigration procedures. Another existing refugee law allows the State Department to designate certain communities as P-2, or priority 2, for refugee resettlement.[53] The Administration could create a P-2 designation for communities impacted by climate change-related disasters, including slow-onset disasters.
- Humanitarian parole: Humanitarian parole is another existing immigration structure, which allows the Secretary of Homeland Security to allow individuals temporary entry into the U.S. for “urgent humanitarian reasons” or “significant public benefit.”[54] The “urgent humanitarian reasons” option has typically been used for medical needs while the “significant public benefit” prong is typically used to allow entry to individuals involved in or testifying in court cases.[55] While humanitarian parole is typically granted on a case-by-case basis and is temporary–and thus has limited utility in addressing climate migration–making it available to individuals experiencing climate displacement, including particularly slow-onset disasters, could provide a foundation for other programs to adopt similar policies.[56]
- DED: DED is another program that could be used to protect climate migrants. The President can authorize DED discretionarily to communities, and without explicit criteria, DED is well-positioned to use for climate migrant protection.[57] Finally, on a global level, the Biden Administration could sign onto the Global Compact for Safe, Orderly, and Regular Migration which explicitly discusses addressing migration resulting from climate disasters.[58]
New Avenues for Protecting Climate Migrants
Many advocacy groups and humanitarian organizations recommend establishing new immigration structures designed specifically for climate migrations. The Center for Strategic & International Studies recommends creating a climate migrant resettlement program to develop a process that eventually leads to lawful permanent residency status.[59] A similar recommendation is the creation of a climate visa, which is another option that allows for a path to lawful permanent residency and eventually citizenship.[60] Other countries also provide models the U.S. could adopt; Argentina, for example, has established a humanitarian visa– a concept that could easily be applied to individuals displaced due to climate change.[61]
Each of these recommendations either uses or proposes new immigration law to address the impacts of climate change, particularly on migration. Options that involve adding to existing systems, such as TPS, climate refugee acceptance, and DED, risk failing to meet the particular needs of climate migrants. Creating new systems, on the other hand, could allow opportunities to design programs that will best assist climate migrants. However, new systems may take more time and face political and bureaucratic obstacles. Either way, the U.S. must prepare for the increased migration that climate change will bring and align its policies and practices more closely with net zero goals.
[1] Council on Foreign Relations, ‘Ten Graphics That Explain the U.S. Struggle With Migrant Flows in 2022’ (2022). link.
[3] Council on Foreign Relations, ‘Ten Graphics That Explain the U.S. Struggle With Migrant Flows in 2022’ (2022). link.
[4] Poole, K. ‘Climate Migrants: Who Are They and What Legal Protections Do They Have’ (2021). link.
[5] Pulitzer Center, ‘How Climate Migration Will Reshape America’ (2020). link.
[6] IPCC, ‘Human Security’. link. (pg. 770, 16 of pdf).
[7] Plyer, A. ‘Facts for Features: Katrina Impact’ (2016). link.
[8] Rodriguez-Delgado, C. ‘California’s ‘climate migrants’ and the difficulty of finding a new home’ (2022). link.
[9] United Nations Treaty Collection ‘Convention relating to the Status of Refugees’. link.
[10] United Nations Treaty Collection ‘Protocol relating to the Status of Refugees’. link.
[12] link (pg 33), PL 96–212 (S 643), PL 96–212, MARCH 17, 1980, 94 Stat 102.
[13] Packman, S. ‘An Argument for Granting the Legal Refugee Designation to “Climate Refugees”’ (2021). link; Hildebrandt, E. ‘The United States Needs a Plan for Climate-Driven Migration’ (2021). link.
[14] U.S. Citizenship and Immigration Services, ‘Temporary Protected Status’. link.
[15] The White House, ‘Report on the Impact of Climate Change on Migration’ (2021). link (pg. 18-19).
[16] The Regulatory Review, ‘Climate Change, Migration, and Immigration Law’ (2020). link.
[17] National Immigration Forum, ‘Fact Sheet: Deferred Enforced Departure (DED)’ (2021). link.
[18] The White House, ‘Memorandum on the Deferred Enforced Departure for Certain Lebanese Nationals’ (2024). link.
[19] U.S. Citizenship and Immigration Services, ‘Humanitarian Parole Program’ (2011). link (pg. 4).
[20] Ibid. (pg 7)
[21] Department of State, ‘Compact of Free Association’ (2003). link (pg. 4-8).
[22] U.S. Citizenship and Immigration Services, ‘Status of Citizens of the Freely Associated States of the Federated States of Micronesia and the Republic of the Marshall Islands’ (2020). link.
[23] The White House, ‘Modernizing Regulatory Review’ (2021). link.
[24] The White House, ‘Report on the Impact of Climate Change on Migration’ (2021). link (pg. 4).
[25] ABC News, ‘After raising hope, Biden lacks climate migration plan’. link.
[26] The White House, ‘Report on the Impact of Climate Change on Migration’ (2021). link (pg. 30).
[27] Ibid. (pg. 31-32)
[28] The White House, ‘Fact Sheet: President Biden Announces New Initiatives at COP27 to Strengthen U.S. Leadership in Tackling Climate Change’ (2022). link.
[29] ABC News, ‘After raising hope, Biden lacks climate migration plan’. link.
[30] Norton House, ‘Norton urges President Biden to create interagency working group on climate change and migration’ (2023). link.
[31] Watson, J. ‘After raising hope, Biden lacks climate migration plan’ (2022). link.
[32] The Regulatory Review, ‘Climate Change, Migration, and Immigration Law’ (2020). link.
[33] Council on Foreign Relations, ‘Climate Change Is Fueling Migration. Do Climate Migrants Have Legal Protections?’ (2022). link.
[34] Ibid.
[35] Poole, K. ‘Climate Migrants: Who Are They and What Legal Protections Do They Have’ (2021). link.
[36] Ibid.
[37] Matter of Hawai’i Electric Light Co., 526 P.3d 329, 335 (Haw. 2023).
[38] Kutz, J. ‘A mother-daughter duo wants healthy environments to be guaranteed in state constitutions’ (2023). link.
[39] Matter of Hawai’i Electric Light Co., 526 P.3d 329, 335 (Haw. 2023), (Wilson, J., concurring).
[40] The White House, ‘Report on the Impact of Climate Change on Migration’ (2021). link (pg. 10-11).
[41] Ibid. (pg. 11).
[42] The Regulatory Review, ‘Climate Change, Migration, and Immigration Law’ (2020). link.
[43] Center for Strategic and International Studies, ‘A New Framework for U.S. Leadership on Climate Migration’ (2020). link.
[46] Carecen, ‘USCIS Agrees to Restore Path to Permanent Residency for TPS Beneficiaries’ (2022). link.
[47] Center for Strategic and International Studies, ‘A New Framework for U.S. Leadership on Climate Migration’ (2020). link,
[48] The Regulatory Review, ‘Climate Change, Migration, and Immigration Law’ (2020). link.
[49] Congressional Research Service, ‘Asylum Eligibility for Applicants Fleeing Gang and Domestic Violence: Recent Developments’ (2021). link.
[50] 8 C.F.R. § 1208.13(b)(iii).
[52] The White House, ‘Report on the Impact of Climate Change on Migration’ (2021). link (pg 21).
[53] U.S. Department of State, ‘U.S. Refugee Admissions Program Priority 2 Designation for Afghan Nationals’ (2021). link.
[54] American Immigration Council, ‘The Use of Parole Under Immigration Law’ (2024). link.
[55] Ibid; U.S. Citizenship and Immigration Services, ‘Humanitarian Parole Program’ (2011). link (pg. 7).
[58]Global Compact for Migration, ‘Global Compact for Safe, Orderly, and Regular Migration’ (2018). link (pg. 8-9, 12, 31).
[59] Center for Strategic and International Studies, ‘A New Framework for U.S. Leadership on Climate Migration’ (2020). link.
[61] UNHCR, ‘Syrian refugees reap benefits of Argentina’s new visa rules’ (2017). link.