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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Tuesday, June 07, 2022

Ukraine Migration Maps ‘What’s Possible’ for Climate Displaced

Climate migration threatens to uproot millions of people worldwide, and immigration experts see the Biden administration’s treatment of Ukrainian nationals fleeing Russian violence as a model for how to better manage future global displacement following climate disasters. The urgency in the US immigration system’s response to Ukrainian migrants demonstrates what it’s capable of for mass climate displacement—and also serves as a cautionary tale about immigration inequity, according to Basma Alawee, campaign manager for We Are All America and a former refugee from Iraq. “The welcoming, the treatment, and reception of Ukrainian refugees shows us, hopefully, a model for what’s possible when we see migration as a solution to conflict or to climate change,” Alawee said. “We want to use this momentum to say if it’s possible for Ukrainians, then it’s possible for Syrians and Iraqis and Iranians.” Millions of Ukrainians have fled Russian violence, and tens of thousands have been processed with temporary status into the US in the last three months alone, amid a Biden administration push for a “fast” and “streamlined” path to welcome up to 100,000 Ukrainians. Under the parole program, called Uniting for Ukraine, more than 22,000 Ukrainians have been approved for US arrival, and 4,200 have already arrived. Another 22,000 made their way into the US outside the program. That number largely reflects Ukrainians who crossed the US-Mexico border and were granted parole status on a case-by-case basis by border officials, according to the Department of Homeland Security. “DHS will continue to provide relief to the Ukrainian people, while supporting our European allies who have shouldered so much as the result of Russia’s brutal invasion of Ukraine,” Secretary of Homeland Security Alejandro N. Mayorkas said in a statement on the action. But the US needs to reckon with the double standards inherent in its immigration system in order to avoid future disparities in a climate context, according to Daniel Tse, a founding member of the Cameroon Advocacy Network. In “climate, war, whatever aspects, the double standard and the unequal treatment is rooted,” Tse told Bloomberg Law. “It has to stop, because when we look at issues with climate, the same double standard that is happening now is still going to be applied.” Climate Migration Parallels Climate migrants—people fleeing from global warming-fueled disasters like flooding or drought—can currently only rely on a mix of existing immigration options, including the asylum and Temporary Protected Status programs. The World Bank estimated in 2021 that global warming could displace 216 million people, with “hotspots” emerging within this decade, although no one has been able to model exactly how climate displacement will play out regionally or globally. The Internal Displacement Monitoring Center recorded 40.5 million new displacements in 2020—one of the hottest years on record—with 30.7 million of those triggered by weather disasters like storms, the report said. Critics of immigration pathways into the US have used climate stress as a means to push against welcoming displaced people, even petitioning courts to stem migration. Arizona Attorney General Mark Brnovich filed one such suit against the Department of Homeland Security last year, claiming that immigration actions “directly result in the release of pollutants, carbon dioxide, and other greenhouse gases into the atmosphere, which directly affects air quality.” But advocates watching patterns of climate displacement insist that the federal government has the means to be nimble with immigration exceptions tailored for populations experiencing disasters as they happen, including through actions like Temporary Protected Status—which allows migrants already in the US to remain amid turmoil or disasters in their home countries. Uncertainty Remains Despite a swift US response to temporarily allow protections, Ukrainians and others still face extreme uncertainty about more permanent status in the US. Critics say the uncertainty highlights the US inability to think long-term about migrant assimilation. Chronic uncertainty within the U.S. immigration system is reflected in the Biden administration’s white paper on climate migration, which advocates said fell short on offering up potential plans for climate displacement. The 37-page report does acknowledge that climate migration is already a pressing problem that is likely to get worse. The administration offered some solutions including financial aid to affected countries and the formation of a task force. The US “should identify ways to apply existing protection frameworks in the context of climate change-related displacement and to identify gaps where the United States should forge new legal pathways to protection,” according to the report. Under US law, migrants must demonstrate well-founded fear of persecution under specific definitions in order to qualify for refugee or asylum status. Under climate catastrophes, which could cause any number of different social, political, and ecological disasters, defining a “climate refugee” is a challenge. But amending the Refugee Convention—the United Nations treaty on refugees that undergirds US refugee statute—isn’t the solution of choice either, according to immigration experts. Attorney Paulina Vera, who supervises the GW Law Immigration Clinic, said she isn’t optimistic about refugee status for climate migrants, given the way the Convention was adopted into US law to require identification of an “individualized” persecution and persecutor. In order to meet that criteria, “as it is now, the case law that we have that interprets those elements, is going to be really hard for any sort of climate situation,” Vera said. Innovative, climate-tailored immigration options should be the way forward instead of trying to grapple with definitions under refugee law, according to Becca Heller at the International Refugee Assistance Project. Even opening up the Convention again to consider climate could have big consequences, such as leaving the entire treaty vulnerable to certain countries who have veto power, Heller said, noting that the whole refugee system is “pretty busted.” “Adding 150 million climate migrants to UNHCR docket doesn’t seem like, structurally, the best way to deal with climate migration,” she said. “What you want to have are climate specific pathways that are independent of refugee pathways.” Lessons on Inequalities While advocates hail the swift immigration response for Ukrainians in the wake of Russian aggression, they want to see that legal response tipped in the balance for all migrants in a climate migration context. Racial disparities in immigration law are nothing new, and stem back to the foundations of the first federal US immigration laws such as the Chinese Exclusion Act, Vera said. Vera noted that Central American migrants face uphill battles qualifying for asylum status, partly because of judges experiencing “fatigue” from the sheer number of applicants—a problem she fears will persist in a climate displacement context. “We’re going to see this sort of fatigue, ‘oh, each person can’t possibly meet the criteria for some sort of protection the United States, because so many people are applying,’” she said. “Historically it’s been brown and Black people that have been on the receiving end of those decisions.” Delayed protections for Global South migrants casts a harsh light on the US’s ability to manage increasing levels of migration spurred by climate change, immigration experts say, and they insist that the flexibility granted to Ukrainians should be the norm, not the exception, during mass climate migration. While Ukrainians in the US were granted Temporary Protected Status a week after the Russian invasion on March 3, migrants from Global South countries waited months and years for immigration exceptions. Cameroonians, for example, faced with violent armed conflict back at home, were granted Temporary Protected Status in April, more than four years after the country’s president declared war against a separatist movement. Lawmakers, led by Reps. Adriano Espaillat (D-N.Y.) and Joaquin Castro (D-Texas), are calling to extend protections to migrants from Guatemala, El Salvador, Honduras, and Nicaragua, which they said in a letter on May 23 are faced “with the long-term effects of climate change and the COVID-19 pandemic.” Many Ukrainians were also temporarily exempt from expulsion under Title 42, an immigration provision that has barred thousands of migrants from Latin America and other countries during the pandemic. “It’s really important that we have policies that ensure equal protection for climate displaced people, rather than giving preferential treatment to populations that are politically convenient,” Oxfam domestic policy adviser Patricia Stottlemyer told Bloomberg Law. —With assistance from Ellen M. Gilmer. To contact the reporter on this story: Jennifer Hijazi in Washington at jhijazi@bloombergindustry.com To contact the editors responsible for this story: Cheryl Saenz at csaenz@bloombergindustry.com; Zachary Sherwood at zsherwood@bloombergindustry.com For more information, please contact us: http://www.beverlyhillsimmigrationlaw.com/index.html

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