They have fled the climate chaos. The asylum law drawn up decades ago could not help

First came the hurricanes – two storms, two weeks apart in 2020 – that devastated Honduras and left the country’s most vulnerable in dire need. In remote villages inhabited by indigenous people known as the Miskito, houses were razed and growing fields were destroyed.

Then came the drug cartels, who stepped into the vacuum left by the Honduran government and were ill-equipped to respond to the catastrophe. Violence soon followed.

“Everything changed after the hurricanes, and we need protection,” said Cosmi, a 36-year-old father of two, adding that his uncle was killed after being ordered to leave the family grave.

Cosmi, who asked to be identified only by his first name out of concern for the safety of his family and that of relatives left behind, was staying in a squalid encampment on a spit of land along the river that divides Mexico and Texas. Hundreds of other Miskito sat next to him in small tents, all hoping to seek asylum.

The story of the Miskito who left their childhood home to travel 2,500 miles to the U.S.-Mexico border is in many ways a familiar one. Like others from Central and South America, they are fleeing failed states and street violence. But their lawyers also hope to test a new idea: extreme weather caused by climate change could be grounds for asylum, a protection established more than 70 years ago in the aftermath of World War II and the Holocaust.

“Our asylum law was written when climate change was not even considered, and we are now very aware that this is going to be one of the biggest problems of the century,” said Ann Garcia, an attorney with the National Immigration Project. It has partnered with the nonprofit Together and Free to help the Miskito.

Asylum seekers must demonstrate that they cannot live in their home country due to past persecution or a well-founded fear of future persecution on the basis of race, religion, nationality, political opinion or membership of a target group (for example women who are victims of genital mutilation).

The Miskito face an uphill climb to win asylum on the basis of climate change, and their lawyers may try to integrate other factors to strengthen the case.

They could seek asylum based on Miskitos’ membership in a social group if they were neglected by the government or discriminated against because of their ethnicity. The Miskito could also argue inherent vulnerabilities, such as a dependence on natural resources that could be undermined by a catastrophic climate event if it led to criminal violence that would cut off their food supply..

However the Miskitos’ asylum applications take shape, resolving their cases could take several years given the years-long backlog.

While they await the outcome of their cases, asylum seekers are allowed to remain in the United States and become eligible for work authorization after six months.

This has created an incentive for people, especially economic migrants, to file asylum applications with weak claims — and has provoked a backlash against the long-standing practice of allowing anyone seeking asylum to enter the United States.

“The general public is becoming less accepting of asylum as a remedy because so many people are being creative in seeking it,” said Stephen Yale-Loehr, a professor of immigration law at Cornell Law School.

The number of asylum cases pending in U.S. immigration courts has surpassed one million, up from about 750,000 in 2022 and barely 110,000 a decade ago. There are another million cases under review by asylum officials, more than double the number two years ago.

As the number of applications increases, so do questions about the meaning of asylum in the 21st century, for the United States and for the millions of people around the world seeking safe haven, increasingly because of the consequences of extreme weather and climate change.

If almost any migrant can apply for asylum, what will asylum mean? And how will an already dysfunctional American immigration system decide who deserves sanctuary?

Recent polls have found that most Americans still support asylum. But only one in six Republicans and just 48 percent of Democrats said they believed those seeking protection had actually fled persecution in their home countries. a survey.

“When people think of asylum, they imagine a government official pointing a gun at someone’s head,” Yale-Loehr said. “They don’t think about crop failures or rising sea levels due to climate change.”

No one knows how many migrants arriving at the U.S.-Mexico border are fleeing the effects of extreme weather, but experts say that number is likely to increase.

According to the UN Intergovernmental Panel on Climate Change, climate change will displace up to 143 million people by 2050 in Central and South America, sub-Saharan Africa and South Asia.

As humans continue to burn fossil fuels, pump greenhouse gases into the atmosphere and warm the planet, the temperature of the oceans is rising. Over time, they have made Atlantic hurricanes stronger, wetter and slower, making them enormously destructive once they hit land.

The fate of the Miskito underscores the climatic conditions that are driving migration around the world, especially to the United States.

For as long as he could remember, Cosmi had trudged up a mountain to help his uncle Ilario grow beans, rice, corn, malanga, and watermelon on the plot of land that had been passed down from generation to generation.

Cosmi married and had two children, now 14 and 8. They lived off what the land yielded, and they kept some livestock.

“There was a season for everything, and it was plentiful,” he recalled, until the 2020 hurricanes.

The earth was soaked. Then the ground dried up, but drought followed, Cosmi recalled. The corn stalks withered. During harvest he filled half as many bags of rice as usual.

“We had farmed that land for generations,” Cosmi said, “and we kept trying.”

He borrowed a canoe and started shrimping in the estuaries. He traded some malanga, a root vegetable, for some catch from fishermen who went out to sea.

Then the cartels came. Cosmi’s uncle was murdered. Soon, Cosmi and his family began receiving threats. He took his son and daughter out of school. Eventually they fled.

By doing odd jobs along the way, Cosmi and his wife were able to raise money for food and buses to the front door of the United States. They arrived in Matamoros, Mexico, in May, four months after leaving their home country. Using the U.S. government app, which has become one of the few ways to secure an asylum appointment, they scheduled an arrival at the border crossing in Brownsville, Texas.

On August 3, US border guards arrested and released the family.

They traveled by bus to Waukegan, Illinois, a suburb of Chicago, where they stayed with a friend. A team led by Ms. Garcia, the lawyer, plans to represent the family and other arriving Miskito in their asylum cases.

In late 2021, the White House released a report acknowledging that global warming was causing large-scale displacement. But two years later, the administration has yet to adopt its own recommendation to create an interagency working group to coordinate the U.S. response to climate change migration.

The lack of direction has led migrants to try to chart their own course and, in the case of the Miskito, to change the way the United States decides who deserves asylum.

Experts sympathetic to the Miskito’s plight say the law could be interpreted to grant them asylum, perhaps based on the indigenous group’s inability to make a living after their land was devastated by hurricanes and seized by drug traffickers.

“Climate has been overlooked until now because asylum officers and immigration judges are not yet trained to think about the climate piece,” said Kate Jastram, an asylum expert at the University of California College of the Law, San Francisco.

But some legal scholars who support a change in asylum law are wary of stretching the current legal framework.

The law does have some flexibility, says Lenni Benson, professor of immigration law at New York Law School. But trying to expand the law far beyond its original contours comes with risks, she added.

“Putting pressure on an already overburdened asylum system could damage political will for reform and mislead people into a dream of safety,” she said.

Amid record numbers of unlawful border crossings, successive administrations, including President Biden’s, have sought to limit access to asylum at the border or expedite the cases of some asylum seekers in an effort to curb the influx.

But Congress has failed for decades to overhaul the broken immigration system, including the asylum process. And with the border at the center of the presidential race, the prospects for a resolution are bleak.

“Unfortunately, asylum reform requires Congress to take action,” said Kevin R. Johnson, dean of the University of California, Davis, School of Law. “That’s unlikely to happen if immigration is such a wedge issue, where compromise is seen as weakness.”