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Locust swarms, crop failures and starving people likely to test limits of asylum law

Locust swarms, crop failures and starving people likely to test limits of asylum law
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According to UN Refugee Agency (UNHCR) figures, there are 70.8 million people around the world who have been forced by conflict or persecution to leave their homes. Nearly 25.9 million of them are refugees, more than half of whom are children under the age of 18.

In 2018 alone, there were 37,000 displacements a day, and by the end of 2018, there were 3.5 million people waiting for a decision on an asylum application.

New threat will increase the number of displaced persons

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Enormous swarms of locusts are threatening the crops and pastures of millions of people in East Africa. They’re moving at a voracious pace. Video clips of the swarms are shocking.

The locust swarms have spread to seven nearby countries already, including Djibouti, Eritrea and Uganda — and the locusts aren’t just in East Africa.

Pakistan's government has declared a national emergency in response to swarms of locusts in the eastern part of that country. Pakistani Information Minister Firdous Ashiq said, "We are facing the worst locust infestation in more than two decades.”

The United Nations (UN) fears that this plague of locusts will trigger a humanitarian crisis.

Locusts are the world’s oldest and most destructive migratory pest. An average swarm in the current plague has up to 40 million insects, and can travel up to 93 miles in a single day, devouring enough food to feed millions of people.

Many of the people living in these areas will seek asylum in the United States, but very few of them — if any — will be able to establish eligibility. 

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Asylum eligibility very narrowly defined by law

The “asylum statute is not a general hardship statute.” Eligibility is defined very narrowly.

8 USC §1158(b)(1)(A) requires an asylum applicant to establish that he is a “refugee” within the meaning of section 8 USC §1101(a)(42)(A), the pertinent part of which reads as follows:

"The term 'refugee' means (A) any person who is outside any country of such person's nationality …. and who is unable or unwilling to return to …. that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion…"

In other words, an asylum applicant has to establish past persecution or a well-founded fear of future persecution to establish eligibility for asylum, and the reason for the persecution must be the victim’s race, religion, nationality, membership in a particular social group, or political opinion.

As callous as it may sound, the fact is asylum seekers fleeing starvation in a locust-ravaged country aren’t going to be able to establish that swarms of locusts are ravaging their crops and pastures to persecute them on account of their race, religion, nationality, membership in a particular social group, or political opinions.

Climate change could open an avenue for establishing asylum eligibility

“There is a link between climate change and the unprecedented locust crisis,” according to UN Secretary General Antonio Guterres. “Warmer seas mean more cyclones generating the perfect breeding ground for locusts,” he said — and climate change is likely to get much worse. The Fourth National Climate Assessment observes that, “thousands of studies conducted by tens of thousands of scientists around the world have documented changes in surface, atmospheric, and oceanic temperatures; melting glaciers; disappearing snow cover; shrinking sea ice; rising sea level; and an increase in atmospheric water vapor.”

A UN Tribunal recently found that “while in many cases the effects of environmental change and natural disasters will not bring affected persons within the scope of the Refugee Convention, no hard and fast rules or presumptions of non-applicability exist. Care must be taken to examine the particular features of the case.”

The United States does not have to follow that decision, but that doesn’t mean that our courts won’t use it anyway to be able to grant more asylum applications. This will be particularly likely if large numbers of desperate people come here to escape starvation caused by locusts decimating their fields and crops.

This could greatly increase asylum applications, and a large increase in asylum applications would bury our already overwhelmed immigration court under an avalanche of new cases.

The immigration court backlog reached 1,101,061 cases at the end of January 2020, and it is going to get larger. The average wait for a hearing is 964 days — more than two and a half years — and it is going to increase.

In fiscal 2019, the immigration court completed 275,552 cases, which was the second-highest completion total in its history. At this rate, it would take four years to clear the backlog even if no new cases were initiated.

We have to find a more realistic way to help the millions of people around the world who are forced by hunger, crime, violence, and other intolerable conditions to leave their homes in search of a better life for themselves and their families.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.