(This guest post was written by Kean Zimmerman, a recent graduate from Michigan State University College of Law. This post is an in-depth exploration of Superman and Supergirl’s environmental refugee status touched on in a previous article. The analysis in this article has changed to reflect the Supergirl in the TV series and recent New Zealand Court decisions. That article can be viewed online at L&F Magazine.)



Introduction

The writers and contributors who have posted on Law and the Multiverse, as well as other legal scholars, have taken the opportunity to note the various legal issues that superheroes and villains face when it comes to the intricate web that is immigration law. Recent developments in the world have lead to an increase in refugees, especially refugees forced from their homes not just by people, but by the environment. Kryptonians would likely be counted among the other environmental refugees. Similarly the survivors of Krypton would also struggle with many of the same setbacks.

The United States has instituted laws addressing refugees since 1948.[1] In 1948, the United States government enacted the first law for admitting persons fleeing persecution.[2] The law permitted 205,000 refugees to enter the United States over the course of two years.[3] It was not until 1951 that the first steps were taken to recognize refugees on an international scale.[4] In 1951, the United Nations put forth the 1951 Refugee Convention, which is the underpinning of most refugee law in the world.[5] The Convention defines refugees, their rights, and what obligations states have to refugees across the globe.[6] The same Convention states that individuals may seek asylum if they have a well founded fear of persecution on account of one of the five pre-approved grounds.[7] Those are race, religion, ethnicity, political opinion, or membership in a particular social group.[8] While most countries that have adopted the convention’s regulations to govern refugee law, those same laws have not been updated to keep pace with current trends. Currently, there is a gap between what the law provides and what is needed.[9] The widening gap is most certainly the case of what is occurring with environmental refugees.

A. Environmental Refugees

Environmental refugees are growing in number across the globe, but both domestic and international laws have yet to grow along with the refugees. According to the Organization for Economic Co-operation and Development, an environmental refugees is “a person displaced owing to environmental causes, notably land loss and degradation, and natural disaster.”[10] These refugees are also known as “displaced people” or “climate refugees.”[11] Environmental refugees are not a new phenomena, yet in recent years there has been an increase in attention to climate refugees. This is correlative to the changes in climate that have occurred in recent years.[12]

I. Superman and Supergirl’s Not so Super Problem

A. Superman: A True Illegal Alien

There is no question that Superman, or rather Clark Kent, is not from this planet. In fact he embodies the term “illegal alien” in that he never properly migrated to this country, or at least did not do so through official channels. His provenance can be forgiven given the fact that he was sent by his parents from the planet Krypton.[13] The reasons for the planet’s demise have varied over the years. This post, however, adopts the theory from the Man of Steel movie. In the Man of Steel, Krypton’s resources were over-consumed to the point that the planet imploded on itself.[14] Environmental disaster on a planetary scale obliterated Krypton in its entirety.[15]

As a baby, young Clark could not be expected to file his asylum petition on his own. The Kents adopted Clark after finding him in their field.[16] The two possible ways this would occur today would be if Clark had been legally adopted as an abandoned child, or if the Kents had somehow managed to obtain forged documentation for Clark. However, Clark would still have to file his claim for asylum the year after he turned 18.[17] Clark would have clearly exceeded this statutory limitation as there is no evidence he has ever applied for asylum.[18] Typically the law requires asylum seekers to affirmatively apply for asylum within one year after entering the United States.[19] Recently, in a Board of Immigration Appeals decision, the court stated that an applicant’s age can be taken into consideration when determining if they can be exempted from the one year filing rule.[20] Since there is no evidence that Clark ever attempted to apply for asylum this may have no bearing whatsoever.

Somehow Superman has the ability to renounce his United States citizenship in Action Comics 900.[21] Renouncing American citizenship is governed under section 349(a)(5) of the Immigration and Nationality Act.[22] The backlash after this comic book was released was so huge that publisher DC Comics backtracked a week later and announced the issue itself was standalone.[23] Being a standalone issue meant no further issue would explore Superman’s discarding of his American citizenship. At least in this respect, it can be assumed that he has United States citizenship. There is a chance that Kent was granted citizenship under the foundling statute even though it is rarely used.[24] Based on this law, because Kent’s parentage was unknown as he entered the United States under the age of five, and since he hid his secret well after the age of twenty-one, he could possibly have attained legitimate United States citizenship through the statute.[25]

There is little debate that Superman had to leave Krypton before its ultimate implosion.[26] While Superman has never formally been considered a refugee, he fits the basic understanding of an environmental refugee in that he literally has no planet to return to. Since it is presumed from DC that he somehow has citizenship, he does not have to examine this question.[27] The same cannot be said for his cousin Kara Zor-El, also known as Supergirl.

B. Supergirl’s Dilemma

While Superman might want to file for Supergirl’s entry into the country through legal channels, there is no “cousin” spot for admitting someone into the country as a family member (he could only seek to admit a parent, spouse, child, or sibling).[28] The most logical option at that point would be Deferred Action for Childhood Arrivals (DACA).[29] Supergirl’s biological age is only thirteen given that she was trapped in the Phantom Zone, a place where time moves slower than on Earth, after she left Krypton.[30] However, her actual age is suggested to be much greater given that she was stuck in the Phantom Zone while Superman grew into a man (her age after arriving in the United States is an estimated thirty-seven years).[31] The United States government might not consider her young enough to qualify for DACA based on the elevated age. Biologically she would have entered the country before turning sixteen, but she would have been alive for thirty-seven years. As such, Superman would likely seek either asylum or withholding of removal for his cousin.

The problem then exists is that Supergirl cannot claim asylum based on the fact that her planet no longer exists. Actual displacement based on loss of home due to an environmental disaster would seem to fall under the concept of an environmental refugee, but as of right now environmental refugees are not recognized under most international laws. Environmental refugees do not appear to be eligible for asylum solely based on their status as an environmental refugee. Most countries base their refugee law on the 1951 Refugee Convention.[32] As previously mentioned, the Convention prescribes five grounds upon which an individual can receive asylum. Those grounds are race, religion, nationality, political opinion, and a particular social group.[33] Supergirl must also be suffering from some kind of “persecution” that is based on one of the five grounds.[34]

In this case Supergirl’s persecution is simply that she is unable to return to her home planet of Krypton. She lacks the opportunity to avail herself of the Kryptonian government since it is non-existent. She would seek admittance to the United States, but she does not fall into a persecutorial nexus based on any of the five grounds. At this point, the United States Immigration and Customs Enforcement (ICE) would contemplate whether or not it could forcibly eject Supergirl from the United States. To do so would mean extreme costs on the United States government as simply containing her would likely cost upwards of $20 million.[35] Even if Supergirl were to be ejected from the country, she would have nowhere else to go.

C. Super and Stateless

In effect Supergirl is actually a stateless person. As of now the United States has not signed on to any of the major international conventions which attempt to reduce the number of stateless persons.[36] Currently, the United States is lacking a basic framework to deal with stateless people, so most of its efforts are merely stopgap measures.[37] The absence of a framework often leaves stateless persons in a position of limbo for excessive periods of time, especially if they no longer have a country to return to or no country which will accept them.[38] Supergirl would likely be in a similar position as Krypton no longer exists. After a determination is made that she either cannot return, or that it is too expensive to deport her, the government would probably require Supergirl to make routine reports to the Department of Homeland Security.[39] Although she might be able to receive a work permit, if she were to ever leave the borders of the United States, border patrol could then deny her readmission.[40]

As a last ditch effort, Supergirl might try to claim asylum on the basis of her membership in a particular social group.[41] She could argue that her particular social group is that of a Kryptonian who survived the destruction of the planet of Krypton. However, such a group has yet to be acknowledged by the United States government. Even then the persecution would have to be a form of past persecution. Different circuits within the United States recognize different grounds or acceptable forms of past persecution. Thus far, none have accepted the idea of “loss of a home” as a viable form of past persecution. In fact, there is no law stating that the loss of a country, let alone a planet, amounts to persecution. One of the only individuals in the world to make such an argument thus far has had little success.

II. Tuvalu: An Island and its Implications for Immigrants

Ioane Teitiota is the first man in New Zealand to seek asylum under the label of environmental refugee.[42] Teitiota has been living in New Zealand since 2007 after leaving his Tuvaluan home; he believes his home will become uninhabitable before too long.[43] Tuvalu is a Polynesian island nation located in the Pacific Ocean.[44] The island is located halfway between Australia and Hawaii.[45] Although very unassuming, the island is predicted to be the first island to succumb to rising sea levels.[46] In 2009, there were many trees swallowed by the rising salt water, but as of 2012 whole parts of the island were consumed.[47] The highest point of the country above sea level is only a few meters high.[48] Before the island is swallowed by the sea there are many Tuvaluans who are concerned that encroaching salt water will prevent any type of agriculture from persisting on the island.[49] To that end, many Tuvaluans have fled their country, but not all have succeeded in trying to relocate.

The Court of Appeals in New Zealand denied Mr. Teitiota’s application for Asylum in 2014 stating that his case was “fundamentally misconceived” and that it would “stand the [UN refugee] convention on its head.”[50] While Teitiota argued that he would be facing “passive persecution” as a result of his government being unable to “protect him from climate change’s effects,” the court remained unpersuaded.[51] Ultimately, the court felt that Teitiota’s arguments were “novel,” but “unconvincing” as granting him asylum would simply open up opportunities for millions of people living in low-lying countries to seek the same kind of asylum.[52] To avoid a flood gates situation the Court affirmed the lower court’s decision to deny Teitiota’s claim for asylum. The Court’s decision meant that Mr. Teitiota, his wife, and his three children born in New Zealand would have to return to their native home of Tuvalu.[53]

It seemed strange then that a different family from Tuvalu was granted New Zealand residency only months later after making similar claims.[54] The family’s petition was the first “successful application for residency on humanitarian grounds in which climate change had featured.”[55] The Court claimed the second case was different since the family had strong ties to New Zealand. Like Mr. Teitiota’s claim, the second family was denied initially for not meeting the standards of the refugee convention.[56] However, the second family successfully won their subsequent appeal by basing their argument on humanitarian grounds.[57] In the July 2014 decision, the Court found that returning the family back to Tuvalu would be “unjust and unduly harsh.”[58] The largest difference between the two applicants is the second Tuvaluan family has three generations of relatives living in New Zealand, increasing their ties to the community.[59] Supergirl may be able to raise a similar argument since she herself has ties to the United States in the form of her cousin Superman. This would likely fail though since Superman himself is only one man, not three generations of familial ties. Furthermore, the United States has done very little within its own borders to make immigration exceptions for environmental refugees from abroad.

III. What the United States is doing for Environmental Refugees

There is no official legal framework to address the problems environmental refugees face when they try to enter the United States. The United States has taken some steps to acknowledge this unique group of refugees immigrating into the United States. The Immigration Act of 1990 does address granting temporary protection status to such refugees.[60] Temporary protection status is granted when:

There has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected’ and when ‘the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state.[61]

Temporary status only applies to individuals who are already inside the United States at the time of the disaster.[62] The temporary status includes six months of protection and the ability to work, but it does not allow for the admission of the claimant’s spouse or family.[63] Temporary protection status was granted to victims of Hurricane Mitch in 1998 and victims displaced by the Montserrat volcano explosion in 1997.[64] However, the granting of temporary protection status is discretionary.[65] In addition to only protecting those who were environmentally displaced while they were present in the United States, as of 2014 only citizens of Haiti (earthquake), Honduras (hurricane Mitch), Nicaragua (hurricane Mitch), and El Salvador (earthquakes) were able to get temporary protected status for environmental events. [66] There is no legal protection in the United States that creates a path to permanent status for environmental refugees. As a country, the United States’ ability to protect those persons displaced by climate change is limited since its laws do not offer any substantive relief to those fleeing environmental disasters or rising sea levels outside of the United States. In this lack of framework, the United States is consistent with many other international states who do not have legal frameworks to address the problems faced by environmental refugees.

Conclusion

In the end Supergirl will face the same fate as millions across the globe. Without an adequate legal framework to deal with the surge in environmental refugees that is predicted to come in the next few decades, stopgap measures will be used to treat the environmental refugee crisis on too small a scale. Excessive stopgap measures will lead to a bottleneck in the immigration system. Supergirl will likely not be deported because of the sheer cost that would entail, and the fact that there is likely no Kryptonian agreement with any other country that would allow her to reside there. In all likelihood, she will stay in the United States, but will not be able to ever qualify for United States citizenship since she falls within a grey area of the law. This might not be as much of a problem, but if she were to ever save anyone outside of the United State’s borders then the United States could deny her readmission to the country. This would drastically limit the range of her allowable Superhero activities.

[1] History of U.S. Immigration Laws, Federation for American Immigration Reform, http://www.fairus.org/facts/us_laws

[2] Id.

[3] Id.

[4] Convention Relating to the Status of Refugees, 189 U.N.T.S. 137 (done at Geneva, 28 July 1951), as amended by the Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, T.I.A.S. No. 6577, 19 U.S.T. 6223, done at New York, 31 Jan. 1967.

[5] The 1951 Refugee Convention, http://www.unhcr.org/pages/49da0e466.html

[6] 1951 Refugee Convention, supra note 5.

[7] Id.

[8] Id.

[9] Climate Refugees, Michael P. Nash, LA Think Tank, http://www.snagfilms.com/films/title/climate_refugees

[10] Organisation for Economic Co-operation and Development, https://stats.oecd.org/glossary/detail.asp?ID=839

[11] National geographic, Climate Refugee, available at http://education.nationalgeographic.com/education/encyclopedia/climate-refugee/?ar_a=1 , last visited Apr. 20, 2015.

[12] Climate Refugees, supra note 9.

[13] Man of Steel, Zack Snyder, Warner Bros., 2014.

[14] Id.

[15] Id.

[16] Id. (Adopt is likely a tentative term, seeing as the Kents probably did not file the appropriate adoption paperwork as they did not want to risk the safety of their young child).

[17] INA §208(a)(2)(B).

[18] Id.

[19] INA §208(a)(2)(B).

[20] BIA Decision, Mar. 29, 2013, http://www.refugees.org/resources/for-lawyers/asylum-research/youth-and-1-year-bar-bia.pdf,

[21] Paul Cornell, Action Comics 900, (DC Comics, 2011).

[22] INA §349(a)(5).

[23] DC Backtracks Superman Renouncing His Citizenship, May 5, 2011, available at http://www.comicbookmovie.com/fansites/luffycapri/news/?a=36606, last visited Apr. 18, 2015.

[24] Ryan Davidson, Superheroes and Immigration Status, Law and the Multiverse, Dec. 22, 2010, available at http://lawandthemultiverse.com/2010/12/22/superheros-and-immigration-status/, last visited Apr. 20, 2015. (James Daily Commentary).

[25] Id.

[26] Man of Steel, supra note 13.

[27] Paul Cornell, supra note 21.

[28] Bobbie Masters, Frequently Asked Questions About Immigration, Masters Law Firm, P.C., available at http://www.coimmigrationlawyer.com/faqs.html

[29] USCIS, Consideration of Deferred Action for Childhood Arrivals http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca

[30] Supergirl, Warner Bros. Television (2015)

[31] Id.

[32] 1951 Refugee Convention, supra note 5.

[33] Id.

[34] Id.

[35] Matt Hershberger, Is Superman Undocumented?, http://themigrationist.net/2013/08/21/is-superman-undocumented/

[36] See Convention Relating to the Status of Stateless Persons, opened for signature Sept. 28, 1954, 360 U.N.T.S. 117 (entered into force June 6, 1960 ) ; see also Convention on the Reduction of Statelessness, opened for signature Aug. 30, 1961, 989 U.N.T.S. 175 (entered into force Dec. 13, 1975)

[37] Mikhail Sebastien, Stateless in the United States, http://www.washingtonpost.com/opinions/stateless-in-the-united-states/2013/07/04/ae4c7a72-debe-11e2-b2d4-ea6d8f477a01_story.html

[38] Id.

[39] Id.

[40] Id.

[41] 1951 Refugee Convention, supra note 5.

[42] Kathy Marks, World’s first ‘climate change refugee’ has appeal rejected as New Zealand rules Ioane Teitiota must return to South Pacific island nation of Kiribati, http://www.independent.co.uk/news/world/australasia/worlds-first-climate-change-refugee-has-appeal-rejected-as-new-zealand-rules-ioane-teitiota-must-return-to-south-pacific-island-nation-of-kiribati-9358547.html

[43] Id.

[44] Climate Refugees, supra note 9.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Marks, supra note 42.

[51] Id.

[52] Id.

[53] Id.

[54] Amy Maas, Tuvalu Climate Change Family Win NZ Residency Appeal, The New Zealand Herald, http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11303331

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Maas, supra note 54.

[60] An EU Strategy on Adaptation to Climate Change, Commission Staff Working Document, European Union (2013), 17 (internal quotation marks omitted).

[61] Id.

[62] Id.

[63] Id.

[64] Strategy on Adaptation, supra note 60.

[65] Id.

[66] Madeline Messic & Claire Nergeron, Temporary Protected Status in the United States: A Grant of Humanitarian Relief that is Less Than Permanent, http://www.migrationpolicy.org/article/temporary-protected-status-united-states-grant-humanitarian-relief-less-permanent