Godzilla and The Refugees Created by Kaiju Destruction

Have you ever watched the old Godzilla movies where he utterly destroys Japan and wonder what would happen to the people fleeing from his terror? If those individuals in Japan applied for refugee status in the United States, would they receive status here?

Under U.S. law, a “refugee” is a person who is unable or unwilling to return to his or her home country because of a “well-founded fear of persecution” due to race, membership in a particular social group, political opinion, religion, or national origin.  This definition is based on the United Nations 1951 Convention and 1967 Protocols relating to the Status of Refugees, which the United States became a party to in 1968.  Congress also passed the Refugee Act of 1980 which incorporated the Convention’s definition into U.S. law and provides the legal basis for today’s U.S. Refugee Admissions Program (USRAP). Persons who are outside the United States must apply for refugee status pursuant to Immigration and Nationality Act § 207. Applicants for refugee status abroad must meet the same legal test as applicants for asylum in the U.S.

Persecution is defined as a threat to life or freedom and encompasses a variety of forms of adverse treatment, including non-life-threatening violence and physical abuse or non-physical forms of harm.[1] Other serious violations of human rights can also constitute persecution, such as genocide, slavery, torture and other cruel, inhumane, or degrading treatment, prolonged detention, rape and other severe forms of sexual violence.[2] The courts have stated that an official reviewing a refugee claim must look at the cumulative effects of the harm in determining if the person was subject to persecution.[3] The conduct of Godzilla in breathing atomic fire on people and deliberating destroying their residences or offices would definitely fall under the definition of persecution.

For refugee status, the law requires that persecution be inflicted by either the government or by a private party that the government is unable or unwilling to control (a non-state actor.). Most cases at the Ninth Circuit and the Board of Immigration Appeals have dealt with non-state actors in the context of private individuals including law enforcement in the country who subject religious minorities, women or the LGBT community to persecution.[4] In the case of Godzilla, in most movies the government is unable to neutralize the threat of Godzilla. In the original Godzilla and GMK (Godzilla, Mothra, King Ghidorrah: Giant Monsters All Out Attack) resulted in the government of Japan successfully neutralizing him. However, in most other movies, Godzilla may temporarily retreat after defeat from Mecha Godzilla or another Kaiju like Mothra only to resurface in Japan a while later and wreak destruction again. In those cases, it is apparent that the government of Japan will be unable to stop him.

So now we must address the second prong of the refugee test and ask why is it that Godzilla is attacking the people of Japan? Is it because of their race or nationality? In the movie GMK, the plot revolves around Godzilla attacking the people of Japan specifically for the crimes the Japanese government committed during World War II. In other movies it is alluded that he may target them as they block his path to an energy source or their government does something to disturb him and he takes revenge on them as a result. However, a claim based on racial persecution or nationality must be specific.

Would his victims in Japan be able to argue that they belong to a social group instead? Social group is defined as a group that share a “common, immutable characteristic.” Immutable characteristic is defined as “one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.”[5] The Ninth Circuit adopted the “social visibility” requirement but has since refined the standard. In the case of Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Circ. 2013), the court clarified that “social visibility” does not require “on-sight visibility” but rather relies on the perception of others, primarily the persecutor’s perception, stating that the key is “whether the social groups are understood by others to constitute social groups. Some examples of social group in the Ninth Circuit include 1. People who testified against criminal gangs 2. LGBT community 3. Gender 4. families who have violated a state’s coercive population control policy 5. Former member of the police or military 6. People who oppose Female Genital Mutilation. However, the courts have been consistent in declining social group classifications to broad categories like children or individuals who belong to a certain age. The general claim that Godzilla’s victims fear him would not suffice as a social group as it would be considered too broad.

Asylum and refugee law do allow for the persecutor to target the person for mixed motives rather than just one motive. A persecutor may have a legitimate motive, such as enforcement of a legitimate state policy, or personal motives like revenge or extortion. For example, a person seeking refugee status could be persecuted on account of her race and because of a personal land dispute between her family and the persecutor (a reason not protected in the statute). In those cases, the applicant “must establish” that one of the five enumerated grounds “was or will be at least one central reason for persecuting the applicant. The Ninth Circuit Court in Parussimova v. Mukasey has held that the applicant does not need to show that the protected ground was the only central reason for persecution but was one central reason. 533 F.3d 1128, 1134 (9th Cir. 2008). Perhaps the people of Japan would be more successful in arguing this.

A person who is ultimately successful in proving that they qualify for refugee claim may also face other bars to enter the U.S. such as on health-related grounds. Applicants who are diagnosed with communicable diseases of public health significance, also known as Class A conditions, are inadmissible to the U.S. Class A conditions include gonorrhea, leprosy (infectious), syphilis (infectious), and TB (active). Another category for communicable diseases of public health significance are diseases that may subject the applicant to federal isolation and quarantine. These diseases include cholera, diphtheria, infectious TB, plague, smallpox, yellow fever, viral hemorrhagic fevers, severe acute respiratory syndromes, flu that can cause a pandemic, and other diseases that may pose a public health emergency of international concern.

In the case of the people in Japan exposed to severe dosages of radiation because of Godzilla’s atomic fire, they may face quarantine initially. However, if we look at the individuals exposed to high radiation levels after the atomic bombings of Hiroshima and Nagasaki or the aftermath of Chernobyl, we see that after gamma radiation has passed through the body, the person is no longer radioactive and can’t expose other people. However, the exposure to severe radiation may compromise the person’s immune system where they may be susceptible to Class A conditions and be inadmissible to the U.S.

Assuming the person seeking refugee status in the U.S. manages to overcome the health-related ground of inadmissibility, they still will face the cap on the number of refugees that the Trump administration has imposed in the U.S. The Obama administration let in 110,000 refugees to the U.S. per year but the Trump administration gradually decreased the cap from 45,000 to 22,415 to 18,000 for the following year. Perhaps the applicants would be better off seeking refugee in a country like Canada who despite having a total population that is less than California, admitted 28,000 refugees.

Of course, Japanese Citizens who are visiting the U.S. or are here on a non-immigrant visa such as a H1B or F1 Student visa can always apply for asylum but that would bring its own complications which I will discuss in the next article.

[1] Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998); Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996).

[2] UN Handbook at ¶ 51, 13.

[3] Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998).

[4] Castro-Martinez v. Holder, 674 F.3d 1073, 1081 (9th Cir. 2011); Mashiri v. Ashcroft, 383 F.3d 1112, at 1121 (9th Cir. 2004); Vitug v. Holder, 723 F.3d 1056 (9th Cir. 2013).

[5] Matter of M-E-V-G, Respondent, 26 I&N Dec. 227, 237 (BIA 2014).