“Credible Fear” is a concept in United States Asylum Law; whereby a person who demonstrates a Credible Fear of returning to their Country of Origin cannot be subjected to deportation from the United States until the person’s Asylum Petition is processed. Credible Fear is a believable fear of prosecution or torture that a detained Non-Citizen faces upon return to their Country of Origin.
In contrast to Reasonable Fear, Credible Fear applies to Non-Citizens who have not been previously deported from the Country. An individual will be found to have a Credible Fear of persecution if there is a “significant possibility” that they could establish in a full hearing before an Adjudicating Officer that he or she has been persecuted or has a well-founded fear of persecution or harm on account of their race, religion, nationality, membership in a particular social group, or political opinion if returned to their Country. The “Credible Fear” process is if you just entered the United States without authorization and are apprehensive about returning home.
The “Reasonable Fear” process may apply to the applicant if they have ever been deported, have a prior deportation order, or have been convicted of a serious felony while being a non-lawful permanent resident and are scared to return home. These procedures describe two different kinds of interviews that one might have with an asylum officer to determine if they can submit an application for asylum protection. The processes for proving Credible and Reasonable Fear are different from those used for regular deportation and might be challenging, particularly when the individual is detained.
What is the Difference Between the Credible Fear and Reasonable Fear Process?
If there is no prior order of deportation or an aggravated felony and the individual has expressed fear and not been before an Adjudicating Officer, they are most likely in the credible fear process. Within 10 days of expressing such fear, the individual should have an interview with an asylum officer. During this time the individual will either see or might not be able to see an immigration judge or ask for a bond.
The Asylum Officer will be determining whether the individual has shown a “credible fear” of being deported at their interview, or whether there is a “significant probability” that they could succeed in their application for asylum before an Adjudicating Officer.
Credible Fear Interviews
A Credible Fear interview with an asylum officer is required irrespective of whether the individual is an Affirmative or Defensive Asylum Applicant. The purpose of the interview is to pre-screen asylum seekers and to ask questions that will establish whether the applicant will likely be persecuted if they return to their home country.
The applicant will have the opportunity to present their case in front of an Adjudicating Officer if they are able to demonstrate a credible fear. It’s crucial to remember that there are no predetermined criteria for proving a significant possibility of persecution.
“When the applicant has their Reasonable Fear interview, the Asylum Officer will be determining whether there is a “reasonable possibility” that they may face persecution or torture if they are deported based on what they demonstrate in their interview.”
If the applicant has been deported before or has been absentia if they have an aggravated felony conviction, they are probably in the reasonable fear process. People have been known to wait anywhere between 6 and 12 months for their interviews on Reasonable Fear. We are hopeful that that period will shorten in the future, but there is no guarantee that it will.
Reasonable Fear Interviews
Individuals who are subject to deportation from the U.S because they are aggravated felons or have prior orders of removal reinstated must attend the Reasonable Fear interviews(or screening). Those whose claims are upheld by the Asylum Officer are qualified for the withholding of the removal process. Applicants must prove that there is a reasonable possibility they may face persecution or torture if sent back to their country of origin. Similar to credible fear, candidates for reasonable fear are not subject to any requirements.
Procedures for Credible Fear Interview and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers
The Interim Final Rule (IFR) “Procedures for Credible Fear Screening or Interview and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers” went into effect on May 31, 2022, changing the way DHS processes asylum cases for individuals in expedited removal. The IFR creates a significantly condensed processing time and shifts some of the processing that used to happen at the southern border to interior cities. Immigration attorneys around the country are needed to help asylum seekers navigate this new process.
Under the IFR, asylum seekers who pass a Credible Fear interview will have their interview count as an Asylum Application before U.S. Citizenship and Immigration Services (USCIS) and have an “Asylum Merits Interview” (AMI) scheduled within 21 to 45 days. The Asylum Officer will be based out of one of the six cities currently designated by USCIS (Boston, Miami, New York, Newark, San Francisco, or Los Angeles), not at the border. If asylum is denied, then the person will be referred to an Immigration Court in the same city, and the Immigration Court is expected to resolve the case within two to four months.
Currently, at this stage of the rollout, the IFR is limited to individuals who:
- Arrived after May 31, 2022;
- Are detained in one of two Texas detention facilities (Pearsall and Houston);
- Indicate to DHS that they intend to reside in the USICS jurisdictions of Boston, Miami, New York, Newark, San Francisco, or Los Angeles; and
- Are single adults.
Procedures Reasonable Fear Interview and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers
Sections 238(b) and 241(a)(5) of the Immigration and Nationality Act provide for streamlined removal procedures that prohibit certain individuals from contesting removability before an Immigration Judge and from seeking any relief from removal. Generally, however, such noncitizens may not be removed to a country where they are more likely than not to be persecuted or tortured.
As such, if an individual ordered removed under either Section 238(b) or Section 241(a)(5) of the INA expresses a fear of return to the country to which he or she has been removed, the case must be referred to an Asylum Officer, who will determine whether the individual has a Reasonable Fear of persecution or torture. Those who are found to have such Reasonable Fear are then given an opportunity to seek Withholding of Removal or Deferral of Removal before an Adjudicating Officer. Those found not to have a reasonable fear of persecution or torture may request that an Adjudicating Officer review the “Negative Reasonable Fear Determination”. If an individual does not request a review by the Adjudicating Officer or the Adjudicating Officer upholds the Negative Determination, the individual may be removed from the United States.
If the Adjudicating Officer reverses the Negative Reasonable Fear Finding, the Individual will be placed in proceedings before an Adjudicating Officer for a determination on eligibility for withholding or deferral of removal only.