For individuals seeking asylum in the United States, arriving at the US border may signify the end to their physical journey; however, it also marks the beginning of a longer legal journey navigating the credible fear screening process and, more recently, the “third-country-transit asylum eligibility bar.” Think of the credible fear screening process as the key to a locked door – if the individual can obtain the key (a positive credible fear determination), then he or she can “enter” the United States and apply for protection. But, if an individual cannot obtain the key (a negative credible fear determination), then he or she cannot “enter” the United States and will instead be returned to his or her country of origin.
Asylum seekers often do not have valid visas for admission into the United States, so instead of being admitted into the country they are detained by Customs and Border Protection (CBP) officials and placed in expedited removal proceedings. This means that they will be immediately removable from the United States, without a hearing in front of an Immigration Judge, unless they can demonstrate that they have a credible fear of persecution or torture in their home country.
Credible fear of persecution means that there is a “significant possibility” the individual will be able to establish in a hearing before an Immigration Judge that he or she has been persecuted or has a well-founded fear of persecution on account of his or her race, religion, nationality, membership in a particular social group, or political opinion if returned to his or her home country. Similarly, credible fear of torture means that there is a “significant possibility” that the individual can establish in a hearing before an Immigration Judge that he or she would be subject to torture if returned to his or her country.
The timeframe for requesting a credible fear screening is incredibly important. Ideally, an individual who fears returning to his or her country should express such fear immediately upon being apprehended by CBP officials. However, there are a number of factors – language barriers, exhaustion, and generalized distrust of government officials (to name only a few) – that may prevent an individual from immediately expressing fear. In these cases, the individual should express his or her fear to a government official at the earliest possible opportunity to prevent imminent removal.
Once an individual has expressed fear of returning to his or her country, CBP officials will detain the individual until a credible fear screening can be conducted. Where the individual is detained depends on a number of factors, such as where the individual attempted to enter the United States and current capacity at detention facilities throughout the United States. It is not uncommon for an individual to be detained in a state where he or she has no ties. Individuals are guaranteed at least 48 hours before having to undergo a credible fear screening, but in reality, the wait time is much greater – often in excess of 60 days – during which time the individual must remain in detention.
Once scheduled, the credible fear screening is conducted by a United States Citizenship and Immigration Services (USCIS) asylum officer over the phone. The screening is confidential, and the individual has the right to consult with an attorney before and during the screening process; however, the government will not provide an attorney for the individual.
During the screening, the asylum officer will ask the individual questions about specific incidents of past persecution, fears about future persecution, reasons for the persecution, attempts to relocate inside of or outside of the individual’s country of origin, and attempts to report the persecution to police or other government officials. There is no presumption of credibility in the credible fear screening process. It is entirely on the individual to prove his or her case to the asylum officer.
They asylum officer will also screen for any mandatory bars to asylum eligibility. Mandatory bars to an applicant’s ability to be granted asylum in the United States include: persecuting others on account of race, religion, nationality, membership in a particular social group, or political opinion; being convicted of certain “particularly serious” crimes; committing serious nonpolitical crimes outside the United States; posing a risk to the security of the United States; engaging in terrorist activities or status as a representative of certain terrorist organizations; and, firmly resettling in another country prior to arriving in the United States. Although the asylum officer will not make a final decision whether the individual is subject to a mandatory bar, the officer will note any potential concerns in the credible fear screening decision.
In addition to these statutory bars to asylum eligibility, the Trump administration is currently enforcing a “third-country-transit asylum eligibility bar” rule. This rule was announced on July 16, 2019, and it went into full effect on September 11, 2019. As a result of this rule, individuals who entered, attempted to enter, or arrived in the United States across the southern land border of the United States on or after July 16, 2019, who did not apply for protection from persecution or torture in at least one country outside his or her country of citizenship, nationality, or last lawful residence en route to the United States are barred from applying for asylum, with very limited exceptions.
Following the credible fear interview, if the asylum officer finds that the individual has a credible fear of persecution or torture, the asylum officer will refer the case to an Immigration Judge for a full hearing on the merits of the claim. However, if the asylum officer finds that the individual does not have a credible fear of persecution or torture, he or she can request review by an Immigration Judge. The individual may be represented by an attorney at the review hearing; however, the government will not provide an attorney for the individual. If the individual does not request a review of the determination, Immigration and Customs Enforcement (ICE) will remove the individual from the United States.
Even in cases where the individual is subjected to the “third-country-transit asylum eligibility bar,” the individual may still be entitled to submit an application for withholding of removal or protection under the Convention Against Torture (CAT) if the individual establishes a reasonable fear or persecution or torture. These forms of protection bar the government from removing the individual to any country where he or she would “more likely than not” face persecution or torture. In contrast to the more generous benefits available through asylum, however, withholding of removal and CAT protection do not create a path to lawful permanent resident status and citizenship or afford all of the same ancillary benefits. At the very least, they provide the individual with relief from being immediately removed to the country where the individual fears persecution or torture.
It is important to note that the “third-country-transit asylum eligibility bar” rule is still being litigated in the Federal courts and could ultimately be overturned; therefore, it is important that individuals continue to preserve their right to apply for asylum in the future, should the policy be overturned while awaiting a final merits hearing.
If anyone you know is currently detained and navigating the credible fear screening process, please contact an immigration attorney at Wilson Law Group to ensure that they have the best chance to remain in the United State and present a claim for asylum, withholding of removal, or CAT protection. Wilson Law Group has successfully helped individuals receive positive credible fear determinations from asylum officers and has had negative decisions vacated during Immigration Judge reviews.