New York Lawyer's Legal Updates

Credible And Reasonable Fear Proceedings Revised

Author: USA Asylum lawyer Alena Shautsova

Following the orders by Department of Homeland Security (the “DHS”), USCIS has revised its training materials on Credible and Reasonable fear assessments. It happened because the new administration is trying to streamline the expedited removal process for those who are surrendering themselves at the border or are otherwise subject to the expedited removal criteria, and also to streamline the removal proceedings for persons with criminal convictions and past order of deportation removal.

A credible fear interview is afforded to those who claim that they are afraid to return to their home country. Usually the procedure is invoked at the border, when a person who is trying to enter the United States does not have enough proof that he/she is a non-immigrant, or has no visa at all. In such a case, prior to issuing an expedited removal determination, an CBP officer has to inquire if a person is fearful of removal to his/her country and what would be the grounds. If the person confirms his/her fear, then he /she would be afforded an opportunity to speak more about it with an Asylum officer who then determines if the person has met the significant possibility standard to present his/her asylum case in the United States before an Immigration judge (or Asylum office in case of children). The INA states that “the term credible fear of persecution means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under §208.” INA §235(b)(1)(B)(v); 8 U.S.C. §1225. Credible fear standard is broader than a well-founded fear standard that is needed to win one’s asylum case.

A similar proceedings, with a slightly different standard are afforded to those who are already in the United States but are removable but cannot go back to their country due to fear of persecution or torture. In such cases, the proceedings are called “reasonable fear” interview and have to meet a different standard: reasonable possibility of persecution based on protected ground (the USCIS training materials explain that reasonable fear standard equals to well-founded fear standard). A reasonable fear proceedings is the only way to remain in the country for somebody who was ordered removed based on an aggravated felony charge or somebody against whom an old order of deportation/removal was reinstated.

If a person has already presented his/her asylum claim before an Asylum officer or an Immigration judge, absent a clear error, that determination will be upheld.

Now, what happened recently is that USCIS is trying to narrow the number of people who would qualify for these standards and tries to discourage such claims by 1). Denying findings of these standards if an alien was not credible in connection with facts that are not connected to his/her claims of fear (previously the credibility was assessed only in connection with the facts relevant to the asylum claim); 2). Allowing removability to the country other than the country’s of one’s citizenship (for example, allowing removal to a country where an applicant has ben found to be firmly resettled) ; 3) eliminating discussion of parole for those who passed the interview; 4). Allowing expedited removal for Cuban nationals.

It is true that each country is free to establish its own regulations on treatment of refugees/asylees within the frames outlined by the International conventions. Some countries choose a very restrictive approach, making it is almost impossible to claim asylum there; and some countries are more liberal. It is also true, that the first rescue drafts/boats of Titanic could have accommodated significantly more people than they did, saving precious lives that were lost forever.

26 February 2017
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