The individual may apply for asylum and withholding of removal before the Immigration Judge, also known as the “Defensive” asylum process.
The burden of proof is on the individual to establish that he or she is eligible for asylum or other protection in the United States.
If the applicant is found to have a credible fear of persecution or torture, the Immigration Judge will consider whether the applicant is barred from a grant of asylum or withholding of removal. See 8 CFR 208.16(d). If a bar applies, but the applicant has established that he or she would be tortured in the country of return, the Immigration Judge will grant deferral of removal. See 8 CFR 208.17.
Section 235(b)(1)(B)(v) of the INA defines credible fear of persecution as: “a significant possibility, taking into account the credibility of the statements made by the alien in support of his or her claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under Section 208 [of the INA].”
The implementing regulations provide that an applicant will be found to have a credible fear of torture if the applicant demonstrates: “a significant possibility that he or she is eligible for withholding of removal or deferral of removal under the Convention Against Torture, pursuant to 8 CFR 208.16 or 208.17.” See 8 CFR 208.30(e)(3).
If a credible fear of persecution or torture is found, the asylum officer will refer the case to an Immigration Judge for a full hearing on the claim. Certain cases are reviewed by USCIS Headquarters Asylum Division staff prior to a final decision.
After the applicant is taken into custody, he or she will be given an orientation to the credible fear process and given a list of pro bono (free or low cost) legal service providers. USCIS requires a wait of at least 48 hours after the applicant arrives at the detention site before conducting the credible fear interview, in order to give the applicant time to recover from the journey and/or contact a consultant. This period may be waived by the applicant. Decisions about credible fear cases are made as expeditiously as possible by USCIS.
An individual will be found to have a credible fear of torture if he or she establishes that there is a “significant possibility” that he or she could establish in a full hearing before an Immigration Judge that he or she would be subject to torture, as defined in the Convention Against Torture and as modified in 8 CFR 208.18, if returned to his or her country.
The definition of torture, as defined in Article 1 of the Convention and modified by the U.S. ratification document is:
- severe pain or suffering, whether physical or mental
- intentionally inflicted on a person for such purposes as
- obtaining from him or her or a third person information or a confession
- punishing him or her for an act he or she or a third person has committed or is suspected of having committed
- intimidating or coercing him or her or a third person, or
- for any reason based on discrimination of any kind
- by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
The U.S. implementation of the Convention Against Torture also requires that the individual be in the torturer’s control or custody, and that harm arising only from, inherent in, or incidental to lawful sanctions generally is not torture.
See 8 CFR 208.18(a) for more information on the definition of torture.
The Asylum Officer does not make a final determination whether an individual is subject to a mandatory bar to asylum or withholding of removal when determining whether an individual has established a credible fear of persecution or torture. The Asylum Officer will note in the officer’s determination the possibility that a mandatory bar may apply. When applicable, the Immigration Judge will consider whether the individual is barred from a grant of asylum or withholding of removal. An individual may not be granted asylum or withholding of removal if he or she has persecuted others on account of race, religion, nationality, membership in a particular social group, or political opinion; has been convicted of a particularly serious crime; has committed a serious nonpolitical crime outside the United States; was firmly resettled; or there are reasonable grounds to believe that the individual is a danger to the security of the United States. See §§208(b)(2)(A) and 241(b)(3)(B) of the INA and 8 CFR 208.16(d). If a mandatory bar applies, but the individual has established that he or she would be tortured in the country of return, the Immigration Judge will grant deferral of removal. See 8 CFR 208.17.
During the course of the credible fear process, an alien may express a desire to be removed from the U.S. and no longer pursue a credible fear claim.
If an alien expresses such a desire the asylum officer must speak to the alien to ensure that he or she is aware of the consequences of dissolving an asylum claim, and to determine why the alien no longer wishes to remain in the credible fear process.
The asylum officer must read and explain to the alien the Request for Dissolution of Asylum Claim after which an alien may change his or her mind and remain in the credible fear process.
If, however, the alien signs the Request for Dissolution of Asylum Claim, the asylum officer does not process the case any further and the District Office with jurisdiction over the alien may remove the alien to his or her home country.
An individual will be found to have a credible fear of persecution if he or she establishes that there is a “significant possibility” that he or she could establish in a full hearing before an Immigration Judge that he or she has been persecuted or has a well-founded fear of persecution or harm on account of his or her race, religion, nationality, membership in a particular social group, or political opinion if returned to his or her country.
Asylum Officers conduct a credible fear of persecution or torture interview when a person who is subject to expedited removal expresses an intention to apply for asylum, expresses a fear of persecution or torture, or expresses a fear of return to his or her country.
Any person subject to expedited removal who raises a claim for asylum or expresses a fear of harm or return will be given the opportunity to explain his or her fears to an Asylum Officer. Recognizing that some refugees may be hesitant to come forward with a request for protection at the time of arrival, immigration policy and procedures require DHS officers to ask each individual who may be subject to expedited removal the following series of questions to identify anyone who is afraid of return:
- Why did you leave your home country or country of last residence?
- Do you have any fear or concern about being returned to your home country or being removed from the United States?
- Would you be harmed if you were returned to your home country or country of last residence?
- Do you have any questions or is there anything else you would like to add?
If the individual expresses a fear of return, the individual is detained, provided information about the credible fear process, and given a credible fear interview by an Asylum Officer. If the individual who expresses a fear of return is arriving from Canada at a U.S.-Canadian land border port of entry, or is being removed from Canada and transiting through the United States, the APSO will conduct a Threshold Screening Interview pursuant to the Safe Third Country Agreement to determine whether the individual must seek protection in Canada instead of the United States. If the individual is eligible to seek protection in the United States, the APSO then will determine whether the individual has a credible fear of persecution or torture. More information about the Threshold Screening pursuant to the Safe Third Country Agreement can be found in Chapter 5 of “A Partnership for Protection: Year One Review”.
If Asylum Officer does not find a credible fear of persecution or torture, the individual can request review by an Immigration Judge of the negative decision. If no review is requested or the Immigration Judge concurs with the negative decision, the individual will be removed from the United States. Generally, there is no review of the Immigration Judge’s determination that the individual does not have a credible fear of persecution or torture. If the Immigration Judge finds a credible fear of persecution or torture, the case will be referred for a full hearing.