There are no mandatory bars to establishing a reasonable fear of persecution or torture. As such, the asylum officer does not take into consideration the mandatory bars to withholding of removal when making reasonable fear determinations but may still elicit information regarding any potential bars to withholding of removal and document such information. If an individual is found to have a reasonable fear, however, the Immigration Judge will consider whether the individual is barred from a grant of withholding of removal. An individual may not be granted 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, or there are reasonable grounds to believe that the individual is a danger to the security of the United States. See 8 CFR § 208.16(d) and INA section 241(b)(3)(B). Although certain mandatory bars apply to a grant of withholding of removal under the Convention Against Torture, no mandatory bars may be considered in making a reasonable fear of torture determination. Because there are no bars to protection under Article 3, an immigration judge must grant deferral of removal to an applicant who is barred from a grant of withholding of removal but who is likely to be tortured in the country to which the applicant has been ordered removed. Thus, if a 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.
Asylum officers conduct reasonable fear of persecution or torture interviews for two categories of individuals subject to expedited removal processes:
- Those subject to reinstatement of a prior removal order because they illegally reentered the United States after having been removed or having departed voluntarily while under an order of exclusion, deportation, or removal. See INA § 241(a)(5) and 8 CFR § 241.8.
- Those who are not lawful permanent residents, who are subject to an administrative order of removal because they were convicted of one or more aggravated felonies after admission to the United States. See INA § 238(b) and 8 CFR § 238.1.
If a reasonable fear of persecution or torture is found, the asylum officer will refer the case to an Immigration Judge.
An individual will be found to have a reasonable fear of torture if he or she credibly establishes that there is a reasonable possibility he or she would be subject to torture, as defined in the Convention Against Torture and as modified in 8 CFR § 208.18.
The definition of torture, as defined in Article 1 of the Convention and modified by the U.S. ratification document is:
Any act by which severe pain or suffering, whether physical or mental is 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 when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions.
See 8 CFR § 208.18(a) for more information on the definition of torture.
The U.S. implementation of the Convention Against Torture also requires that the individual be in the torturer’s control or custody.
If a reasonable fear of persecution or torture is not found, the individual can request that an Immigration Judge review 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. If the Immigration Judge reverses the negative reasonable fear determination, the case will be referred for a full hearing on eligibility for withholding or deferral of removal only. The individual cannot appeal the Immigration Judge’s decision regarding the reasonable fear determination.
An individual will be found to have a reasonable fear of persecution if he or she credibly establishes that there is a reasonable possibility he or she would be persecuted in the future on account of race, religion, nationality, membership in a particular social group, or political opinion. The legal standard is the same standard used to establish a well-founded fear of persecution in the asylum context.
In contrast to an asylum adjudication, a finding of reasonable fear of persecution cannot be based on past persecution alone, in the absence of a reasonable possibility of future persecution. A reasonable fear of persecution may be found only if there is a reasonable possibility the applicant will be persecuted in the future, regardless of the severity of the past persecution. This is because withholding of removal is accorded only to provide protection against future persecution and may not be granted without a likelihood of future persecution. However, a finding of past persecution raises the presumption that the applicant’s fear of future persecution is reasonable.
If the individual is found by the asylum officer or by the Immigration Judge to have a reasonable fear of persecution or torture, he or she may apply for withholding of removal before the Immigration Judge. The Immigration Judge will consider the applicant’s request for withholding of removal in accordance with 8 CFR § 208.16. The applicant has the burden of proof of establishing that he or she is eligible for withholding of removal under either of the following:
- Section 241(b)(3) of the INA:
The individual establishes that it is more likely than not that his or her life or freedom would be threatened in the proposed country of removal on account of his or her race, religion, nationality, membership in a particular social group, or political opinion.
- Convention Against Torture:
The individual establishes that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.
If the applicant is found to have a reasonable fear of persecution or torture, the Immigration Judge will consider whether the applicant is barred from a grant of 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.
If the Immigration Judge grants withholding of removal, the applicant cannot be removed to the country where the person fears persecution or torture, but may be removed to another country. If the Immigration Judge does not grant withholding of removal, the applicant may appeal the decision to the Board of Immigration Appeals.
Asylum officers are required by regulation to conduct the reasonable fear interview and make the reasonable fear determination within 10 days after the case has been referred to the asylum office, unless there are exceptional circumstances. If an individual is serving a lengthy prison sentence, the asylum officer will not conduct the reasonable fear interview until the individual has nearly completed the sentence or is otherwise soon to be released to DHS custody. See 8 CFR § 208.31(b). In most cases, individuals subject to reasonable fear interviews will be detained.