Foreign nationals who fear persecution in their homeland can seek asylum in the United States only if their fear is considered credible. But what exactly is a "credible fear of persecution"? Here are three key issues to keep in mind if you or someone you know is facing a credible fear interview.
1. How Is Credible Fear of Persecution Defined?
Under the Immigration and Nationality Act, "credible fear of persecution" means that there's a significant possibility that a foreign national can establish eligibility for asylum. This takes into account the credibility of the statements made by the foreign national in support of his or her claim and other facts already known to the asylum officer.
Generally, an asylum officer will find that there is 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, meaning there's a significant chance the applicant will face torture or mistreatment in his or her homeland. Article 1 of this Convention defines torture as:
"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.
2. Credible Fear Interview Triggers
Initially, any individual subject to expedited removal who raises a claim for asylum or expresses a fear of harm will be given a chance to explain this fear to an asylum officer. During this credible fear interview, the asylum officer determines whether there's significant possibility that the individual will be harmed upon return to his or her country.
Since some refugees may be hesitant to come forward with a request for protection at the time of arrival, immigration policy and procedures require Department of Homeland Security (DHS) officers to ask each individual who may be subject to expedited removal a series of questions to identify anyone who is afraid of returning to their country.
After the foreign national is taken into custody, he or she will be provided with an orientation to the credible fear process. During this time, the foreign national will be given a list of pro bono legal service providers to help assist the individual with his or her case. Although the United States Customs and Immigration Services (USCIS) requires a wait of at least 48 hours after the applicant arrives at the detention site before conducting the credible fear interview, this period may be waived by the foreign national.
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.
3. Mandatory Bars and Going on the "Defensive"
If an asylum officer determines that an individual is subject to a mandatory bar to asylum or withholding of removal, but there is a credible fear of persecution or torture, the asylum officer will take note for a further hearing. An Immigration Judge will first consider whether the individual is barred from a grant of asylum or withholding of removal.
An individual will not be granted asylum or withholding of removal if he or she:
Has persecuted others on account of the five protected characteristics;
Has been convicted of a particularly serious crime;
Has committed a serious nonpolitical crime outside the United States;
Was firmly resettled; or
Is a danger to the security of the United States.
However, even if a mandatory bar applies, the Immigration Judge may grant a deferral of removal if the individual establishes that he or she would be tortured in their home country,.
The individual may also apply for asylum and a withholding of removal at the hearing with the Immigration Judge. This is known as the "Defensive" asylum process. In these cases, the burden of proof is on the individual to establish that he or she is eligible for asylum.
Getting Legal Help
If you or someone close to you is applying for asylum in the United States, it's important to consult with an experienced immigration attorney. You can also visit FindLaw's section on asylums and refugees to learn more about the asylum process.
Contact a qualified immigration attorney to help you with asylum-related issues.