What is the process of credible fear?

What is the process of credible fear?

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According to the Department of Homeland Security (DHS), a person will be found to have what is called “credible fear” of being persecuted if they establish that there is a “significant possibility” that they fear this occurring in their country.

This can be on the grounds of their race, nationality, religion, political opinion, or membership in a particular social group and would need to be presented before an immigration judge who will decide whether to give them asylum or not.

The process of credible fear is an interview part of the asylum law in the United States, created to prevent the deportation of undocumented immigrants that arrive at the US border and who can demonstrate that they fear being persecuted or tortured if they were to return to their country of origin. This way, they cannot be deported and be eligible for asylum.

How does the process of credible fear occur?

As soon as a person arrives in the United States without documentation, they will be detained by a US Customs and Border Protection (CBP) officer. Unless they express that they are afraid to return to their country and are looking for asylum, they will be deported. Once this happens, they cannot be removed until their case is processed.

The USCIS, United States Citizenship and Immigration Services, indicates that “if an asylum officer does not find that you have a credible fear of persecution or torture, you may request that an IJ review that determination. If you do not request review by the IJ, or the IJ agrees with the negative credible fear determination, US Immigration and Customs Enforcement (ICE) may remove you from the United States.”

According to the United Nations, “Under international human rights law, the principle of non-refoulment guarantees that no one should be returned to a country where they would face torture, cruel, inhuman, or degrading treatment or punishment, and other irreparable harm. This principle applies to all migrants at all times, irrespective of migration status”. 

Circumvention of Lawful Pathways Final Rule

Effective May 11, 2023, the US government will presume that everyone entering the United States illegally through its southwest land border or adjacent coastal borders is ineligible for asylum. This will be imposed unless they can demonstrate an exception to the rule or rebut the presumption (except for unaccompanied children). 

Therefore, it is not advisable to enter the US through this border if you are looking to ask for asylum. According to the United States, you may also not be granted asylum or be withheld from removal if: 

• You have persecuted others on account of race, religion, nationality, political opinion, or membership in a particular social group;
• You have a conviction for a serious crime;
• There are reasons to believe you have committed serious nonpolitical crimes outside the US;
• You have engaged in terrorist activity or are likely to engage in such;
• You were firmly resettled;
• Or there are strong reasons to believe you are a danger to US security.

What is the credible fear interview?

If an asylum officer finds you have a credible fear of being persecuted or tortured, USCIS may consider your asylum application and set you up for the Asylum Merits Interview under the Convention Against Torture (CAT).

Here, an asylum officer will decide whether you are eligible for asylum and if you demonstrated eligibility for withholding of removal. They can also issue a Notice to Appear before an immigration judge to consider your asylum, withholding, or removal. For this, you need to file Form I-589, Application for Asylum and for Withholding of Removal, with the immigration court.

During the interview, the officer will ask you several questions, such as your personal data and other questions about your family. Then, questions about your fear of returning to your country will follow, and your answers need to be very clear and honest because any inconsistency could affect your asylum request.

Take into consideration that reasons such as poverty, lack of work, or that you are a good person are not valid for asylum.

Do you need an immigration lawyer to request asylum?

You don’t need an immigration attorney to request asylum, but it is advisable to retain one. They will be able to help you prepare a solid and convincing testimony of fear during the entire process. Otherwise, the immigration judge may reject your petition, even though you can request a revision to the decision, an immigration lawyer in San Diego, California, is the best option for your case.

A lawyer will also supervise the credible fear interview and ensure everything follows immigration laws.

What will happen after the interview?

If you approve the Asylum Merits Interview, it doesn’t mean that your fight is over; you still need to see an immigration judge to request asylum.

If you don’t approve the interview because the immigration officer considers that you do not have a credible fear of torture or persecution, you can request that an immigration judge revises your case.

The judge can revert the decision and allow the immigrant to present an asylum request and withhold removal proceedings, but it is not very easy to revert these decisions, which is why having an immigration attorney on your side is positive. 

Contact Kannan Law if you need legal guidance regarding US immigration. We are ready to help.