Sometimes, the U.S. government can remove (or deport) noncitizens without having to send them through an immigration court, even when those noncitizens express a fear of persecution or torture in their home country.
For example, noncitizens who are denied entry at a U.S. border or airport for not having proper documentation may be granted a “credible fear” screening (or interview) with a Department of Homeland Security (DHS) officer to determine whether there is a “significant possibility” that they might qualify for asylum, withholding of removal, or United Nations Convention Against Torture (CAT) protection. However, their access to an immigration judge may be limited to a quick, narrow and relatively informal review of the DHS officer’s “significant possibility” determination. This review cannot itself be appealed.
The situation is similar but somewhat worse for nonresidents (noncitizens who do not have a green card) who are in the U.S. after being convicted of certain types of crime (aggravated felonies), or for noncitizens who reenter or attempt to reenter the U.S. illegally after having been previously removed. Such persons are not eligible for a credible fear interview. They may, nonetheless, be granted a “reasonable fear” interview with a DHS officer.
Purpose of Reasonable Fear Interview
The reasonable fear interview is held to determine whether there is a “reasonable possibility” that the person might be persecuted (on of any of the usual five grounds) or tortured if returned to his or her home country. A determination in the person's favor would allow him or her to apply for withholding of removal and CAT protection, but not for asylum.
(A negative determination would also be subject to limited review by an immigration judge.)
How to Prove “Reasonable Fear:” Reasonable Possibility of Persecution or Torture
Reasonable fear interviews require proving a reasonable possibility of future persecution or torture in order to grant access to removal proceedings for withholding of removal or CAT protection. This happens more or less in the same way that credible fear interviews require proving a "significant possibility" of eligibility for asylum or other protections.
However, in this area of the law, “reasonable possibility” is actually more difficult to prove (or has a higher “standard of proof”) than “significant possibility” — even though this may sound counterintuitive based on ordinary uses of the terms “reasonable” and “significant.”
The “reasonable possibility” standard is necessarily lower than the standard of proof for the type of protection for which reasonable fear interviews serve as a preliminary screen — that is, for withholding of removal. In other words, proving “reasonable possibility” should require less than a clear probability, or 51% chance, of being persecuted.
In fact, proving a “reasonable possibility” has the same level of difficulty as proving eligibility for asylum — that is, by showing a well-founded fear of persecution (which translates to something like a 10% chance of being persecuted). Thus, the standard of proof for “reasonable possibility” is necessarily higher than the standard of proof for credible fear interviews.
Spouses and Children Cannot Be Included in Reasonable Fear Interviews
Unlike the spouse or children of a noncitizen who is taking part in a credible fear interview, the spouse or child of a noncitizen who is taking part in a reasonable fear interview cannot be included in the process. This echoes the fact that beneficiaries of withholding of removal and CAT protection cannot petition for their family members to obtain any sort of derivative status.
Timing of Reasonable Fear Interviews
A reasonable fear interview must usually be conducted no later than ten days after DHS officially decides to remove its subject. Similarly, immigration judge reviews of reasonable fear decisions must be conducted within ten days of such decisions.
In contrast, credible fear interviews may be conducted at any time after 48 hours of detention by DHS, or sooner if the eligible noncitizen waives this waiting period. (This may be a good thing since it gives the interview subject more time to prepare, or a bad thing since it may also require him or her to wait while being detained.)
However, immigration judges must normally conduct credible fear reviews within 24 hours (or seven days at most) of credible fear determinations.
What Happens During a Reasonable Fear Interview
In terms of procedures (or in any regard not discussed above, for that matter), reasonable fear interviews and credible fear interviews are basically identical — except for small details.
For example: Both credible fear interview participants and reasonable fear interview participants must receive some information from DHS in advance of the interview, except that the former are given Form M-444, Information About Credible Fear Interview, while the latter are given Form M-488, Information About Reasonable Fear Interview.
Therefore, noncitizens who are preparing for a reasonable fear interview would also benefit from reading Nolo’s articles on credible fear screenings, “What Happens at a Credible Fear Interview” and “Preparing for Credible Fear Hearing Before an Immigration Judge.”