If you have a family member who attempted to enter the U.S. without documentation but was stopped at or near the border, and now hopes to apply for asylum, your family member may, as a last resort to avoiding being sent back, need to establish that he or she has a credible fear of returning to his or her home country.
People who are detained by the U.S. government shortly after attempting to enter the U.S. without having been inspected by an immigration officer must demonstrate a credible fear through a series of interviews before applying for asylum. If the person is unable to establish credible fear to asylum officers, he or she can request that the decision be reviewed by an Immigration Judge ("IJ"). This review by an IJ cannot be appealed, so it is imperative that the person seeking the judge's review be completely prepared.
For more information about credible fear interviews, see Nolo's article "What Happens at a Credible Fear Interview." This article will discuss how to best prepare for a credible fear hearing with an IJ.
Prior to the hearing, it is important to gather all evidence that would support a claim of credible fear of return. Although the person who wishes to apply for asylum will be held in detention, it is possible for that person to communicate with family and friends both in the U.S. and in the home country by telephone.
Family members and friends can obtain documents to support the claim, such as death certificates, police reports, news articles, or any other documentary evidence that will show why the detainee fears returning to his or her home country.
Be sure to make three copies of each document you plan to submit at the hearing. The detainee will use one copy, another will be given to the attorney representing the U.S. government, and another will be provided to the judge. If the detainee is working with an attorney, the attorney will know the proper procedures for submitting this evidence. A detainee who has no attorney can follow the immigration judge's instructions as to how to present the evidence at the hearing.
The U.S. government will provide the detainee with a copy of the transcripts of the credible fear interviews given at the U.S. border or point of entry. It is important to review these transcripts and become very familiar with the answers given. The attorneys representing the government will be watching closely for any statements in court that differ from those given in the interviews. Inconsistent testimony can lead to a negative decision by the IJ.
It is often the case that the detainee did not fully understand the question during the credible fear interviews. The detainee's answer to a particular question may be different now, when the person at last fully grasps the meaning of the question. If this happens, the detainee should answer the questions honestly, and then explain the reason why he or she answered differently during the credible fear interview.
The IJ will be watching very carefully to determine whether the detainee has a substantial likelihood of being successful on an application for asylum. Even if the judge finds that the detainee has been credible and in fact fears returning to his or her home country, the judge cannot allow the person to remain in the U.S. if the person does not qualify to apply for asylum. For more information about which persons qualify for protection under U.S. asylum law, see "Asylum or Refugee Status: Who is Eligible?"
After preparing the evidence, reviewing the interview transcripts, and making sure that the detainee would otherwise qualify for asylum, it is important to prepare and practice the testimony that the detainee will give in court. Drafting an outline of the important points that need to be made in court can be helpful.
If the detainee is working with an attorney, the attorney will prepare questions that will best present the detainee's story. If the detainee has no attorney, it is important to prepare an outline of the key points to be made, so that the detainee can communicate them to the IJ in an organized manner. This will help the IJ understand the facts of the case and will allow the judge to come to the right decision.
There is no appeal of the immigration judge's decision at a credible fear hearing. In technical terms, the hearing before the IJ is actually an appeal of the asylum officer's determination that the detainee did not establish credible fear.
At the hearing, the judge will review the asylum officer's decision and determine whether it was correct based on the facts. The asylum officers are well trained, and most decisions that are issued are reviewed by a second officer. This means that it is unlikely that the IJ will overturn the decision made by the asylum officer, unless you can present a convincing case. The best way to maximize the chances of success is to work with an attorney experienced in representing detainees in credible fear hearings before the Immigration Court.