WARNING: The Trump administration, citing coronavirus (COVID-19) concerns, is allowing border agents to “expel” anyone who is apprehended between ports of entry at the U.S. border or who arrives at a port of entry without valid documents, even without conducting the credible fear screening that the law requires. The order will last at least through May 20, 2020. Even before the pandemic began, proposed changes by the Trump Administration sought to deny applicants for asylum at a U.S. border the credible fear interview that could lead to asylum. See Asylum Ban 2.0. The matter is currently in litigation. The below describes how the process normally occurs, or occurred.
Many noncitizens of the U.S., particularly from south of the border, attempt to enter the U.S. without documentation (a visa or green card) or by using false documentation. The law requires that they be placed in a deportation process called “expedited removal,” according to which they will be sent home without a hearing—unless they request asylum. In response to the large number of these asylum requests, the U.S. Department of Homeland Security (DHS) has implemented an interview process known as credible fear screening.
The idea behind a credible fear interview is that noncitizens can, instead of being sent straight home, apply for asylum or withholding of removal if they are able to establish a credible (believable) fear of persecution or torture if returned to their home country. But they need to get past this initial screening in order to actually present their full asylum case to an immigration judge for approval or denial.
When a Custom and Border Protection (CBP) officer detains a noncitizen for not having the required immigration documents or for attempting to commit fraud to enter the U.S., CBP will ask whether the person has a fear of returning to his or her home country. A person who says “no” will be removed from the United States. If the person expresses a fear of persecution or torture, CBP officers will set up a credible fear interview with an asylum officer.
The detainee should be given at least 48 hours to prepare for the interview unless he or she waives (gives up the right to) the waiting period. In most situations, the person must wait days or even weeks in detention before the interview will take place.
The asylum officer who conducts the interview will receive notes about the date the person being interviewed entered the U.S., the place of entry into the U.S., and whether the person initially claimed fear of persecution or torture.
It is important for the person being interviewed to keep detailed notes about his or her story and to be consistent in his or her testimony throughout the entire process. Few applicants have documentation or other proof of their claim, so the quality of their own testimony becomes crucial.
At the interview, the asylum officer will ask questions, either in person or via telephonic or satellite communication. An interpreter will be present to translate the questions into the detainee’s native language.
The first set of questions will be about the detainee’s background information including the person’s birthdate, home country, and whether the person has any family ties in the United States. The next series of questions is about the detainee’s fear of return to the home country. When the detainee gives a reason for fear, the interviewer will ask a series of follow-up questions about that fear.
The interviewer then asks a very important set of questions about why the detainee is being persecuted. The interviewer asks whether the detainee has ever been threatened or harmed due to race or ethnicity, religion, nationality, political opinion, or because the person belongs to a specific social group. This is a critical point in the interview, because if the fear is not related to one of these categories, the detainee’s asylum case will likely fail. What’s more, if the detainee answers “no” to each of these questions or changes aspects of his or her answer in subsequent interviews or hearings, such inconsistencies will be used to discredit the entire story.
Next, the interviewer will ask a series of questions about whether the interviewee has faced torture or mistreatment by government officials. Then the interviewer will ask about situations that would bar the detainee from applying for asylum, including whether the detainee has ever persecuted other people, committed a crime in another country, or associated with terrorists or a group accused of using violence.
Lastly, the interviewer will give a brief summary statement and ask whether the applicant has anything he or she would like to add.
After the interview, the officer will decide whether the applicant has demonstrated a credible fear of persecution or torture in the applicant’s home country. The standard used is whether the detainee has demonstrated a “significant possibility” of being able to prove to the satisfaction of an immigration judge that the detainee would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion if returned to his or her home country.
After the interview is complete, the interviewer will decide whether the detainee has a credible fear or not. The interviewer will provide a written decision and a transcript of the interview to the detainee.
A detainee who has established a credible fear of persecution will be allowed to apply for asylum, either while in detention or after having been released on a bond. A detainee who has not established a credible fear can request a review of this decision in a hearing by an immigration judge as a last effort to avoid being removed from the country.
Preparation for the credible fear screening process is critical. First, try not to hold back when discussing the details of your case with government agents. You may have come from a country where you cannot trust law enforcement. But interviewers and DHS attorneys may seek to discredit your story if later you begin to add important details that you failed to include in your first interview.
Second, keep detailed notes about your experiences and fear of return. These will help you remember the dates and other details and be consistent each time you tell your story.
Lastly, if possible, contact a local attorney prior to your credible fear interview for help preparing for the interview process. Although finding an attorney while detained can be a challenge, you can use the list of free legal services that the government provides, contact family members and ask them to find an attorney who can reach you at the detention center, or ask other detainees about their legal counsel and how to contact them.