In this week's Consulta Migratoria® column I answer a question from a reader who wants to know about the process of a credible fear interview.
Each case is different and the answers vary depending on the immigration history of each person. Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before beginning any process.
This is the column:
I have seen on television that many immigrants are showing up at the border to seek asylum in the U.S. because they are afraid to return to their home countries. What does immigration do with these people and what are the chances that they will win their cases? -Leticia S.
Leticia, when an immigrant presents him/herself at a U.S. border crossing point, a U.S. Customs and Border Protection (CBP) officer must determine several things, including whether the person is authorized to enter the U.S. legally or is subject to expedited removal.
If an immigrant who is subject to immediate removal expresses a desire to apply for asylum because he or she fears persecution or torture upon return to his or her home country, the CBP officer takes custody of the immigrant and generally refers the case to U.S. Immigration and Customs Enforcement (ICE). ICE, in turn, refers the case to the U.S. Citizenship and Immigration Services (USCIS) Office of Asylum for them to determine whether the person has a credible fear of returning to his or her home country.
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Credible fear interview process
While the immigrant is in ICE custody, they explain the credible fear interview process and are given a list of free or low-cost legal service providers.
The credible fear interview should not be conducted within the first 48 hours to allow the immigrant time to prepare. However, if the immigrant prefers, this waiting period may be waived.
During the credible fear interview, the asylum officer must determine whether the immigrant has a credible fear of persecution or torture.
How to demonstrate credible fear of persecution or torture
A credible fear of persecution is demonstrated when there is a "significant likelihood" that the immigrant can demonstrate at a hearing before an immigration judge that he or she has been a victim of persecution or has a well-founded fear that if returned to his or her country of origin he or she will be persecuted because of his or her race, religion, nationality, political opinion, or membership in a particular social group.
A credible fear of torture is demonstrated when there is a "significant likelihood" that the immigrant can demonstrate at a hearing before an immigration judge that he or she would be tortured if returned to his or her country of origin.
What happens if credible fear is demonstrated
If the asylum officer determines that the immigrant has a credible fear of persecution or torture, he or she will refer the case to an immigration judge to formally file his or her application for asylum and relief from removal. During this stage, the immigrant must demonstrate that he or she is eligible for the immigration benefit being sought.
What happens if credible fear is not demonstrated
If the asylum officer determines that the immigrant does not have a credible fear of persecution or torture, the individual may request a review of his or her case by an immigration judge. The judge may reverse the USCIS decision and allow the immigrant to file an application for asylum and relief from removal.
If the immigrant does not request review of the asylum officer's decision, or an immigration judge determines that the immigrant does not have a credible fear of persecution or torture, ICE will deport the immigrant from the US.
Unfortunately, the immigration judge's decision cannot be appealed if the judge determines that an immigrant does not have a credible fear of persecution or torture.
According to the most recent USCIS credible fear interview statistics for fiscal year 2014. (October 1, 2013 to September 30, 2014), USCIS has received 10,876 cases and interviewed 10,100 individuals. Of those interviewed, 8,794 cases have been approved and 1,238 have been denied.
It is not easy to be granted asylum or a waiver of removal. For example, according to the latest asylum statistics provided by the U.S. immigration court for fiscal year 2013. (October 1, 2012 to September 30, 2013), only 181 Salvadoran and 155 Mexican cases were approved. These two countries accounted for 3.38% of all asylum cases approved by the immigration court in FY 2013.
Each case is unique and must be evaluated objectively by the immigration authorities. It is of utmost importance that every immigrant seek the advice of an immigration attorney or representative accredited by the U.S. Government before traveling or filing any application for immigration benefits. Make sure that the person you consult has a valid license in the U.S. and experience in dealing with immigration matters.
For more information and immigration tips, read my blog inmigracionhoy.com.
Send your questions to firstname.lastname@example.org. Include detailed information about your situation to better answer your questions.
Nelson A. Castillo, Esq. is an immigration attorney and author of La Tarjeta Verde: Cómo Obtener la Residencia Permanente en los Estados Unidos (Green Card: How to Obtain Permanent Residence in the United States). He is a past President of the Hispanic National Bar Association and current President of the Los Angeles Westlake South Neighborhood Council. To contact Mr. Castillo's office, please call (213) 537-VISA (8472).