If you have a loved one who turns themselves in at the border, who surrenders to an ICE officer after crossing, or who attempts to enter illegally, they will be asked if they have a fear of returning to their native countries. If they say yes, they will be detained and given a credible fear interview. The credible fear interview determines whether an intending asylum immigrant entering without a visa will be able to remain in the United States or if he or she will be deported. After the interview is over, the officer will give the immigrant a written report of the encounter and the officer’s findings. If the immigrant does not pass the interview, he or she may never be able to apply for asylum and will not be able to appeal the credible fear decision or have a full hearing about the decision, despite the fact that there is a limited review of it by an immigration judge upon request. Once damage is done with a poor interview, it may not be possible to remedy the situation, so it is best to retain an attorney as soon as you know the immigrant was detained, if possible.
If you have a loved one who was recently detained after crossing the U.S. border, this is what they need to know:
1. The credible fear interview process applies only to those coming into the United States without a visa, whether they came in illegally or presented themselves to a border port of entry. The immigrant will have fewer rights than other immigrants, even those other immigrants who entered illegally but who were not detained at the border. For example, they will not have a bond hearing unless they pass the interview.
2. It applies only to those who express a fear of return to their native country. It is not possible for the immigrant to apply for any type of immigration status other than asylum or withholding of removal, and you can only apply if you pass the interview.
3. Currently, the credible fear interview is to take place the day after an intending asylee immigrant is placed in a detention center. This does not provide time for the immigrant to prepare or to talk to an attorney beforehand, in most cases. However, the immigrant is entitled to legal representation during the interview if they retain or know they will retain an attorney. The immigrant will be asked if they have an attorney, and if they do, the immigrant will be asked if they are willing to proceed without the attorney. If the immigrant wants the attorney to be present, the asylum officer will call the attorney on the telephone and the attorney will be able to listen to all the questions and answers. This could be useful because the written report is not a transcript and will not contain everything said. The attorney may also be allowed to ask more questions at the end of the interview, if it would be helpful to the immigrant’s case. If the immigrant has an attorney or will hire an attorney, the immigrant should tell the officer he does not want to be interviewed without his lawyer to ensure that the attorney can prepare him or her first. The asylum officer will then contact the attorney’s office to schedule a time for the next interview date.
4. The credible fear interview is handled by U.S. asylum officers, but it is not an application for asylum, and passing does not give any automatic entitlement to release, a work permit, asylum, or withholding of removal. If the immigrant turned himself or herself in at the border (the right thing to do), he or she will be classified as an “arriving alien” and a judge will not have jurisdiction to grant bond. In that case, the immigrant will most likely need to defend his or her future case while detained, assuming he or she passed the credible fear interview.
5. The purpose of the credible fear interview is twofold: 1) to determine whether the immigrant is likely telling the truth; and 2) whether the facts within the immigrant’s description of what happened to him or her prior to coming to the United States state a legal case for asylum or withholding of removal.
- It is very important the immigrant tells the truth when speaking to the asylum officer. If he or she deliberately does not tell the truth, the immigrant is committing a felony under U.S. law and must disclose that he or she committed a crime on the asylum application. An asylum officer may not believe the immigrant is telling the truth if the immigrant appears to change his or her story during the interview, states details that are not consistent with each other, or if he or she states facts that are not supported by other independent country condition evidence.
- A person may have a genuine, credible fear of return to his or her native country and not have a legal case for asylum or withholding of removal. For example, if the person is coming to find a job or to escape poverty, he or she will not have a case. It is also more difficult to show that you would qualify for asylum if you are fleeing extortion by gang members, without other certain factors being involved.
6. Tell the whole story. It is very important the immigrant tells the asylum officer everything important about what caused him or her to flee the native country. If the immigrant adds details later, he or she will likely be questioned as to why he or she did not provide the asylum officer with the information from the beginning. The more serious the detail, the more important it is to tell the asylum officer from the start. For example, if an immigrant was beaten and raped, she should not just tell the officer she was beaten. She needs to tell the officer about the rape as well. The asylum officer will also normally ask the immigrant if he or she wants to add anything to what was said during the interview, and will summarize what was discussed at the end to ensure that the details are complete. It is best for the intending immigrant to write out the entire story of what happened before the interview for practice to ensure he or she will remember everything.
7. The devil is in the details. The asylum officer will expect the immigrant to remember the dates of when they were persecuted, the number of occasions persecuted, the names of the persecutors (or at least a good description), the complete injuries sustained if the persecution was physical, the name of the hospital they went to, etc. If the immigrant gets confused about these things during the interview, or provides vague details, the asylum officer may decide the immigrant is not credible.
8. Bring evidence. If possible, the immigrant should bring copies of police reports, hospital records, sworn statements from witnesses, or any other evidence to support his or her case and review them before the interview. This will also help the immigrant be consistent in terms of what he or she tells the asylum officer. If the immigrant ends up being mistaken about these things when he or she talks to the asylum officer, it could cause problems later.
9. Understand the basis for the asylum case, to the extent possible. At the end of every interview, the officer will ask in separate questions if the reason for persecution was on account of race, nationality, religion, political opinion, or membership in a particular social group. These are the grounds for asylum. If the persecution experienced is not due to one of these grounds, the immigrant will not have a case. However, the term “particular social group” is confusing, and even if the asylum officer tries to simplify and describe it as “special group” or something of that nature, the immigrant may not know what the officer is talking about. For example, a family can be a particular social group, and so can a gender or a sexual orientation. If the immigrant is claiming to be eligible for asylum because of persecution for one of those types of things, he or she should answer “yes” to the question of whether persecuted because of particular social group membership.
10. Check the report for accuracy. If the immigrant receives the report and realizes it is not complete, or that it is somehow not correct, he or she needs to disclose this to the attorney or put it on the asylum application and explain the problem with the report.