Questions and Answers: Credible Fear Screening
ALERT: Court Order on Circumvention of Lawful Pathways Final Rule
On Aug. 3, 2023, the U.S. Court of Appeals for the Ninth Circuit issued a stay of the U.S. District Court for the Northern District of California’s order in East Bay Sanctuary Covenant v. Biden, 18-cv-06810 (N.D. Cal.), vacating the Circumvention of Lawful Pathways (CLP) rule. At this time and while the stay remains in place, USCIS will continue to apply the CLP rule.
Under the rule, certain individuals who enter the United States through its southwest land border or adjacent coastal borders are presumed to be ineligible for asylum, unless they can demonstrate an exception to the rule or rebut the presumption. Individuals are encouraged to use lawful, safe, and orderly pathways to come to the United States.
Individuals Seeking Asylum
If you are in expedited removal proceedings and are found to have a credible fear of persecution or torture, you may seek asylum before an asylum officer with USCIS or an Immigration Judge (IJ) with the Department of Justice, Executive Office for Immigration Review.
If an asylum officer does not find that you have a credible fear of persecution or torture, you may request that an IJ review that determination. If you do not request review by the IJ, or the IJ agrees with the negative credible fear determination, U.S. Immigration and Customs Enforcement (ICE) may remove you from the United States.
For more information, see the Obtaining Asylum in the United States and Asylum Merits Interview with USCIS: Processing After a Positive Credible Fear Determination pages.
Q. Why Will Asylum Officers Conduct Credible Fear Interviews?
A. Asylum officers conduct interviews when you are subject to expedited removal and you tell U.S. Customs and Border Protection (CBP) or ICE:
- You intend to apply for asylum
- You fear persecution or torture; or
- You fear returning to your country.
If you say you intend to apply for asylum, fear persecution or torture, or fear return, the Department of Homeland Security (DHS) will provide you information about the credible fear process. DHS may detain you during the credible fear process.
You will receive:
- An orientation to the credible fear process;
- A list of free or low cost legal service providers;
- A waiting period of at least 24 hours after your arrival at a detention site before taking part in the interview; and
- The opportunity to waive the 24-hour waiting period.
If you are arriving from Canada, we will decide if you must seek protection in Canada instead of the United States. More information about this process can be found on the U.S. - Canada Safe Third Country Agreement page.
Q. What is a Credible Fear of Persecution?
A. A credible fear of persecution is a “significant possibility” that you can establish in an Asylum Merits Interview before an asylum officer or in proceedings before an IJ, that you have been persecuted or have a well-founded fear of persecution on account of your race, religion, nationality, membership in a particular social group, or political opinion if returned to your country.
Q.; What Is a Credible Fear of Torture?
A. A credible fear of torture is a “significant possibility” that you can establish in an Asylum Merits Interview before an asylum officer or in proceedings before an IJ, that it is more likely than not that you would be subject to torture if returned to your country.
Q. Are There Any Mandatory Bars to Establishing a Credible Fear of Persecution or Torture?
A. No. There are no mandatory bars to establishing a credible fear or persecution or torture. However, there are mandatory bars to asylum and withholding of removal. An asylum officer does not make a final decision whether you are subject to a mandatory bar to asylum or withholding of removal in the credible fear determination process. An asylum officer will note in their credible fear decision that a mandatory bar to asylum or withholding of removal may apply in a subsequent Asylum Merits Interview before an asylum officer or in immigration proceedings before an IJ.
You may not be granted asylum or withholding of removal if:
- You have persecuted others on account of race, religion, nationality, membership in a particular social group, or political opinion;
- You have been convicted of a particularly serious crime;
- There are serious reasons for believing you committed a serious nonpolitical crime outside the United States;
- You have engaged in terrorist activity, are likely to engage in terrorist activity, have incited terrorist activity, or are a member or representative of a terrorist organization;
- You were firmly resettled; or
- There are reasonable grounds to believe that you are a danger to the security of the United States.
See Immigration and Nationality Act (INA) sections 208(b)(2)(A) and 241(b)(3)(B) and 8 CFR 208.16(d). If a mandatory bar applies, but you establish that it is more likely than not that you would be tortured if removed to the country of proposed removal, the IJ will grant you deferral of removal. See 8 CFR 208.17.
Q. What Will Happen if an Asylum Officer Finds I Have a Credible Fear?
A. If an asylum officer finds that you have a credible fear of persecution or torture, USCIS may either:
- Retain and consider your application for asylum and also consider your eligibility for withholding of removal and protection under the Convention Against Torture (CAT) in a second interview. This is known as an Asylum Merits Interview. An asylum officer will decide whether you are eligible for asylum. If necessary, an asylum officer will also determine whether you demonstrated eligibility for withholding of removal or protection under CAT based on the record before USCIS; or
- Issue a Notice to Appear before an IJ for consideration of your asylum, withholding of removal, and CAT protection claims. When you file Form I-589, Application for Asylum and for Withholding of Removal, with the immigration court, it places you in the “defensive” asylum process.
For more information, see the Obtaining Asylum in the United States and Asylum Merits Interview with USCIS: Processing After a Positive Credible Fear Determination pages.
Q. What Will Happen if USCIS Retains my Asylum Application After an Asylum Officer Finds I Have a Credible Fear?
A. The written record of your positive credible fear determination will be treated as your application for asylum. Therefore, you do not need to file Form I-589, Application for Asylum and for Withholding of Removal.
You will be scheduled for a non-adversarial Asylum Merits Interview with an asylum officer to establish that you are eligible for asylum. At your Asylum Merits Interview, an asylum officer will consider whether you are barred from a grant of asylum. If necessary, an asylum officer will also determine whether you demonstrated eligibility for withholding of removal or protection under CAT based on the record before USCIS.
For more information, see the Obtaining Asylum in the United States and Asylum Merits Interview with USCIS: Processing After a Positive Credible Fear Determination pages.
Q. What Will Happen if I Receive a Notice to Appear Before the Immigration Judge After an Asylum Officer Finds I Have a Credible Fear?
A. You may apply for asylum, withholding of removal, or protection under CAT before the IJ by filing Form I-589. The burden of proof is on you to establish that you are eligible for asylum or other protection in the United States.
The IJ will consider whether you are barred from a grant of asylum or withholding of removal. If a bar applies, but you established that you would be tortured in the country of return, the IJ will grant deferral of removal.
Q. What Will Happen if an Asylum Officer Does Not Find a Credible Fear?
A. If an asylum officer finds you do not have a credible fear of persecution or torture, you can request review by an IJ. If you do not request a review of the negative determination, or if an IJ affirms the negative credible fear determination, ICE may remove you from the United States. Generally, there is no review of the IJ’s determination that you do not have a credible fear of persecution or torture.
If an IJ finds that you have a credible fear of persecution or torture and vacates the asylum officer’s negative credible fear determination:
- Your case may be referred back to and accepted by USCIS for an Asylum Merits Interview; or
- You may be issued a Notice to Appear before an IJ for consideration of your asylum, withholding of removal, and CAT protection claims.
For more information, see the Obtaining Asylum in the United States and Asylum Merits Interview with USCIS: Processing After a Positive Credible Fear Determination pages.