Credible Fear Screenings
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.
Overview:
Immigration and Nationality Act (INA) section 235(b)(1)(A) authorizes DHS to immediately remove certain noncitizens who DHS has determined to be inadmissible under INA sections 212(a)(6)(C) or 212(a)(7). This is known as expedited removal.
Categories of Aliens Subject to Expedited Removal Include:
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Arriving noncitizens coming or attempting to come into the United States at a port of entry or a noncitizen seeking transit through the United States at a port of entry.
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Noncitizens who are encountered in international or U.S. waters and brought to the United States by any means. This category does not include noncitizens interdicted at sea who are never brought to the United States.
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Noncitizens who have been paroled under INA section 212(d)(5) on or after April 1, 1997, are subject to expedited removal upon termination of their parole. This provision encompasses those noncitizens paroled for urgent humanitarian or significant public benefit reasons, including those paroled between May 1, 2000, and Oct. 29, 2000, under the Visa Waiver Pilot Program Contingency Plan. This category does not include noncitizens paroled into the United States before April 1, 1997, or those who return to the United States under a grant of advance parole obtained before their departure from the United States.
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Noncitizens who have arrived in the United States by sea (either by boat or by other means) who have not been admitted or paroled, and who have not been present in the United States for 2 years before the inadmissibility determination.
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Noncitizens who have been apprehended within 100 air miles of any U.S. international land border, who have not been admitted or paroled, and who have not established to the satisfaction of an immigration officer that they have been physically present in the U.S. continuously for the 14-day period immediately prior.
Exception for Noncitizens Seeking Asylum:
If you indicate an intention to apply for asylum, express a fear of persecution or torture, or express a fear of return to your country, you must be referred to an asylum officer for an interview to determine whether you have a credible fear of persecution or torture.
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 immigration judge (IJ) with the Department of Justice’s Executive Office for Immigration Review 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.
If you are found not to have a credible fear of persecution or torture, you may request that an IJ review the negative credible fear determination. If you do not request review by the IJ, or the IJ upholds the negative credible fear determination, you may be removed.
Noncitizens attempting to enter the United States at a land border port of entry with Canada must first establish eligibility for an exception to the Safe Third Country Agreement, through a Threshold Screening interview, in order to receive a credible fear interview. If they do not fall within an exception to the Safe Third Country Agreement, they may be returned to Canada without consideration of their request for asylum in the United States.
For more information, please see the Questions and Answers: Credible Fear Screening, Obtaining Asylum in the United States, and Asylum Merits Interview with USCIS: Processing After a Positive Credible Fear Determination pages.