Since the end of Title 42 on May 11, 2023 the laws at the US- MX border have changed. Now, asylum seekers are processed based on a different set of laws and regulations called Title 8.
An important part of Title 8 is a process called expedited removal. This process allows the US government to put people through a fast process to deport them if they do not appear to have a valid asylum claim. The first step in this process for people who say they are afraid to return home is called a credible fear interview (CFI) or reasonable fear interview (RFI).
What is a Credible Fear Interview (CFI)?
To get a credible fear interview (CFI), individuals need to express to US government officials that they are afraid to return to their home country. Individuals afraid to return to their home country should also say that they want to apply for asylum.
It is possible an officer will not ask directly if a person is afraid to return to their country of origin. Individuals should tell the officer asking for their name and information that they are afraid to return to their home country and that they are seeking asylum, as long as those things are true.
Expressing a fear of return should give people the possibility to have a credible or reasonable fear interview. This interview is a first step to try to apply for asylum in the United States. It will focus on information relevant to a person’s possible asylum claim.
Credible or reasonable fear interviews are conducted by a government official called an Asylum Officer. The CFI will not be video-taped or audio-recorded or shared with anyone outside of the U.S. government.
To be allowed to stay in the U.S. and apply for asylum before an immigration judge, a person must convince the officer that they have some likelihood of winning a claim for asylum. Generally speaking, people who enter the U.S. with an appointment have to show about a 10% chance of winning their asylum claim to be allowed to apply before a judge. With some exceptions, people who enter without an appointment or without permission between ports of entry on or after May 11, 2023 must show a higher chance of facing persecution or torture to be given the same opportunity.
As of May 2023, most single adults who speak Spanish, who entered the U.S. without permission, and who have credible fear interviews are having those interviews while they are detained in CBP custody. (Salvadorans should not have CFIs in CBP custody because of a lawsuit in the United States. Salvadorans should have their CFIs after being transferred to ICE custody.) These interviews are happening very quickly, within days. People waiting for credible fear interviews should receive a list of free lawyers from the U.S. government; it is strongly recommended that an individual calls a lawyer from that list for advice before their interview. Interviews in CBP custody are happening by phone.
Also as of May 2023, some families with children are being told to report for their interviews after they have reached their destination city in the U.S. This depends on the destination city. We strongly recommend contacting a lawyer before reporting for this interview if at all possible.
Reasonable Fear Interviews
People who are not eligible for asylum because they have been deported from the US before but who say they are afraid to return to their countries should still have an interview about their fears. This is called a reasonable fear interview. To be allowed to apply for protection from deportation, a person has to show a higher chance of ultimately proving they would be persecuted or tortured in their home country to be allowed to present their case to a judge in full immigration proceedings.
What Happens in the Interview?
There will be 3-5 parts to a credible fear interview, depending on how the person entered the country:
- Biographic questions such as age, country of origin, nationality, etc.
- Questions about why the person is afraid to return to their country and, sometimes, if the person is also afraid to return to Mexico
- Standard questions that all people are asked if they apply for status in the United States, such as if the person has ever committed a crime, harmed anyone, or are a terrorist
- If a person entered without an appointment at a port of entry, they should also be asked why they couldn’t use the CBPOne app.
If a person entered without an appointment at a port of entry or without permission between ports of entry, they should also be asked about exceptional circumstances that might still make them eligible for asylum. This may include:
- If they experienced a recent medical emergency or violence in Mexico
- If they were recently threatened with severe harm in Mexico
- Whether they are a victim of human trafficking
- If they applied for and were denied asylum in Mexico or another country on the way to the United States.
What Kinds of Fear Count and What Facts Are Relevant?
In order to be granted asylum, a person must establish that they have been persecuted or have a well-founded fear of being persecuted in their home country. Persecution includes physical harm, sexual abuse, or other types of harm. Based on the current laws in the United States, the asylum officer will assess if the harm a person suffered and/or will suffer in their country of origin is sufficient to allow the person to apply for asylum in the United States. For people from Venezuela, Cuba, Nicaragua, and Haiti, the asylum officer will also (or even instead) consider if the harm a person has suffered or will suffer in Mexico is sufficient to allow the person to apply for asylum or other protection against deportation in the United States.
In addition, persecution can’t just be because of general violence, general extortion, or poverty. It has to be because of a specific and unchangeable reason related to a person’s identity, such as their political opinion, nationality, race, religion, or membership in a particular social group. A particular social group can be defined, for example, by someone’s gender, sexual orientation, or their family group.
In addition to proving fear based on protected grounds, an asylum seeker has to show that their government is not able or willing to keep them safe.
Why Might an Officer Say a Person is Not Eligible for Asylum Even Though They Express Fear?
There are several reasons why an asylum seeker might receive a negative decision after their interview:
- Because their testimony is found not credible
- Because they officer believes the harm is not sufficient to be considered persecution
- Because the officer believes the harm is not related to a protected ground (“the why”)
Even if someone does not qualify for asylum, they might still qualify for other protection from deportation called “Withholding of Removal” or relief under the Convention Against Torture (CAT).
To be eligible for withholding, a person has to prove all the same things they have to show to qualify for asylum. [link to asylum #7]. They also have to show they would be more likely than not to suffer persecution if deported - whereas for asylum a person only has to show about a 10% chance of persecution. This is a higher standard than for asylum. Withholding of removal is for people ineligible for asylum. It means that although a person does not qualify for asylum, the U.S. government will not deport them. A person with withholding of removal can stay in the United States and work legally, but they cannot travel outside the US or get permanent residence.
To be eligible for relief under the Convention Against Torture (CAT), a person has to show they are more likely than not to experience harm serious enough to meet the definition of torture if deported. They also have to show the government in their home country would torture them or would intentionally ignore a private party torturing them. Unlike for asylum and withholding, for CAT relief people do not have to show the torture would be on account of a the five recognized grounds that apply in asylum and withholding decisions: race, religion, particular opinion, nationality, and particular social group.
Where Can I Learn More?
Ask for help from "Beporsed"
For those Afghans seeking specific information, "Beporsed" is here to help. You can reach our information center through WhatsApp (+93729807235), Facebook Messenger, or our website's Messenger to ask our online information desk officer for assistance.
For more information
For more information on immigration, resettlement, education and scholarship programs, and other opportunities available to Afghans worldwide, as well as details on the humanitarian services provided by international organizations in Afghanistan and procedures for obtaining civil documents from governmental institutions, please visit Beporsed's website and social media pages.