The article explains what happens after a credible fear interview (CFI) for asylum seekers entering the United States without inspection or an appointment. A positive decision means the person is found to be credible and likely to qualify for asylum or other relief from removal. A negative decision means the person did not meet the legal standard for asylum. If the asylum officer issues a negative decision, a person can request an immigration judge review, during which they can present new testimony, evidence, and arguments. The judge will either vacate or affirm the negative decision. If someone is not eligible for asylum, they might still qualify for withholding of removal or relief under the Convention Against Torture (CAT).
What happens after a Credible Fear Interview (CFI)?
A person who enters without inspection or an appointment and who tells US government officials that they are afraid of returning to their home country and wants to apply for asylum should receive a credible fear interview. During the credible fear interview, they will be asked about what they have experienced and are afraid of in their country (and for Haitians, Cubans, Nicaraguans, and Venezuelans what they have experienced and fear in Mexico). After the interview, the asylum officer who conducts the CFI will make a decision on the person’s case.
- A positive decision means the person is found to be credible, and that the asylum officer thinks that the person has met the legal standard to show they are likely to qualify for asylum or other relief from removal. Generally, a person will be released from detention after a positive outcome of their interview, but this depends on many factors. A person with a positive outcome still must apply for asylum within one year of the date of their arrival in the United States.
- A negative decision means the asylum officer does not think the person has met the legal standard to show they are likely to qualify for asylum or other relief from removal.
What Happens After a Positive Decision?
Generally, a person will be released from detention after a positive outcome of their interview, but this depends on many factors. A person with a positive outcome still must apply for asylum within one year of the date of their arrival in the United States.
Why Might Someone Receive a Negative Decision After a Credible Fear Interview?
There are several reasons why an asylum seeker might receive a negative decision after their interview. Here are some common reasons:
- Because their testimony is found not credible - the officer did not believe them;
- 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”).
What Happens After a Negative Decision?
If the asylum officer issues a negative decision, a person still has a right to to request an immigration judge to review this decision. A person can get an immigration judge to review the decision only by directly asking for it. People have a right to immigration judge review: if someone requests that a judge review the decision, the US government must provide that review.
People usually have a couple of days between when they are told about the negative decision and when they have to request the immigration judge review. The US Government should give people in custody a list of free lawyers they can call to ask for advice and even representation during the immigration judge’s review. If at all possible, people should connect with a lawyer before the immigration judge review.
If a person does not request immigration judge review after a negative credible fear finding, they will be deported quickly.
What Happens During Immigration Judge Review of a CFI?
The immigration judge reviews the negative credible fear decision to make a brand new decision about whether a person has shown the required chance of winning their asylum, withholding of removal, or CAT case. As of May 16, 2023, immigration judge review is happening over the phone. The immigration judge review is a short hearing, usually less than 30 minutes.
People have a right to an interpreter in their preferred language and whom they understand at the immigration judge review. If a person does not have an interpreter present who speaks their preferred language, they should make sure to tell the immigration judge that they need an interpreter and what language they prefer to speak. The judge must wait until the interpreter is present to begin the hearing.
People also have a right to a lawyer in the review. The government does not pay for an attorney for applicants, but if applicants with an attorney have a right to have them present. People who wish to speak with an attorney but have not been able to do so before their immigration judge review should tell the judge that they want to speak with a lawyer but have not been able to.
A person who wants to apply for asylum or other relief should be able to give new testimony before the judge, explain missing information or mistakes from the CFI, and/or make arguments about why the asylum officer’s negative decision was wrong. A person can also present new evidence (like newspaper articles or letters from friends or family who saw the harm they suffered) to the immigration judge during this review. A person can submit testimony orally (by talking), or they can write down their testimony if they are able to get a pen and paper. Some people who feel nervous in front of the judge prefer to write things down to make sure they share as much detail about the harm they suffered and why they suffered it. The most important thing is to tell the truth to the immigration judge. It is also important to explain anything that went wrong during the Credible Fear Interview. This can include things like not feeling well, not being able to understand the interpreter, not feeling comfortable sharing sensitive information with the officer, not understanding the questions the officer asked, or similar things.
What Happens After the Immigration Judge Review?
After reviewing, the judge will either:
“vacate” the Asylum Office’s decision (disagree with the negative finding).
- If the judge disagrees with the asylum officer’s negative decision, that means the judge thinks the person has met the legal standard to show they are likely to qualify for asylum or other relief from removal. Generally, a person will be released from detention after a judge vacates the initial negative decision, but this depends on many factors. A person with a positive immigration judge decision still must apply for asylum before one year has passed since they entered the United States.
“affirm” the Asylum Office’s decision (agree with the negative finding).
If the judge agrees with the negative decision, the asylum seeker usually has the right to submit a Request for Reconsideration to the Asylum Office within 7 days of the judge’s decision.
- However, people who are not from Mexico, who entered the US on or after May 11, 2023 without applying for and being denied asylum in another country, and who did not enter with an appointment at the border are not allowed to submit RFRs, unless they show certain exceptional circumstances. More detail about exceptions to the requirement for an appointment is available on this page.
- On July 25, 2023, a judge in the United States ordered the asylum rule that says that people who entered after May 11 without an appointment cannot submit an RFR is unlawful. New policies are expected on or before August 8. This page will be updated when new policies are announced.
- If the judge agrees with the negative decision, the asylum seeker usually has the right to submit a Request for Reconsideration to the Asylum Office within 7 days of the judge’s decision.
What Happens if a Person Is Not Eligible for Asylum?
Even if someone does not qualify for asylum, they might still qualify for another immigration benefit called “Withholding of Removal.” 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. This means showing that they have at least a 51% chance of suffering persecution. This is different than qualifying for asylum, which only requires a person to show about a 10% chance of persecution.
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. This benefit can only be granted by an Immigration Judge.
A person who is ineligible for asylum can also apply for relief under the Convention Against Torture (CAT). To be eligible, 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.
If a person is not eligible for asylum, withholding, or CAT relief, they will be deported quickly.
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