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What If the Foreign National Is Afraid to Return to His or Her Home Country?


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If a foreign national expresses a fear of return to the CBP or ICE officer, he or she must be given an interview by an asylum officer. If the person is subject to expedited removal, this will be a “credible fear” interview; if the person is subject to administrative removal or reinstatement of removal, this will be a “reasonable fear” interview.14 These two interviews differ in their burdens of proof and the ultimate relief available. In a credible fear interview, the foreign national must demonstrate a “significant possibility” that he or she would be eligible for asylum. In a reasonable fear interview, the foreign national must demonstrate a “reasonable possibility” of demonstrating eligibility for withholding of removal or protection under the Convention Against Torture. The language of these standards is deceiving; given the higher burden of proof for withholding of removal, the standard of a reasonable fear interview is actually higher than that of a credible fear interview.

After a credible fear interview, if a credible fear is found, a Notice to Appear will be issued to the foreign national and served on the immigration court, initiating removal proceedings pursuant to §240 of the INA. After a reasonable fear interview, if a reasonable fear is found, then the foreign national will be placed in withholding-only proceedings. There, he or she may apply for withholding of removal or protection under the Convention Against Torture (CAT) only; no other relief is available. If no fear is found, the foreign national may seek review of the determination before an IJ. The
foreign national will continue to be detained while awaiting review. EOIR is required by statute to schedule credible fear reviews within seven days of the asylum officer’s determination, and reasonable fear reviews within ten days.

Review is substantially similar for both types of interviews. The review is not an adversarial proceeding, and an ICE attorney will generally not be present; if present, the ICE attorney will not participate. The standard of review is de novo. The judge should receive from the agency the asylum officer’s summary of facts, the officer’s notes, copies of the documents the foreign national submitted, and a form indicating why the officer determined the foreign national did not demonstrate a credible fear. Judges may receive additional evidence during the review, whether oral or documentary. The applicant does not have the right to representation at the hearing, and participation of counsel is in the discretion of the IJ.

If the judge overturns the determination of the asylum officer and determines a credible fear exists, the appropriate proceedings will be initiated—removal proceedings for a credible fear, and withholding-only proceedings for a reasonable fear. If the judge upholds the finding, no further review is available, and ICE or CBP will be notified of the determination. No appeal of the judge’s determination is available.

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