Thousands of people from other countries arrive at the border to apply for asylum each year. Asylum, sometimes known as "political asylum," is a protection against deportation granted to certain foreign nationals who can prove that they would be persecuted if they were returned to their home countries. In addition to asylum, asylum-seekers at the border are eligible to apply for two other protections--Withholding of Removal and Convention Against Torture (CAT). Individuals who win asylum are later eligible to apply for lawful permanent residency, which allows noncitizens to eventually apply for citizenship through the naturalization process. Those who do not receive asylum, but are instead granted Withholding of Removal or Convention Against Torture (CAT) protection, are able to remain in the United States, and normally are allowed to receive work permits.
What Happens to Asylum Seekers at the U.S. Border?
Asylum seekers are subject to expedited removal, which is an accelerated process that allows the Department of Homeland Security to perform rapid deportations. All asylum seekers are subject to expedited removal, regardless of whether they present themselves to immigration officials at a port of entry, or they are apprehended somewhere else near the border. Asylum seekers who have previously been removed from the United States because they received formal deportation orders are subject to reinstatement of removal.
People subject to expedited removal or reinstatement of removal are normally processed for rapid deportation. However, if someone in either of these situations expresses a fear of returning to their countries, their rapid deportations are suspended. Those subject to expedited removal are detained and will receive credible fear interviews. On the other hand, those subject to reinstatement of removal are detained and will receive reasonable fear interviews.
What Are Credible and Reasonable Fear Interviews?
There is not much difference between credible fear and reasonable fear interviews. The purpose of each interview is to determine whether the person asking for asylum actually has a story that is believable, and also whether the circumstances of the story rise to the legal level required to apply for asylum, withholding of removal, or the Convention Against Torture. Credible and reasonable fear interviews are conducted by asylum officers. People in credible fear proceedings must prove to the asylum officer that they have a "significant possibility" of establishing eligibility for asylum (or Withholding of Removal or CAT). People in reasonable fear proceedings must prove to the asylum officer that there is a "reasonable possibility" that he or she will be tortured in their home country, or persecuted for very specific and limited reasons. Although credible and reasonable fear interviews are similar, the reasonable fear legal standard is higher.
What Do Asylum Seekers Need to Do to Receive Positive Credible and Reasonable Fear Determinations?
The United States government has recently enacted changes that make it more difficult for asylum seekers to receive positive credible and reasonable fear determinations. Asylum seekers, like other people in other legal proceedings, must prove their cases with evidence. There are generally two forms of evidence. The first type of evidence is testimony, or statements by people who have knowledge of relevant events. For example, in asylum cases, the individuals seeking asylum always present their testimony--their statements about what happened in their home countries, what caused them to leave, and why they are afraid to return.
The second kind of evidence is documentary evidence, which can consist of police reports, letters or notes (or even audio recordings or voice mail messages) of threats to the asylum seeker, or news articles documenting threatening events or individuals connected to the asylum seekers' case. In the past, it was well understood that most asylum seekers, at the time they arrive at the border, will likely have no documents or materials to support their stories. This is because they often have fled their homes in terror, merely hoping to escape with their lives. They normally have not had sufficient time or resources to gather documentary evidence in support of their asylum claims.
The new changes place much more emphasis on requiring asylum seekers to prove that they have credible stories at the time of their fear interviews. This means that asylum seekers must try harder to gather some corroborating evidence of their claims, or provide much more convincing and persuasive testimony in the absence of any independent, corroborating evidence. For that reason, those asylum seekers who can use qualified immigration lawyers to assist in the preparation of their case prior to the credible or reasonable fear interview will normally have greater odds of success at their interviews.
How Long Do Asylum Seekers Have to Wait to Receive Credible or Reasonable Fear Interviews?
The answer to this question depends where asylum seekers cross the border. Under 8 U.S.C. Sec. 1325, it is a crime for any noncitizen to enter (or even to "attempt" to enter) the United States anywhere other than a designated entry point, or "port of entry" or "POE." Therefore, in order for asylum seekers to avoid exposure to criminal prosecution for illegal entry to the United States, they must seek asylum at a port of entry along the border. While many asylum seekers follow the proper procedure by applying for asylum at a port of entry, many asylum seekers continue to illegally cross the border. When they are apprehended by Customs and Border Protection, there are two possibilities. First, they may be criminally charged with illegal entry (a misdemeanor) or illegal reentry (a felony) and, only after they finish their criminal cases, further detained by Immigration and Customs Enforcement (ICE) to await their credible or reasonable fear interviews. Second, they may not be prosecuted, and simply detained by ICE to await their interviews in an immigration detention center.
In the past, asylum seekers who arrived at a POE were typically transported directly to an ICE detention center to await their credible or reasonable fear interviews. The interviews have historically taken anywhere between 2 weeks and 2 months to complete, depending on the Asylum Office's staffing resources. However, since April 2018, Customs and Border Protection has been using a policy called "metering" at the ports of entry. Metering is a process that limits the number of people who can request asylum at a U.S.-Mexico border port of entry each day. Asylum seekers who approach a port of entry are told turn around and to go to a designated location to put their names on a waitlist. As of June 2019, there were reports that as many as 19,000 asylum seekers were waiting on the Mexican side o of the border for their chance to simply ask for a credible or reasonable fear interview, and that they were waiting for anywhere between 2 weeks and 2 months for their opportunity to speak with immigration officials to request asylum-based relief. For those who apply for asylum at a port of entry, the credible or reasonable fear interview may take place at or near the border, or they may be transferred to an ICE detention facility in the interior of the U.S. to await their interviews.
What Recent Changes in Immigration Law Affect Asylum Seekers' Fear Claims?
The two biggest changes affecting asylum claims are both cases that were issued by the Attorney General of the United States. The first decision, Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), essentially eliminated eligibility for asylum and Withholding of Removal for individuals claiming fear due to domestic abuse or gang violence in their home countries. The second decision, Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019), has the practical effect of eliminating asylum and Withholding of Removal eligibility for individuals' whose claims of fear are based on the fact that their relationships and associations with family members place them at risk in their countries of origin. This is, unfortunately, a very common occurrence.
That being said, neither of these two changes eliminates asylum seekers' eligibility for relief under the Convention Against Torture (CAT). This is very important to remember. Asylum officers and immigration judges must always consider CAT claims, even if they conclude asylum seekers are ineligible for asylum or Withholding of Removal. In practice, we see many asylum seekers who claim fear based on domestic abuse, gang violence, or family affiliation who nevertheless receive positive credible or reasonable fear determinations precisely because they nevertheless qualify for CAT protection.
More importantly, there is good reason to believe that, in the future, these recent changes will be reversed, and the old law will be reinstated. This could happen when one of the federal appeals' courts, called "circuit courts," strikes down either of these two cases. It could also happen if President Trump is defeated in the 2020 election. If a new president is elected, he or she will appoint a new Attorney General, who is likely to withdraw these decisions. Either way, there is reason to believe that sometime between now and mid-year 2021 these new decisions will be overturned.
If Matter of A-B- and Matter of L-E-A- are overturned, those individuals whose cases are on appeal, at least in part, because they were declared to be ineligible for asylum, will likely receive a "remand." This means that they will likely be able to receive a new court hearing with an immigration judge and have their asylum applications considered by an immigration judge.
What Happens After the Credible or Reasonable Fear Interview?
After the credible or reasonable fear interview, the asylum officer will take some time to consider the evidence that she collected during the interview process. Again, this evidence may consist of nothing more than the applicant's testimony. But if the applicant, on her own or through her attorney, submitted other documentary evidence, then the asylum officer is obligated to consider that information as well. An asylum officer can render a decision within a few days, or it may take a few weeks. Sometimes an asylum officer will convene a second, shorter interview in an attempt to gather some additional evidence (testimony) from the applicant in order to clarify certain facts.
If the asylum officer returns a positive determination, the asylum seeker is allowed to start formal removal proceedings with an immigration judge in the immigration court. The process of applying for asylum with an immigration judge is much longer. If the asylum seeker remains detained, the process will normally last between 4-8 months.
The process is more complicated for those who receive negative determinations. Negative credible and reasonable fear determinations can be appealed for review by an immigration judge. Immigration judges have the discretion, after reviewing all of the documents in the asylum officer's record, and also after receiving any additional evidence presented by the asylum seeker or her attorney, to either uphold or reverse the asylum officer's negative determination. If the negative determination is reversed then the asylum seeker receives a hearing with an immigration judge to begin the formal asylum application process in removal proceedings. Those with previous deportation orders begin "withholding only" proceedings.
If the immigration judge upholds the negative determination, the asylum seeker is typically processed for deportation. However, there are some additional options. First, it is possible, after the immigration judge upholds the negative determination, to ask the Asylum Office to review the immigration judge's decision. Under federal regulations, the Asylum Office can either reconsider the negative determination, or provide a new interview if there is "compelling new information concerning the case." It is typically advisable to prepare and file an application for stay of removal with ICE while Asylum Office review is being requested at this stage, to provide the asylum seeker with the most protection against sudden deportation.
The second option for asylum seekers who do not prevail at an immigration judge review hearing of a negative credible or reasonable fear determination is to seek review in a federal court. When an immigration judge upholds a negative credible fear determination, an asylum seeker in Arizona can file a petition for review with the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"). The Ninth Circuit charges a filing fee of $500 but, upon filing the petition, the Ninth Circuit will also impose an automatic stay of removal which will protect the asylum seeker from being deported unless and until his or her petition for review is denied.
Unfortunately, under existing immigration law, an asylum seeker cannot file a petition for review with the Ninth Circuit when an immigration judge upholds a negative reasonable fear determination. Instead, the asylum seeker must file a petition for writ of habeas corpus with the U.S. District Court in Arizona, which will normally be assigned to the federal court in Phoenix. Filing a "habeas" petition will also allow the asylum seeker to ask for a temporary restraining order or a preliminary injunction, which can halt the deportation of the foreign national until the federal judge has made a ruling on the habeas petition. If the habeas petition is granted, the asylum seeker is likewise granted the opportunity to fight for asylum-based relief in the immigration court. If the habeas petition is denied, the asylum seeker can then file a petition for review with the Ninth Circuit.
Are Asylum Seekers Allowed to Be Released from Detention After They Receive Positive Credible or Reasonable Fear Determinations?
The answer to this question is complicated, especially because the immigration laws in this area have been constantly changing. Currently, for the purpose of detention, the law treats asylum seekers differently, and divides them into three classes of individuals.
1. Asylum seekers with prior deportation orders. Asylum seekers with prior deportation orders who pass their reasonable fear interviews are subject to "mandatory detention," which means that an immigration judge typically has no legal authority to order their release from detention. However, thanks to a class action lawsuit called Aleman Gonzalez v. Barr, this group of asylum seekers in Arizona is guaranteed the right to receive a bond hearing by an immigration judge after they have spent 180 days in immigration detention. Green | Evans-Schroeder (formerly Law Offices of Matthew H. Green) is proud to play its part as class counsel in this important lawsuit.
2. Asylum seekers without prior deportations who are apprehended away from a port of entry. If an asylum seeker is apprehended by Border Patrol after making an illegal entry into the United States, so long as they are not prosecuted with a crime, they are currently eligible to receive bond hearings after they receive positive credible fear determinations. This rule is the result of a class action lawsuit called Padilla v. ICE in the U.S. District Court for the Western District of Washington.
3. Asylum seekers without prior deportations who arrive at a port of entry. Asylum seekers who have never received prior deportation orders who request asylum at a port of entry are considered to be "arriving aliens" who are subject to "mandatory detention." CBP, ICE, and the immigration judges all consider this group of asylum seekers to be ineligible for release on bond at any time during their legal proceedings. The only exception recognized by these government agencies is that CBP or ICE may, in their discretion, decide to release certain asylum seekers on "parole." For example, when families arrive at the borders, CBP still frequently releases young children and their mothers on parole before they even have their credible fear interviews. However, for those who are detained for credible fear interviews, it is very rare for ICE to grant requests for release on parole, even after asylum seekers pass their credible fear interviews.
There are, however, valid legal arguments that depriving this category of asylum seekers from receiving bond hearings after being detained for 180 days is unconstitutional. In order to assert these rights, however, asylum seekers must file petitions for habeas corpus in the U.S. District Court. Green | Evans-Schroeder is proud to have earned the reputation of being the leading immigration law firm in Arizona that litigates and wins habeas petitions. In 2019 and 2020, we intend to continue exercising leadership in this area by litigating additional habeas petitions in the Arizona District Court for this category of asylum seekers, with the expectation that they will also be afforded bond hearings after 180 days of detention.
What Do Asylum Seekers Need to Do Win Their Asylum, Withholding of Removal, or CAT Cases?
For the reasons explained above, fighting and winning asylum-based claims in immigration court is more challenging than ever. The legal landscape has changed, and continues to change, very rapidly under the Trump administration. As a result, the ways in which applicants for asylum, Withholding of Removal and CAT must approach their asylum cases requires more skillful strategies. The most basic necessity for anyone who must litigate a deportation case before an immigration judge is to possess a solid understanding of applicable immigration law. Unfortunately, immigration law is one of the most complex areas of law in the United States. Even attorneys who do not focus their work on immigration law have a difficult time understanding immigration law. And, within the field of immigration law, asylum law has been described as "exceedingly complex."
In addition to understanding the intricacies of asylum law, asylum seekers must also be able to present sufficient and persuasive evidence. As explained above, evidence normally takes the form of witness testimony, and other corroborating documentary evidence. The most critical witness who must testify in any asylum-based cases is the person applying for asylum-based relief from deportation. Although the asylum seeker's testimony by itself is technically sufficient to win an asylum-based claim, in reality it is extremely unlikely that an asylum seeker would win her case with only her testimony. Therefore, providing the written or in-person testimony of witnesses who can corroborate the things that the asylum seeker says is essential.
One of the most fundamental tasks of an immigration judge in an asylum-based case is to determine the credibility of the witnesses. Therefore, it's not enough to simply provide testimony to an immigration judge. The testimony must be believable and persuasive. If the immigration judge finds that the statements of the witnesses are inconsistent or vague, for example, the judge is likely to make an "adverse credibility finding." Many asylum-based cases are lost based on adverse credibility findings. Asylum seekers with skilled immigration lawyers should expect those lawyers to assist them and their witnesses with strategically and ethically organizing their thoughts and their statements so that the presentation of testimony is much more likely to be effective and persuasive.
Because many asylum seekers remain detained through the conclusion of their final asylum hearings, which are called "individual hearings" or "merits hearings," it normally difficult for them to effectively gather evidence. This is especially true because most of the testimonial evidence--the statements from other witnesses who have knowledge of the events that forced the immigrant to flee his or her country in the first place--is located far away, normally in another country. Skilled asylum attorneys will normally work with their clients to gather the contact information of the witnesses in other countries so that they can speak with them and make arrangements to obtain their testimony, which can then be presented to the immigration judge.
In addition to testimonial evidence, asylum seekers must also present documentary evidence that supports their claims. As discussed above, documentary evidence often consists of country conditions reports by both governmental and non-governmental organizations. Qualified immigration attorneys should understand the difference between relevant and irrelevant country conditions documents. They should also be able to distinguish between reputable and non-reputable sources that publish reports and articles that pertain to an asylum seeker's country of origin. The quality and presentation of documentary evidence will determine whether the immigration judge considers the evidence to be persuasive.
In some cases, the difference between winning and losing may rest with the asylum seekers' ability to present the testimony of an expert witness. Expert witnesses are normally professionals who, through their education, training, and career experiences, have developed specialized knowledge and proficiency in a particular field that is relevant to the case. In asylum-based cases, expert witnesses are often academics with advanced degrees. They have normally published articles in recognized journals, magazines, and newspapers on topics that are related to the country, or geographic area, where the asylum seeker is from. Expert witnesses are in a position to evaluate the statements from the witnesses (including the asylum seeker), and to provide an opinion as to whether, based on their knowledge and experience, the asylum seeker has a legitimate fear of being harmed if he or she is deported. While expert testimony can often be very useful, it is very important that an expert witness receives the proper information and assistance. Again, this is nearly impossible to accomplish unless an asylum seeker has an attorney.
All asylum applicants, whether they have attorneys or not, are required to comply with the rules laid out in the Immigration Court Practice Manual. The rules of the Immigration Court Practice Manual can be confusing--even for inexperienced immigration attorneys. They are also very rigid. It is not uncommon for immigration judges to reject applications, evidence, and other court filings because of an asylum applicant's failure to strictly comply with the rules of the Immigration Court Practice Manual. Many asylum applications are denied for this reason.
Although asylum seekers may represent themselves in immigration court, they are much less likely to win their cases without the assistance of an attorney. The National Immigrant Justice Center (NIJC) has reported that detained immigrants are twice as likely to lose their cases if they are not represented by a lawyer. This fact is well understood, and recognized even by the immigration courts. The Immigration Court Practice Manual even states that "[d]ue to the complexity of the immigration and nationality laws, the Office of the Chief Immigration Judge recommends that those who can obtain qualified professional representation do so."
What Happens After the Immigration Judge Approves or Denies an Asylum Application?
Immigration court cases are civil-administrative cases. Unlike criminal cases, if an asylum seeker wins his or her case, the government has a right to appeal the immigration judge's decision to the Board of Immigration Appeals (BIA). If an immigration judge grants an asylum seeker's application, the government attorney is required to advise the immigration judge whether the government will reserve the right to appeal. If the government waives the right to appeal, the asylum seeker has won. If the asylum seeker is in detention, he or she will be released. If the asylum seeker wins asylum, he or she may apply for lawful permanent residency approximately one year later, and may ultimately apply for citizenship through the naturalization process five years after that. If the asylum seeker was ineligible for asylum but received a grant of withholding of removal or CAT relief, and the government waives appeal, they will receive protection against deportation and, typically, the ability to apply for and receive an employment authorization document, or "work permit." However, they may not leave the United States, and they will not be able to obtain lawful permanent residency. However, asylum seekers who win withholding of removal or CAT, but lost their asylum claims, may also elect to appeal the immigration judge's denial of asylum. If they later win on appeal, they may have an opportunity to receive asylum, residency, and citizenship through naturalization.
If an asylum seeker loses her case, she also has the right to appeal. The notice of appeal to the BIA must be filed within 30 days of the immigration judge's decision. "Winning" at the BIA normally means that the BIA will return the asylum case to the immigration judge, and instruct the immigration judge to either make a new decision, or schedule a new individual (merits) hearing. If the BIA dismisses the asylum seeker's appeal, the immigrant can appeal to the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"). As explained above, the Ninth Circuit charges a filing fee of $500 but, upon filing the petition, the Ninth Circuit will also impose an automatic stay of removal which will protect the asylum seeker from being deported unless and until his or her petition for review is denied.
The length of time that it takes for the BIA to decide an appeal varies but, in our experience, it typically takes the BIA 3-6 months to decide an appeal for someone who continued to be detained by ICE. For those asylum seekers who are no longer detained, it is quite common for the BIA process to take up to a year or longer.
The Ninth Circuit appeals process typically takes even longer, and it's not uncommon for several years to pass between the time a petition for review is filed and a decision on the appeal is made. Like the BIA, however, the Ninth Circuit normally processes the appeals of detained immigrants faster than those who have been released from ICE detention. Asylum seekers who are detained at the time of filing their petitions for review with the Ninth Circuit are often eligible for a different kind of bond hearing. The Ninth Circuit decision in a case called Casas-Castrillon v. Department of Homeland Security, which is why these kinds of bond hearings are informally referred to as "Casas hearings."