By Attorneys Steven J. Malm and Nancy E. Miller
It is hard to go to the judge to explain why you are afraid to go home. It is even harder when you don’t get a chance to tell your story because you are not eligible for a hearing. However, an increasing number of people have avoided summary removal from the United States by asserting credible or reasonable fear of returning to their native countries.
While those subject to summary removal (either via expedited removal or reinstatement of a removal order) are entitled to less due process, the United States is still restricted by law from returning people to countries where they would be persecuted on account of their race, religion, nationality, political opinion, or membership in a particular social group, or tortured. Simply expressing a fear of return initiates a process—known as credible fear or reasonable fear review, depending on context—that will delay removal if not avoid it entirely.
Credible fear and reasonable fear review are distinct processes albeit with many similarities. Credible fear review applies to people subject to expedited removal including: people arriving at United States ports of entry without valid and/or fraudulent entry documents; people apprehended while attempting to enter the country without inspection; and people detained within 100 miles of the border who entered without inspection within the prior 14 days. Reasonable fear review applies to people subject to reinstatement of removal who reentered the country illegally after previously being ordered removed and also to people without lawful permanent residency with aggravated felony convictions.
Both involve an initial screening interview by an asylum officer to evaluate whether a person can establish a sufficient likelihood of persecution or torture if removed. The likelihood of persecution or torture for a credible fear finding is set at a “significant possibility,” while for a reasonable fear finding it is the higher “reasonable possibility.” Reasonable possibility is identical to the well-found fear standard for asylum—set at a 10% likelihood of persecution. If established, the case is referred to Immigration Court to pursue the actual relief. If the asylum officer finds against a credible or reasonable fear, the decision is reviewable by an Immigration Judge. Neither the asylum officer nor the judge will evaluate the case for bars to asylum or withholding at this stage.
A person claiming a credible or reasonable fear should consult with an attorney at the earliest opportunity. The attorney will assist the applicant in organizing his thoughts, gathering evidence from family members or researching country conditions to support the claimed fear, and working towards release from immigration custody. In addition, when the applicant appears before the Immigration Judge, the attorney will be able to pick up where the interview left off because he or she is intimately familiar with what was said and presented.
After establishing a credible or reasonable fear, the applicant may be able to be released from immigration custody. Those caught while entering without inspection or shortly thereafter will be eligible for a bond. While ICE sets the initial bond amount, this can be reviewed by an Immigration Judge in a bond redetermination hearing. The minimum bond is $1,500, but it will typically be higher for people with minimal ties to the United States. People detained at a port of entry will not be eligible for a bond, but upon establishing a credible fear, can be paroled into the U.S. to pursue their case. While bond is not available in the reasonable fear context, the person and her attorney can work with ICE to request an alternative to detention such as electronic monitoring.
People establishing a credible fear generally have more options than those establishing a reasonable fear. Upon establishing a credible fear, a Notice to Appear in court is issued. Aliens can pursue any available relief applications before the Immigration Court. In other words, unless some other bar applies, they are not limited to asylum, withholding or deferral from removal. In contrast, people establishing a reasonable fear will be limited to pursuing withholding or deferral from removal. However, it is also possible that some other relief may be available outside of Immigration Court, such as a U-visa for people who have been the victims of crime.
On average, more than 60 percent of all removal orders annually arise under such proceedings known as expedited removal or reinstatement of removal. Though designed to effectuate a swift removal, safeguards exist here as well. Anyone with a fear of returning to her native country should voice that fear. The result may be release from immigration custody and the ability to remain in the United States.