• The concept of asylum in the United States is a crucial component of the nation’s immigration system, designed to protect individuals who fear persecution or torture in their home countries. The process begins when an individual, ordered for removal, expresses a fear of returning to their country. This initiates a series of steps involving various immigration authorities.
• When a person is set for removal but fears returning to their home country, Immigration and Customs Enforcement (ICE) is required to refer the case to an asylum officer. This officer assesses whether the individual has a reasonable fear of persecution or torture if they were to return to their homeland. The determination of a reasonable fear is critical, as it can lead to the opportunity for the individual to seek withholding or deferral of removal before an immigration judge (IJ).
• Reasonable fear interviews are conducted by asylum officers for individuals who are subject to expedited removal processes. These include those who have illegally reentered the United States after being removed or those who are non-permanent residents convicted of aggravated felonies. Such interviews typically occur within ten days after ICE refers the case to the asylum office. However, if the individual is serving a prison sentence, the interview is scheduled near the end of the sentence.
• The legal standard for establishing a reasonable fear of persecution involves demonstrating a reasonable possibility of facing persecution due to race, religion, nationality, membership in a particular social group, or political opinion. This standard mirrors that used in asylum cases. A reasonable fear of torture is similarly defined as the reasonable possibility of being subjected to torture, as per the Convention Against Torture.
• If an asylum officer determines a reasonable fear exists, the case is forwarded to an IJ to evaluate eligibility for withholding or deferral of removal. The individual must prove that it is more likely than not that their life or freedom would be threatened or that they would face torture if removed to the proposed country. In cases where a bar to withholding of removal applies, but the individual is found likely to face torture, deferral of removal is granted.
• Conversely, if the asylum officer does not find a reasonable fear, the individual can request a review by an IJ. If the IJ upholds the negative decision, the person is subject to removal from the United States. However, if the IJ reverses the decision, the individual receives a full hearing on their eligibility for withholding or deferral of removal. Importantly, there is no appeal option for the IJ’s decision regarding the reasonable fear determination.
• The legal framework governing reasonable fear screenings is encapsulated in Section 208 of the Immigration and Nationality Act and Title 8 of the Code of Federal Regulations. This framework ensures that individuals facing potential persecution or torture have access to the protection they need, reflecting the United States’ commitment to humanitarian principles.
• In summary, the reasonable fear screening process is a vital mechanism within the U.S. asylum system, offering protection to those who genuinely fear harm in their home countries. It is a carefully structured process, providing individuals with a fair opportunity to present their cases and seek the protection they need.