• The U.S. asylum process begins with the understanding of the credible fear screening, a pivotal initial step for individuals seeking asylum in the United States. The credible fear screening is conducted when individuals are subject to expedited removal and express to U.S. Customs and Border Protection (CBP) or Immigration and Customs Enforcement (ICE) their intent to apply for asylum, their fear of persecution or torture, or their fear of returning to their country of origin. If an individual indicates such fears, the Department of Homeland Security (DHS) will provide information about the credible fear process. During this process, the individual may be detained, but they will receive an orientation, a list of legal service providers, and a mandatory waiting period before the interview. Individuals arriving from Canada might be required to seek protection there under the U.S.-Canada Safe Third Country Agreement.
• A credible fear of persecution is defined as a significant possibility that the individual can establish in an asylum merits interview or before an immigration judge (IJ) that they have been persecuted or have a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion. Similarly, a credible fear of torture implies a significant possibility that the individual can prove it is more likely than not they would face torture if returned to their home country. There are no mandatory bars to establishing a credible fear of persecution or torture. However, certain mandatory bars to asylum and withholding of removal exist, such as having persecuted others, committing serious crimes, or being involved in terrorism. If a mandatory bar applies, but the individual is more likely than not to be tortured upon return, the IJ may grant deferral of removal.
• When an asylum officer determines that an individual has a credible fear of persecution or torture, the U.S. Citizenship and Immigration Services (USCIS) may either retain and consider the asylum application further or issue a Notice to Appear before an IJ. In the former case, the credible fear determination serves as the application for asylum, and the individual will have a non-adversarial asylum merits interview to establish eligibility for asylum. If USCIS issues a Notice to Appear, the individual can apply for asylum, withholding of removal, or protection under the Convention Against Torture (CAT) before the IJ.
• If an asylum officer does not find credible fear, the individual can request a review by an IJ. If they do not request a review, or if the IJ agrees with the negative determination, ICE may remove the individual from the United States. Generally, there is no further review of the IJ’s negative determination. However, if the IJ vacates the negative determination and finds credible fear, the case may be referred back to USCIS for an asylum merits interview or proceed with a hearing before the IJ.
• Understanding the detailed procedures and requirements of the credible fear screening process is crucial for those seeking asylum, as it is the foundation upon which their case will be assessed and decided. The process ensures that individuals who genuinely fear persecution or torture have the opportunity to present their case and seek protection under U.S. asylum laws.