Credible fear is a concept in United States asylum law whereby a person who demonstrates a credible fear of returning to their home country cannot be subject to deportation from the United States until the person's asylum case is processed.
Historical context
Historically, the deportation of a person not lawfully present in the United States required the approval of an Immigration Judge, unless it was based on an apprehension at the border itself. In November 2002, in order to speed up the process of deportation, the United States Department of Homeland Security expanded the scope of expedited removal to include those apprehended within 100 miles of the United States border and within 14 days of entry.
To address concerns that this might result in the deportation of people who might be eligible for asylum, the credible fear screening was introduced. According to the Congressional Research Service, "Consistent time series data on 'credible fear' claims" was only collected beginning in fiscal year 2005.
Legal description of credible fear
Summary
The legal framework governing credible fear is described in the Code of Federal Regulations, Title 8 (Aliens and Nationality), 208.30 (8 CFR 208.30). According to the summary on the United States Citizenship and Immigration Services (USCIS) website: "An individual will be found to have a credible fear of persecution if he or she establishes that there is a "significant possibility" that he or she could establish in a full hearing before an Immigration Judge that he or she has been persecuted or has a well-founded fear of persecution or harm on account of his or her race, religion, nationality, membership in a particular social group, or political opinion if returned to his or her country."
Types of credible fear
There are two kinds of credible fear recognized in United States law:
Credible fear of persecution: This is defined in Section 235(b)(1)(B)(v) of the Immigration and Nationality Act as "a significant possibility, taking into account the credibility of the statements made by the alien in support of his or her claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under Section 208 [of the INA]." Note that demonstrating a credible fear of persecution does not mean that the person has received asylum or definitively established eligibility for it. It simply means that the person stands a good chance of establishing eligibility for asylum. Credible fear of torture: The applicant must demonstrate "a significant possibility that he or she is eligible for withholding of removal or deferral of removal under the Convention Against Torture, pursuant to 8 CFR 208.16 or 208.17."
Process
Initial contact
When a person enters the United States without authorization, United States Customs and Border Protection are, at initial contact, supposed to ask the person whether a credible fear of returning to their home country exists. If the person responds affirmatively, then the person cannot be immediately deported, but instead the person is referred to an asylum officer for a credible fear interview and issued a Form M-444 Information About Credible Fear Interview . If the person responds negatively, the person may be subject to expedited removal.
A person who has not yet come into contact with immigration enforcement (either because they are already present in the United States in lawful status, or because immigration enforcement hasn't yet found the person) may also apply for asylum of his or her own accord (this is sometimes called applying for asylum affirmatively). Such a person does not need to go through a credible fear interview. The credible fear interview is intended only for individuals who have been identified as candidates for deportation.
Credible fear interview
After initial contact, the person claiming credible fear needs to be given at least 48 hours before a credible fear interview with an asylum officer, unless they voluntarily waives the 48-hour waiting period requirement. In practice, due to a huge backlog of cases, the person may need to wait several days before getting an interview.