Overview
The Immigration and Nationality Act authorizes DHS officers to remove certain aliens from the United States without giving them an opportunity to seek relief from removal in proceedings before an Immigration Judge. At the same time, however, obligations under Article 33 of the Refugee Convention relating to the Status of Refugees (Refugee Convention) and Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture) still apply in these cases. If an individual expresses a fear of return to the country to which he or she has been ordered removed, the Immigration Officer must refer the case to an Asylum Officer, who will determine whether the individual has a reasonable fear of persecution or torture.
Those who are found to have a reasonable fear of persecution or torture are then given an opportunity to seek withholding of removal by an Immigration Judge. Those found not to have a reasonable fear of persecution or torture may request that an Immigration Judge review the determination. If an individual does not request review by the Immigration Judge or the Immigration Judge upholds the negative determination, the individual may be removed from the United States.
What is a Reasonable Fear of Persecution or Torture?
A “reasonable fear of persecution or torture” is defined as a “reasonable possibility” that in the country of proposed removal the individual will be:
- » persecuted on account of his or her race, religion, nationality, membership in a particular social group, or political opinion, or
- » tortured, as defined in the Convention Against Torture and as modified by the United States law
When Do Asylum Officers Conduct Reasonable Fear of Persecution or Torture Interviews?
Asylum officers conduct reasonable fear of persecution or torture interviews in two types of cases:
- » An individual who is subject to reinstatement of a prior removal order because he or she illegally reentered the United States after having been removed or having departed voluntarily while under an order of exclusion, deportation, or removal. See INA § 241(a)(5) and 8 CFR § 241.8.
- » An individual who is subject to an order of removal because he or she was convicted of one or more aggravated felonies after admission. See INA § 238(b) and 8 CFR § 238.1.
When Do Reasonable Fear Interviews Take Place?
Asylum officers are required by regulation to conduct the interview and make the reasonable fear determination within 10 days after the case has been referred to the asylum office, unless there are exceptional circumstances. If an individual is serving a lengthy prison sentence, the asylum officer will not conduct the reasonable fear interview until the individual has nearly completed the sentence or otherwise is soon to be released to Immigration custody. See 8 CFR § 208.31(b). In most cases, the individuals will be detained.
What is a Reasonable Fear of Persecution?
An individual will be found to have a reasonable fear of persecution if he or she establishes that there is a reasonable possibility he or she would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion. This is the same standard used to establish a well-founded fear of persecution in the asylum context.
What is a Reasonable Fear of Torture?
An individual will be found to have a reasonable fear of torture if he or she establishes that there is a reasonable possibility he or she would be subject to torture, as defined in the Convention Against Torture and as modified in 8 CFR § 208.18.
The definition of torture, as defined in Article 1 of the Convention and modified by the U.S. ratification document is:
- » severe pain or suffering, whether physical or mental
- » intentionally inflicted on a person for such purposes as
- » obtaining from him or her or a third person information or a confession
- » punishing him or her for an act he or she or a third person has committed or is suspected of having committed
- » intimidating or coercing him or her or a third person, or
- » for any reason based on discrimination of any kind
- » by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
S ee 8 CFR § 208.18(a) for more information on the definition of torture.
The U.S. implementation of the Convention Against Torturealso requires that the individual be in the torturer’s control or custody, and that harm arising only from, inherent in, or incidental to lawful sanctions generally is not torture.
Are There Any Mandatory Bars to Establishing a Reasonable Fear of Persecution or Torture?
The Asylum Officer may not consider any mandatory bars in determining whether an individual has established a reasonable fear of persecution or torture. If an individual is found to have a reasonable fear, however, the Immigration Judge will consider whether the individual is barred from a grant of withholding of removal. An individual may not be granted withholding of removal if he or she has persecuted others on account of race, religion, nationality, membership in a particular social group, or political opinion, has been convicted of a particularly serious crime, has committed a serious nonpolitical crime outside the United States, or there are reasonable grounds to believe that the individual is a danger to the security of the United States. See 8 CFR § 208.16(d) and INA section 241(b)(3)(B). If a bar applies, but the individual has established that he or she would be tortured in the country of return, the Immigration Judge will grant deferral of removal. See 8 CFR § 208.17.
What Will Happen if the Asylum Officer Finds a Reasonable Fear?
The Asylum Officer must refer the case to the Immigration Judge, after review by the USCIS Headquarters Asylum Division staff, if reasonable fear of persecution or torture is found.
What Will Happen if the Asylum Officer Does Not Find a Reasonable Fear?
If a reasonable fear of persecution or torture is not found, the individual can request review of the decision by an Immigration Judge. If no review is requested or the immigration judge concurs with the negative decision, the individual will be removed from the United States.
What Will Happen Before the Immigration Judge?
If the Asylum Officer did not find a reasonable fear of persecution or torture, and the Immigration Judge concurs with the Asylum Officer’s decision, the case will be returned to Immigration and the individual may be removed from the United States. The individual cannot appeal the Immigration Judge’s decision.
The individual may apply for withholding of removal before the Immigration Judge in two circumstances: (1) the Asylum Officer found a reasonable fear of persecution or torture, or (2) the Immigration Judge found a reasonable fear of persecution or torture after the Asylum Officer first found no reasonable fear and the individual requested that an Immigration Judge review that determination.
The Immigration Judge will consider the applicant’s request for withholding of removal in accordance with 8 CFR § 208.16. The applicant has the burden of proof of establishing that he or she is eligible for withholding of removal under either of the following:
- » Section 241(b)(3) of the INA
The applicant must establish that his or her life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion. - » Convention Against Torture
The applicant must establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.
I f the applicant is found to have a reasonable fear of persecution or torture, the Immigration Judge will consider whether the applicant is barred from a grant of withholding of removal. See 8 CFR § 208.16(d). If a bar applies, but the applicant has established that he or she would be tortured in the country of return, the Immigration Judge will grant deferral of removal. See 8 CFR § 208.17.
If the Immigration Judge grants withholding of removal, the applicant cannot be removed to the country where the person fears persecution or torture, but may be removed to another country. If the Immigration Judge does not grant withholding of removal, the applicant may appeal the decision to the Board of Immigration Appeals.
