CREDIBLE FEAR: A MANIFESTLY UNFOUNDED STANDARD?

• Author: Coats, David L.

INTRODUCTION

Imagine your government has persecuted you because of your political opinion. A friend tells you that if you can get to America, they will let you live with them and you will have a good life. You scrape together enough money to buy a plane ticket to the United States (U.S.). Upon arrival, the Immigration and Customs Enforcement (ICE) officer sees that you do not have a visa to enter the country and that you do not speak English. You are swept away to an interrogation room where a uniformed government employee and a translator conduct an "airport interview" with you. Based on your past experience with your government, you are suspicious of government officials and anyone that speaks your language. Through the translator, the officer asks if you are seeking asylum in the U.S. You have never heard the word "asylum" before and do not know what it means. You only know that if you make it to America, you can get a new life. You tell the translator that you fear returning to your home country because you have been persecuted in the past. Fearful that he will not believe you, you exaggerate your fears, knowing that you cannot prove them.

The interviewer tells you that you are being placed on something called "expedited removal," which is a way of saying "being deported." You are also told that you will have one more interview before you are sent back to your home country. Hours later you are sent to something resembling a prison. You are told that you must stay here for at least 48 hours. After that time, you will have a "Credible Fear Interview" with an asylum officer. You ask the asylum officer if you will have a lawyer with you and the man resembling a prison guard tells you "No, but you can hire one if you like. Good luck getting someone to work for you for free though."

Two days later you are brought before yet another government official with another translator who speaks your native language. This is the pivotal moment for your quest for asylum, though you do not know this because you are neither familiar with the process nor do you have a lawyer with you. Additionally, you are still recovering from your long flight, experiencing PTSD because the environment in the prison reminds you of the persecution you experienced in your past, and you are in a completely new country surrounded with people from all over the world equally as anxious and uncertain as you are. It is in this state that you must convince the asylum officer that you have a "credible fear," otherwise, pending one final appeal to an Immigration Judge (IJ), you will be sent back to the country that persecuted you. (1)

The credible fear determination (the determination) is a screening mechanism used by asylum officers of the U.S. Citizenship and Immigration Services (USCIS). (2) The determination is used to discern valid asylum claims and is a pivotal step for a refugee on an expedited removal path. (3) Statistics show that when an asylum seeker is unrepresented during the asylum process, he or she is three times less likely to succeed on the asylum claim than the applicant with representation. (4) Given the importance of the determination in the asylum process, a closer review of how it works, where it came from, and how it compares to other asylum systems is warranted.

This Comment (I) explains what the determination is and how it is used; (II) examines the history of the determination interview based on its legislative intent; (III) compares the U.S.'s "credible fear" standard with the United Nations High Commission for Refugees' (UNHCR) "not manifestly unfounded" standard; and (IV) proposes that, in order to both streamline valid asylum claims and comply with international obligations, the U.S. should adopt the UNHCR's standard as a screening test and give asylum officers discretion to grant asylum without requiring the applicant to appear before an IJ for a redundant interview.

1. THE PURPOSE OF THE "CREDIBLE FEAR" DETERMINATION

   The determination functions as a screening interview for asylum officers to determine whether the applicant's claim for asylum is potentially valid. (5) If the officer determines the applicant's fear is credible, the applicant proceeds to a hearing before an IJ. (6) If no "credible fear" is determined, he or she is set for removal, but may appeal to an IJ. (7) In other words, "the asylum officer is applying a threshold screening standard to decide whether an asylum . . . claim holds enough promise that it should be heard through the regular, full process or whether, instead, the person's removal should be effected through the expedited process." (8) During the interview, the officer must determine if there is a "significant possibility. . . that the alien could establish eligibility for asylum" (9) and, if the person is claiming asylum under the Convention Against Torture, whether the applicant can establish a "significant possibility that he or she is eligible for withholding of removal or deferral or removal under the Convention Against Torture . . . ." (10)

   "Credible fear" determinations are non-adversarial, but applicants have the burden of proving the relevant facts of their case, and ensuring those facts meet the legal standard. (11) In an expedited removal case, the applicant's testimony alone can establish a credible fear if that testimony "is credible, persuasive, and refers to specific facts." (12) Even if an applicant is credible, the applicant may still fail the determination if they do not provide specific facts and if the testimony is not persuasive enough to the asylum officer conducting the interview. (13)

   To understand the USCIS "significant possibility" standard, it is helpful to look to civil lawsuits that use the same standard. (14) In those cases, the "significant possibility" standard requires the party with the burden of proof to show "a substantial and realistic possibility of succeeding," which is lower than the "preponderance of the evidence standard." (15) In the asylum context, this standard similarly does not require the applicant to prove that the "chances are more likely than not," (16) rather, the applicant must show that he can "demonstrate a substantial and realistic possibility of succeeding [on his claims]." (17)

   The task of the asylum officer during this interview is straightforward. The officer must decide whether the applicant has a substantial and realistic possibility of succeeding in a full hearing on their "credible fear" before an IJ. (18) Officers do not ultimately decide if the applicant's fear is credible; the IJ decides, in a full hearing, if the applicant has a "credible fear" of persecution and is eligible for asylum. (19) If the evidence before the asylum officer is "so substantial that there is no significant possibility of future persecution or other serious harm or that there are no reasons to grant asylum based on the severity of the past persecution" (20) then the officer is warranted in finding there is no credible fear. (21) On the other hand, even if an officer has a reasonable doubt concerning the credibility of the applicant's fear, he or she is nevertheless advised to conclude that an applicant does has a credible fear. (22)

   What then is the task of the applicant? In order to convince an asylum officer that an applicant has a significant possibility of prevailing on an asylum claim before an IJ, the applicant must prove that he or she either experienced past persecution or that he or she has a well-founded fear of persecution. (23) Past persecution requires the applicant to demonstrate a significant possibility that (a) the severity of the harm was serious enough to amount to persecution; (b) the motivation to harm the applicant was based on race, religion, nationality, membership in a particular social group, or political opinion; and (c) that the persecutor was either an agent of the government, or that the government could not or is unwilling to control the persecutor. (24) Once the applicant proves to the asylum officer that he or she has a significant possibility of establishing a credible fear and, subsequently an asylum claim before an IJ, the asylum officer will then give the applicant an affirmative credible fear determination and he or she will be sent before an IJ to plead his or her case for asylum. (25)

   This convoluted process of interviews, filings, appeals, and final decisions was actually intended to streamline the asylum application procedure and provide checks and balances. (26) Instead, today the system is anything but streamlined. The determination interview is complex because the history of the asylum laws and the credible fear standard are products of two competing interests: national security and human rights. The legislative history of U.S. asylum law sheds light on how these interests have created the standard used today.

2. LEGISLATIVE HISTORY

   Two competing intents have shaped the asylum process into its current form. The first is a desire to honor human rights by accommodating the UNHCR's standards and upholding the U.S.'s legacy of welcoming refugees, while the second is motivated by national security, namely preventing asylum abuse and terrorism. (27) These two intents have shaped the history of the credible fear determination, beginning with the United Nations' (U.N.) 1951 Convention relating to the Status of Refugees (the Convention) and ending, for now, with the REAL ID Act in 2005. (28) In 1951, the U.N. issued the Convention, defining a refugee as

   [a]ny person who ... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. (29) It also cemented the principle of non-refoulement. the prohibition against sending a person against his or her will back to a country...