The USCIS Asylum Office has recently revised its Lesson Plan regarding “credible fear” of persecution determinations. This is the standard that those fleeing persecution and seeking safe haven in this country must first meet if they are arrested and subject to expedited removal. Those who indicate an intention to apply for asylum or express a fear of persecution or torture or a fear of return to their home country are afforded an interview before an asylum officer. The purpose of the interview is to determine if they have a credible fear of persecution or torture and if they substantiate a “significant possibility” of being granted asylum. If the asylum officers reach a finding that the applicant has demonstrated credible fear, he or she will be referred to an immigration judge for a full assessment of his or her asylum or torture claim.
The Lesson Plan is designed to train asylum officers and set forth standards to be followed when conducting these interviews. The revised plan explains how to determine whether persons subject to expedited removal have a credible fear of persecution or torture. In a memo issued February 28, 2014, John Lafferty, Chief of the Asylum Office, indicated that the reasons for the revision stem from a surge in credible fear referrals during the last five years and a need to update the plan based on new interpretations. According to the memo, the revised credible fear Lesson Plan makes three significant changes: (1) it reinforces the agency’s interpretation of the “significant possibility” standard used to determine if an applicant will establish eligibility for asylum; (2) it incorporates substantive updates to the Refugee, Asylum, and International Operations (RAIO) Lesson Plans; and (3) it modifies guidance on credible fear of torture screenings.
The revised Lesson Plan appears to raise the standard for asylum officers conducting credible fear interviews. The USCIS is now clarifying that “significant possibility” does not include claims that have a mere possibility. It also introduces a three-prong test: the claim must be “credible, persuasive, and…specific.” And it includes citations and references to case law, regulations, and even legislative history governing the adjudication of full asylum claims, rather than the credible fear claim.
The credible fear interview was intended to be a fairly low threshold that would allow those fearing persecution to be able to present their case to a judge. By raising the bar at this initial stage – under the rationale that this is necessitated by an increase in demand by applicants – the Service is running the risk of screening out those who have bona fide claims but who lack the ability or sophistication to present them to the asylum officer at this early stage.