People seeking asylum and/or withholding of removal in the United States, who are either in expedited removal or reinstatement of removal proceedings, must go through a screening process with a U.S. Citizenship and Immigration Services asylum officer. After the screening process is complete, with a positive outcome, an asylum applicant can make a formal request for asylum and/or withholding of removal with an immigration judge. Asylum officers are trained to do protection screening interviews from lesson plans that set forth standards to be followed when conducting these interviews.

Under a Jan. 25, 2017 executive order, changes have been made to the protection screening process, including the credible fear and reasonable fear lesson plans.

Background on protection screening

 People who arrive at a U.S. port of entry without valid documents, enter without inspection, or who are apprehended within 100 air miles of the U.S. border within 14 days of an illegal entry, are subject to expedited removal. 8 CFR § 235(b)(1)(i). People in expedited removal are not automatically entitled to an immigration hearing unless they are able to establish a credible fear of persecution or torture. INA § 235(b)(1)(A). In a credible fear interview, the asylum officer must assess whether there is a significant possibility that the applicant could establish before an immigration judge their eligibility for asylum, withholding of removal, and/or deferral of removal under the Convention against Torture. .

People who are apprehended in the United States who either have a prior removal order or who departed under that order and re-entered the U.S. illegally, are subject to reinstatement of removal under INA § 241(a)(5).Those who have an aggravated felony conviction and are not Lawful Permanent Residents are subjected to administrative removal under INA § 238(b). However, if a person who is subject to reinstatement of removal or administrative removal declares a fear of returning to their home country, he or she must be referred to an asylum officer for a reasonable fear interview. In a reasonable fear interview, an asylum officer must assess whether there is a reasonable possibility the applicant could establish before an immigration judge their eligibility for withholding of removal and/or deferral of removal under the Convention Against Torture.

Executive orders

The Jan. 25, 2017, executive order, “Border Security and Immigration Enforcement Improvements,” requires asylum officers to use a new credible fear standard in protection screenings. A Feb. 20, 2017, memo by Department of Homeland Security Secretary John Kelly implementing the executive order said: “[t]he asylum officer shall make a positive credible fear finding only after the officer has considered all relevant evidence and determined, based on credible evidence …” Based on this guidance, the USCIS Asylum Division released revised credible fear and reasonable fear lesson plans.

Changes to the credible fear and reasonable fear lesson plans

One striking change in the credible fear lesson plan concerns the officer’s duty to explore credibility. The finding of credible fear in the protection screening process has traditionally been based on the very low standard of proof – “significant possibility.” In 2014, USCIS revised the credible fear lesson plan to reinforce this standard. However, the most recent lesson plan, released on Feb. 13, 2017, drastically changes the way officers are to consider credibility in their decisions.

First, the new lesson plan heightens the credibility standard to “preponderance of the evidence” as opposed the lower standard of “significant possibility.” While the applicants still need to show there is significant possibility that they would succeed in the merits of their asylum claim before an immigration judge, they must now show they are credible based on a preponderance of the evidence.

Second, the new lesson plan also requires officers to consider all “relevant evidence” and make a credibility finding based on a “totality of the circumstances.” Thus, the officer can take into account inconsistencies and discrepancies that are not relevant to the asylum claim. In fact, the lesson plan removes language that requires that credibility findings be relevant to the claim.

Third, the lesson plan instructs officers to probe applicants during their interviews as to inconsistencies between their initial statements with Immigration and Customs Enforcement or Customs and Border Protection and the testimony before the asylum office. Such inconsistencies on their own could result in the asylum claim being deemed not credible. In many cases, asylum applicants are very apprehensive to say they are afraid of something – let alone discuss the nature of that fear – before a uniformed enforcement officer.

In addition to the changes in the credibility standard and analysis, the new credible fear lesson plan no longer includes guidance that officers should give a positive determination when there is a reasonable doubt of eligibility. Instead, officers may only consider reasonable doubt in the context of the overall credible fear standard.

One of the main changes to reasonable fear screenings, which are already decided under the higher standard of preponderance of the evidence, pertains to credibility. As required in the credible fear lesson plan, officers doing reasonable fear interviews must now consider “all relevant evidence” and the “totality of the circumstances” when deciding a case. The reasonable fear lesson plan also removes language directing officers to make credibility determinations based on issues that are relevant to the claim.

Conclusion

The changes to the protection screening are troubling and run the risk of screening out people individuals who have a legitimate fear of returning to their home countries. The credible fear interview was designed to screen in individuals under a very low threshold so that their claims can be fully explored by an immigration judge at a later time. These new changes now bring credible fear screenings closer to full adjudications, because asylum officers are now required to analyze credibility by the same standard they use when deciding affirmative asylum cases.

However, unlike affirmative asylum applicants, credible fear applicants are at a disadvantage at this early stage in the proceedings because they are unable to present their asylum claims with the same sophistication and thoroughness. By turning away people at the screening stage, USCIS could fail in its duty to protect asylum seekers.