IJ Review of Credible Fear Determinations

DHS Fact Sheet

Implementation of the Credible Fear and Asylum Processing Interim Final Rule

From DHS Website LINK, LINK


On May 31, 2022, the Department of Homeland Security (DHS) and Department of Justice (DOJ) began implementing a rule to ensure that those subject to expedited removal who are eligible for asylum are granted relief quickly, and those who are not are promptly removed. Due to existing court backlogs, the process for hearing and deciding these asylum cases currently takes several years on average. By establishing a process for the efficient and thorough review of asylum claims, implementation of the rule will help reduce existing immigration court backlogs and will shorten the process to several months.

Interim Final Rule

The March 2022 interim final rule (IFR) titled “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers” (sometimes referred to as the Asylum Officer Rule) authorizes U.S. Citizenship and Immigration Services (USCIS) to consider the asylum applications of certain individuals subject to expedited removal who establish a fear of persecution or torture during their required credible fear screening. Currently, such cases are decided by immigration judges (IJs) within the Department of Justice’s (DOJ’s) Executive Office for Immigration Review (EOIR).

Due to existing court backlogs, the process for hearing and deciding these asylum cases currently takes several years on average. Through a gradual process, and when fully implemented, the rule will shorten the administrative process from several years to several months. Individuals who qualify for asylum will receive protection more swiftly, and those who are not eligible will be promptly removed rather than remaining in the United States for years while their cases are pending.

Scope

Only individuals who are placed into expedited removal proceedings after May 31, 2022, are potentially subject to this process. Specifically, as noted in the IFR, the rule “applies prospectively and only to adults and families who are placed in expedited removal proceedings and indicate an intention to apply for asylum, a fear of persecution or torture, or a fear of return to their home country, after the rule’s effective date.” The rule does not apply to unaccompanied children.

Phased Implementation

Implementation will take place in a phased manner, beginning with a small number of individuals and will grow as USCIS builds operational capacity over time. Starting May 31, DHS will aim to refer approximately a few hundred noncitizens each month to USCIS for an Asylum Merits Interview (AMI) following a positive credible fear determination.

Locations

The first locations for placement under this process will be two detention facilities in Texas. Asylum officers will conduct credible fear interviews telephonically in these two locations, including for individuals who may be subsequently referred to USCIS for an AMI following a positive credible fear determination. Initially, referrals for AMIs will be limited to those individuals who indicate to USCIS and Immigration and Customs Enforcement (ICE) an intention of residing in one of the following six cities: Boston, Los Angeles, Miami, New York, Newark, or San Francisco.

Processing

Below is a step-by-step description of how the process will work during the phased implementation period:

Placement into Expedited Removal:

Individuals encountered at the border by Customs and Border Protection (CBP) who are placed into expedited removal and who claim fear will be transferred to ICE detention, consistent with current procedure.

Credible Fear Interview:

Individuals will receive their credible fear interview while in detention, consistent with current procedure. DHS and DOJ are working to provide individuals with an opportunity to access Legal Orientation Program providers before their credible fear interview. If the credible fear interview results in a negative determination, the individual can request IJ review of the decision, consistent with current procedure. USCIS also may reconsider, in its discretion, a negative credible fear determination that an IJ has already concurred with, if the request is submitted within seven days of the IJ’s concurrence or before removal, whichever comes first.

Referral for an Asylum Merits Interview (AMI):

During phased implementation, individuals who are placed in expedited removal, and who receive a positive credible fear determination, and whom ICE determines on a case-by-case basis that it is appropriate to release from its custody may be referred to USCIS for a non-adversarial AMI. The individual must indicate an intent to reside in one of six destination cities where AMIs are taking place during phased implementation (Boston, Los Angeles, Miami, New York, Newark, and San Francisco). Individuals will be notified they are being placed into the AMI process when they are served with their positive credible fear determination. The record of the positive credible fear determination will constitute the asylum application, and the service date of the positive credible fear determination will become the filing date of the asylum application. The AMI will take place no earlier than 21 days and no later than 45 days after the positive credible fear determination.
Individuals who are released from detention during this time period will be placed in alternatives to detention (ATD) as necessary to ensure compliance with their reporting, interview, and hearing obligations.
Individuals will have until seven days (if submitting in person) or 10 days (if submitting by mail) before the AMI to amend or correct the record resulting from the credible fear interview and submit additional evidence. If an individual fails to appear at the AMI, appropriate enforcement action will be taken.
If USCIS finds the individual eligible for asylum, the individual will receive a grant letter informing them of applicable benefits and related procedures.

Streamlined Removal Proceedings:

If USCIS does not grant asylum, the agency will refer the case to EOIR for streamlined removal proceedings under Section 240 of the Immigration and Nationality Act. The asylum officer will include an assessment as to whether the applicant demonstrated eligibility for withholding or deferral of removal based on the evidence presented before USCIS.
There will be dockets for these proceedings available in the six cities listed above. During these proceedings, the IJ will review the noncitizen’s asylum application and supporting evidence and determine whether asylum should be granted.

In instances where USCIS does not grant asylum, the asylum officer will include in the decision a determination whether the principal applicant demonstrated eligibility for withholding or deferral of removal based solely on the evidence presented before USCIS. Once the individual is in removal proceedings, if the IJ also does not grant asylum and issues a final removal order, the IJ may confirm the USCIS asylum officer’s determination that the individual is eligible for withholding or deferral of removal. If the asylum officer did not find the individual eligible for withholding or deferral of removal, the IJ will further review those claims and make an independent assessment whether the applicant is eligible. If the IJ concludes that the individual is ineligible for relief or protection, they will issue a removal order, and the individual will be expeditiously removed from the United States.

Title 8 - Aliens and Nationality last revised: Jan 19, 2023

Title 8 - Chapter V - Part 1003 - Subpart C - Immigration Court - Rules of Procedure

8 CFR §1003.42 - Review of credible fear determinations.
(a) Referral. Jurisdiction for an immigration judge to review a negative fear determination by an asylum officer pursuant to section 235(b)(1)(B) of the Act shall commence with the filing by DHS of the Notice of Referral to Immigration Judge. DHS shall also file with the notice of referral a copy of the written record of determination as defined in section 235(b)(1)(B)(iii)(II) of the Act, including a copy of the alien's written request for review, if any.
(b) Record of proceeding. The Immigration Court shall create a Record of Proceeding for a review of a negative fear determination. This record shall not be merged with any later proceeding involving the same alien.
(c) Procedures and evidence. The Immigration Judge may receive into evidence any oral or written statement which is material and relevant to any issue in the review. The testimony of the alien shall be under oath or affirmation administered by the Immigration Judge. If an interpreter is necessary, one will be provided by the Immigration Court. The Immigration Judge shall determine whether the review shall be in person, or through telephonic or video connection (where available). The alien may consult with a person or persons of the alien's choosing prior to the review.
(d) Standard of review. (1) The immigration judge shall make a de novo determination as to whether there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim, and such other facts as are known to the immigration judge, that the alien could establish eligibility for asylum under section 208 of the Act or withholding of removal under section 241(b)(3)(B) of the Act or deferral of removal under the Convention Against Torture.
(2) If the alien is determined to be an alien described in 8 CFR208.13(c)(3) or 8 CFR 1208.13(c)(3) and is determined to lack a reasonable possibility of persecution or torture under 8 CFR 208.30(e)(5)(ii), the Immigration Judge shall first review de novo the determination that the alien is described in 8 CFR 208.13(c)(3) or 8 CFR 1208.13(c)(3) prior to any further review of the asylum officer's negative fear determination.
(3) If the alien is determined to be an alien described in 8 CFR 208.13(c)(4) or 8 CFR 1208.13(c)(4) and is determined to lack a reasonable possibility of persecution or torture under 8 CFR 208.30(e)(5)(iii), the immigration judge shall first review de novo the determination that the alien is described in 8 CFR 208.13(c)(4) or 8 CFR 1208.13(c)(4) prior to any further review of the asylum officer's negative fear determination.
(e) Timing. The immigration judge shall conclude the review to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date the supervisory asylum officer has approved the asylum officer's negative credible fear determination issued on the Record of Negative Credible Fear Finding and Request for Review.
(f) Decision. (1) The decision of the immigration judge shall be rendered in accordance with the provisions of 8 CFR 1208.30(g)(2). In reviewing the negative fear determination by DHS, the immigration judge shall apply relevant precedent issued by the Board of Immigration Appeals, the Attorney General, the Federal circuit court of appeals having jurisdiction over the immigration court where the Request for Review is filed, and the Supreme Court.
(2) No appeal shall lie from a review of a negative fear determination made by an Immigration Judge, but the Attorney General, in the Attorney General's sole and unreviewable discretion, may direct that the Immigration Judge refer a case for the Attorney General's review following the Immigration Judge's review of a negative fear determination.
(3) In any case the Attorney General decides, the Attorney General's decision shall be stated in writing and shall be transmitted to the Board for transmittal and service as provided in 8 CFR 1003.1(f). Such decision by the Attorney General may be designated as precedent as provided in 8 CFR 1003.1(g).
(g) Custody. An immigration judge shall have no authority to review an alien's custody status in the course of a review of a negative fear determination made by DHS.
(h) Asylum cooperative agreement - (1) Arriving alien. An immigration judge has no jurisdiction to review a determination by an asylum officer that an arriving alien is not eligible to apply for asylum pursuant to the 2002 U.S.-Canada Agreement formed under section 208(a)(2)(A) of the Act and should be returned to Canada to pursue his or her claims for asylum or other protection under the laws of Canada. See 8 CFR 208.30(e)(6). However, in any case where an asylum officer has found that an arriving alien qualifies for an exception to that Agreement, an immigration judge does have jurisdiction to review a negative fear finding made thereafter by the asylum officer as provided in this section.
(2) Aliens in transit. An immigration judge has no jurisdiction to review any determination by DHS that an alien being removed from Canada in transit through the United States should be returned to Canada to pursue asylum claims under Canadian law, under the terms of the 2002 U.S.-Canada Agreement.
(3) Applicants for admission. An immigration judge has no jurisdiction to review a determination by an asylum officer that an alien is not eligible to apply for asylum pursuant to a bilateral or multilateral agreement with a third country under section 208(a)(2)(A) of the Act and should be removed to the third country to pursue his or her claims for asylum or other protection under the laws of that country. See 8 CFR 208.30(e)(7). However, if the asylum officer has determined that the alien may not or should not be removed to a third country under section 208(a)(2)(A) of the Act and subsequently makes a negative fear determination, an immigration judge has jurisdiction to review the negative fear finding as provided in this section.
(4) Aliens in transit through the United States from countries other than Canada. An immigration judge has no jurisdiction to review any determination by DHS that an alien being removed from a receiving country in transit through the United States should be returned to pursue asylum claims under the receiving country's law, under the terms of the applicable cooperative agreement. See 8 CFR 208.30(e)(7).
(i) Severability. The provisions of part 1003 are separate and severable from one another. In the event that any provision in part 1003 is stayed, enjoined, not implemented, or otherwise held invalid, the remaining provisions shall nevertheless be implemented as an independent rule and continue in effect.

[62 FR 10335, Mar. 6, 1997, as amended at 64 FR 8487, Feb. 19, 1999; 69 FR 69496, Nov. 29, 2004; 83 FR 55952, Nov. 9, 2018; 84 FR 33844, July 16, 2019; 84 FR 64009, Nov. 19, 2019; 85 FR 80393, Dec. 11, 2020; 87 FR 18220, Mar. 29, 2022]
Authority: 5 U.S.C. §301; 6 U.S.C. §521; 8 U.S.C. §1101, 1103, 1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,1254a,1255,1324d,1330,1361,1362; 28 U.S.C. 509, 510, 1746; sec. 2 reorg. plan no. 2 of 1950; 3 cfr, 1949-1953 comp., p. 1002; section 203 of pub. l. 105-100, 111 stat. 2196-200; sections 1506 and 1510 of pub. l. 106-386, 114 stat. 1527-29, 1531-32; section 1505 of pub. l. 106-554, 114 stat. 2763a-326 to -328
Source: redesignated at 68 fr 9830, feb. 28, 2003. LINK

Cite As: 8 C.F.R. §1003.42