Credible Fear Determinations and Expedited Removal Proceedings
One of the most radical changes in U.S. immigration law implemented under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) is the provision for "expedited removal" of certain arriving aliens. Under the new expedited removal procedures, arriving aliens who lack valid travel documents or who attempt to gain entry through fraud or misrepresentation are subject to summary removal unless they establish (1) lawful permanent residence, refugee, or asylum status or (2) a credible fear of return to their country of origin. An INS officer's determination to apply expedited removal is final after approval by a supervisor. In addition, a five-year bar to admission to the U.S. automatically applies to individuals who have been ordered removed under these provisions. Another consequence of expedited removal is that individuals who are fleeing from persecution must pass a credible fear determination before they can apply for asylum/withholding of removal in the United States.
II. THE PATH TO A CREDIBLE FEAR DETERMINATION
1. Initial Inspection
All individuals arriving in the United States are subject to an initial "primary inspection." If during the initial inspection the INS officer determines that an individual is inadmissible under INA ss. 212 (a)(6)(c), fraud or misrepresentation in seeking admission, or 212(a)(7), lack of valid travel documents, expedited removal procedures apply. More generally, these categories include individuals without documents, individuals with facially false documents, individuals with facially valid document that the INS officer deems suspicious, and individuals with documents that are unsuitable for the type of admission being sought. All such individuals are subject to expedited removal unless (1) they claim lawful permanent residence, refugee, or asylum status, INAs. 235(b)(1)(C) or (2) they express fear of return to their country of origin, s. 235(b)(1)(A)(ii).
2. Secondary Inspection
Individuals whom the INS officer determines to be of questionable admissibility are subject to a "secondary inspection." At this inspection the INS officer will decide whether an individual has a claim to lawful status or a fear of return to the country of origin, or instead is subject to expedited removal. A determination that expedited removal applies is final upon approval by the INS officer's supervisor. 8 C.F.R. s. 235.3(b)(7). Individuals who claim that they possess lawful status or they fear returning to their country of origin will continue to the next phase of the expedited removal proceeding.
a. Lawful Status ClaimsAn individual who asserts a claim to lawful permanent residence, refugee, or asylum status must verify this claim. If the inspector cannot verify the claimed status, the individual will be detained until an immigration judge can verify the claim. 8 C.F.R. s. 235.3(b)(2)(iii).
b. Expression of Fear of Return or Desire to Seek Asylum
An individual who fears return to his or her country of origin must express this fear to the inspector in order to avoid summary removal. To guard against return of individuals who fail to express their need for protection against persecution, the inspector is required to warn the individual that this may be his or her only chance to ask for protection in the United States. See Form I-867A. In addition, the inspector must ask three specific questions designed to elicit any fear of return on the part of the individual. See Form I-867A. If the inspector finds that the individual is expressing some fear of return or desire for asylum, the individual will be detained while waiting for a credible fear interview with a trained INS officer. Once an individual is determined to possess credible fear, she/he will be detained while her/her asylum hearing is pending.
B. Detention and the Credible Fear Determination
In Minnesota, individuals who are determined to be eligible for a credible fear interview are placed in detention pending their credible fear interview. Since there is not a INS Detention Center in Minnesota, the INS contracts out to various county jails and private correctional facilities. Individuals in the credible fear determination process may be held in the following facilities in Minnesota and Wisconsin (this is not an exhaustive list).
INS Detention Facilities: Minnesota INS detainees are moved frequently without notice to counsel. It is recommended that attorneys phone the facility where your client is being held immediately prior to visiting the jail to confirm they are still held in that facility.
All attorneys visiting detainees must present their attorney registration card and photo identification at the jail. All interpreters must present photo identification.
Deportation & Detention Section
2901 Metro Drive
Bloomington, MN 55425
Washington County Jail
Washington County Government Center
14900 61st St. N.
P.O. Box 6
Stillwater, MN 55082
Wright County Jail
10 NW 2nd St
Buffalo, MN 55313-1197
Minnesota Correctional Facility - Rush City
7600 525th St.
Rush City, MN 55069
St. Croix County Jail
1101 Carmichael Road
Hudson, WI 54016
Sherburne County Jail
13880 Highway 10
Elk River, MN 55330-4608
Carver County Jail
600 E. 4th St.
Chaska, MN 55318
INS detainees may also be held at Rice County, McCloud County, Sherburne County, Sterns County, and other county correctional facilities. Families are often separated during their detention since the INS in Minnesota does not have the resources to detain children. Thus, children may be detained in a juvenile holding facility in Chicago. There are some known cases where relatives who are in the US or Canada are given permission to take the children while their parent(s) wait for their credible fear interview and asylum/withholding of removal hearing.
2. Credible Fear Interviews A detainee who is awaiting a credible fear interview will be provided with a list of pro bono representatives and the UNHCR phone number. INA Form M-444. Individuals may consult with anyone they wish to before the credible fear interview, but only "at no expense to the government" and as long as it does not "unreasonably delay the process." INA s. 235 (b)(1)(B)(iv).
The credible fear interview will occur no less than 48 hours after the detention of the individual and will be conducted by an INS officer with training equivalent to that of an asylum officer. INA s. 235(b)(1)(B)(I). An interpreter will be provided by the INS if the individual is unable to express herself/himself in English. INA s. 240. During the interview, the INS officer is charged with determining 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 officer, that the alien could establish eligibility for asylum." INA s. 235 (b)(I)(B)(ii)(V). This language is generally interpreted to establish a low screening standard, consistent with Congress' purpose under IIRAIRA of eliminating fraud and abuse in the asylum process.
a. Finding of Credible Fear
If the INS officer at the credible fear interview determines that the individual possesses a credible fear of persecution, the INS officer will inform the individual of this determination. The individual will have the opportunity to present her/his asylum claim before an immigration judge in normal removal proceedings. INA s. 240, 8 C.F.R. s. 208.30. Once the individual is found to have a credible fear, the individual is no longer subject to expedited removal proceedings but instead falls under normal removal proceedings.
b. Finding of No Credible Fear
If the INS officer at the credible fear interview determines that the individual does not possess a credible fear of persecution, the INS officer may order the individual removed, subject to the approval of the INS officer's supervisor. The INS officer must provide the individual with written notice of this decision and ask whether the individual wishes to have an immigration judge review the decision. See Form I-869. If the individual asks for review, an immigration judge will conduct a de novo review of the INS officer's determination within seven days of the initial decision.
District Directors have the discretion to grant or not grant parole to individuals in the credible fear process. Thus the policy on parole varies among the INS Districts. It is very difficult in Minnesota to obtain parole for an individual who has passed the credible fear determination and has an asylum/withholding of removal proceeding pending. According to an INS memo regarding the implementation of the expedited removal process, "parole is a viable option and should be considered for aliens who meet the credible fear standard." Requests of parole for individuals in the credible fear process in Minnesota should be addressed to: Mr. Curtis Aljets, INS District Director, 2901 Metro Drive , Suite 100, Bloomington, MN 55425.
1. Factors in a Parole Consideration
- Has the alien meet the credible fear standard?
- Can the alien establish identity and community ties?
- Are any bars to asylum involving violence or misconduct?
The implementation of expedited removal proceedings as outlined in IIRAIRA has proven to a be a tragic moment in US immigration history. Individuals who are victims of torture and who are fleeing from torture and persecution are being detained in the same facilities as criminals as they await their asylum/withholding of removal proceeding. Moreover, children are separated from their families during these proceedings.
A recent study of the first year implementation of expedited removal has found that legal representation may be a significant factor in the outcomes of the expedited removal process (Report of the First Year of Implementation of Expedited Removal, Expedited Removal Study, International Human Rights & Migration Project, Markkula Center for Applied Ethics, Santa Clara University, May 1998). It is essential that individuals who are subjected to the credible fear process receive legal representation in order to prove their asylum claim.