Questions and Answers: Reasonable Fear Screenings
Certain individuals are prohibited from challenging removability before an immigration judge (IJ) or from seeking any relief from removal, Immigration and Customs Enforcement (ICE) may not remove individuals to a country where they are “more likely than not” going to be persecuted or tortured.
If you have been ordered removed and you express a fear of returning to the country to which you have been ordered removed, ICE must refer your case to an asylum officer who will determine whether you have a reasonable fear of persecution or torture.
If the asylum officer finds that you have a reasonable fear of persecution or torture, you are given an opportunity to seek withholding of removal or deferral of removal before an IJ.
If the asylum officer does not find that you have a reasonable fear of persecution or torture, you may request that an IJ review the negative reasonable fear determination. If you do not request review by the IJ or the IJ upholds the negative determination, ICE may remove you from the United States. If the IJ reverses the negative reasonable fear decision, you will be placed in proceedings before an IJ who will determine if you are eligible for withholding or deferral of removal only.
Q. Under what circumstances do asylum officers conduct reasonable fear interviews?
A. Asylum officers conduct reasonable fear of persecution or torture interviews for two categories of individuals subject to expedited removal processes:
- If you received a Form I-872, Notice of Intent/Decision to Reinstate Prior Order, because you illegally reentered the United States after you were removed or departed voluntarily while under an order of exclusion, deportation, or removal.
- If you are not a permanent resident (Green Card holder), and are subject to a Form I-851A, Final Administrative Removal Order, because you were convicted of one or more aggravated felonies after your admission to the United States.
Q. When do reasonable fear interviews take place?
A. Within 10 days after ICE refers your case to the asylum office. If you are serving a lengthy prison sentence, the asylum officer will not interview you for reasonable fear until you have nearly completed your sentence or will soon be released to ICE custody. In most cases, if you are subject to a reasonable fear interview, ICE will detain you.
Q. What is a reasonable fear of persecution?
A. You credibly establish that there is a “reasonable possibility” you would be persecuted in the future on account of your race, religion, nationality, membership in a particular social group, or political opinion. The legal standard is the same standard used to establish a well-founded fear of persecution in an asylum case.
You cannot establish a reasonable fear of persecution based only on past persecution without establishing a “reasonable possibility” of future persecution. After a reasonable fear of persecution or torture is found, the Immigration Judge will decide if you are eligible for withholding of removal or deferral of removal. Withholding of removal only provides protection against future persecution and may not be granted without a likelihood of future persecution. However, if you establish past persecution, there is a presumption that your fear of future persecution is reasonable.
Q. What is a reasonable fear of torture?
A. You credibly establish that there is a “reasonable possibility” that you would be subject to torture, as defined in the Convention Against Torture. (See definition of torture in Glossary to the right)
Q. Are there any mandatory bars to establishing a reasonable fear of persecution or torture or withholding of removal?
A. There are no mandatory bars to establishing a reasonable fear of persecution or torture. Asylum officers do not consider the mandatory bars to withholding of removal when making reasonable fear decisions but may still collect information regarding any potential bars to withholding of removal.
The Immigration Judge (IJ) will consider whether you are barred from a grant of withholding of removal for the following reasons:
- You have persecuted others on account of race, religion, nationality, membership in a particular social group, or political opinion
- You have been convicted of a particularly serious crime
- There are serious reasons to believe you have committed a serious nonpolitical crime outside the United States
- There are reasonable grounds to believe that you are a danger to the security of the United States
Q. What will happen if the Asylum Officer finds a reasonable fear?
A. The asylum officer will refer your case to an Immigration Judge who will determine if you are eligible for withholding or deferral of removal only.
Q. What will happen before the Immigration Judge?
A. The Immigration Judge (IJ) will consider your request for withholding of removal. You have the burden of proof of establishing that you are eligible for withholding of removal under either of the following:
- You establish that it is “more likely than not” that your life or freedom would be threatened in the proposed country of removal on account of your race, religion, nationality, membership in a particular social group, or political opinion.
- You establish that it is “more likely than not” that you would be tortured if removed to the proposed country of removal.
If the asylum officer or IJ finds that you have a reasonable fear of persecution or torture, the IJ will consider whether you are barred from a grant of withholding of removal. If a bar applies, but you established that you would be tortured in the country of return, the IJ will grant deferral of removal.
If the IJ grants withholding of removal, ICE cannot remove you to the country where you fear persecution or torture, but ICE may remove you to another country. If the IJ does not grant withholding of removal, you may appeal the decision to the Board of Immigration Appeals.
Q. What will happen if the asylum officer does not find a reasonable fear?
A. You can request that an Immigration Judge (IJ) review the negative decision. If you do not request review or the IJ agrees with the negative decision, ICE will remove you from the United States. If the IJ reverses the negative reasonable fear determination, you will receive a full hearing on eligibility for withholding or deferral of removal only. You cannot appeal the IJ’s decision regarding the reasonable fear decision.
Q. Where do I find the law about reasonable fear screenings?
A. You can find the law in Section 208 of the Immigration and Nationality Act and Title 8, Code of Federal Regulations.