Anti-immigrant members of a majority Democratic Congress, with the blessing of President Bill Clinton’s Administration, drafted the 1996 Immigration Reform & Immigrant Responsibility Act (IRIRA). Among the many punitive aspects of IRIRA are the ugly and mean-spirited twins, Expedited Removal and Reinstatement of Removal. Both are fast-moving processes designed to deport people as quickly as possible, without getting lawyers or judges involved.
Credible fear interviews and reasonable fear interviews are the meager concessions made to the humanitarian principles enshrined in the 1980 Refugee Act as well as in international law (imagine me pronouncing non-refoulement gracefully) and the Convention Against Torture.
2. Know what kind of interview will take place in what situation.
If a person is in expedited removal proceedings, she needs to have a credible fear interview.
If a person is in reinstatement of removal proceedings, you need to make sure you get a reasonable fear interview!
3. Don’t assume that there will be an interview.
It is responsibility of the Customs & Border Protection (CBP, or colloquially, use the former term the Border Patrol, or even more colloquially “la migra”) to determine whether to immediately deport (“remove”) a person, or to refer the person to the Asylum Office for a credible or reasonable fear interview.
What can go wrong?
– Intimidation by CBP (whether intentional or not), fear of the person seeking refuge
– Shame, especially about sexual abuse of the person interviewed herself or of her children by another person (shame about inability to protect her child or children)
– Recognized and unrecognized language barriers
– Misunderstandings and/or lies. On this point, see the fabulous amicus curiae brief by Stephen Manning for AILA. AILA Document No. 15061201, June 2, 2015
4. That’s why if you’re in doubt about whether an interview will take place, ESPECIALLY if you are advocating for a child, make sure that the person ASKS for an interview, or that you do it with her.
Sample simple Credible OR Reasonable Fear Interview Request A woman or child can give this to her deportation officer, and the officer should forward it to the Asylum Office.
5. Understand what the goal of the interview is, for the person facing expedited removal or reinstatement of removal.
8. Only AFTER you have heard the person tell her story to you, with your open-ended prompts and encouragements, should you get to more specific questions.
Ask her what she remembers of her encounter with the Border Patrol. Your first questions should be open-ended ones. THEN, review the I-213 together. Do not be surprised by inconsistencies, but do ask the person about them. Do NOT start with, “This is what CBP says, is it true….”
Expect questions about any previous statements (or lack thereof) to CBP/the Border Patrol.
Share with her the Asylum Office standard questions, and go over them together. Ask her to tell you what she thinks the questions mean. CFI:RFI questions in Spanish & English See also REDACTED SAMPLE ADULT CREDIBLE FEAR TRANSCRIPT AND REDACTED SAMPLE CREDIBLE FEAR TRANSCRIPT FOR TEENAGER
Some women will ask you, “What should I say?” There are some questions people are particularly afraid of — Did you pay a coyote? How much? Of course you will encourage people, always, to tell the truth.
Make sure that she understands that “I don’t remember” and “I don’t know” are fine answers (if true). Ranges of dates, seasons, references to significant events are often (but not always) more accurate than precise dates. Nevertheless, many people remember the exact date that they left home.
9. Explain the logistics.
For a detained person, the interview will take place in the detention center in a private room with a closed door. Asylum officers have been coming to the family detention centers to conduct the interviews in person, with an interpreter on the telephone. One of the bailiffs (GEO or CCA) may be inside the room or just outside.
The Asylum Officer is not likely to tell you her or his finding at the end of the interview; the officer may need time to finish the I-870 and transcript (if she’s skipped or abbreviated words while conducting the interview). Also, a supervisor will typically review the findings and sign it before it is final.
10. What the lawyer should do to prepare herself
Understand your role before, during, and after the interview.
Listen much more than you talk. Ask open-ended questions only, for as long as possible. Ask other questions only as needed for clarification, for as long as possible.
Obtain and read the I-213 Record of Deportable-Inadmissible Alien
Yes, take supporting documents (copies of personal/individual letters or documents from the women and “country conditions” material). Give them to the Asylum Officer and ask her to read and take them into account as she or he decides whether there is credible or reasonable fear.
During the interview, pay very close attention to the translation. Also listen for gaps, for places where you think the woman or child has more to say.
At the end of the interview, you will likely get a chance to suggest further areas of questioning. Follow up with any areas where she may have been cut off or felt cut off. “Officer, you asked Ms. Menchu A, and she answered C. Could you ask Ms. Menchu if she could say more about that?” Or maybe she TOLD you more about that and she hasn’t said so during the interview. Ask about the missing information: “Could you ask Ms. Menchu whether there was any one else present at that moment” or “Could you ask Ms. Menchu whether she had ever seen that person before.” Ask for the Asylum Interview to ask about areas that you think the person has not covered fully.
Also ask for clarifications about any ambiguities or possible mis-translation. “Officer, I heard Ms. Menchu say X, but I heard the interpreter say Y. Could you clarify which it was.”
You will probably be allowed to make an extremely brief statement. Sometimes the Asylum Officer will cue you that this is not necessary, but better to err on the side of spelling out the persecution, the basis for the persecution, and the nexus, than to leave it up to the officer.
11. When the Asylum Office makes its determination….
12. Review the transcript with extreme care
This is true whether the credible fear finding is positive or negative. If the finding is positive, you will need to know this transcript very well for preparing the I-589 and beyond to the merits hearing. If the finding is negative, you need to scour the transcript for issues to raise with the judge and/or with the Asylum Office.
13.Right to judicial review
The judge will ask the questions and only at the end will (some judges) she ask you if there are any other areas to cover, and if you would like to make a very, very, very brief statement. Not all judges are even this generous.
It is best to be WITH YOUR client in the detention center (rather than with the judge or on the telephone away from both of them — worst case scenario).
Even though the lawyer for ICE/DHS is not present, you still must present any documents that you are giving to the judge to DHS, and you must submit a certificate of service proving as much to the court.
14. Ask for the Asylum Office to reconsider, review, reinterview.
Green & red flow chart adapted from LGBT Know Your Rights 2009 I would add bubbles, encouraging you ask for parole, whether your client is “eligible” or not, everywhere.
Do not hesitate to use public pressure: calls, letters, media. Family detention is a crying shame and even those who are unsympathetic in general to immigrants recognize this.
DON’T GIVE UP!