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Why the credible or reasonable fear interview is critical

A “positive fear finding” by an Asylum Officer stops the Expedited Removal or Reinstatement of Removal high-speed express train. It allows the woman to apply for asylum, withholding of removal, and/or deferral of removal under the Convention Against Torture (CAT), if she has moved off the “Expedited Removal” tracks. It allows a woman on the even more perilous “Reinstatement of Removal” track to apply for withholding of removal and/or deferral of removal under CAT.

For an adult woman with a minor child or children, a positive credible fear finding dramatically increases the chances of release of from detention in many if not most instances (although technically passing a Credible Fear is neither necessary* nor sufficient** to gain release).

The credible or reasonable fear interview is also critically important because what an adult says, and does not say, in the interview can be so important further in the removal proceedings See The Asylumist, “The Ghost of Credible Fear Interviews Past”, Apri 2, 2010, discussing Zhang v. Holder

* DHS may set bond on any person who is not subject to “mandatory detention” or release the person on her own recognizance. DHS has the authority to release any person on parole anytime it deems that such release would be in the public interest, even if that person would otherwise be subject to “mandatory detention.” The real meaning of “mandatory detention,” in practice, is that most immigration judges do not believe that they have the authority to release people in such a category, even if the detention has been going on for over six months, and even if such release is the only way to achieve the release of a minor child and thus permissible (we believe) under the regulations.

* Also, a person may apply to a judge for bond (or to reconsider her custody), if she is not subject to “mandatory detention” (that is, she is not in re-instatement proceedings, as soon as DHS sets a bond or refuses to set any bond. The bond review process is separate from the removal proceeding. Although the initial bond hearing is often set on the same day as the first Master Calendar hearing, and although judges often will listen to lawyer argue a bond motion and respond to an NTA regarding the same person at the same time, the proceedings do not necessarily take place together.

* At times, DHS has skipped over the credible fear interview step because the Asylum Office was not able to provide interpreters — especially Mayan language interpreters — for women in detention. DHS would instead just issue a Notice to Appear for such a woman. You might think, oh, this is great to just skip over the credible fear process! Well, no, not necessarily. The bad part about this practice was that judges had no interview transcript to review, and thus were not able to take the strength of a potential asylum claim into consideration for the purpose of setting a lower bond. Have indigenous, Mayan-speaking women been force to pay larger bonds than their mestizo or Ladina counterparts during this era of family detention????? Inquiring, suspicious minds want to know.

** Like DHS, an immigration judge has the authority to refuse to release a person from custody if she is a flight risk, if she poses a danger to the community, or if she poses a threat to national security. Between June, 2014, and February, 2015, DHS maintained that ALL Central American women and children posed a national security threat. On February 20, 2015, U.S. District Judge put a stop to the no-bond policy as applied to the class of women for whom asylum officers had found credible fear, and who would otherwise be eligible for bond. Thus, three groups families were excluded from the court’s explicit protection:
1) Women who had not had credible fear interviews because of lack of interpreters, such as women who spoke Mayan languages without any Spanish, and their minor children;
2) Women eligible for withholding only and who had reasonable fear interviews, and their minor children;
3) Women classified as “arriving aliens” and their children.

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