DHS/DOJ: Raise Credible Fear Standard for Statutory Withholding and CAT

A familiar burden of proof, and an overdue change

By Andrew R. Arthur on June 25, 2020
  • DHS and DOJ propose to change the standard that asylum officers use in determining whether an alien has a "credible fear" for statutory withholding of removal and protection under the Convention Against Torture (CAT) from a "significant possibility" that the alien could be persecuted or tortured (respectively) if removed to a "reasonable possibility" of such harm occurring.
  • The "credible fear" provision in the expedited removal section of the INA does not even reference an alien's eligibility for statutory withholding of removal or CAT, but the departments do not propose to eliminate credible fear screenings for those protections — although they could.
  • Instead, the proposed change in the credible-fear screening standards for those protections would be amended to reflect the higher burden of proof that aliens for those protections must meet, as opposed to the lower "well-founded fear" standard for asylum.
  • It will be easy for asylum officers and immigration judges to apply the new "reasonable possibility" standard, because it is the same standard that they currently use in determining whether an alien objectively has a well-founded fear of persecution to merit asylum.
  • Notably, asylum officers and immigration judges have also applied that reasonable possibility standard for more than two decades in assessing whether to allow aliens to apply for statutory withholding of removal or CAT in reinstatement of removal cases and expedited removal cases involving non-permanent resident aliens who have committed or been convicted of aggravated felonies.
  • This proposal will also facilitate implementation of a separate regulation proposed by DHS and DOJ, to move aliens who have been found to have a credible fear for asylum or for statutory withholding of removal or CAT purposes from removal proceedings to "asylum-only" or "withholding-only" proceedings, respectively.

In recent posts, I have examined a few of the proposed regulations that the Department of Justice (DOJ) and the Department of Homeland Security (DHS) issued last Monday as part of a Joint Notice of Proposed Rulemaking (JNPR). Next up is a proposal to raise the standard that asylum officers should apply in screening aliens in expedited removal for statutory withholding of removal and protection under the Convention Against Torture (CAT) from "significant possibility" to "reasonable possibility". The latter is a familiar standard, and well overdue.

Before I proceed to my analysis, however, it seems like, aside from the occasional results-oriented Supreme Court bombshell, my recent focus has been on regulatory changes either proposed or initiated by the administration. Reasonable minds can disagree, but I served in the former Immigration and Naturalization Service (INS) — going from trial attorney in the field to associate general counsel and acting section chief — in the years that many of the current asylum regulations were promulgated, and respectfully, my then-agency did not do a very good job of it.

The current administration is attempting to realign the regulations to meet the pertinent statutory standards, and reasonable minds can disagree about how good a job it is doing. In assessing its efforts, however, it is important to go back to the statute, and how we got where we are.

The 1996 Law: A Sea-Change in Applying the INA

It is best to begin with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the basis of many of the administration's current regulatory efforts.

IIRIRA was a sea-change in how Congress wanted the INS to apply the Immigration and Nationality Act (INA), and in particular the protections therein to otherwise removable aliens. It is best understood in context. Republicans won back control of the House of Representatives in the "Republican Revolution" of 1994 for the first time in 40 years, and also controlled the Senate, but the resulting 104th Congress (1995-1996) had to deal with Democratic President Bill Clinton.

Newt Gingrich's "Contract With America" was likely the driver for the GOP's successes, but four decades in the minority gave members lots of time to assess what else is wrong and needs to be fixed. One of the things that the 104th Congress wanted to tackle was immigration, and in particular what they viewed as a flawed asylum policy that was vulnerable to exploitation, particularly by aliens who had entered the United States illegally.

"Expedited removal" was key to that effort. Prior to IIRIRA, aliens who had entered the United States illegally and were apprehended by Border Patrol — and who did not want to simply take "voluntary return" back across the border to attempt another illegal entry — were placed in deportation proceedings or, less often, into exclusion proceedings.

Even assessing which proceeding was appropriate was a time-consuming and litigious process, largely due to two parallel concepts: the "entry doctrine" and "the Fleuti doctrine". Each could consume a book, but in IIRIRA, Congress wiped the former away, and attempted to limit the latter.

Specifically, that act replaced the convoluted entry doctrine, as well as deportation and exclusion proceedings, with the current concept of removal. Most pertinently, Congress made clear that an alien who was apprehended at or between the ports of entry who did not have proper documents to enter the United States (including aliens who had entered illegally) would be subject to "expedited removal" under section 235(b)(1) of the INA. Under that provision, that alien could be ordered removed without appearing before an immigration judge (IJ) by an officer of the then-INS, and current DHS.

To conform to the asylum provisions in section 208 of the INA, Congress added an exception to expedited removal, called "credible fear of persecution": If an alien subject to expedited removal asserted an intention to apply for asylum, or a fear of persecution upon return, the alien is to be referred to an asylum officer (AO) within U.S. Citizenship and Immigration Services (USCIS) for an interview to determine 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 under" section 208 of the INA.

Notably, Congress did not include therein any reference to an AO assessing an alien's eligibility for statutory withholding of removal or CAT, a point I have made before. Nonetheless, the Clinton DOJ (in its waning days) added such a process for those protections when it issued the regulation governing AO credible fear determinations.

What had been a shield in the expedited removal provision for aliens legitimately seeking asylum gradually became a sword with which other aliens could cut through the expedited removal provision to gain (indefinite) entry into the United States. In FY 2009, a year in which the Border Patrol apprehended 556,041 illegal entrants, USCIS completed 5,523 credible fear cases. In FY 2019, by contrast, Border Patrol apprehended 859,501 illegal entrants, and AOs received 105,439 credible fear claims, completing 102,204 (75,252 of whom received a positive credible fear finding).

In fact, by FY 2018, 18 percent of all aliens apprehended by Border Patrol after entering illegally, or deemed inadmissible by U.S. Customs and Border Protection (CBP) officers at the ports of entry following a request for admission, made a credible-fear claim (up from 13 percent in FY 2017).

Based upon my analysis, the reason for the increase is the low credible-fear standard, a point that I have made numerous times before. And, as then-Attorney General Jeff Sessions explained in October 2017, that problem was exacerbated by a 2009 decision by the Obama administration to allow most aliens who had satisfied that low standard "to be released from custody into the United States pending a full hearing."

Between the low credible-fear standard and DHS's inability, due to a lack of resources, to detain tens of thousands of aliens who had passed a credible-fear screening (detention that I note is mandated by Congress in section 235(b)(1)(B)(iii)(IV) of the INA), "credible fear" has become just another sales pitch for criminal smugglers seeking to lure foreign nationals to enter the United States illegally.

New Regulation Raises the Bar

All of which brings me back to the JNPR. The amendments in question would not eliminate screenings for statutory withholding of removal and CAT applicants in the credible-fear process — which they could have done because, as noted above, such screenings have no basis in the expedited-removal provisions. The regulatory amendments therein would, instead, raise the standard that AOs would apply in determining whether an alien subject to expedited removal is eligible to apply for those protections from a "significant possibility" that the alien would be persecuted or tortured to a "reasonable possibility" of such harm occurring.

This is consistent with the standards for establishing eligibility for statutory withholding of removal and CAT. Specifically, under the statutory withholding provision in section 241(b)(3)(A) of the INA, an alien may not be removed "to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." This has been interpreted to require the alien to "establish that it is more likely than not" such persecution would occur upon removal to the country in question to be granted statutory withholding of removal.

Similarly, to be granted protection under CAT, aliens must "establish that it is more likely than not that they would be tortured if removed to a specific country."

"More likely than not", logically, means a greater than 50 percent chance that something will occur.

Contrast these burdens with those borne by asylum applicants. Section 208(b)(1)(B)(i) of the INA states that to establish eligibility for asylum, an alien must establish that he or she is a "refugee", as defined in the INA. Under the implementing regulation, an asylum "applicant may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution."

The "well-founded fear" bar is not a high one. The regulation continues:

An applicant has a well-founded fear of persecution if:

(A) The applicant has a fear of persecution in his or her country of nationality or, if stateless, in his or her country of last habitual residence, on account of race, religion, nationality, membership in a particular social group, or political opinion;

(B) There is a reasonable possibility of suffering such persecution if he or she were to return to that country; and

(C) He or she is unable or unwilling to return to, or avail himself or herself of the protection of, that country because of such fear. [Emphasis added.]

The first and third factors above are subjective, that is, individual to the applicant. The second is objective, meaning that the adjudicator must conclude that such persecution would occur, not just that the applicant thinks it would. Thus, "reasonable possibility" is equivalent, as a standard of proof, to the objective element of a "well-founded fear". AOs and IJs are intimately familiar with this standard, as they apply it hundreds if not thousands of times a day in adjudicating asylum claims.

In INS v. Cardoza-Fonseca, the Supreme Court fleshed out the parameters of this standard: "One can certainly have a well founded fear of an event happening when there is less than a 50% chance of the occurrence taking place." Thus, the standard is lower than "more likely than not" — in fact the Court suggests that a 10 percent likelihood of persecution may be sufficient.

That difference in burdens of proof between asylum on the one hand and statutory withholding and CAT on the other is not, however, reflected in the current credible-fear regulation. Rather, an alien can satisfy the credible fear standard if there is a "significant possibility" that the alien can establish eligibility for statutory withholding and CAT — the same standard that applies to asylum claims in the credible-fear context by statute.

And, as the JNPR notes, "significant possibility" is not a high bar to clear: "The 'significant possibility' standard has been interpreted by DHS as requiring that the alien 'demonstrate a substantial and realistic possibility of succeeding' in immigration court.

As an aside, this demonstrates how low the asylum screening standard for credible fear is: An alien simply has to "demonstrate a substantial and realistic possibility" of being able to prove objectively that persecution is less than 50 percent (and potentially as low as 10 percent) likely to occur.

That said, it is a screening standard, and if the credible fear system were not so susceptible to fraud, it likely would not be an issue as aliens claiming credible fear would have meritorious asylum claims, or at least facially valid claims. In an ideal world, we would apply a lower standard to screen aliens seeking to apply for asylum than for establishing eligibility for asylum itself. Of course, in an ideal world, there is no fraud and there are no smugglers.

"Significant possibility" fails, however, as a screening standard for statutory withholding of removal and CAT claims, where the burden of proof is much higher. If you are wondering, for example, how cartel members can make credible fear claims, look no further.

In its place, the JNPR proposes substituting a "reasonable possibility" standard which, as noted, already applies to aliens who are actually applying for asylum (and not simply seeking to do so).

Thus, under the amendments therein, an alien in credible-fear proceedings seeking to apply for statutory withholding of removal would only need to show a "reasonable possibility" (again, the standard for an objectively "well-founded fear") that he or she would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion. Or, in other words, the same standard that the alien would have to meet to be granted asylum. An alien seeking CAT would have to show a reasonable possibility that the alien would be tortured.

The amendment works better as a screening standard because it is (1) lower than the standard that the alien will ultimately have to meet to be granted statutory withholding or CAT while still (2) higher than the standard for aliens in credible fear seeking asylum, for which the burden of proof is much lower. And, as noted, it is a standard with which AOs are already familiar.

Finally, "reasonable possibility" is the screening standard that is already in the regulations for certain aliens who are ineligible for asylum, specifically non-permanent resident aliens who are subject to expedited removal because they have committed or been convicted of aggravated felonies pursuant to section 238(b) of the INA, and aliens who are subject to reinstatement of prior orders of removal under section 241(b)(5) of the INA. Those regulations have been in effect for more than 21 years, and therefore, AOs will, again, be familiar with the standard. The only question is why it has taken so long to make the change, or why that standard was not included in the 19-year-old credible fear regulation.

I note that the aliens referenced in the paragraph above are only eligible to seek statutory withholding of removal or CAT from IJs in "withholding only proceedings" — not removal proceedings under section 240 of the INA, as I have recently explained. In that referenced post, I described how the JNPR also proposes to send aliens who have passed a credible fear screening for asylum, or for statutory withholding of removal or CAT, to "asylum-only" or "withholding-only" proceedings, respectively. The amended screening standard will facilitate that process, for aliens who are not eligible for asylum.

Credible fear in its current state is a mess, not least because its promise of an easy entry into the United States has been subject to exploitation. The susceptibility of credible fear to such exploitation has, consequently, resulted in hardships and abuse at the hands of rapacious smugglers for many of the migrants who bought those smugglers' sales pitches. The JNPR seeks to return some order to that system, and bring it in line with the INA as a whole. It is an overdue effort.