Asylum: "Reasonable Fear" FAQ -

Q: What is a Reasonable Fear of Persecution or Torture?

A: A "reasonable fear of persecution or torture" is defined as a "reasonable possibility" that in the country of proposed removal the individual will be:

persecuted on account of his or her race, religion, nationality, membership in a particular social group, or political opinion, or

tortured, as defined by Office of the U.N. High Commissioner for Human Rights (OHCHR) in the Convention Against Torture and as modified by the United States law

The definition of torture, as defined in Article 1 of the Convention and modified by the U.S. ratification document is:

severe pain or suffering, whether physical or mental

intentionally inflicted on a person for such purposes as

obtaining from him or her or a third person information or a confession
punishing him or her for an act he or she or a third person has committed or is suspected of having committed
intimidating or coercing him or her or a third person, or
for any reason based on discrimination of any kind

by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Q: When Do Asylum Officers Conduct "Reasonable Fear of Persecution or Torture" Interviews?

A: Asylum officers conduct reasonable fear of persecution or torture interviews in two types of cases:

An individual who is subject to reinstatement of a prior removal order because he or she illegally reentered the United States after having been removed or having departed voluntarily while under an order of exclusion, deportation, or removal.

An individual who is subject to an order of removal because he or she was convicted of one or more aggravated felonies after admission.

Asylum officers are required by regulation to conduct the interview and make the reasonable fear determination within 10 days after the case has been referred to the asylum office, unless there are exceptional circumstances. If an individual is serving a lengthy prison sentence, the asylum officer will not conduct the reasonable fear interview until the individual has nearly completed the sentence or otherwise is soon to be released to Immigration custody. In most cases, the individuals will be detained.

Q: Are There Any Mandatory Bars to Establishing a Reasonable Fear of Persecution or Torture?

A: The Asylum Officer may not consider any mandatory bars in determining whether an individual has established a reasonable fear of persecution or torture. If an individual is found to have a reasonable fear, however, the Immigration Judge will consider whether the individual is barred from a grant of withholding of removal. An individual may not be granted withholding of removal if he or she has persecuted others on account of race, religion, nationality, membership in a particular social group, or political opinion, has been convicted of a particularly serious crime, has committed a serious nonpolitical crime outside the United States, or there are reasonable grounds to believe that the individual is a danger to the security of the United States. If a bar applies, but the individual has established that he or she would be tortured in the country of return, the Immigration Judge will grant deferral of removal.

Q: What Will Happen Before the Immigration Judge?

A: If the Asylum Officer did not find a reasonable fear of persecution or torture, and the Immigration Judge concurs with the Asylum Officer's decision, the case will be returned to Immigration and the individual may be removed from the United States. The individual cannot appeal the Immigration Judge's decision.

The individual may apply for withholding of removal before the Immigration Judge in two circumstances: (1) the Asylum Officer found a reasonable fear of persecution or torture, or (2) the Immigration Judge found a reasonable fear of persecution or torture after the Asylum Officer first found no reasonable fear and the individual requested that an Immigration Judge review that determination.

The Immigration Judge will consider the applicant's request for withholding of removal. The applicant has the burden of proof of establishing that he or she is eligible for withholding of removal under either of the following:

Section 241(b)(3) of the Immigration and Nationality Act
The applicant must establish that his or her life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion.
Convention Against Torture
The applicant must establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.

If the applicant is found to have a reasonable fear of persecution or torture, the Immigration Judge will consider whether the applicant is barred from a grant of withholding of removal. If a bar applies, but the applicant has established that he or she would be tortured in the country of return, the Immigration Judge will grant deferral of removal.

If the Immigration Judge grants withholding of removal, the applicant cannot be removed to the country where the person fears persecution or torture, but may be removed to another country. If the Immigration Judge does not grant withholding of removal, the applicant may appeal the decision to the Board of Immigration Appeals.