A FEW MONTHS BEFORE COVID-19 descended, I spent a week in Dilley, Texas, as a volunteer attorney at the South Texas Family Residential Center, which is essentially a holding center, specifically for women and their children. It’s the last stop before expedited removal and the place where many women and children are sent once they’ve claimed fear of persecution for the purpose of applying for asylum, or for those who have also been apprehended internally.
I was working with asylum seekers at the Mexican border port of entry, where people were held without answers for weeks, even months, while they awaited the next step in their asylum claims: the credible fear interview. If asylum seekers, fleeing persecution in their home countries, declare their fear of returning, they are detained as they await this interview, which will determine whether they can proceed to the next step: appearing before an immigration judge to request asylum. The conversation leads to a proverbial thumbs up or down, a trip to a courtroom or the border they just fled. If an asylum officer determines that their story has objective elements of credible fear, they may proceed to the next legal step. Officers essentially check required elements off a list, including what the specific act of persecution is, if the asylum seeker knows the reason why she’s been persecuted, how many times it happened, if she has sought help to remediate it, and more. In other words, asylum seekers’ lives depend on the hour or so answering questions spent either in a small room or, more likely, over the phone with a government official and interpreter.
Right now, our country again faces a critical point in defining our identity: are we in fact a country founded on freedom and designed to welcome those in need? The Biden administration states that it aims to help asylum seekers, but in order to do so we need to reevaluate how we approach asylum at all levels. That begins with reassessing how we determine credible fear.
During my brief time working in Dilley, I helped women prepare for their credible fear interviews. Many asylum seekers might not understand the process, nor necessarily know which details of their stories determine what the United States has deemed credible fear. Asylum is not a guaranteed right, and attorneys are not permitted to help during the interview; thus, preparation is key.
I spoke with a woman who fled five countries to escape her abusive boyfriend. The man followed her from country to country, raping her and threatening her life in each country. No matter where she fled in South and Central America, he followed her. Her five-year-old son, a product of one of these rapes, held her hand during our conversation in the detention center. I spoke with another woman who was threatened by a well-known drug cartel. Through her tears, she could barely communicate to me that they had already killed her brother, taken her money, patrolled the school where she taught, and routinely policed her town, spitting bullets as easily as words. As I interviewed the women, they cradled their young children, who were also visibly traumatized by what they had experienced in their home countries, by their journeys to the United States, and finally by the process to gain safety on this side of the border.
The credible fear interview places the burden of establishing fear on the applicant and is supposed to be non-adversarial, but given the nature of everything that precedes the interview — the lack of representation during the process, the jail-like location in which it takes place, the asylum officer’s constant questions — it feels adversarial. And this is just the first step. If the officer determines that she does have credible fear, the next step is to present her case to an immigration judge in a proper hearing.
According to the Department of Homeland Security, the nebulous term “credible fear of persecution” means that:
[T]here is a “significant possibility” that he or she could establish in a full hearing before an Immigration Judge that he or she has been persecuted or has a well-founded fear of persecution or harm on account of his or her race, religion, nationality, membership in a particular social group, or political opinion if returned to his or her country.
In other words, the United States recognizes persecution with limitations. The fear must be based on a specific fear of future persecution for these codified reasons. What’s more, the asylum applicant must also prove that she has no place to be safe in her home country and that the police in her country are unable or unwilling to help. How does she do this?
For decades, migrants have established credible fear by meeting with an asylum officer, who determines whether or not the applicant qualifies under any of the officially recognized fears. These interviews can last anywhere from 30 minutes to a full day. While I was in Dilley, most women spoke to officers, typically men, often over the phone and with an interpreter, battling additional barriers of custom, language, and gender. If the asylum officer believes that the asylum seeker has a chance of this fear materializing, then they might qualify for asylum and can proceed in the system.
The metrics are subjective. Asylum officers follow a script of questions and make a determination based on this interview. After speaking with at least a dozen women in a single week, I started questioning the very concept of fear. How can the nature of “fear” and “persecution” even be measured? And how can anyone properly prepare someone for this flawed process? Fear is not easily codified. Ask a child what fear is, and she may say “Ursula” from The Little Mermaid or the dark or even a closed door. Ask a man who served in the military the same question, and you will get a different answer. If you ask a 25-year-old woman who was beaten by her husband on their wedding night, the answer will again veer in a new direction. Fear manifests differently in different people, and as a result, using individuals without psychiatric or psychological training to determine it is a dangerous approach. Certainly countries must set boundaries and have guidelines for asylum, but it seems highly problematic to assess someone’s future safety — particularly a child’s — on something so subjective.
But change is not a linear model. We cannot move forward without addressing the past several years. President Trump changed our immigration policy in June 2019 for nearly everyone south of the US-Mexico border. While I volunteered during this time the waiting rooms in the detention center’s legal trailer were far less crowded than they had been in previous months and years, demonstrating how much the United States had closed its doors to people in need. Times have quickly changed, though, and the number of migrants crossing the border into Texas has skyrocketed. Representative Vicente Gonzalez of Texas said recently that 80 percent of asylum seekers do not qualify for asylum, so he believes we need new approaches to immigration on our Southern border.
President Biden has signed executive orders that walk back many of Trump’s draconian measures, but the credible fear interview remains a foundational element of the asylum system, a system that does not follow the same standards of evidence as the rest of our justice system. By contrast, the judicial system relies on either elected or appointed judges to determine the law, and either a six- or 12-person jury to be the fact finders. In professional liability cases, the individual is evaluated according to a standard of care as determined by an expert in the field. In criminal trials, trained mental health professionals evaluate defendants, offering their expertise.
And yet the people conducting these early credible fear interviews are not trained psychologists, therapists, or social workers. In many cases, they are not even trained asylum officers; in fact, they are often Customs and Border Protection officers with limited training in the interview process and an entire background based in law enforcement, not evaluation or adjudication. They follow a script, ask specific questions meant to cover the types of credible fears that the United States recognizes under asylum law, and in a matter of hours, often without ever even meeting their applicant in person, they will determine her fate. In any other evaluation of a person’s credibility, this would not be tolerated, let alone permissible.
So we return to the most commonly accepted complaint in the justice system: we are divided between what’s right and what’s legal, what’s ethical and what’s practical, what’s moral and what’s feasible. Laws exist for a reason, which is why asylum law is codified and recognizes only certain kinds of fears. But even within this paradigm of recognized fears, it can be nearly impossible for asylum seekers to convey what the United States accepts as credible fear.
Most people who cross the border to flee drug cartels, gang warfare, and conspiring police do not know the intricacies of asylum law, nor have they trained in public speaking or professional writing. What’s more, they may not have the opportunity to speak with an attorney before being placed in that all-important interview. They may not know the “right” elements of their stories to bring up in their interview. They may become secondarily traumatized by the process and freeze during the interview. Details from trauma often travel to a victim’s memory in pieces. They may not even fully comprehend the legitimate (read: credible) fear they fled apart from the primal instinct to run. Nevertheless, they will be deported (sometimes within hours) and placed on a bridge back to the country that persecuted them.
A fair evaluation, just like in other fields of law, requires that applicants be allowed to properly tell their stories with the aid of attorneys. But summarily, it requires proper training on the part of those people listening to their stories. It requires a full view of the individual claiming asylum — not an impromptu, isolated phone call or hurried in-person interview. There is a reason that appellate courts defer to trial courts to reevaluate their decisions: trial courts visually witness all testimony and physical evidence. You must look a person in the eyes and assess her responses to properly determine fear. When you can’t even do this, you’ve taken away what makes us human. The Biden administration now faces the Herculean task of restructuring our immigration system, not just by walking back Trump policies but also by building new ones that represent a country built on freedom, hope, and asylum. And it starts by properly and fairly listening to our asylum seekers.
Elizabeth L. Silver is a writer and attorney based in Los Angeles.