What happens at a credible fear hearing before an immigration judge?

Credible fear hearings refer to the process of an immigration officer or judge reviewing the statements of an individual who is seeking asylum in the United States. Generally, these hearings are first conducted at the port of entry by a custom and border protection (CBP) agent, or an immigration and custom enforcement officer (ICE). Based on the determination of the CBP/ICE officer, an initial credible fear determination is made. If a credible fear of return to the asylum seekers who country is established with the officers, generally the individual is permitted to enter the United States and remain at large until their hearing is conducted before a judge on the merits of the asylum application.

However, if the CBP/ICE officer determines that there is no credible fear of returning to the asylum seekers who country, the asylum seeker is detained. At this point he/she may request a judge to review the CBP/ICS determination. This review process is called a "credible fear hearing" and is conducting before an immigration judge. A couple of pointers to remember:

• A credible fear hearing must be requested, it is not automatic.
• Your client will be detained for the entire pendency of the credible fear hearing process, and likely thereafter.
• Only ICE has jurisdiction to release your client during or after a credible fear hearing, not the immigration court or judge.

The law on the matter is contained in 8 CFR:

Credible fear standard: A Credible fear of persecution means that there is a significant possibility that the alien can establish eligibility for asylum under INA § 208 or withholding of removal (restriction on removal) under INA § 241(b)(3). The credibility of the alien statements in support of the claim, and other facts known to the reviewing official, are taken into account. 8 C.F.R. §§ 208.30(e)(2), 1003.42(d).

Credible fear of torture: means there is a significant possibility that the alien is eligible for withholding of removal (restriction on removal) or deferral of removal under the Convention Against Torture pursuant to 8 C.F.R. §§ 208.16 or 208.17. 8 C.F.R. §§ 208.30(e)(3), 1003.42(d).

[taken from the "EOIR Immigration Judges Handbook"]

How does a credible fear hearing work?

First, you don’t submit evidence at a credible fear hearing – in fact, the judge may not even speak to you as the attorney on the case. You are an observer of the process only – this is a conversation between the judge and your client. On a practical note, usually the judge will speak to you and ask you what is going on. It’s faster and easier that way. But don’t be alarmed if the judge completely ignores you. Take good notes!

Representation: Prior to the credible fear review, the alien may consult with a person or persons of the alien's choosing. In the discretion of the Immigration Judge, persons consulted may be present during the credible fear review. However, the alien is not represented at the credible fear review. Accordingly, persons acting on the alien's behalf are not entitled to make opening statements, call and question witnesses, conduct cross examinations, object to evidence, or make closing arguments.

[taken from the "EOIR Immigration Judges Handbook"; See generally INA 235(b)(1)(B), 8 CFR 1003.42]

You need to prepare your client thoroughly. The client will be able to speak to the judge and will be able to testify. The discussion will be about the credible fear interview itself. The judge will ask things like: why are there inconsistent answers, etc. He/She will be using all the CBP/ICE forms, so be sure that you have a copy of the credible fear interview and each step of what your client did and said. Your client should have been given a copy of that. If there are translation issues (as there often are; most translation for the initial credible fear at the port of entry is done over the phone), be sure to brief your client on bringing that up to the judge.

Conduct of hearing: A credible fear review is not as exhaustive or in-depth as an asylum hearing in removal proceedings. Rather, a credible fear review is simply a review of the DHS asylum officer's decision. Either the alien or DHS may introduce oral or written statements, and the court provides an interpreter if necessary. Evidence may be introduced at the discretion of the Immigration Judge. The hearing is recorded. Parties should be mindful that all requests for continuances are subject to the statutory time limits.

[taken from the "EOIR Immigration Judges Handbook"]

If the judge finds credible fear, that he/she will set a next status date (called a master calendar hearing) at which point you will turn in the I-589 and supporting initial docs. Thereafter, it proceeds according to a regular defensive asylum process.

Technically, the judge cannot release your client, as she is deemed an arriving alien, not subject to parole from the court. There are two general rules here… in some jurisdictions, such as York, and sometimes Arlington, the judge will give bond anyway, and DHS rarely objects. That is technically a violation of the code. If the judge does not (and do not be alarmed if that happens…he/she should NOT do so), you can file to have ICE give a bond. In many jurisdictions, ICE will release your client once a credible fear determination I positive. Bond usually runs about $5K. Be sure to submit a bond package, showing where your client will live and with whom, when asking ICE for a bond. It is entirely up to the DO (deportation officer) in charge of your client.

No jurisdiction by regulation: By regulation, an Immigration Judge does not have jurisdiction to conduct bond hearings involving:

• aliens in exclusion proceedings
• arriving aliens in removal proceedings
• aliens ineligible for release on security or related grounds
• aliens ineligible for release on certain criminal grounds

An asylum seeker who requests asylum at a port of entry is an arriving alien.

See: 8 CFR 1003.19(h)(2)(i)

Is there an appeal if the credible fear is denied by the judge?

No right to appeal, however, generally, you can bring a request for DHS to give one final review before deporting your client. See 8 CFR 1208.30(g)(2)(iv)(A).

Do you have a question regarding immigration law or detention hearings? Give us a call! We can help --- 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com		Lili O'connell, Esq.
888 16th St., NW Ste 800 Washington, DC 20006	2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864	admin@hanoverlawpc.com	Charles Hatley, Esq.

So you're going to immigration court...what should your lawyer do?

Ah...the fun of the court room! Gotta love it!

Think "cattle call" -- do you do state or federal cases? The initial hearing equates roughly to a preliminary hearing in state/federal. The burden of moving forward is with the state, and if the respondent does not admit to the charges of removability, it is the burden of the state to prove them up. Once the state has convinced the judge that the charges are legit, the judge asks what relief the respondent seeks. Note that care must be used is admitting to the state's allegations as to removability...usually it's pretty "cold turkey" gotchas, but occasionally, they'll try to pull a quickie. Keep an eye on the regs, and the charges -- especially when a charge (state or federal criminal charge) can be viewed in different ways depending on the eye of the beholder. You can all sorts of fun stomping your feet and demanding a hearing as to the applicability or legitimacy of a particular allegation. On the same note -- don't be a jerk. If the allegation is valid, don't get a reputation of wasting court time on goofy meaningless foot dragging. This is especially true if your fella (or lass, as the case may be) is detained.

As to relief, that's where you pull out your trusty tool box and ponder the possible options. Generally, you want to do this prior to the hearing -- however, if you had not chance to see the NTA afore the hearing, take a moment to consider. Besides, you look good staring out the window rubbing your chin as you ponder how to save your client. You go, attorney! Typical relief options are Cancellation of Removal (COR 42A or 42B), some assortment of asylums (A-W-C), family adjustment (when appropriate), stalling with a plea for Prosecutorial Discretion (truly a waste), continuance for post-conviction relief (right....usually a stall tactic for some out of court magic date when bubba suddenly becomes eligible for relief), voluntary departure (one of the least understood and quite helpful tools for folks that can later adjust and don't already have EWI's etc.), and the old favorite -- a request for peonage (rarely granted, but often illicits a grin for those that know you have just asked to violate a host of immigration laws and the US constitution...but hey, if you have nothing else...)

When you really have hit the "duh...why am I here?" problem, and this is the first MCH...punt! Ask for a continuance to consider your options. Usually, you get one pass. Use it wisely.

Also, prior to requesting relief, but after a reading of the allegations (and any challenges thereunto), you'll have a chance to plead for bond, if your alleged evil alien monster is not already detained. Now, save yourself some grief, and the expectation crushing blow to your client's dying mother who just happened to attend your first MCH -- if your client has an aggravated felony (affectionately known as AgFel's). Don't know what constitutes an AgFel? Ping the law firm, and I'll send you a nifty cheat sheet (although as I have posted this prior -- I warn you that some of my more learned colleagues challenge some of the agfel definitions included on my sheet of cheating...but I'll leave that for your free time to hunt my alleged errors :). Regardless, with an AgFel, guess what? Your guest alien will not be getting out of the pokie. Don't even ask. Your client has "detained" stamped on his forehead. If you want to see if you can avoid that...TALK TO ICE BEFORE BEFORE BEFORE BEFORE (ahem...did I mention, um, "before"?) the judge has your case. The judge is compelled to keep your client detained if she has an AgFel. However, ICE can do whatever they want before EOIR takes the case. This is really important for CBP (custom and border patrol) ops (that would be LPR's that are snagged at the border for having a nefarious AgFel past that, for some reason, was allowed to be ignored for years and only now makes the evil heathens). If someone contacts you about a CBP "deferred inspection" grab them vigorously, and make SURE he or she takes you to the interview. You can beg and plead with the CBP officer to ask ICE to let your client walk -- even with AgFels. Once your client is non-detained -- judge can't revoke that, so it is possible to have a doomed, er..client out even with an AgFel. So...see if you can cajole ICE to play nice. Good luck with that, by the way :)

Let's see.. oh, and what about other MCH's? Well...they are just status hearings (a federal term for a continued case on the criminal docket). Usually you'll have one more after you plead relief so that you might have a glorious opportunity to, before all the assembled sad faced immigrants who, in court do find themselves, present a completed application of whatever relief thou hast otherwise requested in this, you first MCH.

The real fun is trying to prepare your client for their actual hearing on the merits (called an "individual calendar hearing" in immigration court parlance -- and by the way, if you are a client reading this LEARN AND DO NOT DO THESE THINGS). It is quite common to get hearing dates that are quite literally years out from the MCH (for non-detained). Your honest hard working client(s) will wander away...move to different states...go back to their home country, get DUI's (unbelievably...this is the number one charge for most of the folks that come to our office...an endemic problem in the Hispanic community of Northern VA...is there an ADA claim there somewhere? I'm game if anyone wants to help)...or, their story will change, the facts will be all wrong, and when trial comes, they'll not have provided anything you need. Remember! You are now a stunning paragon of justice and imminent speaker on all matters immigration -- so no worries (laughing)...you will persevere. On at least one in ten. (laughing again).

Court is a lot of fun, and the challenges of immigration court are really the same for all court cases -- facts and foundation. Get'um right and the relief you seek is indeed a pearl of great worth within your grasp.

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.