The difference between "credible fear" and "reasonable fear" interviews by ICE/DHS

From time to time we run into this question -- what is the difference between there two types of interviews? A recent question asked on an immigration board, to which we belong, is typical:

I have a detained client who received a positive reasonable fear determination. I checked the law, and I cannot find anything that states his bond eligibility. Anyone have any information on this?

ANSWER: A reasonable fear determination (as opposed to a credible fear determination) is the term used by DHS/ICE when the detained individual has a prior removal order that is not extinguished (still active). Although this was not mentioned in the above scenario, judging from the term used ("reaosnable fear"), I would guess that is the case. If it is, the judge lacks the authority to issue a bond.

The controlling provisions for bond/custody re-determination hearings are found at INA §236; 8 CFR §1003.19 and 1236.1. The bond hearing is separate and apart from the removal hearings pursuant to 8 CFR §1003.19(d).

The kicker is here: The immigration judge has no authority to review custody determinations if the alien has an administratively final order of removal or deportation. INA § 241; 8 C.F.R. § 1236.1(d)(1); Matter of Valles, 21 I&N Dec. 769, 771 (BIA 1997); Matter of Uluocha, 20 I&N Dec. 133, 134 (BIA 1989); Matter of Sio, 18 I&N Dec. 176, 177 (BIA 1981); Matter of Vea, 18 I&N Dec. 171, 173 (BIA 1981).

It should be noted that because a credible fear determination stems from an aliens status as "arriving," immigration judges also lack authority to grant bond to individuals who have a positive credible fear determination, whether or not ICE/DHS grants them parole or bond.

Do you have an immigration question? Call us! We can help. We are experienced in both immigration court defense, and forms based business and family adjustments. 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq. Charlet Herr, Practice Manager
1-800-579-9864 admin@hanoverlawpc.com

Determining Arriving Alien Status

How to determine if your client is an arriving alien -- or not!

First test: Was she stopped at the border?

Yes: Continue
No: Was she stopped with ~25 miles of the border within 10 days of when she arrived?

Yes: Continue
No: Arguably not arriving alien.

Second test: Is she a US citizen?

Yes: Interesting. If they are moving to revoke citizenship (i.e. not by birth), then you have a pickle. Arguably, not an arriving alien, as only a judge could revoke citizenship and a citizen cannot be an arriving alien. So most likely – not an arriving alien.
No: Continue

Third test: Was she granted conditional parole?

Yes: This is very narrow exception. Humanitarian or CBP approved “signed at the border” parole only. In this instance, she would not have been given a return date, and she would not have been placed in removal proceedings. A deferred inspection is not a parole for this purpose.
No: Continue

Fourth test: LPR?

Yes: Is there a petty exception that the CBP officer will accept? If so, get this kicked at the deferred inspection. If not, she is an arriving alien.
No: Arriving alien

If she is an arriving alien, hope her case get’s randomly transferred to York, PA. In York, the judges oftem grant bond even for arriving aliens (must have a legal place to go in the US, and someone willing to vouch for the alien). Otherwise, you are looking at no-bond initially.

How do I get bond for an arriving alien?

1. York
2. If there has been a credible fear determination (either through Court or through CBP), then you can ask ICE to grant a bond. ICE always has the right to grant bond. Talk to the DO (Deportation Officer – fella who is responsible for your client’s case on the ICE side) and request a bond. This usually only works on successful credible fear. If you have a pending asylum application and work permit, you should be able to get this unless your DO is being particularly ornery.

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

Understanding the term "arriving alien"

Be careful not to get your immigration client "no bond" on result of bogus allegations!

Many DHS attorneys (opposing counsel in immigration cases) do a great job, but you still need to be vigilant against your fella not getting bond or access to certain relief because the government incorrectly classifies him as an arriving alien.

The term "arriving alien" is defined in section 8 CFR 1.1(q). It is a clear definition, and you must not let DHS or ICE mis-categorize the alien:

8 CFR 1.1(q):
(q) The term arriving alien means an applicant for admission coming or at- tempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of trans- port. An arriving alien remains such even if paroled pursuant to section 212(d)(5) of the Act, except that an alien who was paroled before April 1, 1997, or an alien who was granted ad- vance parole which the alien applied for and obtained in the United States prior to the alien’s departure from and return to the United States, shall not be considered an arriving alien for pur- poses of section 235(b)(1)(A)(i) of the Act.

A recent example on a popular listserve we work with should illustrate:

My client entered the USA with a J-1 visa. The TA said that my client is an arriving alien. NTA allegation #3 states that client was admitted as a nonimmigrant exchange visitor for duration of Status. I have been doing research but I can't find it. Would anyone tell me where to find whether or not my client is an "arriving alien".

In this example, the client received a stamp -- "D/S" and entered the country. D/S stands for "duration of status" and indicates that the individual was reviewed by a Customs and Border Patrol officer, and admitted. Per 1 CFR 1.1(q), his is no longer an applicant for admission, and therefore he is not an arriving alien.

Where your client sneaks into the US (entry without inspection or EWI), the rule is that once he has "arrived" and is not detained within 100 miles of the border, he is considered to be within the US and no longer an arriving alien for Court purposes. The 100 miles, by the way, is a rule-of-thumb, not a firm statute.

Do you have a case involving an arriving alien? We'd love to help! Give us a call at 1-800-579-9864. Do not let your case get white washed!

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
888 16th St., NW Ste 800 Washington, DC 20006	2751 Prosperity Ave, Ste 580 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864	admin@hanoverlawpc.com	Charles Hatley, Esq. Leigh Snyder, Esq.