Credible Fear and Defensive Asylum Processes: May 29, 2024
Frequently Asked Questions
Holly Straut-Eppsteiner,
Non-U.S. nationals (aliens under federal statute and regulation) subject to removal from
Coordinator
the United States may seek asylum and other forms of humanitarian protection during
Analyst in Immigration
formal and expedited removal processes. Asylum may be granted to persons in the
Policy
United States, regardless of their immigration status, who are unable or unwilling to

return to their country because of persecution or a well-founded fear of persecution
Andorra Bruno
based on race, religion, nationality, membership in a particular social group, or political
Specialist in Immigration
opinion.
Policy

The Immigration and Nationality Act authorizes the U.S. Department of Homeland
Audrey Singer
Security (DHS) to charge aliens with immigration violations and process them for
Specialist in Immigration
formal removal proceedings in immigration court. During removal proceedings, an alien
Policy
may apply for asylum, withholding of removal, and protection from removal under the

Convention Against Torture (CAT) as a defense against removal. Immigration courts are
Hillel R. Smith
within the Executive Office for Immigration Review, an agency of the U.S. Department
Legislative Attorney
of Justice.

Certain recently arrived aliens, including those apprehended by DHS at or near a U.S.
border, may be subject to expedited removal in which they may be removed by DHS without a hearing. During
expedited removal, individuals who express fear of persecution or torture if returned to their country of origin or
an intent to apply for asylum may undergo a credible fear screening to determine whether they may qualify for
asylum or other forms of protection from removal. Those who meet the threshold for a credible fear of
persecution or torture may be referred for formal removal proceedings.
Although the law specifies which aliens may be subject to expedited removal, DHS generally has discretion over
whether to place those individuals in either expedited or formal removal and may make such decisions based on
operational circumstances on a case-by-case basis. Those persons whom DHS processes directly for formal
removal—even if they are subject to expedited removal under the law—do not undergo a credible fear screening.
This report addresses frequently asked questions about credible fear and asylum, including those related to
expedited and formal removal processes; credible fear screening processes, criteria, and legislative history;
procedural protections; and data regarding credible fear and asylum outcomes.

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Credible Fear and Defensive Asylum Processes: Frequently Asked Questions

Introduction
The Immigration and Nationality Act (INA)1 provides multiple processes for the removal of
individuals who are not citizens or nationals of the United States (defined as aliens under the
INA, but also colloquially referred to as foreign nationals in this report)2 charged with
immigration violations, including formal and expedited removal pathways. Both pathways allow
individuals subject to removal to seek humanitarian protection, including through asylum,
withholding of removal, and protection under the Convention Against Torture (CAT).
During formal removal proceedings, immigration judges3 in the U.S. Department of Justice’s
(DOJ’s) Executive Office for Immigration Review (EOIR) determine whether a foreign national
who has been charged with an immigration violation by the U.S. Department of Homeland
Security (DHS) is removable and whether that individual qualifies for any relief or protection
from removal for which they have applied, including asylum.
DHS generally has discretion over whether to place an individual in either expedited or formal
removal. Persons placed directly in formal removal do not undergo a credible fear screening.
Under expedited removal, DHS may remove from the United States certain recently arrived
migrants4 without a formal hearing. If an individual subject to expedited removal expresses a fear
of persecution or torture if returned to their country of origin or an intent to apply for asylum,
they are referred for a credible fear interview with a DHS U.S. Citizenship and Immigration
Services (USCIS) asylum officer. Under the law, interviewed individuals who show during a
credible fear interview a significant possibility of establishing eligibility for asylum or related
protections are referred to formal removal proceedings, where they may file an asylum
application with the immigration court. In other cases, DHS may process individuals—including
those who may be subject to expedited removal—for formal removal proceedings in immigration
court instead of placing them in expedited removal.
This report addresses frequently asked questions related to asylum and credible fear,5 including
those related to formal and expedited removal processes; credible fear screening processes,
criteria, and legislative history; procedural protections; and data regarding credible fear and
asylum outcomes.

1 INA §§101 et seq.; 8 U.S.C. §§1101 et seq.
2 INA §101(a)(3); 8 U.S.C. §1101(a)(3). Although this report uses interchangeably foreign national and alien, the terms
are not legally identical in scope. While an alien is neither a U.S. national nor a U.S. citizen, it is possible for a U.S.
citizen or national to also be a national or citizen of a foreign country; INA §101(a)(22); 8 U.S.C. §1101(a)(22). See
also U.S. Department of State, Bureau of Consular Affairs, Dual Nationality, https://travel.state.gov/content/travel/en/
legal/travel-legal-considerations/Relinquishing-US-Nationality/Dual-Nationality.html.
3 Immigration judges are attorneys appointed by the Attorney General as administrative judges. See INA §101(b)(4); 8
U.S.C. §1101(b)(4).
4 In this report, migrant refers to a person who has arrived at or crossed the U.S.-Mexico border without valid entry
documents and is no longer residing in his or her country of origin or habitual residence. Migrants may include asylum
seekers. The term migrant is not defined in statute.
5 Because this report focuses on asylum, its use of the term credible fear typically refers to a credible fear of
persecution except where otherwise noted.
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Asylum and Related Forms of Relief
What is asylum?
Asylum is a discretionary form6 of immigration relief that can be granted to foreign nationals in
the United States who are unable or unwilling to return to their home country because of past
persecution or a well-founded fear of future persecution based on one of five statutorily defined
protected grounds (race, religion, nationality, membership in a particular social group, or political
opinion) and who satisfy other requirements.7 Persons granted asylum (asylees) can become U.S.
lawful permanent residents (LPRs) after one year of physical presence in the United States as
asylees.8 When an individual in removal proceedings applies for asylum, it is considered a
defensive asylum application.9
What related forms of relief may be available to asylum seekers?
In some cases, an alien may be statutorily barred from either applying for or receiving asylum
(e.g., because the application is untimely or the applicant has been convicted of a particularly
serious crime).10 Even if an alien is ineligible for asylum, he or she may still pursue related forms
of relief, including withholding of removal and protection under the Convention Against Torture
(CAT).11 An applicant for withholding of removal must meet a higher burden of proving that it is
more likely than not that he or she will be persecuted because of one of the five protected
grounds.12 An applicant for CAT protection must show that it is more likely than not that he or she
will be tortured by a public official or other person acting with the consent or acquiescence of an
official.13

6 Because asylum is a discretionary form of relief, an alien might be denied such relief despite meeting eligibility
requirements. See INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.6 (1987) (“[A]s we have mentioned, there is no
entitlement to asylum, it is only granted to eligible refugees pursuant to the Attorney General’s discretion.”). For
further discussion on the parameters of discretionary determinations by immigration authorities, see DHS, USCIS,
Policy Manual, vol. 1, part E, chapter 8, https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-8.
7 INA §101(a)(42); 8 U.S.C. §1101(a)(42), INA 208(a)-(b); 8 U.S.C. §1158(a)-(b).
8 INA §209; 8 U.S.C. §1159.
9 Individuals who are not in removal proceedings may affirmatively apply for asylum with USCIS. This report does not
cover the affirmative asylum application process.
10 INA §208(a)(2), (b)(2)(A); 8 U.S.C. §1158(a)(2), (b)(2)(A).
11 See 8 C.F.R. §1208.16(a) (“In exclusion, deportation, or removal proceedings, an immigration judge may adjudicate
both an asylum claim and a request for withholding of removal whether or not asylum is granted.”).
12 INA §241(b)(3)(A); 8 U.S.C. §1231(b)(3)(A); INS v. Stevic, 467 U.S. 407, 424, 429 ̶ 30 (1984) (explaining that an
application for withholding of removal must “be supported by evidence establishing that it is more likely than not that
the alien would be subject to persecution on one of the specified grounds.”). There are also statutory bars to
withholding of removal, and some of them overlap with the asylum bars (e.g., ineligibility based on a particularly
serious crime conviction). INA §241(b)(3)(B); 8 U.S.C. §1231(b)(3)(B). There are no similar limitations to CAT
protection.
13 8 C.F.R. §§208.16(c)(2), 208.18(a)(1), 1208.16(c)(2), 1208.18(a)(1). An applicant for CAT protection does not have
to show that the alleged torture would be on account of one of the five specified grounds for which asylum or
withholding of removal may be granted. See Hamoui v. Ashcroft, 389 F.3d 821, 826 (9th Cir. 2004) (“A claim under
the Convention differs from an asylum claim because there is no requirement that the petitioner show that torture will
occur on account of a statutorily protected ground.”).
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Unlike asylum, withholding of removal and CAT protection are mandatory forms of protection
from removal and may not be denied as a matter of discretion.14 Nonetheless, while asylum
affords the recipient an opportunity to pursue LPR status, a grant of withholding of removal or
CAT protection provides no path to LPR status and only prevents removal to the country where
the aliens would likely face persecution or torture (but not necessarily to a third country).15
Do all asylum seekers have credible fear interviews?
The only asylum seekers who undergo credible fear interviews (also known as credible fear
screenings) are those who are placed in expedited removal proceedings (see “What is expedited
removal?”) and express a fear of persecution or torture, a fear of returning to their home country,
or an intent to apply for asylum.16
Persons placed directly in formal removal proceedings do not have credible fear interviews.
These persons do not have to establish a credible fear to be able to request asylum from an
immigration judge (see “What is formal removal?”).
Formal and Expedited Removal Processes
DHS’s U.S. Customs and Border Protection (CBP) is responsible for immigration enforcement at
ports of entry and between ports of entry along the border. All foreign nationals who arrive in the
United States and those who are already in the country but have not been admitted (e.g., those
who entered unlawfully) are considered applicants for admission.17 These individuals are subject
to inspection by an immigration officer, who may determine whether they are subject to
removal.18
What is formal removal?
The INA provides for the removal of aliens whom DHS charges with immigration violations.19
DHS may process such individuals for formal removal proceedings by issuing a Notice to Appear
(NTA) charging document and filing it with an immigration court.20 DHS is required to detain
certain individuals during their removal proceedings (e.g., those who have been convicted of

14 See INS v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999) (explaining that “whereas withholding is mandatory unless the
Attorney General determines one of the exceptions applies, the decision whether asylum should be granted to an
eligible alien is committed to the Attorney General’s discretion.”); Niang v. Gonzales, 422 F.3d 1187, 1194 (3d Cir.
2005) (“Relief under the CAT is mandatory if the convention’s criteria are satisfied.”).
15 See Aguirre-Aguirre, 526 U.S. at 419 (“Under the immigration laws, withholding is distinct from asylum, although
the two forms of relief serve similar purposes. Whereas withholding only bars deporting an alien to a particular country
or countries, a grant of asylum permits an alien to remain in the United States and to apply for permanent residency
after one year.”); Sathanthrasa v. Attorney Gen., 968 F.3d 285, 289 (3d Cir. 2020) (“But while withholding is
mandatory if the statutory criteria are satisfied, the decision to grant asylum is ultimately left to the discretion of the
Attorney General and, between the two forms of relief, only the latter provides a pathway to legal permanent resident
status and a basis to petition for admission of family members as derivative asylees.”).
16 8 C.F.R. §235.3(b)(4)
17 INA §235(a)(1); 8 U.S.C. §1225(a)(1).
18 INA §235(a)(3); 8 U.S.C. §1225(a)(3).
19 INA §240(a); 8 U.S.C. §1229a(a). These include grounds of inadmissibility (INA §212(a); 8 U.S.C. §1182(a)) and
deportability (INA §237(a); 8 U.S.C. §1227(a)).
20 INA §239; 8 U.S.C. §1229, and 8 C.F.R. §239.1. For more information about formal removal proceedings, see CRS
In Focus IF11536, Formal Removal Proceedings: An Introduction; for more information about immigration courts, see
CRS Report R47077, U.S. Immigration Courts and the Pending Cases Backlog.
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committing certain crimes); in other cases, DHS has discretion to release individuals on bond or
their own recognizance.21
During formal removal proceedings, an immigration judge determines whether the alien (referred
to as the respondent) is removable as charged in the NTA, and if that individual is eligible for any
forms of relief or protection from removal, including asylum.22 To be considered for asylum, the
respondent must file an application for asylum with the immigration court. Individuals placed in
formal removal proceedings do not undergo a credible fear screening as part of the asylum
application process, although they may have been referred to formal removal proceedings as the
result of a positive credible fear finding (see “What is expedited removal?”).
Parties in formal removal proceedings include the respondent, who may or may not have counsel
(see “Do asylum applicants have legal representation during formal removal proceedings?”), and
DHS, which is represented by counsel from the Office of the Principal Legal Advisor, a
component of DHS’s Immigration and Customs Enforcement (ICE).
What is the process for formal removal proceedings?
Formal removal proceedings consist of multiple hearings before an immigration judge. A
respondent who fails to appear for any hearing may be ordered removed in absentia (see “How
many asylum applicants fail to appear for their immigration court hearings?”).23 During the initial
master calendar hearing, the immigration judge explains the respondent’s rights, the charges
against the respondent, and the nature of the proceedings; verifies the respondent’s contact
information; provides information about legal representation; and sets filing dates for
applications.24 To apply for asylum, the respondent must file an application with the court,
generally within one year of arrival in the United States.25 Respondents may use the same
application to apply for withholding of removal and CAT protection, which may be available to
those who are ineligible for asylum.26
During an evidentiary merits hearing (also called an individual hearing), the immigration judge
addresses any challenges to DHS’s charges of removability and considers the respondent’s
application(s) for relief and protection from removal. Parties may present witnesses, testimony,
and evidence. At the conclusion of the proceedings, the immigration judge issues a decision.

21 INA §236(a), (c); 8 U.S.C. §1226(a), (c). For more information about immigration detention, see CRS In Focus
IF11343, The Law of Immigration Detention: A Brief Introduction.
22 INA §240; 8 U.S.C. §1229a. For information about other types of protection and relief from removal, see CRS
Report R47077, U.S. Immigration Courts and the Pending Cases Backlog, Table 2.
23 INA §240(b)(5)(A); 8 U.S.C. §1229a(b)(5)(A). For more information about in absentia removal orders, see CRS In
Focus IF11892, At What Rate Do Noncitizens Appear for Their Removal Hearings? Measuring In Absentia Removal
Order Rates.
24 See DOJ, EOIR, “Chapter 4.15 – Master Calendar Hearing,” Immigration Court Practice Manual,
https://www.justice.gov/eoir/reference-materials/ic/chapter-4/15.
25 INA §208(a)(2)(B); 8 U.S.C. §1158(a)(2)(B). The one-year filing deadline may be excused if the alien can establish
changed or extraordinary circumstances. For more information about the asylum process in immigration court, see CRS
Report R47504, Asylum Process in Immigration Courts and Selected Trends.
26 An alien is eligible for asylum if he or she has suffered past persecution or has a well-founded fear of future
persecution on account of his or her race, religion, nationality, membership in a particular social group, or political
opinion; INA §§101(a)(42), 208(b)(1)(B)(i); 8 U.S.C. §§1101(a)(42), 1158(b)(1)(B)(i). An alien qualifies for
withholding of removal if the individual can show it is more likely than not that he or she will be persecuted on account
of one of these enumerated grounds; INA §241(b)(3)(A); 8 U.S.C. §1231(b)(3)(A), and 8 C.F.R. §208.16(b)(2). To
qualify for CAT protection, an alien must show that it is more likely than not that he or she will be tortured by a
government official or person acting with the consent or acquiescence of that official; 8 C.F.R. §§208.16(c)(2),
208.18(a)(1).
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What are the possible outcomes of formal removal proceedings?
At the conclusion of the formal removal hearings, the immigration judge may do the following:
• issue a removal order;27
• find the respondent removable and allow him or her to request voluntary
departure and leave the United States at his or her own expense;28
• grant relief or protection from removal, such as asylum; or
• terminate or dismiss a case.29
The immigration judge may terminate a case in some circumstances, including, for example, if
the respondent establishes eligibility for U.S. citizenship or demonstrates that the charges on the
NTA are substantively or procedurally defective.30 The immigration judge may dismiss a case
when DHS moves to dismiss proceedings, for example, as a matter of prosecutorial discretion.31
Parties may appeal an immigration judge’s decision within 30 days to the Board of Immigration
Appeals, EOIR’s appellate component.32
An immigration judge may also administratively close proceedings, which means cases are
temporarily moved to an inactive docket, typically to allow the respondent to apply for a form of
relief outside of immigration court; for example, in a case where the respondent is pursuing a
family-based immigrant visa with USCIS.33 While an immigration judge generally may grant
administrative closure when that request is unopposed, the immigration judge has discretion to
determine whether an opposed request for administrative closure is warranted.34
Do asylum applicants have legal representation during formal removal
proceedings?
The INA provides respondents with the privilege of being represented by counsel at no expense to
the government.35 Respondents may obtain counsel at their own expense, obtain pro bono

27 INA §240(a)(1); 8 U.S.C. §1229a(a)(1), INA §240(c)(1); 8 U.S.C. §1229(c)(1)
28 If the immigration judge grants a respondent’s request for voluntary departure, there is no removal order. Voluntary
departure may be granted before the completion of removal proceedings or at the conclusion of removal proceedings.
See INA §240B; 8 U.S.C. §1229c and 8 C.F.R. §1240.26.
29 8 C.F.R. §1239.2. For more information about these outcomes and 2023 outcomes data, see CRS Insight IN12318,
FY2023 Immigration Court Data: Case Outcomes.
30 See 8 C.F.R. §1239.2(f) (authorizing termination of proceedings “when the alien has established prima facie
eligibility for naturalization and the matter involves exceptionally appealing or humanitarian factors”); Matter of J-A-
B- & I-J-V-A-, 27 I. & N. Dec. 168, 169 (B.I.A. 2017) (“It is well settled that an Immigration Judge may only
‘terminate proceedings when the DHS cannot sustain the charges [of removability] or in other specific circumstances
consistent with the law and applicable regulations’”) (quoting Matter of Sanchez-Herbert, 26 I. & N. Dec. 43, 45
[B.I.A. 2012]).
31 For more information about prosecutorial discretion, see CRS Legal Sidebar LSB10578, The Biden Administration’s
Immigration Enforcement Priorities: Background and Legal Considerations.
32 8 C.F.R. §§1003.3(a)(1), 1003.38.
33 See Matter of Cruz-Valdez, 28 I. & N. Dec. 326, 326 (A.G. 2021) (“Administrative closure is ‘a docket management
tool that is used to temporarily pause removal proceedings.’ It does not terminate or dismiss the case, but rather
‘remove[s] a case from an Immigration Judge’s active calendar or from the Board’s docket.’”) (quoting Matter of W-Y-
U-, 27 I. & N. Dec. 17, 18 [B.I.A. 2017]; Matter of Avetisyan, 25 I. & N. Dec. 688, 692 [B.I.A. 2012]).
34 Memorandum from David L. Neal, Director, EOIR, Administrative Closure, November 22, 2021.
35 INA §240(b)(4); 8 U.S.C. §1229a(b)(4). For more information about access to counsel and EOIR’s legal access
programs, see CRS In Focus IF12158, U.S. Immigration Courts: Access to Counsel in Removal Proceedings and Legal
Access Programs.
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services, or represent themselves (pro se); the federal government generally may not fund
counsel, but there are exceptions. EOIR provides respondents with a list of free or low-cost legal
service providers36 and its Office of Legal Access Programs provides different programs to
facilitate legal orientations and referrals. Persons eligible to serve as respondents’ representatives
in immigration court are specified in federal regulation.37
As of the first quarter of FY2024, among all pending immigration court cases, 36% of
respondents were represented.38 Among pending cases that had at least one hearing, 55% were
represented.39 Among pending asylum cases, 69% were represented; and among completed
asylum cases, 83% were represented.
Under certain circumstances, the government may provide counsel to a respondent. Under
EOIR’s National Qualified Representative Program (NQRP), counsel is provided to
unrepresented detained respondents with mental disorders and disabilities whom immigration
judges or the Board of Immigration Appeals have deemed to be “mentally incompetent to
represent themselves in proceedings.”40
The U.S. Department of Health and Human Services (HHS), Office of Refugee Resettlement
(ORR), which is responsible for the cases and custody of unaccompanied alien children
(unaccompanied children; UAC) also funds representation for some children under requirements
specified in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008
(TVPRA; P.L. 110-457).41 As of the first quarter of FY2024, 56% of pending UAC cases were
represented; among cases pending more than one year, 60% were represented.42
What is expedited removal?
Expedited removal is a streamlined removal process that typically applies to certain arriving
aliens and aliens who recently entered the United States without inspection. Under 8 U.S.C.
§1225(b)(1), an immigration officer may order the removal of a person arriving in the United
States without a hearing or further review of the order to remove the individual if that person is
inadmissible because he or she lacks valid entry documents or attempted to obtain admission by
fraud or misrepresentation.43 In addition, Section 1225(b)(1) authorizes the DHS Secretary44 to
apply the expedited removal process to persons present in the United States who have not been
admitted or paroled45 if they have been in the country less than two years and are inadmissible

36 8 C.F.R. §1003.61(b).
37 8 C.F.R. §1292.1.
38 DOJ, EOIR, “Current Representation Rates,” Adjudication Statistics, January 18, 2024.
39 Ibid.
40 EOIR established the NQRP following a district court’s decision in the matter of Franco-Gonzalez v. Holder.
41 The TVPRA requires HHS to “ensure, to the greatest extent practicable” that unaccompanied children in its care
have counsel. For more information about unaccompanied children, see CRS Report R43599, Unaccompanied Alien
Children: An Overview.
42 DOJ, EOIR, “Current Representation Rates,” Adjudication Statistics, January 18, 2024.
43 INA §235(b)(1)(A)(i); 8 U.S.C. §1225(b)(1)(A)(i).
44 Although the statutory provisions under 8 U.S.C. §1225(b)(1) refer to the “Attorney General,” the Homeland
Security Act of 2002 subsequently transferred many immigration-related functions to the DHS Secretary, including the
authority related to the detention and removal of aliens; 6 U.S.C. §251.
45 Parole is a process by which a person may enter the United States temporarily pending his or her application for
admission; INA §212(d)(5); 8 U.S.C. §1182(d)(5); Samirah v. O’Connell, 335 F.3d 545, 547 (7th Cir. 2003) (“Parole
allows an alien temporarily to remain in the United States pending a decision on his application for admission.”)
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because they lack valid entry documents or have attempted to obtain their admission by fraud or
misrepresentation.46
Based on this statutory authority, DHS has employed expedited removal for three categories of
inadmissible aliens: (1) individuals arriving at U.S. ports of entry (e.g., a land border-crossing or
an international airport), (2) individuals who arrived in the United States by sea within the last
two years and have not been admitted or paroled by immigration authorities, and (3) individuals
found in the United States within 100 air miles of the border within 14 days of entering the
country who have not been admitted or paroled by immigration authorities.47
Although a person in expedited removal proceedings typically has no right to a hearing or review
of the expedited removal order, there is an exception for individuals who express an intent to
apply for asylum, a fear of persecution or torture, or a fear of returning to their home country.48 In
these cases, the immigration officer must refer the individual for an interview with an asylum
officer (see “Who conducts credible fear interviews?”) to make a credible fear determination.49
What is a credible fear determination?
A credible fear determination results from a screening process that evaluates whether a person
placed in expedited removal proceedings might qualify for asylum, withholding of removal, or
protection from removal under the CAT.50 Federal statute defines a “credible fear of persecution”
as “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.”51 Federal regulations define a “credible fear of torture” as “a
significant possibility that the alien is eligible for [protection] under the Convention Against
Torture.”52 As discussed in this report, depending on the outcome of the credible fear interview,
the applicant may potentially apply for asylum and related protections in formal removal
proceedings.53

(quoting 8 U.S.C. §1182(d)(5)). For more information about parole, see CRS Report R46570, Immigration Parole; and
CRS Legal Sidebar LSB11102, Humanitarian Parole Authority: A Legal Overview and Recent Developments.
46 INA §235(b)(1)(A)(iii); 8 U.S.C. §1225(b)(1)(A)(iii).
47 See Inspection and Expedited Removal of Aliens, 62 Federal Register 10312, March 6, 1997; Notice Designating
Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67
Federal Register 68924, November 13, 2002; and Notice Designating Aliens for Expedited Removal, 69 Federal
Register 48877, August 11, 2004.
48 INA §235(b)(1)(A)(ii); 8 U.S.C. §1225(b)(1)(A)(ii), and 8 C.F.R. §235.3(b)(4).
49 INA §235(b)(1)(A)(ii); 8 U.S.C. §1225(b)(1)(A)(ii) (“If an immigration officer determines that an alien (other than
an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible
under section 1182(a)(6)(C) or 1182(a)(7) of this title and the alien indicates either an intention to apply for asylum
under section 1158 of this title or a fear of persecution, the officer shall refer the alien for an interview by an asylum
officer under subparagraph (B).”); 8 C.F.R. §208.30(b) (“A USCIS asylum officer shall then screen the alien for a
credible fear of persecution or torture.”).
50 8 C.F.R. §208.30(e)(2), (3).
51 INA §235(b)(1)(B)(v); 8 U.S.C. §1225(b)(1)(B)(v). See also 8 C.F.R. §208.30(e)(2).
52 8 C.F.R. §208.30(e)(3).
53 In 2023, DHS and DOJ issued a rule that makes aliens entering without valid entry documents at “the southwest land
border or adjacent coastal borders” from May 11, 2023, to May 11, 2025, after traveling through another country en
route to the United States (other than their country of citizenship or nationality) subject to a rebuttable presumption of
asylum ineligibility unless certain exceptions apply. DHS and DOJ, EOIR, “Circumvention of Lawful Pathways,” 88
Federal Register 31314, 31321-22, May 16, 2023 (codified at 8 C.F.R. §§208, 1003, and 1208). As relevant to
expedited removal, the rule requires asylum officers conducting credible fear interviews to determine whether an alien
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How does DHS determine whether to put someone in formal
removal proceedings or expedited removal?
As described previously (see “What is expedited removal?”), expedited removal is primarily
applied to foreign nationals who have recently arrived without valid entry documents or who have
been apprehended at a U.S. land border.54 The statute also authorizes (but does not require) the
expedited removal process for other foreign nationals physically present in the country for less
than two years if they are inadmissible on the same grounds.55
If an immigration officer determines that an individual is inadmissible on certain other grounds,
such as having engaged in specified criminal activity, he or she must be detained and processed
for formal removal.56 In other situations, DHS has discretion to place certain aliens subject to
expedited removal directly into the formal removal process by issuing an NTA (see “What is
formal removal?”) and release them from custody. 57 For example, DHS may process for formal
removal and release individuals who pose no threat to safety or national security and are a low
flight risk. This may happen during times when CBP experiences operational constraints—for
instance, lack of capacity in CBP holding facilities for migrants to await a credible fear screening.
What percentage of migrants arriving at the Southwest border are
placed in expedited removal?
CBP publishes monthly data on the different dispositions under which migrants encountered by
CBP at the Southwest border—including those deemed inadmissible at ports of entry or
apprehended between ports of entry—are processed.58 These data show the number of migrants
processed for expedited removal and for formal removal (with an NTA), among other
dispositions.59
At ports of entry along the Southwest border in FY2024 (through February), 2.5% of arriving
inadmissible migrants were processed for expedited removal; 97.5% were processed with an NTA

is covered by the new rule and whether the alien has rebutted the presumption of asylum ineligibility. Ibid., p. 31322; 8
C.F.R. §208.33(b)(1), (2). For more information about the 2023 rule, see CRS Legal Sidebar LSB11044, The Biden
Administration’s Final Rule on Arriving Aliens Seeking Asylum (Part One). Additionally, in 2024 USCIS announced a
proposed rule that would allow asylum officers to consider certain statutory bars to being granted asylum or
withholding of removal (e.g., those applicable to persons who have been convicted of particularly serious crimes or
who have engaged in terrorist activity) in determining whether an individual has shown a credible fear of persecution;
DHS, USCIS, “Application of Certain Mandatory Bars in Fear Screenings,” 89 Federal Register 41347, May 13, 2024.
Under this rule, if there is evidence that a mandatory bar applies, the asylum officer would be permitted to issue a
negative credible fear finding if the alien fails to show that there is a significant possibility that the mandatory bar does
not apply and the alien is otherwise unable to show a credible fear of torture. Ibid., p. 41355. For more information
about the bars to being granted asylum, see CRS Legal Sidebar LSB10816, An Overview of the Statutory Bars to
Asylum: Limitations on Granting Asylum (Part Two).
54 INA §235(b)(1); 8 U.S.C. §1225(b)(1). For more information, see CRS In Focus IF11357, Expedited Removal of
Aliens: An Introduction.
55 INA §235(b)(1)(A)(ii); 8 U.S.C. §1225(b)(1)(A)(ii).
56 INA §235(b)(2)(A); 8 U.S.C. §1225(b)(2)(A), and 8 C.F.R. §235.3(c).
57 See Matter of E-R-M- & L-R-M-, 25 I. & N. Dec. 520, 523 (B.I.A. 2011) (“DHS has discretion to put aliens in
section 240 removal proceedings even though they may also be subject to expedited removal under section
235(b)(1)(A)(i) of the Act.”).
58 DHS, CBP, “Custody and Transfer Statistics,” March 22, 2024, https://www.cbp.gov/newsroom/stats/custody-and-
transfer-statistics.
59 Other processing dispositions include reinstatement of a prior order of removal and voluntary return.
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for formal removal.60 Between ports of entry during that period, 72.8% of encountered migrants
were processed for formal removal;61 14.0% were processed for expedited removal.62 Note that
dispositions may change (e.g., someone processed for expedited removal may subsequently be
placed in formal removal following a credible fear screening).
Credible Fear Screening Process
Has credible fear screening always been part of the asylum process
for migrants arriving at a U.S. border?
Asylum regulations and statutory provisions did not originally include a credible fear screening
process. In the 1970s, the former Immigration and Naturalization Service (INS), the DOJ agency
primarily responsible for administering and enforcing immigration laws prior to the creation of
DHS, issued regulations that established procedures for applying for asylum in the United States
and for adjudicating asylum applications. In 1980, with the enactment of the Refugee Act of
1980, a three-paragraph asylum section was added to the INA.63 INS asylum regulations, which
were revised in the years between 1980 and 1994, continued to set forth procedures. It was not
until enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of
1996 (P.L. 104-208, Division C, §302(a)) that expedited removal and credible fear screening
became features of the asylum system.64
What proportion of all defensive asylum seekers go through the
credible fear process?
Data are not available to determine the number of credible fear screenings as a proportion of all
defensive asylum seekers (those seeking asylum as a defense against removal). However, EOIR
data show the proportion of all pending removal proceedings that originated with a credible fear
claim, regardless of whether the respondent has filed an asylum application. These figures
provide a measure of the proportion of formal removal proceedings that resulted from individuals
placed in expedited removal who passed their credible fear screenings. Among 2,773,145 total
proceedings pending at the end of calendar year 2023, 221,408 (about 8%) originated with a
credible fear claim.65

60 CBP has established a process for asylum-seeking migrants located in central or northern Mexico to make an
advance appointment to appear at a port of entry to be processed for removal. The rate of formal removal processing is
likely reflected in this policy, as are other changing conditions related to individuals seeking asylum at the border (such
as capacity, etc.). For more information about scheduled appointments at a port of entry, see DHS, CBP, “CBP One
Mobile Application,” https://www.cbp.gov/about/mobile-apps-directory/cbpone.
61 Includes 66.3% processed with an NTA and released on their own recognizance and 6.5% processed for removal and
detained.
62 Other dispositions included voluntary return (9.7%) and reinstatement of a prior order of removal (3.6%).
63 INA §208; 8 U.S.C. §1158.
64 For further historical discussion, see archived CRS Report R45539, Immigration: U.S. Asylum Policy.
65 DOJ, EOIR, “Pending I-862 Proceedings Originating with a Credible Fear Claim and All Pending I-862s,”
Adjudication Statistics, January 18, 2024. I-862 proceedings are removal proceedings (Form I-862 is a Notice to
Appear).
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What is the process for a credible fear interview?
Who conducts credible fear interviews?
USCIS asylum officers conduct credible fear interviews. An asylum officer is an immigration
officer who “has had professional training in country conditions, asylum law, and interview
techniques comparable to that provided to full-time adjudicators of [asylum] applications.”66 The
asylum officer is “supervised by an officer” who has the same training and qualifications, and
who “has had substantial experience adjudicating asylum applications.”67 Currently, all credible
fear interviews are conducted virtually.68
What rights are available to applicants who are referred for credible fear
interviews?
The asylum officer is required to explain to the applicant the credible fear interview process, the
right to consultation before the interview, the right to request a review of the asylum officer’s
determination, and the consequences of failing to show a credible fear of persecution or torture.69
If the applicant cannot proceed with the interview in English, the asylum officer is required to
obtain the assistance of an interpreter.70 The asylum officer must also create a summary of the
material facts as stated by the applicant and, at the end of the interview, review the summary with
the applicant and provide him or her with an opportunity to correct any errors in it.71
An applicant may consult any person before a credible fear interview.72 According to 8 U.S.C.
§1225(b)(1) and its implementing regulations, “[s]uch consultation shall be at no expense to the
Government and shall not unreasonably delay the process.”73 The consulted person may be
present at the interview and permitted, at the discretion of the asylum officer, to offer a statement
at the end of the interview.74 The applicant may also present evidence during the interview.75
Are applicants detained pending the outcome of their credible fear screenings?
According to 8 U.S.C. §1225(b)(1) and its implementing regulations, an alien “shall be detained”
pending a determination of whether that person has a credible fear of persecution or torture.76

66 INA §235(b)(1)(E)(i); 8 U.S.C. §1225(b)(1)(E)(i).
67 INA §235(b)(1)(E)(ii); 8 U.S.C. §1225(b)(1)(E)(ii).
68 CRS communication with CBP, May 1, 2024.
69 INA §235(b)(1)(B)(iv); 8 U.S.C. §1225(b)(1)(B)(iv), and 8 C.F.R. §235.3(b)(4)(i).
70 8 C.F.R. §208.30(d)(5) (“If the alien is unable to proceed effectively in English, and if the asylum officer is unable to
proceed competently in a language the aliens speaks and understands, the asylum officer shall arrange for the assistance
of an interpreter in conducting the interview.”).
71 8 C.F.R. §208.30(d)(6).
72 INA §235(b)(1)(B)(iv); 8 U.S.C. §1225(b)(1)(B)(iv), and 8 C.F.R. §§208.30(d)(4), 235.3(b)(4)(i)(B), (ii). The
consulted person may be a relative, friend, clergy person, attorney, or other representative. DHS, USCIS, Refugee,
Asylum, and International Operations (RAIO) Directorate Officer Training, “Credible Fear of Persecution and Torture
Determinations,” April 30, 2019, https://perma.cc/AB7Q-W8MU.
73 INA §235(b)(1)(B)(iv); 8 U.S.C. §1225(b)(1)(B)(iv), and 8 C.F.R. §208.30(d)(4).
74 8 C.F.R. §208.30(d)(4). Under the regulation, “[t]he asylum officer, in his or her discretion, may place reasonable
limits on the number of persons who may be present at the interview and on the length of the statement.”
75 8 C.F.R. §208.30(d)(4).
76 INA §235(b)(1)(B)(iii)(IV); 8 U.S.C. §1225(b)(1)(B)(iii)(IV), and 8 C.F.R. § 235.3(b)(4)(ii). See also Jennings v.
(continued...)
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DHS’s ICE is responsible for immigration detention. Although detention is generally mandatory,
immigration officials, at their discretion, have statutory authority to parole applicants for
admission into the United States temporarily “on a case-by-case basis for urgent humanitarian
reasons or significant public benefit.”77 Under DHS regulations, the agency may parole aliens
who have been placed in expedited removal proceedings, including those who are being detained
pending a credible fear interview, if they do not present a security or flight risk and fall within
certain categories (e.g., those who have serious medical conditions, those who will be witnesses
in judicial proceedings, or those “whose continued detention is not in the public interest”).78
In April 2023, CBP initiated a new procedure, Enhanced Expedited Removal (EER), to hold
certain foreign nationals in CBP short-term holding facilities, rather than ICE detention facilities,
while they are processed through the expedited removal process.79 According to the DHS Office
of Inspector General, when U.S. Border Patrol (USBP)80 takes an individual into custody for
expedited removal processing and the individual claims a fear of persecution or torture, they are
referred to USCIS and complete the expedited removal process. If the asylum officer renders a
negative credible fear determination and review by an immigration judge is not requested, or the
immigration judge affirms the negative determination, USBP coordinates the removal of the
person. If the result of the credible fear interview is positive (or an immigration judge overrules a
negative determination), USBP serves an NTA, and the individual is released pending formal
removal proceedings.81
Additionally, certain migrants may be processed for expedited removal, released, and monitored
under ICE’s Alternatives to Detention (ATD) programs.82 The Family Expedited Removal
Management (FERM) program, introduced by ICE in May 2023, is designated for family units83
apprehended at the Southwest border and placed in expedited removal. Families in this program
have indicated that they intend to apply for asylum and will reside in one of the destinations in the
interior of the United States where the program is in operation.84 Under the FERM program,
household heads in such families are subject to a curfew and enrolled in ATD for the duration of
the expedited removal process.85

Rodriguez, 583 U.S. 281, 297 (2018) (“Read most naturally, §§1225(b)(1) and (b)(2) thus mandate detention of
applicants for admission until certain proceedings have concluded.”).
77 8 U.S.C. §1182(d)(5)(A). Parole is not considered a lawful admission into the United States or a determination of
admissibility, and the decision whether to grant parole is subject to DHS’s discretion and may be revoked at any time;
INA §§101(a)(13)(B), 212(d)(5)(A); 8 U.S.C. §§1101(a)(13)(B), 1182(d)(5)(A).
78 8 C.F.R. §§208.30(f), 212.5(b), 235.3(b)(2)(iii), 235.3(b)(4)(ii); see also Jennings v. Rodriguez, 583 U.S. 281, 300
(2018) (“With few exceptions not relevant here, the [DHS Secretary] may ‘for urgent humanitarian reasons or
significant public benefit’ temporarily parole aliens detained under §§1225(b)(1) and (b)(2). That express exception to
detention implies that there are no other circumstances under which aliens detained under §1225(b) may be released.”)
(quoting 8 U.S.C. §1182(d)(5)(A)).
79 EER is a procedure where CBP screens individuals in USBP custody and coordinates with USCIS and DOJ while
they proceed through expedited removal. DHS, Office of Inspector General, Results of Unannounced Inspections of
CBP Holding Facilities in the San Diego Area, November 15, 2023.
80 USBP is the CBP component responsible for immigration enforcement between ports of entry along the border.
81 Ibid., Appendix C.
82 For additional information on ICE’s ATD programs, see CRS Report R45804, Immigration: Alternatives to
Detention (ATD) Programs.
83 Family unit is defined in regulation as a group of two or more aliens consisting of a minor or minors (children under
age 18) accompanied by his/her/their adult parent(s) or legal guardian(s). See 8 C.F.R. §236.3(b)(7).
84 DHS, ICE, “ICE announces new process for placing family units in expedited removal,” press release, May 10, 2023,
https://www.ice.gov/news/releases/ice-announces-new-process-placing-family-units-expedited-removal.
85 Ibid.
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What is the difference between the requirement to establish
credible fear and the requirement to establish reasonable fear?
Aliens placed in expedited removal proceedings who indicate an intention to apply for asylum or
fear of returning to their country of origin are interviewed to determine whether they have a
credible fear of persecution or torture.86
A separate streamlined procedure applies to the removal of aliens who have unlawfully reentered
the United States after having been previously removed under an order of removal and who, upon
threat of being removed again, express a fear of persecution or torture if returned to their native
country.87 Under this process, called reinstated removal proceedings, the alien’s prior removal
order is reinstated and may not be reopened or reviewed, and the alien is typically removed
without a hearing or opportunity to pursue relief from removal.88 An alien with a reinstated
removal order who expresses a fear of returning to the country of removal is entitled to
administrative review of that claim.89 An asylum officer will interview the alien to determine
whether he or she has a reasonable fear of persecution or torture.90
The reasonable fear standard is a higher standard of proof than the credible fear standard. In
expedited removal proceedings, a person must show a “significant possibility” of establishing
eligibility for asylum, withholding of removal, or CAT protection.91 To establish reasonable fear
in reinstated removal proceedings, an alien must show a “reasonable possibility” that he or she
would be persecuted or tortured in the country of removal.92 The reasonable possibility standard
is the same standard used to determine whether an applicant has shown a “well-founded fear” of
persecution for the purpose of asylum.93 By contrast, a credible fear determination is a “low
screening standard”94 that considers only whether the alien has shown a “substantial and realistic
possibility of success on the merits” of an application for asylum and related protections.95

86 INA §235(b)(1)(A)(ii); 8 U.S.C. §1225(b)(1)(A)(ii), and 8 C.F.R. §§208.30(b), 235.3(b)(4).
87 INA §241(a)(5); 8 U.S.C. §1231(a)(5), and 8 C.F.R. §241.8.
88 INA §241(a)(5); 8 U.S.C. §1231(a)(5), and 8 C.F.R. §241.8(a).
89 8 C.F.R. §241.8(e).
90 8 C.F.R. §§208.31(b), 241.8(e).
91 See DHS, USCIS, “Asylum Division Officer Training Course: Reasonable Fear of Persecution and Torture
Determinations,” February 13, 2017, https://www.uscis.gov/sites/default/files/document/lesson-plans/
Reasonable_Fear_Asylum_Lesson_Plan.pdf.
92 8 C.F.R. §208.31(c).
93 See INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987) (“As we pointed out in Stevic, a moderate interpretation of
the ‘well-founded fear’ standard would indicate ‘that so long as an objective situation is established by the evidence, it
need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable
possibility.’”) (quoting INS v. Stevic, 467 U.S. 407, 424 ̶ 25 [1984]); 8 C.F.R. §1208.13(b)(2)(i)(B); DHS, USCIS,
“Asylum Division Officer Training Course: Reasonable Fear of Persecution and Torture Determinations,” February 13,
2017, https://www.uscis.gov/sites/default/files/document/lesson-plans/Reasonable_Fear_Asylum_Lesson_Plan.pdf.)
(“This is the same standard required to establish a ‘well-founded fear’ of persecution in the asylum context.”).
94 See Grace v. Whitaker, 344 F. Supp. 3d 96, 107 (D.C. Cir. 2018) (citing 142 CONG. REC. S11491–02 daily ed. Sept.
27, 1996) (statement of Sen. Hatch)), aff’d in part, rev’d in part sub nom. Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020).
95 DHS, USCIS, Asylum Division Officer Training Course: Credible Fear 15, February 28, 2014, (citing Holmes v.
Amerex Rent-a-Car, 180 F.3d 294, 297 [D.C. Cir. 1999]), https://www.uscis.gov/sites/default/files/document/lesson-
plans/Asylum_and_Female_Genital_Mutilation.pdf.; see also DHS, USCIS, RAIO Directorate Officer Training,
“Credible Fear of Persecution and Torture Determinations,” April 30, 2019, https://perma.cc/AB7Q-W8MU. (“A claim
that has no possibility, or only a minimal or mere possibility, of success, would not meet the ‘significant possibility’
standard.”).
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In addition, an alien with a reinstated removal order who shows a reasonable fear of persecution
or torture is placed in proceedings before an immigration judge for consideration of the alien’s
eligibility for withholding of removal and CAT protection only.96 The alien may not apply for
asylum in those proceedings.97 On the other hand, an alien in expedited removal proceedings who
shows a credible fear of persecution or torture may apply for asylum as well as withholding of
removal and CAT protection.98 This distinction is significant because, unlike asylum, which
provides an alien with the opportunity to pursue LPR status,99 a grant of withholding of removal
or CAT protection only bars removal to the country where the alien fears persecution or torture
(but not necessarily to a third country), and affords no pathway to LPR status.100
Credible Fear Outcomes
What are the possible outcomes of a credible fear screening?
If an asylum officer finds that an alien has a credible fear of persecution or torture, that individual
is typically placed in formal removal proceedings (see “What is formal removal?”).101
When an asylum officer finds that an alien does not have a credible fear of persecution or torture,
the alien may request that an immigration judge review that determination.102 The immigration
judge’s review “shall be concluded as expeditiously as possible, to the maximum extent
practicable within 24 hours, but in no case later than 7 days” after the asylum officer’s
decision.103 If the alien declines further review, the asylum officer must order the alien removed
from the United States without further hearing or review.104
If the immigration judge concurs with the asylum officer’s negative credible fear finding, the
applicant is to be removed from the United States and the immigration judge’s decision may not

96 See Johnson v. Guzman Chavez, 594 U.S. 523, 531 (2021) (“If the asylum officer concludes that the alien has a
reasonable fear, he will refer the matter to an immigration judge for initiation of withholding-only proceedings. Those
proceedings are ‘limited to a determination of whether the alien is eligible for withholding or deferral of removal,’ and
as such, ‘all parties are prohibited from raising or considering any other issues, including but not limited to issues of
admissibility, deportability, eligibility for waivers, and eligibility for any other form of relief.’”) (citing and quoting 8
U.S.C. §§208.2(c)(3)(i), 208.31(e), and 8 C.F.R. §§1208.2(c)(3)(i), 1208.31(e)).
97 See Ibid.
98 INA §235(b)(1)(B)(ii); 8 U.S.C. §1225(b)(1)(B)(ii), and 8 C.F.R. §§208.30(f), 1208.30(g)(2)(iv)(B).
99 See INA §209(b); 8 U.S.C. §1159(b) (providing that a person granted asylum may apply for adjustment to LPR
status if that person has been physically present in the United States for at least one year after being granted asylum and
meets other requirements).
100 See Johnson v. Guzman Chavez, 594 U.S. at 531 (“If an alien is granted withholding-only relief, DHS may not
remove the alien to the country designated in the removal order unless the order of withholding is terminated. But
because withholding of removal is a form of ‘country-specific’ relief, nothing prevents DHS ‘from removing [the] alien
to a third country other than the country to which removal has been withheld or deferred.’”) (citing and quoting INS v.
Cardoza-Fonseca, 480 U.S. 421, 428 n.6 (1987); 8 C.F.R. §§208.16(f), 208.22, 1208.16(f) 1208.22).
101 INA §235(b)(1)(B)(ii); 8 U.S.C. §1225(b)(1)(B)(ii), and 8 C.F.R. §208.30(f).
102 INA §235(b)(1)(B)(iii)(III); 8 U.S.C. §1225(b)(1)(B)(iii)(III), and 8 C.F.R. §208.30(g)(1).
103 INA §235(b)(1)(B)(iii)(III); 8 U.S.C. §1225(b)(1)(B)(iii)(III). See also 8 C.F.R. §§208.30(g)(1)(i), 1003.42(e) (“The
immigration judge shall conclude the review to the maximum extent practicable within 24 hours, but in no case later
than 7 days after the date the supervisory asylum officer has approved the asylum officer’s negative credible fear
determination issued on the Record of Negative Credible Fear Finding and Request for Review.”).
104 INA §235(b)(1)(B)(iii)(I); 8 U.S.C. §1225(b)(1)(B)(iii)(I), and 8 C.F.R. §208.30(g)(1)(ii).
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be appealed.105 However, DHS may reconsider a negative credible fear determination after
providing notice to the immigration judge.106
Conversely, if the immigration judge determines that the alien has a credible fear of persecution
or torture, the immigration judge must vacate the asylum officer’s negative credible fear
determination and the alien may be placed in formal removal proceedings.107 During those
proceedings, the alien may pursue asylum, withholding of removal, and CAT protection.108
Can USCIS adjudicate an asylum application following a positive credible fear
of persecution determination?
A person who is found by an asylum officer to have a credible fear of persecution “shall be
detained for further consideration of the application for asylum.”109 The statute does not specify
whether, in those cases, the asylum officer may adjudicate the alien’s asylum application or
whether the application can be considered only by an immigration judge in formal removal
proceedings.110 Until 2022, longstanding DHS and DOJ regulations have stated that aliens who
establish a credible fear shall be placed in formal removal proceedings for an immigration judge’s
consideration of their claim for asylum and related protections.111
In 2022, citing increasing numbers of asylum claims and immigration court backlogs, DHS and
DOJ promulgated a rule that allows USCIS asylum officers, at their discretion, to adjudicate
asylum applications filed by aliens who establish a credible fear rather than refer those cases to an
immigration judge.112 Under the rule, the asylum officer may grant asylum to an applicant who
qualifies for relief, and that decision may be subject to review by USCIS.113 If the asylum officer

105 8 C.F.R. §§1003.42(f)(2), 1208.30(g)(2)(iv)(A).
106 8 C.F.R. §§208.30(g)(1)(i), 1208.30(g)(2)(iv)(A).
107 8 C.F.R. §1208.30(g)(2)(iv)(B).
108 Ibid. Under a 2023 rule, certain aliens entering without valid entry documents at “the southwest land border or
adjacent coastal borders” from May 11, 2023, to May 11, 2025, after traveling through another country en route to the
United States are subject to a rebuttable presumption of asylum ineligibility. DHS and DOJ, EOIR, “Circumvention of
Lawful Pathways,” 88 Federal Register 31314, 31321 ̶ 22, May 16, 2023. (codified at 8 C.F.R. §§208, 1003, and 1208).
If an asylum officer determines that a person is subject to the presumption of asylum ineligibility and issues a negative
credible fear finding based on that determination, an immigration judge may review the asylum officer’s determination,
including whether the individual is potentially eligible to pursue, in the alternative, withholding of removal and CAT
protection. Ibid. at 31322; 8 C.F.R. §1208.33(b). For more information, see CRS Legal Sidebar LSB11044, The Biden
Administration’s Final Rule on Arriving Aliens Seeking Asylum (Part One). Additionally, under a 2024 proposed rule,
asylum officers would have authority to determine the applicability of certain mandatory bars to being granted asylum
or withholding of removal (e.g., those pertaining to the commission of particularly serious crimes and terrorist
activities) when conducting credible fear screenings; DHS, USCIS, “Application of Certain Mandatory Bars in Fear
Screenings,” 89 Federal Register 41347, 41355, May 13, 2024. Based on that determination, the asylum officer could
potentially make a negative credible fear finding, thus precluding the applicant from being able to pursue asylum or
withholding of removal. Ibid., p. 41355.
109 INA §235(b)(1)(B)(ii); 8 U.S.C. §1225(b)(1)(B)(ii).
110 Ibid.
111 See, for example, 8 C.F.R. §§208.30(f), 1208.30(g)(2)(iv)(B) (2019).
112 Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT
Protection Claims by Asylum Officers, 87 Federal Register 18078, 18081, March 29, 2022 (codified at 8 C.F.R. pts.
208, 212, 235, 1003, 1208, 1235, and 1240) (hereinafter, “2022 Asylum Rule”). If USCIS adjudicates the asylum
application, it generally cannot schedule an interview on the application fewer than 21 days after the applicant is served
with notice of the positive credible fear determination, and the asylum officer generally must conduct the interview
within 45 days of the applicant being served with a positive credible fear determination made by an asylum officer or
an immigration judge; 8 C.F.R. §208.9(a)(1).
113 8 C.F.R. §208.14(b).
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denies asylum, the alien may request an immigration judge’s review of that decision in
“streamlined removal proceedings.”114 During those proceedings, the immigration judge may
consider the alien’s eligibility for asylum, withholding of removal, and CAT protection.115 The
alien may administratively appeal the immigration judge’s decision on those applications and (as
specified by statute) petition for judicial review of a final order of removal.116
USCIS is currently implementing the 2022 rule in a limited and phased manner.117 Under the rule,
certain non-detained family units who are in expedited removal proceedings under supervision in
the FERM program (see “Are applicants detained pending the outcome of their credible fear
screenings?”) are being scheduled for “asylum merits interviews” with an asylum officer
following a positive credible fear determination if they have conveyed an intent to reside in or
near certain cities in the United States where the interviews take place.118
Can asylum seekers withdraw their applications for admission
during the credible fear screening process?
DHS may permit an individual, including those placed in expedited removal, to voluntarily
withdraw an application for admission if he or she intends, and is able to depart, the United States
immediately.119 An alien does not have a right to withdraw his or her application for admission;
instead, it is up to the discretion of the agency whether to permit the alien to withdraw the
application and immediately leave the United States in lieu of undergoing removal
proceedings.120
Under current DHS guidance, single adult nationals of Cuba, El Salvador, Guatemala, Haiti,
Honduras, Mexico, Nicaragua, and Venezuela who are encountered between ports of entry by
USBP and being processed under Enhanced Expedited Removal (see “Are applicants detained
pending the outcome of their credible fear screenings?”) are offered a chance to withdraw at the
beginning of the process. Individuals are offered a chance to withdraw their application for
admission and voluntarily return to Mexico once in USBP custody unless they pose safety or
security risks or cannot depart the United States immediately.121
Prior to the beginning of a credible fear interview, a USCIS asylum officer will present the alien
with the option to withdraw their application for admission and voluntarily return to Mexico. If at
that point the individual chooses this option, the credible fear interview will end and USCIS will

114 See 2022 Asylum Rule, supra note 26, 87 Federal Register at 18078; 8 C.F.R. §1240.17.
115 8 C.F.R. §1240.17(i).
116 INA §242(a)(1), (b)(1); 8 U.S.C. §1252(a)(1), (b)(1), and 8 C.F.R. §1003.3(a)(1).
117 See DHS, Asylum Processing Rule Cohort Reports, https://www.dhs.gov/immigration-statistics/special-reports/
asylum-processing-rule-report (last updated February 1, 2024) (“The rule is being implemented in a phased manner,
beginning with a small number of individuals, and continues to grow as USCIS builds operational capacity.”). DHS,
USCIS, FACT SHEET: Implementation of the Credible Fear and Asylum Processing Interim Final Rule,
https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/fact-sheet-implementation-of-the-credible-fear-and-
asylum-processing-interim-final-rule (last updated October 17, 2023) (hereinafter, “USCIS Fact Sheet”).
118 See USCIS Fact Sheet, supra note 30. Many states have challenged the 2022 rule in federal district courts. See
Complaint, Texas v. Mayorkas, No. 2:22-cv-00094-Z (N.D. Tex. Apr. 28, 2022), ECF No. 1; Complaint, Arizona, et al.
v. Garland, No. 6:22-cv-01130 (W.D. La. Apr. 28, 2022), ECF No. 2. The district courts have not yet issued final
judgments in these cases, and the litigation remains pending.
119 INA §235(a)(4); 8 U.S.C. §1225(a)(4).
120 8 C.F.R. §235.4.
121 CRS correspondence with DHS, May 6, 2024.
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administratively close the case before notifying CBP that the alien has chosen to withdraw their
application for admission and voluntarily return to Mexico.122
What percentage of people pass their credible fear interviews?
The DHS Office of Homeland Security Statistics (OHSS) publishes the outcomes of nationwide
credible fear screenings.123 These data cover credible fear of persecution screenings and credible
fear of torture screenings combined. Table 1 shows the percentage of nationwide screenings for
the past 10 years with positive findings, meaning that the person established credible fear and
could pursue a claim for asylum or other relief in immigration court. The significant drop in
positive credible fear findings from FY2019 to FY2020 reflected the impact of various DHS
asylum-related policies, among other factors.124
Table 1. Percentage of Nationwide Credible Fear Screenings with Positive
Outcomes, FY2014-FY2023
Fiscal Year
Percentage of Positive Outcomes
2014
73%
2015
72%
2016
80%
2017
77%
2018
77%
2019
74%
2020
38%
2021
68%
2022
58%
2023
60%
Source: DHS, Office of Homeland Security Statistics.
Do asylum seekers automatically receive work authorization once
they pass their credible fear screenings?
By law, an asylum applicant who is not otherwise eligible for employment authorization cannot
be granted such authorization until 180 days have passed since the filing of a completed asylum

122 Ibid. An additional opportunity to withdraw their application for admission is available to aliens upon USCIS’
determination that the individual does not meet the stated criteria for an exception to the Circumvention of Lawful
Pathways rule. For more on the Circumvention of Lawful Pathways rule, see CRS Legal Sidebar LSB11044, The Biden
Administration’s Final Rule on Arriving Aliens Seeking Asylum (Part One); and DHS, “Circumvention of Lawful
Pathways,” 88 Federal Register 31314, May 16, 2023.
123 DHS, OHSS, Immigration Enforcement and Legal Processes Monthly Tables, December 2023, “Nationwide
Credible Fear Screenings Referred to USCIS by Selected Citizenship,” table, https://www.dhs.gov/ohss/topics/
immigration/enforcement-and-legal-processes-monthly-tables.
124 For example, in April 2019 and September 2019, USCIS revised its guidance (known as a lesson plan) for asylum
officers on making credible fear determinations, making it more difficult for individuals to pass the screening. In 2020,
several asylum seekers who received negative credible fear findings successfully challenged “the unlawful changes to
the Credible Fear Interview Lesson Plan.” International Refugee Assistance Project, “Kiakombua v. Wolf: Protecting
the credible fear process for seeking asylum,” https://refugeerights.org/news-resources/kiakombua-v-mcaleenan-
protecting-the-rights-of-asylum-seekers.
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application.125 By regulation, the applicant must also wait 150 days after the receipt of a
completed asylum application to apply for employment authorization.126 These restrictions do not
apply to asylum applicants who are authorized to work under another immigration category, such
as immigration parole or Deferred Action for Childhood Arrivals (DACA).
An asylum seeker granted work authorization through this application process receives an
Employment Authorization Document (EAD). Under USCIS policy guidance in effect as of the
cover date of this report, the maximum validity period for an initial or renewal EAD issued to an
asylum applicant is five years.127
Asylum Outcomes in Immigration Court
What percentage of individuals who pass a credible fear screening
subsequently file an application for asylum?
EOIR data show immigration court asylum filing rates for all credible fear referrals received from
DHS (i.e., the percentage of persons in expedited removal referred for formal removal who
subsequently filed an asylum application) and decisions on those asylum applications.128
Among decided removal cases originating with a credible fear claim during the last 10 fiscal
years (FY2014-FY2024, first quarter), the annual rate at which asylum applications were filed
ranged between 46% (FY2014) and 72% (FY2022). Among the total cases decided during that
period (351,027), 62% (216,794) filed an asylum application.
Table 2. Asylum Application Filings in Decided Cases Originating with a Credible
Fear Claim, FY2014-FY2024(Q1)
Asylum Applications
Asylum Applications
Fiscal Year
Total Decisions
Filed (Number)
Filed (Percentage)
2014
13,089
5,996
46%
2015
14,148
8,074
57%
2016
20,467
11,577
57%
2017
28,396
15,749
55%
2018
33,907
20,605
61%
2019
55,250
32,309
58%
2020
33,584
22,312
66%
2021
17,142
10,545
62%

125 INA §208(d)(2); 8 U.S.C. §1158(d)(2).
126 8 C.F.R. §208.7(a)(1).
127 DHS, USCIS, “Some EADs Can be Valid for up to 5 Years,” November 16, 2023, https://www.uscis.gov/save/
whats-new/some-eads-can-be-valid-for-up-to-5-years-0#:~:text=
USCIS%20increased%20the%20maximum%20validity,exceed%20length%20of%20parole)%3B.
128 There are likely a number of reasons that such an individual would not subsequently file an application for asylum;
for example, because they decided to pursue another form of relief or because the individual is included as a dependent
on their spouse’s or parent’s asylum application. U.S. Government Accountability Office, Immigration: Actions
Needed to Strengthen USCIS’s Oversight and Data Quality of Credible and Reasonable Fear Screenings, GAO-20-
250, February 2020, pp. 20-21.
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Asylum Applications
Asylum Applications
Fiscal Year
Total Decisions
Filed (Number)
Filed (Percentage)
2022
48,071
34,676
72%
2023
68,732
44,228
64%
2024(Q1)
18,241
10,723
59%
Total
351,027
216,794
62%
Source: CRS analysis of DOJ, EOIR, “Asylum Decisions in Cases Originating with a Credible Fear Claim,”
Adjudication Statistics, January 18, 2024.
Note: FY2024 contains data for the first quarter only. CRS computed the number of asylum applications filed by
subtracting from the total asylum decisions the number of cases EOIR reported where no asylum application was
filed, and the percentage of asylum applications filed by dividing the number of asylum applications filed by total
asylum decisions.
What percentage of individuals who pass a credible fear screening
are granted asylum?
EOIR reports the following decision outcomes for completed asylum cases: asylum grants,
asylum denials, “other” outcomes (including cases that were abandoned, not adjudicated, or
withdrawn), and cases that were administratively closed.129 Administratively closed cases are
temporarily removed from the docket (e.g., while the respondent pursues an application for relief
outside immigration court).
During the last 10 fiscal years, FY2014-FY2024(Q1), EOIR issued decisions for 216,794 cases
referred from a credible fear claim in which an application for asylum was filed. The annual grant
rate ranged between approximately 18% (FY2023)130 and 28% (FY2014). The overall grant rate
during the period was approximately 22%. The annual denial rate ranged between 15% (FY2022
and FY2023) and 56% (FY2020). The overall denial rate for the period was approximately 34%.
In recent years, there has been an increase in “other” outcomes. These may reflect, in part,
increases in the number of cases dismissed by DHS as a matter of prosecutorial discretion131
and/or by the immigration judge in instances where DHS failed to file the NTA with the
immigration court.132

129 For more information about these outcomes, see CRS Insight IN12318, FY2023 Immigration Court Data: Case
Outcomes. For more information about administrative closure and its use under different administrations, see the
“Docket Management and Administrative Closure” section in CRS Report R47077, U.S. Immigration Courts and the
Pending Cases Backlog.
130 CRS is not considering the grant or denial rates in the first quarter of FY2024 as annual rates because it represents
only one quarter of data.
131 DHS, ICE, memorandum from Kerry E. Doyle, Principal Legal Advisor to Office of the Principal Legal Advisor
attorneys, “Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of
Prosecutorial Discretion,” April 3, 2022. See also CRS Legal Sidebar LSB10578, The Biden Administration’s
Immigration Enforcement Priorities: Background and Legal Considerations.
132 See, for example, Transactional Records Access Clearinghouse (TRAC) at Syracuse University, “200,000
Immigration Court Cases Dismissed Because DHS Failed to File Paperwork,” March 20, 2024.
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Table 3. Asylum Outcomes for Cases Originating with a Credible Fear Claim,
FY2014-FY2024(Q1)
Admin.
Total
Grant
Denial
Other Admin.
Closure
Out-
FY
Grants
Rate
Denials
Rate
Other
Rate
Closure
Rate
comes
2014
1,687
28%
2,655
44%
1,254
21%
400
7%
5,996
2015
1,950
24%
2,749
34%
1,324
16%
2,051
25%
8,074
2016
2,463
21%
3,719
32%
1,717
15%
3,678
32%
11,577
2017
3,970
25%
7,269
46%
2,590
16%
1,920
12%
15,749
2018
5,585
27%
9,949
48%
4,732
23%
339
2%
20,605
2019
8,494
26%
17,613
55%
6,184
19%
18
0%
32,309
2020
5,583
25%
12,559
56%
4,029
18%
141
1%
22,312
2021
2,459
23%
3,737
35%
3,730
35%
619
6%
10,545
2022
6,517
19%
5,276
15%
19,209
55%
3,674
11%
34,676
2023
7,945
18%
6,576
15%
26,391
60%
3,316
7%
44,228
2024(Q1)
1,691
16%
1,070
10%
7,209
67%
753
7%
10,723
Total
48,344
22%
73,172
34%
78,369
36%
16,909
8% 216,794
Source: CRS analysis of DOJ, EOIR, “Asylum Decisions in Cases Originating with a Credible Fear Claim,”
Adjudication Statistics, January 18, 2024.
Note: FY2024 contains data for the first quarter only. Specific rates are computed by dividing specific outcomes
by total outcomes.
How many asylum applicants fail to appear for their immigration
court hearings?
Under the law, individuals who fail to appear for their immigration court hearings must be
ordered removed in absentia.133 Therefore, the number of in absentia removal orders issued by
immigration judges may be used as a measure of the number of individuals who fail to appear for
their hearings.
EOIR publishes the annual number of in absentia removal orders for proceedings that originated
with a credible fear claim (see Table 4) and for all proceedings with a filed asylum application
(see Table 5). There is likely overlap between these two sets of data (i.e., some cases that
originated with credible fear claims also will have filed applications for asylum); they are not
additive.
Recent declines in the number of in absentia removal orders may be related to the COVID-19
pandemic and DHS enforcement policies. According to EOIR:
The COVID-19 pandemic resulted in fewer non-detained hearings overall and, therefore,
fewer occasions in which in absentia orders of removal may have occurred. Additionally,
the Department of Homeland Security’s policy modifications led to an increase in

133 INA §240(b)(5); 8 U.S.C. §1229a(b)(5). For more information, see CRS In Focus IF11892, At What Rate Do
Noncitizens Appear for Their Removal Hearings? Measuring In Absentia Removal Order Rates.
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terminations and dismissals, which impacted the number of in absentia orders of
removal.134
EOIR publishes in absentia rates that are the result of dividing the number of in absentia removals
by the number of total initial case completions in a fiscal year;135 however, these rates are not
available for credible fear cases or cases with an asylum application, specifically.
Table 4. In Absentia Removal Orders in Cases Originating with a Credible Fear
Claim, FY2014-FY2024(Q1)
Fiscal Year
In Absentia Removal Orders
2014
4,107
2015
3,838
2016
5,590
2017
9,419
2018
10,696
2019
17,808
2020
7,320
2021
1,040
2022
5,637
2023
13,740
2024 (Q1)
3,778
Source: DOJ, EOIR, “In Absentia Removal Orders in Cases Originating with a Credible Fear Claim,” January 18,
2024.
Note: FY2024 contains data for the first quarter only.
Table 5. In Absentia Removal Orders for Asylum Applicants, FY2014-FY2024(Q1)
Fiscal Year
In Absentia Removal Orders
2014
2,085
2015
2,127
2016
3,203
2017
4,794
2018
7,110
2019
10,584
2020
6,957
2021
2,279
2022
7,452
2023
13,744
2024 (Q1)
3,289

134 DOJ, EOIR, “Comparison of In Absentia Rates,” Adjudication Statistics, January 18, 2024.
135 Ibid.
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Source: DOJ, EOIR, “Asylum Applicant In Absentia Removal Orders,” January 18, 2024.
Note: FY2024 contains data for the first quarter only.

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Appendix. Acronyms Used in This Report
Acronym
Definition
ATD
Alternatives to Detention
CAT
Convention Against Torture
CBP
U.S. Customs and Border Protection
DACA
Deferred Action for Childhood Arrivals
DHS
U.S. Department of Homeland Security
DOJ
U.S. Department of Justice
EAD
Employment Authorization Document
EER
Enhanced Expedited Removal
EOIR
Executive Office for Immigration Review
FERM
Family Expedited Removal Management
HHS
U.S. Department of Health and Human Services
ICE
Immigration and Customs Enforcement
IIRIRA
Il egal Immigration Reform and Immigrant Responsibility Act of 1996
INA
Immigration and Nationality Act
INS
Immigration and Naturalization Service
LPR
Lawful permanent resident
NTA
Notice to Appear
NQRP
National Qualified Representative Program
ORR
Office of Refugee Resettlement
TVPRA
Trafficking Victims Protection Reauthorization Act of 2008
UAC
Unaccompanied alien children
USBP
U.S. Border Patrol
USCIS
U.S. Citizenship and Immigration Services

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Author Information

Holly Straut-Eppsteiner, Coordinator
Audrey Singer
Analyst in Immigration Policy
Specialist in Immigration Policy

Andorra Bruno
Hillel R. Smith
Specialist in Immigration Policy
Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
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under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
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