Posted on August 13, 2013

Obama DHS Publishes Instructions for Asylum Loophole on Internet

Lee Stranahan, Breitbart, August 12, 2013


According to the clear guidelines published on the Internet and updated by the Obama administration in mid-June, there’s an easy way to cross to gain entrance to the United States: simply step right up to a border crossing and tell the officials that you have a “credible fear” of persecution or torture. Use that exact phrasing and you may be able to enter the USA while you await a hearing before an immigration judge . . . a process that could take years.


The Obama Department of Homeland Security led by Janet Napolitano updated the information on their article Questions & Answers: Credible Fear Screening on June 18th, 2013. The article explains that if you claim ‘credible fear of persecution or torture’ that you can seek asylum, and that the process is subject to review.

Individuals Seeking Asylum

If you are in expedited removal proceedings and found to have a credible fear of persecution or torture, you may seek asylum before an Immigration Judge (IJ). (See definition for Credible Fear in the “Glossary” link to the right)

If the asylum officer does not find that you have a credible fear of persecution or torture, you may request that an IJ review that determination. If you do not request review by the IJ or the IJ agrees with the determination, Immigration and Customs Enforcement (ICE) may remove you from the United States.

It defines what a “credible fear” is:

Q.   What Is a Credible Fear of Torture?

A.   A “significant possibility” that you can establish in a hearing before an Immigration Judge that you would be subject to torture if returned to your country (see definition of Torture in the “Glossary” link to the right).

Elsewhere on the DHS site, the government draws a distinction between a “credible” fear and a “reasonable” fear. The credible fear standard appears to be a lower bar, which is likely why it became the key word used by about 200 people a week ago at the Otay crossing near San Diego.

Q. What is a reasonable fear of persecution?

A. You credibly establish that there is a “reasonable possibility” you would be persecuted in the future on account of your race, religion, nationality, membership in a particular social group, or political opinion. The legal standard is the same standard used to establish a well-founded fear of persecution in an asylum case.

You cannot establish a reasonable fear of persecution based only on past persecution without establishing a “reasonable possibility” of future persecution.  After a reasonable fear of persecution or torture is found, the Immigration Judge will decide if you are eligible for withholding of removal or deferral of removal.  Withholding of removal only provides protection against future persecution and may not be granted without a likelihood of future persecution. However, if you establish past persecution, there is a presumption that your fear of future persecution is reasonable.

The webpage spells out the Catch-22 of the asylum claim: if the asylum officer finds you have a “credible fear,” the next step is a hearing by an immigration judge. However, if the asylum officer does not find you have a “credible fear,” you can then request a appeal hearing by an immigration judge. Either way, you will have a hearing in front of a judge.

This is where the fun begins, because you will wait for your hearing in the United States under some sort of bond. Effectively, you are free to roam about the country for years. This “credible fear” tactic was used by Lizbeth MateoLulu Martinez and the others in the Dream 9 group of illegal alien activists to gain reentry into the Unites States last week.


Some in the Dream 9 are claiming that they fear persecution in Mexico because they spent time in the United States as illegal aliens. They are prepared to argue that illegal aliens are a particular social group that is due asylum consideration for having been illegal aliens.

It’s such an outlandish argument that it’s one only a lawyer could love, but it will be years until an immigration judge hears it. In the meantime, Dream 9 activist Lizbeth Matter remains in the United States and begins her first day of law school at Santa Clara University today.