In December 2019, Rayman, a 38-year-old gay Togolese man who has asked to use a pseudonym to protect his identity, was at home with his boyfriend when a mob of homophobic community members broke into his house and violently attacked the couple. In Togo, where being gay is punishable by up to three years imprisonment and a fine of up to 500,000 francs, community members are encouraged to spy on their neighbors, report them to authorities, and attack them for engaging in non-heterosexual relationships. Rayman was able to flee the attack and find safety, but his partner was left behind. Three days later, his cousin, who works in the government, confirmed Rayman’s suspicions that his partner had been killed and told him that his name had been put on a list of people that the police were monitoring because of his homosexuality. Today, Rayman is living in New York City wearing an ankle monitoring bracelet as he awaits his second attempt at a credible fear determination. If the credible fear is not affirmed, he will be forced to return to Togo where he says he is “as good as dead.”
Rayman is one of the 5,234 people currently living in the U.S. whose lives depend on the reconsideration process. In August, the Biden administration announced a proposal to eliminate requests for reconsideration for expedited removals, which advocates and asylum-seekers say is a critical safeguard in the asylum process. Asylum-seekers subjected to expedited removal must undergo a credible fear interview typically while detained in challenging conditions and often before they have had an opportunity to speak to a lawyer. If the asylum-seeker receives a negative decision, they have a cursory review with the immigration court, and if the court agrees with the asylum office, they are deported unless they can persuade the asylum office to reverse its decision. Essentially, the credible fear process cuts off a person’s ability to apply for asylum if they do not pass the initial credible fear interview. While the Biden administration claims the proposal would make the expedited removal proceedings more efficient and streamlined, advocates say the reasoning is not humane.
“Efficiency is not a humane or lawful reason to risk deporting people to harm, and cannot be used as a way to get around U.S. legal obligations,” said Rebecca Gendelman, an associate attorney focused on Refugee Protection for Human Rights First.
Once Rayman fled Togo, he spent the next 15 months trying to make it to the U.S., where he has an aunt in New York City. He flew to Bolivia and traveled north from Central America, through the harrowing Darién Gap, and into Mexico where he waited, hoping the border would reopen so he could formally present himself at a port of entry and not be forced to cross unlawfully. But, the border never opened, and in March 2021, Rayman entered the U.S.through the Acuña/Monterrey port of entry. He was taken into custody and given a credible fear interview at Adams County Detention Center in Mississippi, before being transferred to the now infamous Winn Correctional Center, where he had to boil his water in the microwave before drinking it because of how unsanitary it was. In April, he was given his credible fear interview, but the interpretation was faulty, and the interviewer conflated many of the events Rayman referred to with a previous military attack he was victim to in 2018 for his imputed political opinion. He received a negative determination.
“I was left high and dry with the issue of translation because the interpreter they provided was not exact and did not interpret the things I said well, he misinterpreted my date of birth and some vital information,” Rayman said. “The way they asked me the questions, and the very questions was as if they couldn’t understand my reasons or my rationale for leaving my country.”
By September, Rayman was still awaiting deportation at Winn when an advocate who frequently hears from African asylum-seekers at Winn Correctional referred Rayman’s case to the Southern Poverty Law Center. Mich Gonzalez, the associate director of the Southeast Immigrant Freedom Initiative at the Southern Poverty Law Center, immediately took on Rayman’s case and submitted a detailed request for reconsideration, which was initially denied.
“I had to throw a huge fit about the fact that they can’t let a gay man from Togo get deported to his death,” Gonzalez said. “So, they decide to do a second interview.”
Instead of a formal credible fear interview, the DHS officer assigned to the case conducted an information gathering interview. According to Gonzalez, he never asked Rayman about his sexual orientation, and instead attempted to destroy any possible nexus between what happened in the military attack and Rayman’s imputed political opinion.
“[The officer] just went on about how he was never involved in political things,” Gonzalez said. “I said, you need to ask my client about his sexual orientation, that was the whole basis for this request for reconsideration. And he says, ‘this is not a new interview, this is a fact information gathering session.’”
The asylum office denied Rayman’s request for reconsideration and Gonzalez had to again escalate the situation to the authorities in the asylum office, accusing the officer assigned to his case of prejudice. In November, Gonzalez learned that Rayman had been transferred from Winn to Orange County Correctional facility in New York by ICE, and was expressly told that he was transferred there to facilitate his deportation. He was later released from custody to the care of his aunt in the Bronx and placed on an ankle monitoring bracelet.
“The fact that I was able to leave the detention center is only thanks to my lawyer, because if it would’ve been left up to ICE, I don’t believe they would have, because I don’t think they were morally on the same page,” Rayman said. “It was strictly my lawyer’s intervention.”
His reconsideration interview was conducted Dec. 17 and they are still awaiting a determination. Meanwhile, he is not allowed to work and has not even been allowed to appear before an official immigration judge.
“Now we have this asylum-seeker who’s been here since March, who has been subjected to all amounts of cruelty and psychological pain and he still hasn’t even had an opportunity to see a judge,” Gonzalez said. “He still hasn’t been issued a positive decision or a notice to appear.”
According to a Human Rights First factsheet, the immigration court’s cursory review is simply a “rubberstamp” affirmation of the initial credible fear determination, and is not enough of a safeguard against wrongful determinations. Review of recent immigration court hearing data shows that between fiscal year 2018 and fiscal year 2021, immigration judges affirmed on average 72.4% of negative credible fear determinations, some from countries where asylum-seekers could be granted refugee protection, such as Haiti, Cuba, and Venezuela.
Additionally, there are severe issues with immigration court reviews of negative credible fear determinations. According to Gendelman, credible fear reviews are often scheduled within 24 hours, giving asylum-seekers virtually no time to consult a lawyer or prepare, and many feature interpreters who lose vital information in translation.
“Asylum-seekers suffer enormous physical and psychological harm in detention, their health often deteriorates, and they don’t have access to proper medical care, and to then be subjected to a credible fear interview to determine whether they can even apply for asylum is extremely cruel,” says Gendelman.
Human Rights First is urging the government to focus resources on processing asylum claims through USCIS Asylum Office interviews outside of expedited removal. But as long as expedited removal exists, requests for reconsideration are critical to ensuring the safety of asylum-seekers and preventing them from being returned to persecution. The proposed rule underwent a 60-day comment period that ended in October and received thousands of comments from the public, but according to DHS, there is still no implementation date and one will not be identified until after a final rule is submitted for review and published in the federal register.