[Federal Register Volume 85, Number 185 (Wednesday, September 23, 2020)]
[Rules and Regulations]
[Pages 59655-59661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21073]
[[Page 59655]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 208
[CIS No. 2671-20; DHS Docket No. USCIS-2020-0017]
RIN 1615-AC59
Asylum Interview Interpreter Requirement Modification Due to
COVID-19
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security (DHS).
ACTION: Temporary final rule.
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SUMMARY: This rule temporarily (for 180 days) amends existing
Department of Homeland Security (DHS) regulations to provide that
asylum applicants who cannot proceed with the interview in English are
no longer required to provide interpreters at the asylum interview but
rather must ordinarily proceed with DHS-provided telephonic
interpreters.
DATES: This rule is effective September 23, 2020, through March 22,
2021.
FOR FURTHER INFORMATION CONTACT: Maureen Dunn, Chief, Humanitarian
Affairs Division, Office of Policy and Strategy, U.S. Citizenship and
Immigration Services (USCIS), Department of Homeland Security, 20
Massachusetts Ave. NW, Suite 1100, Washington, DC 20529-2140; telephone
202-272-8377 (this is not a toll-free number).
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at 1-877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
I. Legal Authority To Issue This Rule and Other Background
A. Legal Authority
The Secretary of Homeland Security (Secretary) publishes this
temporary final rule pursuant to his authorities concerning asylum
determinations. The Homeland Security Act of 2002 (HSA), Public Law
107-296, as amended, transferred many functions related to the
execution of Federal immigration law to the newly created DHS. The HSA
amended the Immigration and Nationality Act (INA or the Act), charging
the Secretary ``with the administration and enforcement of this chapter
and all other laws relating to the immigration and naturalization of
aliens,'' INA 103(a)(1), 8 U.S.C. 1103(a)(1), and granted the Secretary
the power to take all actions ``necessary for carrying out'' the
immigration laws, including the INA, id. 1103(a)(3). The HSA also
transferred to DHS responsibility for affirmative asylum applications,
i.e., applications for asylum made outside the removal context. See 6
U.S.C. 271(b)(3). That authority has been delegated within DHS to U.S.
Citizenship and Immigration Services (USCIS). USCIS asylum officers
determine, in the first instance, whether an alien's affirmative asylum
application should be granted. See 8 CFR 208.4(b), 208.9. With limited
exception, the Department of Justice Executive Office for Immigration
Review has exclusive authority to adjudicate asylum applications filed
by aliens who are in removal proceedings. See INA 103(g), 240; 8 U.S.C.
1103(g), 1229a. This broad division of functions and authorities
informs the background of this rule.
B. Legal Framework for Asylum
Asylum is a discretionary benefit that generally can be granted to
eligible aliens who are physically present or who arrive in the United
States, irrespective of their status, subject to the requirements in
section 208 of the INA, 8 U.S.C. 1158, and implementing regulations,
see 8 CFR pts. 208, 1208.
Section 208(d)(5) of the INA, 8 U.S.C. 1158(d)(5), imposes several
mandates and procedural requirements for the consideration of asylum
applications. Congress also specified that the Attorney General and
Secretary of Homeland Security ``may provide by regulation for any
other conditions or limitations on the consideration of an application
for asylum,'' so long as those limitations are ``not inconsistent with
this chapter.'' INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B). In sum, the
current statutory framework leaves the Attorney General (and, after the
HSA, also the Secretary) significant discretion to regulate
consideration of asylum applications. USCIS regulations promulgated
under this authority set agency procedures for asylum interviews, and
require that applicants unable to proceed in English ``must provide, at
no expense to the Service, a competent interpreter fluent in both
English and the applicant's native language or any other language in
which the applicant is fluent.'' 8 CFR 208.9(g). This requirement means
that all asylum applicants who cannot proceed in English must bring an
interpreter to their interview, posing a serious health risk in the
current climate.
Accordingly, this temporary rule will address the international
spread of pandemic Coronavirus Disease 2019 (COVID-19) by seeking to
slow the transmission and spread of the disease during asylum
interviews before USCIS asylum officers. To that end, this temporary
rule will require in certain instances aliens to be interviewed for
this discretionary asylum benefit using competent government
interpreters.
C. The COVID-19 Pandemic
On January 31, 2020, the Secretary of Health and Human Services
declared a public health emergency under section 319 of the Public
Health Service Act (42 U.S.C. 247d), in response to COVID-19.\1\ On
March 13, 2020, President Trump declared a National Emergency
concerning the COVID-19 outbreak to control the spread of the virus in
the United States.\2\ The President's proclamation declared that the
emergency began in the United States on March 1, 2020.
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\1\ HHS, Determination of Public Health Emergency, 85 FR 7316
(Feb. 7, 2020).
\2\ Proclamation 9994 of March 13, 2020, Declaring a National
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85
FR 15337 (Mar. 18, 2020). See also https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ (last
visited Mar. 25, 2020).
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COVID-19 is a communicable disease caused by a novel (new)
coronavirus, SARS-CoV-2 and appears to spread easily and sustainably
within communities.\3\ The virus is thought to transfer primarily by
person-to-person contact through respiratory droplets produced when an
infected person coughs or sneezes; it may also transfer through contact
with surfaces or objects contaminated with these droplets.\4\ There is
also evidence of presymptomatic and asymptomatic transmission, in which
an individual infected with COVID-19 is capable of spreading the virus
to others before exhibiting symptoms or without ever exhibiting
symptoms, respectively.\5\ The ease of transmission presents a risk of
a surge in hospitalizations for COVID-19, which would reduce available
hospital capacity.
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\3\ CDC, How COVID-19 Spreads (Jun. 16, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html.
\4\ Id.
\5\ CDC, Public Health Guidance for Community-Related Exposure
(Jul. 31, 2020), https://www.cdc.gov/coronavirus/2019-ncov/php/public-health-recommendations.
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Symptoms include fever, cough, and shortness of breath, and
typically appear
[[Page 59656]]
2 to 14 days after exposure.\6\ Manifestations of severe disease have
included severe pneumonia, acute respiratory distress syndrome, septic
shock, and multi-organ failure.\7\ According to the World Health
Organization (WHO), approximately 3.4% of reported COVID-19 cases have
resulted in death globally.\8\ This mortality rate is higher among
older adults or those with compromised immune systems.\9\ Older adults
and people who have severe chronic medical conditions such as serious
heart conditions and lung disease are also at higher risk for more
serious COVID-19 illness.\10\
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\6\ CDC, Coronavirus Disease 2019 (COVID-19) (Mar. 16, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html.
\7\ CDC, Interim Clinical Guidance for Management of Patients
with Confirmed Coronavirus Disease (COVID-19) (Mar. 7, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html.
\8\ WHO Director-General's Opening Remarks at the Media Briefing
on COVID-19 (Mar. 3, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---3-march-2020.
\9\ CDC, Interim Clinical Guidance for Management of Patients
with Confirmed Coronavirus Disease (COVID-19) (Mar. 7, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html.
\10\ CDC, People Who Are at Higher Risk for Severe Illness (Mar.
22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/people-at-higher-risk.html.
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As of July 31, 2020, there were approximately 17,106,007 cases of
COVID-19 globally, resulting in approximately 668,910 deaths;
approximately 4,405,932 cases have been identified in the United
States, with new cases being reported daily, and approximately 150,283
reported deaths due to the disease.\11\
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\11\ WHO, Coronavirus disease 2019 (COVID-19) Situation Report--
193 (July 31, 2020), available at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200731-covid-19-sitrep-193.pdf?sfvrsn=42a0221d_2; CDC, Coronavirus Disease 2019 (COVID-19):
Cases in U.S. (July 31, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.
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Unfortunately, there is currently no vaccine against COVID-19.
Treatment is currently limited to supportive care to manage symptoms.
Hospitalization may be required in severe cases and mechanical
respiratory support may be needed in the most severe cases. Testing is
available to confirm suspected cases of COVID-19 infection. At present,
the time it takes to receive results varies, based on type of test
used, laboratory capacity, and geographic location, among other
factors.\12\
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\12\ CDC, Test for Current Infection (Jul. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/testing/diagnostic-testing.html.
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Many states and businesses are beginning the initial phases of
reopening, yet there are numerous challenges. The CDC has posted
guidance for workplaces who plan to reopen, which include: Ensuring
social distancing, such as installing physical barriers, modifying
workspaces, closing communal spaces, staggering shifts, limit travel
and modify commuting practices.\13\
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\13\ CDC, Reopening Workplaces During the COVID-19 Pandemic,
available at https://www.cdc.gov/coronavirus/2019-ncov/community/office-buildings.html; CDC, Reopening Guidance for Cleaning and
Disinfecting Public Spaces, Workplaces, Businesses, Schools, and
Homes, https://www.cdc.gov/coronavirus/2019-ncov/community/reopen-guidance.html.
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II. Purpose of This Temporary Final Rule
In light of the pandemic and to protect its workforce and help
mitigate the spread of COVID-19, USCIS temporarily suspended all face-
to-face services with the public from March 18, 2020 to June 4, 2020.
In an effort to promote safety as USCIS continues to reopen offices to
the public for in-person services and resume necessary operations, DHS
has determined, for 180 days, to no longer require asylum applicants
who are unable to proceed with the interview in English to provide an
interpreter. Rather, asylum applicants will ordinarily be required to
proceed with government-provided telephonic contract interpreters so
long as they speak one of the 47 languages found on the Required
Languages for Interpreter Services BPA/GSA Language Schedule (``GSA
Schedule''). If the applicant does not speak a language on the GSA
Schedule or elects to speak a language that is not on the GSA Schedule,
the applicant will be required to bring his or her own interpreter to
the interview who is fluent in English and the elected language (not on
the GSA schedule).
By providing telephonic contract interpreters, the risk of
contracting COVID-19 for applicants, attorneys, interpreters, and USCIS
employees will be reduced by requiring fewer people to attend asylum
interviews in person. In addition, it may alleviate an applicant's
challenge in securing an interpreter. USCIS may be able to conduct
additional asylum interviews because there will be more physical office
space that will not be occupied by interpreters since all parties
temporarily sit in separate offices during the interview during the
COVID-19 pandemic to mitigate potential exposure. Therefore, currently,
one asylum interview can take up to 4 interviewing offices. DHS
believes this approach will support the agency in reopening operations
to the public for in-person services, while protecting the workforce,
stakeholders, and communities to the greatest extent possible.
USCIS contractor-provided telephonic interpreters must be at least
18 years of age and pass a security and background investigation by the
USCIS Office of Security and Integrity (``OSI''). They cannot be the
applicant's attorney or representative of record; a witness testifying
on the applicant's behalf; a representative or employee of the
applicant's country of nationality or, if stateless, the applicant's
country of last habitual residence; a person who prepares an
Application for Asylum and for Withholding of Removal or Refugee/Asylee
Petition for a fee, or who works for such a preparer/attorney; or, a
person with a close relationship to the applicant as deemed by the
Asylum Office, such as a family member. All contract interpreters must
be located within the United States and its territories (i.e., Puerto
Rico, Guam, etc.). Additionally, under the International Religious
Freedom Act of 1998, USCIS must ensure that ``persons with potential
biases against individuals on the grounds of religion, race,
nationality, membership in a particular social group, or political
opinion . . . shall not in any manner be used to interpret
conversations between aliens and inspection or asylum officers.'' 22
U.S.C. 6473(a).
Per contractual requirements, the contract interpreters are
carefully vetted and tested. They must pass rigorous background checks
as well as demonstrate fluency in reading and speaking English as well
as the language of interpretation. The Contractor must test and certify
the proficiency of each interpreter as part of their quality control
plan. USCIS contractors must provide interpreters capable of accurately
interpreting the intended meaning of statements made by the asylum
officer, applicant, representative, and witnesses during interviews.
The Contractor shall provide interpreters who are fluent in reading and
speaking English and one or more other languages. The one exception to
the English fluency requirement involves the use of relay interpreters
in limited circumstances at the Agency's discretion. A relay
interpreter is used when an interpreter does not speak both English and
the language the applicant speaks. For example, if an applicant is not
fluent in one of the 47 languages and brings their own interpreter, the
applicant's interpreter may speak only Akatek (Acateco) and Spanish and
the
[[Page 59657]]
contract does not support Akatek. Therefore, a relay interpreter would
be needed to translate from Spanish to English. However, even in that
case, USCIS requires the Contractor to provide a second (or relay)
interpreter who is fluent in English and Spanish.
III. Discussion of Regulatory Change: Addition of 8 CFR 208.9(h)
14
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\14\ The interpreter interview provisions can be found in two
parallel sets of regulations: Regulations under the authority of DHS
are contained in 8 CFR part 208; and regulations under the authority
of the Department of Justice (DOJ) are contained in 8 CFR part 1208.
Each set of regulations contains substantially similar provisions
regarding asylum interview processes, and each articulates the
interpreter requirement for interviews before an asylum officer.
Compare 8 CFR 208.9(g), with 8 CFR 1208.9(g). This temporary final
rule revises only the DHS regulations at 8 CFR 208.9.
Notwithstanding the language of the parallel DOJ regulations in 8
CFR 1208.9, as of the effective date of this TFR, the revised
language of 8 CFR 208.9(h) is binding on DHS and its adjudications
for 180 days. DHS would not be bound by the DOJ regulation at 8 CFR
1208.9(g).
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DHS has determined that there are reasonable grounds for regarding
potential exposure to COVID-19 as a public health concern and thus
sufficient to modify the interpreter requirement for asylum applicants
to lower the number of in-person attendees at asylum interviews. DHS
will require asylum applicants to proceed with the asylum interview
using USCIS's interpreter services for 180 days following publication
of this TFR if they are fluent in one of the 47 languages provided.\15\
After the 180 days concludes, asylum applicants unable to proceed in
English will again be required to provide their own interpreters under
8 CFR 208.9(g). Under the temporary provision, USCIS may be able to
provide contract interpreters on demand for approximately 47 different
languages \16\ listed on the GSA Schedule (see Table A below). This
list of languages has also been included in the regulatory text.
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\15\ DHS is not modifying 8 CFR 208.9(g) with this temporary
rule; however, the temporary rule is written so that any asylum
interviews occurring while the temporary rule is effective will be
bound by the requirements at 8 CFR 208.9(h).
\16\ According to internal data for asylum interviews scheduled
in FY19, 83% of asylum applicants spoke at least one of the 47
languages and only 5% spoke a language not included on this list.
Table A--Required Languages for Interpreter Services BPA/GSA Language
Schedule
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1. Akan.
2. Albanian.
3. Amharic.
4. Arabic.
5. Armenian.
6. Azerbaijani.
7. Bengali.
8. Burmese.
9. Cantonese.
10. Creole/Haitian Creole.
11. Farsi-Afghani/Dari.
12. Farsi-Iranian.
13. Foo Chow/Fuzhou.
14. French.
15. Georgian.
16. Gujarati.
17. Hindi.
18. Hmong.
19. Hungarian.
20. Indonesia/Bahasa.
21. Konjobal.
22. Korean.
23. Kurdish.
24. Lingala.
25. Mam.
26. Mandarin.
27. Nepali.
28. Pashto/Pushtu.
29. Portuguese.
30. Punjabi.
31. Quiche/K'iche.
32. Romanian.
33. Russian.
34. Serbian.
35. Sinhalese.
36. Somali.
37. Spanish.
38. Swahili.
39. Tagalog.
40. Tamil.
41. Tigrinya.
42. Turkish.
43. Twi.
44. Ukrainian.
45. Urdu.
46. Uzbek.
47. Vietnamese.
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If an interpreter is necessary to conduct the interview and a
contract interpreter who speaks a language on the GSA Schedule is not
available at the time of the interview, USCIS will reschedule the
interview and attribute the interview delay to USCIS (and not to the
applicant) for the purposes of employment authorization under 8 CFR
208.7.
If an applicant is fluent in a language on the GSA Schedule but
refuses to proceed with the interview by using a contract interpreter,
USCIS will consider this a failure without good cause to comply with 8
CFR 208.9(h)(1), unless the applicant elects to proceed with a language
not on the GSA schedule as discussed below. An applicant's refusal to
proceed with the interview using the contract interpreter--for example,
due to a preference to proceed with one's own interpreter--will not be
considered good cause under 8 CFR 208.9(h)(1)(ii) for an interview
delay. The purpose of ensuring the contract interpreters are used is to
mitigate the spread of COVID-19 and protect the health and safety of
USCIS employees and the public, as explained elsewhere in this
preamble. The contract interpreters are vetted and will be provided at
no cost to the applicant. Accordingly, under these circumstances, the
applicant will be considered to have failed to appear for the interview
in accordance with 8 CFR 208.10, and the application will be referred
or dismissed.
If the applicant does not speak a language on the GSA Schedule or
elects to speak a language that is not on the GSA Schedule, the
applicant will be required to bring his or her own interpreter to the
interview who is fluent in English and the elected language (not on the
GSA schedule). If an applicant is unable to provide an interpreter
fluent in English and the elected language is not found on the GSA
Schedule, the applicant may provide an interpreter fluent in the
elected language and one found on the GSA Schedule. In this situation,
USCIS will provide a contract relay interpreter to interpret between
the GSA Schedule language and English.
On June 4, 2020, certain USCIS field offices and asylum offices
resumed non-emergency face-to-face services to the public while
enacting precautions to prevent the spread of COVID-19 in reopened
facilities. USCIS is following a phased approach to reopening in
accordance with the Administration's ``Guidelines for Opening Up
America Again,'' \17\ based on the advice of public health experts, in
order to meet its mission in administering the nation's immigration
system, while also instituting safety protocols. While USCIS continued
to perform duties that did not involve in-person interviews while in-
person services were temporarily suspended to mitigate the spread of
COVID-19, many immigration benefits, including asylum applications,
usually require in-person services and timely immigration adjudications
are important. Since USCIS re-opened to the public to resume interviews
on June 4, 2020, USCIS has allowed the applicant-provided interpreter
to sit separately in another office. However, USCIS only permitted this
because it is the current regulatory requirement, which this temporary
final rule will amend in order to reduce the risk of exposure.
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\17\ The White House and Centers for Disease Control and
Prevention, Guidelines Opening Up America Again, https://www.whitehouse.gov/openingamerica/.
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In drafting this temporary rule, USCIS considered continuing to
allow interpreters to attend the interview in person but sit
separately, or to provide interpretation by video or telephone could be
another means of maintaining recommended social distancing. While
requiring an applicant-provided interpreter to sit separately in
another office allows for appropriate social distancing from the
applicant, attorney and interviewing officer during the interview, it
could create more risk for the asylum office staff because interpreters
often participate in many asylum interviews or other interviews with
USCIS in a single day, which could heighten the risk of contracting or
spreading the illness in the waiting room or other common areas.
Further, allowing an applicant's interpreter to appear by telephone or
video could adversely affect the applicant, USCIS, and the public.
USCIS recognizes that allowing an applicant's interpreter to appear by
telephone or video may support the goals of social distancing; however,
USCIS has not allowed applicant-provided interpreters to appear
telephonically at affirmative asylum interviews in the past. This is
because USCIS is unable to confirm the interpreter's identity and
assure that the individual meets the minimum requirements to be an
interpreter under the applicable regulation and policy. In addition,
USCIS is unable to properly ensure that the interpreter is protecting
the confidentiality of the asylum applicant and not recording the
interview, which could encourage and support asylum fraud and damage
legitimate asylum seekers and the lawful asylum system. Thus, USCIS
finds that providing a professional contract interpreter is a better
option for the applicant, USCIS, and the public.
The government-provided contract interpreters will not put
applicants at a disadvantage or adversely affect applicants. The
contract interpreters are carefully vetted and tested. They must pass
rigorous background checks as well as meet a high standard of
competency. Additionally, serving as interpreters during asylum
interviews would not be a novel or new function for contract
interpreters to perform, nor would utilizing them in this limited and
emergency circumstance cause additional costs to USCIS or the public.
USCIS has an existing contract to provide telephonic interpretation and
monitoring in interviews for all of its case types. While not required
by regulation for asylum interviews, USCIS has provided monitors for
many years as a matter of policy except when the applicant spoke
English, the contract vendor did not cover the language, or a monitor
was unavailable at the time of the call. Since the cost of monitoring
and interpretation are identical under the contract, the implementation
of this change is projected to be cost neutral or negligible as USCIS
is already paying for these services and the contract is already
budgeted for. The contract interpreters already regularly serve as
interpreters for screening interviews in expedited removal and other
contexts and act as interpreter monitors or occasionally serve as the
primary interpreter during affirmative asylum interviews, so they are
familiar with the operational realities of asylum interviews and the
role of an interpreter during those interviews. USCIS also has internal
procedural safeguards in place. For example, in situations where the
applicant or asylum officer believes that the contract interpreter
abuses their role, appears biased or prejudicial against the applicant,
appears to be breaching confidentiality or otherwise are not conducting
themselves professionally, the interview may be stopped so that the
officer may obtain another contract interpreter. The problems with the
contract interpreter may also be reported to the Contractor for
appropriate action.
The use of contract interpreters will increase the efficiency of
the asylum interviews as interviews would not need to be rescheduled
due to failure to appear (because the applicant did not bring a proper
interpreter) or interpreter incompetence, and USCIS-provided
interpretation is likely to be faster and more efficient when the
applicant-provided interpreter is not a professional. Interviews will
less likely need to be rescheduled due to sickness of an interpreter
and will ensure the safety of USCIS employees and asylum applicants and
mitigate the spread of the disease. In addition, government-funded
interpretation will eliminate pre-interview inefficiencies, such as
screening out ineligible interpreters, and will eliminate time spent on
examining whether an interpreter misinterpreted any material aspects of
the asylum interview or committed fraud or acted improperly because of
the strict vetting and testing requirements for contract interpreters.
This provision will be subject to a temporal limitation of 180 days
unless it is further extended and it applies to all asylum interviews
across the nation. USCIS has determined that 180 days is appropriate
given that (1) the pandemic is ongoing; (2) there is much that is
unknown about the transmissibility, severity, and other features
associated with COVID-19; and (3) mitigation is especially important
before a vaccine or drug is developed and becomes widely available.
Prior to the expiration of this temporary rule, DHS will evaluate the
public health concerns and resource allocation, to determine whether to
extend the temporal limitation. If necessary, DHS would publish any
such extension via a rulemaking in the Federal Register.
IV. Regulatory Requirements
A. Administrative Procedure Act (APA)
DHS is issuing this rule as a temporary final rule pursuant to the
APA's ``good cause'' exception. 5 U.S.C. 553(b)(B). Agencies may forgo
notice-and-comment rulemaking and a delayed effective date while this
rulemaking is published in the Federal Register because the APA
provides an exception from those requirements when an agency ``for good
cause finds . . . that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest.'' 5
U.S.C. 553(b)(B); see 5 U.S.C. 553(d)(3).
The good cause exception for forgoing notice-and-comment rulemaking
``excuses notice and comment in emergency situations, or where delay
could result in serious harm.'' Jifry v. FAA, 370 F.3d 1174, 1179 (D.C.
Cir. 2004). Although the good cause exception is ``narrowly construed
and only reluctantly countenanced,'' Tenn. Gas Pipeline Co. v. FERC,
969 F.2d 1141, 1144 (D.C. Cir 1992), DHS has appropriately invoked the
exception in this case, for the reasons set forth below. Additionally,
on multiple occasions, agencies have relied on this exception to
promulgate both communicable disease-related \18\ and immigration-
related \19\ interim rules.
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\18\ HHS Control of Communicable Diseases; Foreign Quarantine,
85 FR 7874 (Feb. 12, 2020) (interim final rule to enable the CDC
``to require airlines to collect, and provide to CDC, certain data
regarding passengers and crew arriving from foreign countries for
the purposes of health education, treatment, prophylaxis, or other
appropriate public health interventions, including travel
restrictions''); Control of Communicable Diseases; Restrictions on
African Rodents, Prairie Dogs, and Certain Other Animals, 68 FR
62353 (Nov. 4, 2003) (interim final rule to modify restrictions to
``prevent the spread of monkeypox, a communicable disease, in the
United States.'').
\19\ See, e.g., Visas: Documentation of Nonimmigrants Under the
Immigration and Nationality Act, as Amended, 81 FR 5906, 5907 (Feb.
4, 2016) (interim rule citing good cause to immediately require a
passport and visa from certain H2-A Caribbean agricultural workers
to avoid ``an increase in applications for admission in bad faith by
persons who would otherwise have been denied visas and are seeking
to avoid the visa requirement and consular screening process during
the period between the publication of a proposed and a final
rule''); Suspending the 30-Day and Annual Interview Requirements
From the Special Registration Process for Certain Nonimmigrants, 68
FR 67578, 67581 (Dec. 2, 2003) (interim rule claiming the good cause
exception for suspending certain automatic registration requirements
for nonimmigrants because ``without [the] regulation approximately
82,532 aliens would be subject to 30-day or annual re-registration
interviews'' over a six-month period).
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[[Page 59659]]
As discussed earlier in this preamble, on January 31, 2020, the
Secretary of Health and Human Services declared a public health
emergency under section 319 of the Public Health Service Act in
response to COVID-19.\20\ On March 13, 2020, President Trump declared a
National Emergency concerning the COVID-19 outbreak, dated back to
March 1, 2020, to control the spread of the virus in the United
States.\21\ As of July 31, 2020, there were approximately 17,106,007
cases of COVID-19 globally, resulting in approximately 668,910 deaths;
approximately 4,405,932 cases have been identified in the United
States, with new cases being reported daily, and approximately 150,283
deaths due to the disease.\22\ Currently, there is no vaccine against
COVID-19. Treatment is currently limited to supportive care to manage
symptoms. Hospitalization may be required in severe cases and
mechanical respiratory support may be needed in the most severe cases.
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\20\ HHS, Determination of Public Health Emergency.
\21\ Proclamation 9994 (Mar. 13, 2020).
\22\ WHO, Coronavirus disease 2019 (COVID-19) Situation Report--
193 (July 31, 2020), available at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200731-covid-19-sitrep-193.pdf?sfvrsn=42a0221d_2; CDC, Coronavirus Disease 2019 (COVID-19):
Cases in U.S. (July 31, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.
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DHS has concluded that the good cause exceptions in 5 U.S.C.
553(b)(B) and (d)(3) apply to this rule. Delaying implementation of
this rule until the conclusion of notice-and-comment procedures and the
30-day delayed effective date would be impracticable and contrary to
the public interest due to the need to resume agency operations and
associated risk to asylum office staff, as well as the public, with the
spread of COVID-19.
As of July 31, 2020, USCIS had 370,948 asylum applications, on
behalf of 589,187 aliens, pending final adjudication. Over 94% of these
pending applications are awaiting an interview by an asylum officer.
The USCIS backlog will continue to increase unless USCIS can safely and
efficiently conduct asylum interviews.
Since resuming agency operations under the current regulatory
requirements, asylum applicants unable to proceed in English must
provide their own interpreters. This means that the interpreter
currently accompanies the applicant to and within the USCIS facility,
thereby increasing the risk of contracting and/or transferring COVID-19
to themselves or others while entering the space and observing the
usual security screening protocols, as well as while accessing space
throughout the facility during the appointment such as, information
counters, waiting rooms, restrooms, and/or private interview offices.
Interpreters who accompany asylum applicants to asylum offices often
work as professional interpreters providing a variety of in-person
interpreting services and as such have regular in-person exposure to a
wide range of individuals as a matter of course. Accordingly, they are
at a greater risk of being exposed to COVID-19. Whereas, under the TFR,
the USCIS-provided interpreters would appear telephonically, minimizing
the spread and exposure to COVID-19. The longer the effective date of
this regulatory change is delayed, the longer USCIS will have to
continue to potentially expose our workforce, applicants and attorneys
to risk at USCIS facilities--potentially negatively impacting the
health of employees, stakeholders and the public health of the United
States in general.
As discussed elsewhere in this rule, COVID-19 is contagious, and
symptoms may not be present until up to 14 days after exposure, and
USCIS currently has over 353,000 applicants awaiting an asylum
interview. Although USCIS has protocols in place to insulate against
the risk of spread, requiring an interpreter to accompany every asylum
applicant who cannot proceed in English has the potential to raise the
number of individuals impacted and possibly exposed to the disease.
Additionally, applicants and applicant-provided interpreters may
contract or transmit the disease if and when they come into contact
with others through, for example, transit to the USCIS facility.
Notably, unlike the applicant themselves, interpreters are often repeat
visitors to the asylum office, some appearing multiple times per week
and even handling more than one case per day. As such, the repeated
trips to the office and the likelihood that multiple appointments will
increase the risk of spread within an asylum office because an
interpreter may have contact with several employees over the course of
multiple visits within a short period of time. These factors pose a
serious risk to local communities and the operational posture of USCIS,
and are why under the TFR, USCIS would only allow an applicant-provided
interpreter to physically attend the interview if the applicant does
not speak one of the 47 languages provided by USCIS provided contract
interpreters.
DHS recognizes that some applicants may prefer to use their own
interpreters, but for the reason stated above and elsewhere in this
preamble, it has determined that the benefits of this rule outweigh the
potential preference of some applicants. This temporary final rule is
promulgated as a response to COVID-19. It is temporary, limited in
application to only those asylum applicants who cannot proceed with the
interview in English, and narrowly tailored to mitigate the spread of
COVID-19. To delay such a measure could cause serious and far-reaching
public safety and health effects.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996,
requires an agency to prepare and make available to the public a
regulatory flexibility analysis that describes the effect of the rule
on small entities (i.e., small businesses, small organizations, and
small governmental jurisdictions). A regulatory flexibility analysis is
not required when a rule is exempt from notice-and-comment rulemaking.
C. Unfunded Mandates Reform Act of 1995
This temporary final rule will not result in the expenditure by
state, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year, and it will
not significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
D. Congressional Review Act
This temporary final rule is not a major rule as defined by section
804 of the Congressional Review Act. 5 U.S.C. 804. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.
[[Page 59660]]
E. Executive Order 12866 Executive Order 13563
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility. This rule
is designated a significant regulatory action under E.O. 12866.
Accordingly, the Office of Management and Budget (OMB) has reviewed
this regulation. DHS, however, is proceeding under the emergency
provision of Executive Order 12866 Section 6(a)(3)(D) based on the need
to move expeditiously during the current public health emergency.
This TFR will help asylum applicants proceed with their interviews
in a safe manner, while protecting agency staff. This rule is not
expected to result in any additional costs to the applicant or to the
government. As previously explained, the contract interpreters will be
provided at no cost to the applicant. USCIS already has an existing
contract to provide telephonic interpretation and monitoring in
interviews for all of its case types. USCIS has provided monitors for
many years. Almost all interviews that utilize a USCIS provided
interpreter after this rulemaking would have had a contracted monitor
under the status quo. As the cost of monitoring and interpretation are
identical under the contract and monitors will no longer be needed for
these interviews, the implementation of this rule is projected to be
cost neutral or negligible as USCIS is already paying for these
services even without this rule.
F. Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in section 3(a)
and 3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
This rule does not propose new, or revisions to existing,
``collection[s] of information'' as that term is defined under the
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter
35, and its implementing regulations, 5 CFR part 1320. As this is a
temporary final rule and would only span 180 days, USCIS does not
anticipate a need to update the Form I-589, Application for Asylum and
for Withholding of Removal, despite the existing language on the
Instructions regarding interpreters, because it will be primarily
rescheduling interviews that were cancelled due to COVID. USCIS will
post updates on its I-589 website, https://www.uscis.gov/i-589, and
other asylum and relevant web pages regarding the new interview
requirements in this regulation, as well as provide personal notice to
applicants via the interview notices issued to applicants prior to
their interview.
I. Signature
The Acting Secretary of Homeland Security, Chad F. Wolf, having
reviewed and approved this document, is delegating the authority to
electronically sign this document to Ian Brekke, Deputy General Counsel
for DHS, for purposes of publication in the Federal Register.
List of Subjects in 8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
Accordingly, for the reasons set forth in the preamble, the
Secretary of Homeland Security amends 8 CFR part 208 as follows:
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
1. The authority citation for part 208 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Public Law 110-229; 8 CFR part 2.
0
2. Section 208.9 is amended by adding paragraph (h) to read as follows:
208.9 Procedure for interview before an asylum officer.
* * * * *
(h) Asylum Applicant Interpreters for asylum interviews conducted
between September 23, 2020, through March 22, 2021.
(1) Asylum applicants unable to proceed with the interview in
English must use USCIS's telephonic interpreter services, so long as
the applicant is fluent in one of the following languages: Akan,
Albanian, Amharic, Arabic, Armenian, Azerbaijani, Bengali, Burmese,
Cantonese, Creole/Haitian Creole, Farsi-Afghani/Dari, Farsi-Iranian,
Foo Chow/Fuzhou, French, Georgian, Gujarati, Hindi, Hmong, Hungarian,
Indonesia/Bahasa, Konjobal, Korean, Kurdish, Lingala, Mam, Mandarin,
Nepali, Pashto/Pushtu, Portuguese, Punjabi, Quiche/K'iche, Romanian,
Russian, Serbian, Sinhalese, Somali, Spanish, Swahili, Tagalog, Tamil,
Tigrinya, Turkish, Twi, Ukrainian, Urdu, Uzbek, or Vietnamese.
(i) If a USCIS interpreter is unavailable at the time of the
interview, USCIS will reschedule the interview and attribute the
interview delay to USCIS for the purposes of employment authorization
pursuant to 8 CFR 208.7.
(ii) Except as provided in paragraph (h)(1)(iii) of this section,
if an applicant is fluent in a language listed in this paragraph (h)(1)
but refuses to proceed with the USCIS interpreter in order to use his
or her own interpreter, USCIS will consider this a failure without good
cause to comply with this paragraph (h)(1). The applicant will be
considered to have failed to appear for the interview for the purposes
of 8 CFR 208.10.
(iii) If the applicant elects to proceed in a language that is not
listed in this paragraph (h)(1), the applicant must provide a competent
interpreter fluent in both English and the applicant's native language
or any other language in which the applicant is fluent. If an applicant
is unable to provide an interpreter fluent in English and the elected
language not listed in this paragraph (h)(1), the applicant may provide
an interpreter fluent in the elected language and one found in this
paragraph (h)(1). USCIS will provide a relay interpreter to interpret
between the language listed in this paragraph (h)(1) and English. The
interpreter must be at least 18 years of age. Neither the applicant's
attorney or representative of record, a witness testifying on the
applicant's behalf, nor a representative or employee of the applicant's
country of nationality, or if stateless, country of last habitual
residence, may serve as the applicant's interpreter. Failure without
good cause to comply with this paragraph may be considered a failure to
appear for the interview for purposes of 8 CFR 208.10.
[[Page 59661]]
(2) [Reserved]
Ian Brekke,
Deputy General Counsel, U.S. Department of Homeland Security.
[FR Doc. 2020-21073 Filed 9-22-20; 8:45 am]
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