Asylum Interview Interpreter Requirement Modification Due to COVID-19, 59655-59661 [2020-21073]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[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

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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]
BILLING CODE 9111-97-P