Rule2023-05572
Asylum Interview Interpreter Requirement Modification Due to COVID-19
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 17, 2023
Effective
March 16, 2023
Issuing agencies
Homeland Security Department
Abstract
The Department of Homeland Security (DHS) is extending, for a fourth time, the effective date (for 180 days) of its temporary final rule that modified certain regulatory requirements to help ensure that USCIS may continue with affirmative asylum adjudications during the COVID-19 pandemic.
Full Text
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<title>Federal Register, Volume 88 Issue 52 (Friday, March 17, 2023)</title>
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[Federal Register Volume 88, Number 52 (Friday, March 17, 2023)]
[Rules and Regulations]
[Pages 16372-16378]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-05572]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 208
[CIS No. 2741-23; 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 (USCIS), Department
of Homeland Security (DHS).
ACTION: Temporary final rule; extension.
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SUMMARY: The Department of Homeland Security (DHS) is extending, for a
fourth time, the effective date (for 180 days) of its temporary final
rule that modified certain regulatory requirements to help ensure that
USCIS may continue with affirmative asylum adjudications during the
COVID-19 pandemic.
DATES: This temporary final rule is effective from March 16, 2023
through September 12, 2023. As of March 16, 2023, the expiration date
of the temporary final rule published at 85 FR 59655 (Sept. 23, 2020),
which was extended at 86 FR 15072 (Mar. 22, 2021), at 86 FR 51781
(Sept. 17, 2021), and at 87 FR 14757 (Mar. 16, 2022), is further
extended from March 16, 2023 through September 12, 2023.
FOR FURTHER INFORMATION CONTACT: Ren[aacute] Cutlip-Mason, Chief,
Division of Humanitarian Affairs, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
5900 Capital Gateway Drive, Camp Springs, MD 20588-0009; telephone
(240) 721-3000 (not a toll-free call).
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) takes this action
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.
[[Page 16373]]
1103(a)(1), and granting 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 made outside the removal context. HSA
451(b)(3); 6 U.S.C. 271(b)(3) (providing for the transfer of
adjudication of asylum and refugee applications from the Commissioner
of Immigration and Naturalization to the Director of the Bureau of
Citizenship and Immigration Services, now USCIS). USCIS asylum officers
determine, in the first instance, whether a noncitizen's \1\
affirmative asylum application should be granted. See 8 CFR 208.4(b),
208.9. Generally, the Department of Justice Executive Office for
Immigration Review adjudicates asylum applications filed by noncitizens
who are in removal proceedings. See INA 103(g), 240; 8 U.S.C. 1103(g),
1229a.
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\1\ For purposes of the discussion in this preamble, DHS uses
the term ``noncitizen'' colloquially to be synonymous with the term
``alien'' as it is used in the INA. See INA 101(a)(3), 8 U.S.C.
1101(a)(3); Barton v. Barr, 140 S. Ct. 1442, 1446 n.2 (2020) (``This
opinion uses the term ``noncitizen'' as equivalent to the statutory
term ``alien.'' See 8 U.S.C. 1101(a)(3)''). DHS also uses the term
``individuals.''
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B. Legal Framework for Asylum
Asylum is a discretionary benefit that generally can be granted to
eligible noncitizens 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 parts 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 conditions or limitations are ``not
inconsistent with this chapter.'' INA 208(d)(5)(B), 8 U.S.C.
1158(d)(5)(B). Thus, 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 communicate in
English ``must provide, at no expense to the USCIS, 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)(1). This requirement means that all asylum applicants who
cannot communicate in English must bring an interpreter to their
interview. However, doing so, as required by the regulation, has posed
a serious health risk because of the COVID-19 pandemic.
Accordingly, this temporary final rule extends the rule published
at 85 FR 59655, for a fourth time, to continue to mitigate the spread
of COVID-19 by seeking to slow the transmission and spread of the
disease during asylum interviews before USCIS asylum officers while the
COVID-19 national emergency and public health emergency (PHE) are still
in effect. On January 30, 2023, the Administration announced its plan
to extend the emergency declarations to May 11, 2023, and then end both
emergencies on that date.\2\ Consistent with that announcement,
President Biden has extended the COVID-19 national emergency and
announced that he anticipates terminating it on May 11, 2023.\3\
Likewise, the Department of Health and Human Services (HHS) has
extended the PHE \4\ and stated that it is planning for the PHE to end
on May 11, 2023.\5\ The fourth extension of this temporary final rule
provides some additional time following the expiration of the national
and public health emergencies to allow USCIS to properly operationalize
the return to the requirement that asylum applicants provide
interpreters at their asylum interviews while also giving sufficient
notice to the public of the expiration of this temporary final rule and
reversion to past practice. To that end, this temporary final rule will
extend for 180 days the requirement that allows noncitizens to use
USCIS-provided interpreters during affirmative asylum interviews in
certain instances. This temporary final rule also provides that, while
the rule is in effect, if a USCIS interpreter is unavailable, USCIS
will either reschedule the interview and attribute the interview delay
to USCIS for the purposes of employment authorization under 8 CFR
208.7, or USCIS may, in its discretion, allow the applicant to provide
an interpreter.
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\2\ Statement of Administration Policy (Jan. 30, 2023), <a href="https://www.whitehouse.gov/wp-content/uploads/2023/01/SAP-H.R.-382-H.J.-Res.-7.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/01/SAP-H.R.-382-H.J.-Res.-7.pdf</a> (last visited Mar. 2, 2023).
\3\ Notice on the Continuation of the National Emergency
Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 88 FR
9385 (Feb. 14, 2023).
\4\ Department of Health and Human Services (HHS), Renewal of
Determination that a Public Health Emergency Exists (Feb. 9, 2023),
<a href="https://aspr.hhs.gov/legal/PHE/Pages/COVID19-9Feb2023.aspx">https://aspr.hhs.gov/legal/PHE/Pages/COVID19-9Feb2023.aspx</a> (last
visited Feb. 27, 2023).
\5\ HHS, COVID-19 Public Health Emergency (PHE), <a href="https://www.hhs.gov/coronavirus/covid-19-public-health-emergency/index.html">https://www.hhs.gov/coronavirus/covid-19-public-health-emergency/index.html</a>
(last visited Mar. 2, 2023).
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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, which is
caused by SARS-CoV-2.\6\ On March 13, 2020, the President declared a
National Emergency concerning the COVID-19 pandemic.\7\ As of February
1, 2023, there have been over 753 million confirmed cases of COVID-19
identified globally, resulting in more than 6.8 million deaths.\8\
Approximately 100,941,827 cases have been identified in the United
States, with about 287,580 new cases identified during the week of
January 23, 2023, and approximately 1,097,246 reported deaths due to
the disease.\9\ A more detailed background discussion of the COVID-19
pandemic is found in the original temporary final rule, as well as in
the first and second extensions of the rule, and USCIS incorporates the
discussions of the pandemic into this extension. See 85 FR 59655 (Sept.
23, 2020); 86 FR 15072 (Mar. 22, 2021); 86 FR 51781 (Sept. 17, 2021).
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\6\ Department of Health and Human Services (HHS), Determination
that a Public Health Emergency Exists (Jan. 31, 2020), <a href="https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx">https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx</a>
(last visited Jan. 12, 2023).
\7\ Proclamation 9994 of March 13, 2020, Declaring a National
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85
FR 15337 (Mar. 18, 2020).
\8\ WHO Coronavirus (COVID-19) Dashboard (updated Feb. 1 2023),
<a href="https://covid19.who.int/">https://covid19.who.int/</a> (last visited Feb. 1, 2023).
\9\ Id.
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Since publication of the original temporary final rule, variants of
the virus that causes COVID-19 have been reported in the United
States.\10\ Following the first COVID-19 Omicron variant case reported
in the United States, on December 1, 2021, there was a rapid increase
in infections and hospitalizations with multiple large clusters of
outbreaks that peaked in mid-January 2022.\11\ Although vaccines
[[Page 16374]]
are now widely accessible, there is wide disparity in the percentages
of who have received updated boosters.\12\ Indeed, ongoing research
demonstrates that while the effectiveness of authorized and approved
COVID-19 vaccines against death, serious disease, and hospitalization
remains high, their effectiveness against milder symptomatic disease
wanes over time, and thus CDC guidance states that eligible individuals
should receive COVID-19 vaccine booster shots after certain periods of
time.\13\ CDC reports also show that individuals who are unvaccinated
have a greater risk of testing positive for COVID-19 and a greater risk
of dying from COVID-19 than individuals who are fully vaccinated.\14\
While vaccines offer protection against variants, Centers for Disease
Control and Prevention (CDC) data from January 2023 indicated that an
Omicron subvariant, XBB.1.5, had quickly become a higher percentage of
total COVID-19 cases in the United States, accounting for 61.3 percent
of new cases.\15\ This subvariant only accounted for approximately 10
percent of new cases in early December 2022.\16\ Even with the
emergence of this new variant, the number of COVID-19 infections and
hospitalizations in the United States has greatly decreased since the
peak in mid-January 2022.\17\
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\10\ Centers for Disease Control and Prevention (CDC), SARS-CoV-
2 Variant Classifications and Definitions (updated Apr. 26, 2022),
<a href="https://www.cdc.gov/coronavirus/2019-ncov/variants/variant-classifications.html">https://www.cdc.gov/coronavirus/2019-ncov/variants/variant-classifications.html</a> (last visited Jan. 12, 2023).
\11\ CDC, Rapid Increase of Omicron Variant Infections in the
United States: Management of Healthcare Personnel with SARS-CoV-2
Infection or Exposure (Dec. 24, 2021), <a href="https://emergency.cdc.gov/han/2021/pdf/CDC_HAN_460.pdf">https://emergency.cdc.gov/han/2021/pdf/CDC_HAN_460.pdf</a> (last visited Jan. 12, 2023); CDC,
Potential Rapid Increase of Omicron Variant Infections in the United
States (updated Dec. 20, 2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/science/forecasting/mathematical-modeling-outbreak.html">https://www.cdc.gov/coronavirus/2019-ncov/science/forecasting/mathematical-modeling-outbreak.html</a>
(last visited Jan. 12, 2023); CDC, COVID Data Tracker--Trends in
Number of COVID-19 Cases and Deaths in the U.S. Reported to CDC, by
State/Territory (updated Dec. 28, 2022), <a href="https://covid.cdc.gov/covid-data-tracker/#trends_dailycases">https://covid.cdc.gov/covid-data-tracker/#trends_dailycases</a> (last visited Jan. 12, 2023);
CDC, COVID Data Tracker: New Admissions of Patients with Confirmed
COVID-19 Per 100,000 Population by Age Group, United States (updated
Jan. 24, 2023), <a href="https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions">https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions</a> (last visited Jan. 25, 2023).
\12\ CDC, COVID Data Tracker--COVID-19 Vaccinations in the
United States (updated Jan. 26, 2023), <a href="https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total">https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total</a> (last visited
Feb. 1, 2023).
\13\ CDC, Stay Up to Date with Vaccines (updated Jan. 9, 2023),
<a href="https://www.cdc.gov/coronavirus/2019-ncov/vaccines/stay-up-to-date.html">https://www.cdc.gov/coronavirus/2019-ncov/vaccines/stay-up-to-date.html</a> (last visited Jan. 12, 2023); FDA, COVID-19 Frequently
Asked Questions (updated Dec. 8, 2022), <a href="https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/covid-19-frequently-asked-questions">https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/covid-19-frequently-asked-questions</a> (last visited Jan. 12, 2023);
CDC, Waning 2-Dose and 3-Dose Effectiveness of mRNA Vaccines Against
COVID-19-Associated Emergency Department and Urgent Care Encounters
and Hospitalizations Among Adults During Periods of Delta and
Omicron Variant Predominance--VISION Network, 10 States, August
2021-January 2022, Feb. 11, 2022, <a href="https://www.cdc.gov/mmwr/volumes/71/wr/mm7107e2.htm">https://www.cdc.gov/mmwr/volumes/71/wr/mm7107e2.htm</a> (last visited: March 8, 2023).
\14\ CDC, Rate of COVID-19 Cases and Deaths by Vaccination
Status, <a href="https://covid.cdc.gov/covid-data-tracker/#rates-by-vaccine-status">https://covid.cdc.gov/covid-data-tracker/#rates-by-vaccine-status</a> (last visited Jan. 12, 2023).
\15\ CDC, COVID Data Tracker-Variant Proportions (updated Jan.
28, 2023), <a href="https://covid.cdc.gov/covid-data-tracker/#variant-proportions">https://covid.cdc.gov/covid-data-tracker/#variant-proportions</a> (last visited Feb. 1, 2023); Aliza Rozen, What You Need
to Know About XBB.1.5, the Latest Omicron Variant, Johns Hopkins
Bloomberg School of Public Health (Jan. 6, 2023), <a href="https://publichealth.jhu.edu/2023/what-you-need-to-know-about-xbb15-the-latest-omicron-variant">https://publichealth.jhu.edu/2023/what-you-need-to-know-about-xbb15-the-latest-omicron-variant</a> (last visited Jan. 12, 2023); Early Estimates
of Bivalent mRNA Booster Dose Vaccine Effectiveness in Preventing
Symptomatic SARS-CoV-2 Infection Attributable to Omicron BA.5- and
XBB/XBB.1.5-Related Sublineages Among Immunocompetent Adults--
Increasing Community Access to Testing Program, United States,
December 2022-January 2023 (updated Feb. 3, 2023), <a href="https://www.cdc.gov/mmwr/volumes/72/wr/mm7205e1.htm">https://www.cdc.gov/mmwr/volumes/72/wr/mm7205e1.htm</a> (last visited: March 6,
2023).
\16\ Id.
\17\ CDC, COVID Data Tracker: New Admissions of Patients with
Confirmed COVID-19 Per 100,000 Population by Age Group, United
States (updated Jan. 24, 2023), <a href="https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions">https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions</a> (last visited Jan. 25, 2023).
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II. Purpose of This Temporary Final Rule
USCIS continues its efforts to protect the health and safety of its
employees and the public by requiring all federal employees, on-site
contractors, and visitors to follow local USCIS guidance on physical
distancing and workplace protection consistent with updated Federal
guidance.\18\
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\18\ USCIS Response to COVID-19 (updated Oct. 24, 2022), <a href="https://www.uscis.gov/about-us/uscis-response-to-covid-19">https://www.uscis.gov/about-us/uscis-response-to-covid-19</a> (last visited
Jan. 12, 2023).
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USCIS conducted 32,012 total asylum interviews between September
23, 2020 and March 7, 2022. While maintaining public safety measures
pursuant to its response to COVID-19,\19\ USCIS simultaneously began
increasing its affirmative asylum interviews in order to best serve the
public. Between March 7, 2022 and January 24, 2023, USCIS conducted an
additional 27,405 asylum interviews. The original temporary final rule,
implemented on September 23, 2020, and its extensions implemented on
March 22, 2021, September 20, 2021, and March 16, 2022, as well as
other noted public safety measures, have helped mitigate the impact of
COVID-19 and have been effective in keeping the USCIS workforce and the
public safe. As of September 17, 2022, there have been 6,807 confirmed
cases of COVID-19 among USCIS employees and contractors.
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\19\ See id.
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DHS has determined that it is in the best interest of the public
and USCIS employees and contractors to extend the temporary final rule
for 180 days. This period includes the time until May 11, 2023, while
the emergency declarations remain in effect, and a period thereafter to
allow USCIS a sufficient period to properly operationalize the return
to the requirement that asylum applicants provide interpreters at their
asylum interviews. Providing for a 180-day extension also gives
sufficient notice to the public of the expiration of this temporary
final rule and reversion to past practice.
Under this fourth extension, USCIS will continue requiring asylum
applicants who are unable to proceed with the interview in English to
use government-provided telephonic contract interpreters if the
applicants speak one of the 47 languages found on the Required
Languages for Interpreter Services Blanket Purchase Agreement/U.S.
General Services Administration 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 their own interpreter to the interview who is
fluent in English and the elected language not on the GSA schedule. In
the second extension of the temporary final rule, published at 85 FR
59655, DHS also amended 8 CFR 208.9(h)(1) by allowing, in USCIS'
discretion, an applicant for asylum to provide an interpreter when a
USCIS interpreter is unavailable. See 86 FR 51781. Specifically, if a
USCIS interpreter is unavailable, USCIS will either reschedule the
interview and attribute the interview delay to USCIS for the purposes
of employment authorization pursuant to 8 CFR 208.7, or USCIS may, in
its discretion, allow the applicant to provide an interpreter.
DHS incorporates into this fourth extension, the justifications
from the original temporary final rule and all subsequent extensions.
The measures implemented since the original temporary final rule to
protect employees, asylum applicants, and other members of the public,
continue to be a priority for USCIS. Additionally, the modification to
the second extension (i.e., USCIS exercising discretion to allow an
asylum applicant to bring an interpreter to the interview if a contract
interpreter is unavailable), will remain in place. The modification has
given USCIS flexibility to plan ahead in the limited circumstances when
a contract interpreter is expected to be unavailable for an asylum
interview, reducing the likelihood of canceled interviews and unused
office space. This fourth extension also incorporates the discussions
on the overall benefits of providing telephonic contract interpreters
in reducing the risk of contracting COVID-19 for applicants, attorneys,
interpreters, and USCIS employees, from the original temporary final
rule and all extensions.
[[Page 16375]]
III. Discussion of Regulatory Change: 8 CFR 208.9(h) <SUP>20</SUP>
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\20\ 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 and its extensions revise 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 action, the
revised language of 8 CFR 208.9(h) is binding on DHS and its
adjudications for 180 days. DHS is not bound by the DOJ regulation
at 8 CFR 1208.9(g).
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DHS has determined that there are reasonable grounds for
considering potential exposure to SARS-CoV-2, including any emerging
variants, as a public health concern and that these grounds are
sufficient to extend the temporary final rule modifying the interpreter
requirements for asylum applicants in order to lower the number of in-
person attendees at asylum interviews. Additionally, this extension of
this temporary final rule provides additional time following the
expiration of the national and public health emergencies to allow USCIS
to properly operationalize the return to the requirement that asylum
applicants provide interpreters at their asylum interviews while also
giving sufficient notice to the public of the expiration of this
temporary final rule and reversion to past practice. For 180 days
following publication of this temporary final rule, DHS will continue
to require non-English speaking asylum applicants appearing before
USCIS to proceed with the asylum interview using USCIS' interpreter
services if they are fluent in one of the 47 languages as discussed in
the temporary final rule at 85 FR at 59657.\21\
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\21\ DHS notes that this extension does not modify 8 CFR
208.9(g); rather the extension of the temporary final rule is
written so that asylum interviews occurring while the temporary
final rule is effective will be bound by the requirements at 8 CFR
208.9(h).
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Additionally, as provided in 8 CFR 208.9(h)(1)(i), DHS will
continue to allow, in USCIS' discretion, an applicant for asylum to
provide an interpreter when a USCIS interpreter is unavailable. The
reasons for this are in large part due to the increase in the
affirmative asylum caseload that USCIS has experienced during the
COVID-19 pandemic. That, in turn, has created challenges in
accommodating the interpretation needs of asylum applicants while
balancing workplace health and safety concerns. In order to best serve
applicants while keeping employees and the public safe, USCIS has set
limits on the number of people allowed in each individual interview
space, inclusive of the asylum officer. Requiring applicants to use
USCIS contract interpreters assists the agency in adhering to evolving
COVID-19 health and safety standards. While USCIS continues to increase
scheduling of affirmative asylum interviews, surges in other case types
have also required USCIS to divert contract interpreter resources away
from affirmative asylum. For this reason, allowing USCIS the continued
discretion to permit an applicant to bring their own interpreter to the
asylum interview assists the agency in balancing needs. These ongoing
challenges require USCIS to keep the interpreter procedures in place
for an additional 180 days.
In these circumstances, if a USCIS interpreter is unavailable,
USCIS will either reschedule the interview and attribute the interview
delay to USCIS for the purposes of employment authorization pursuant to
8 CFR 208.7, or USCIS may, in its discretion, allow the applicant to
provide an interpreter.\22\ The interpreter will be required to follow
USCIS COVID-19 protocols in place at the time of the interview.
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\22\ 8 CFR 208.9(h)(1)(i).
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Once this temporary final rule is no longer in effect, asylum
applicants unable to proceed in English with an affirmative asylum
interview based on a Form I-589, Application for Asylum and for
Withholding of Removal, before a USCIS asylum officer will be required
to provide their own interpreters under 8 CFR 208.9(g).
Given the unique nature of the pandemic and the multiple challenges
it has presented in the context of USCIS operations, the agency has had
to modify its policies and procedures to adapt. Through the original
temporary final rule and the first, second and third extensions, USCIS
has and continues to adapt and modify its procedures to keep the
workforce and public safe while also striving to serve its
customers.\23\ Outside of this rule, USCIS has adapted to the pandemic
by developing automatic workflows for conducting interviews and
completing the adjudication, and by monitoring language trends and
interpreter availability.
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\23\ USCIS Response to COVID-19 (updated Oct. 24, 2022), <a href="https://www.uscis.gov/about-us/uscis-response-to-covid-19">https://www.uscis.gov/about-us/uscis-response-to-covid-19</a> (last visited
Jan. 12, 2023).
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DHS noted in the original temporary final rule and prior extensions
that it would evaluate the public health concerns and resource
allocations to determine whether to extend the rule. DHS has determined
that extending this temporary final rule is necessary for public
safety. Accordingly, DHS is extending this temporary final rule for 180
days for a fourth time through the anticipated end of the national and
public health emergencies. This temporary final rule continues to apply
to all affirmative asylum interviews conducted by USCIS across the
nation. USCIS has determined that an extension of 180 days is
appropriate given present conditions: emergency declarations remain in
effect and there were 3,950 average daily new hospital admissions of
patients with confirmed COVID-19 from January 24, 2023, to January 30,
2023.\24\ The extension of 180 days will also permit time beyond the
anticipated end of the emergency declarations on May 11, 2023, to allow
USCIS to properly operationalize the return to the requirement that
asylum applicants provide interpreters at their asylum interviews while
also giving sufficient notice to the public of the expiration of this
temporary final rule and reversion to past practice.
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\24\ Id.; CDC, COVID Data Tracker: New Admissions of Patients
with Confirmed COVID-19 Per 100,000 Population by Age Group, United
States (updated Feb. 1, 2023), <a href="https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions">https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions</a> (last visited Feb. 2, 2023).
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USCIS first published this temporary final rule on September 23,
2020, and subsequently found it necessary to publish three extensions
to continue its mitigation efforts because of the ongoing pandemic.\25\
The initial temporary final rule, the first, and the second extensions
each had an effective period of 180 days, with the third extension
having an effective period of 365 days, resulting in this temporary
final rule being in effect for 905 days thus far.\26\ Compared to the
third extension, current CDC data supports this shorter extension of
the temporary final rule, as it demonstrates that while the pandemic is
ongoing, new infection and hospitalization rates continue to decrease
throughout the United States.\27\ Considering the period of time that
the pandemic has been ongoing, the number of times USCIS has had to
extend this temporary final rule, the extension of the emergency
declarations to May 11, 2023, and USCIS' operational needs to provide
sufficient notice to the public regarding the return to the requirement
for applicants to provide their own interpreter, USCIS has determined
that an additional extension of 180 days will
[[Page 16376]]
continue to serve the needs of the public and the agency. Extending
this temporary final rule for 180 days will provide the public and
USCIS with greater certainty and predictability about how long these
mitigation efforts will remain in place. That is, with the additional
time, the agency can proactively plan ahead and focus on providing
consistent services to asylum applicants rather than expending limited
resources frequently changing procedures and re-issuing guidance to
staff and the public.
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\25\ See 85 FR 59655 (Sept. 23, 2020); 86 FR 15072 (Mar. 22,
2021); 86 FR 51781 (Sept. 17, 2021); 87 FR 14757 (Mar. 16, 2022).
\26\ Id.
\27\ Id.
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Recognizing that the circumstances of COVID-19 continue to evolve,
DHS continues to constantly evaluate the public health concerns and its
mitigation efforts. As conditions improve and the health concerns posed
by COVID-19 continue to ease during the time period of this fourth
extension of the temporary final rule, DHS will use the remaining time
following the end of the declared COVID-19 emergencies to
operationalize a return to the prior practice of applicants providing
their own interpreter at their asylum interview while also ensuring the
public is aware of this change. USCIS recognizes that for many
applicants, hiring an interpreter for the asylum interview may be a
costly expense and often requires travel and early scheduling. By
extending the temporary final rule beyond the expiration of the
national and public health emergencies, USCIS aims to provide the
public with enough time to make necessary interpreter arrangements for
an asylum interview if their interview is scheduled after the
expiration of this temporary final rule. During this time, USCIS will
analyze the practice of USCIS providing contract interpreters at
affirmative asylum interviews to determine whether there may be a
future need for USCIS to provide contract interpreters and in which
circumstances this would be most beneficial to the government and the
public. USCIS will also use the time after expiration of the national
and public health emergencies to operationalize the changes. Given the
significant length of time that USCIS has required applicants to use
contracted interpreters under the previous iterations of the temporary
final rule, USCIS believes this additional time for the winding down of
operations is necessary to provide the public adequate notice of the
return to previous practice. In order to operationalize these changes,
USCIS will provide notice to the public by updating the USCIS website
and modifying interview notices and any other related correspondence
sent to applicants and attorneys. USCIS will notify field office staff
of the reversion to prior practice by providing updated guidance,
sending internal communications with updated messaging to the asylum
offices, and modifying existing procedures. USCIS will also conduct
outreach to stakeholders, including nonprofits, legal representatives,
and community organizations, to ensure that asylum applicants are aware
of the reversion to prior practice as early as possible. USCIS
recognizes that for many applicants, hiring an interpreter for the
asylum interview may be a costly expense and often requires travel and
early scheduling, especially where the applicant speaks a less common
language. A winddown period past the end of the emergency declarations
will allow asylum applicants and representatives time to prepare, make
alternate arrangements, and gather the necessary funds to pay for
interpreter services. The winddown period will consequently help reduce
the likelihood of interview reschedules when an applicant is unable to
bring their own interpreter, and thus also minimize the potential
impact on an applicant's eligibility for employment authorization. This
is because the reversion to prior practice will require that when the
applicant does not provide their own interpreter, the interview delay
is attributed to the applicant for purposes of employment authorization
under 8 CFR 208.7. Interview delays attributed to the applicant slow
the time before the applicant is eligible to apply for work
authorization. By extending the temporary final rule beyond the end of
the national emergencies, USCIS can facilitate an orderly and efficient
return to prior practice and alleviate the burden these changes may
place on applicants and contracted interpreter services.
IV. Regulatory Requirements
A. Administrative Procedure Act (APA)
DHS is issuing this extension as a temporary final rule pursuant to
the APA's ``good cause'' exception. DHS may forgo notice-and-comment
rulemaking and a delayed effective date 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); see Util. Solid Waste Activities Group v. E.P.A, 236 F.3d
749, 7554 (D.C. Cir. 2001) (exception applies when an agency finds that
due and timely execution of its functions would be impeded by the
notice otherwise required . . . , as when a safety investigation shows
that a new safety rule must be put in place immediately'' (quotation
marks and alterations omitted)). This is such a situation, with the
prior extension of this temporary final rule set to expire in March
2023.
As of February 1, 2023, there have been over 753 million confirmed
cases of COVID-19 identified globally, resulting in more than 6.8
million deaths.\28\ Approximately 100,941,827 cases have been
identified in the United States, with about 287,580 new cases
identified during the week of January 23, 2023, and approximately
1,097,246 reported deaths due to the disease.\29\ Additionally, CDC is
monitoring several variants of the virus that causes COVID-19.\30\
Evidence suggests that some variants may spread faster and more easily
than others and at least one variant may be associated with an
increased risk of severe illness.\31\ In January 2023, CDC most
recently highlighted Omicron subvariant XBB.1.5, which is highly
transmissible and now accounts for 61.3 percent of new COVID-19 cases
in the United States.\32\ Although vaccines are widely accessible,
there is wide disparity in the percentages of who have received updated
boosters.\33\ Indeed, ongoing research demonstrates that while there is
high effectiveness of approved vaccines among eligible individuals,
individuals completing the primary series alone continue to experience
breakthrough COVID-19 infections and may be either symptomatic or
[[Page 16377]]
asymptomatic.\34\ CDC reports also show that individuals who are
unvaccinated have a greater risk of testing positive for COVID-19 and a
greater risk of dying from COVID-19 than individuals who are fully
vaccinated.\35\
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\28\ WHO Coronavirus (COVID-19) Dashboard (updated Feb. 01,
2023), <a href="https://covid19.who.int/">https://covid19.who.int/</a> (last visited Feb. 1, 2023).
\29\ Id.
\30\ CDC, SARS-CoV-2 Variant Classifications and Definitions
(updated Apr. 26, 2022), <a href="https://www.cdc.gov/coronavirus/2019-ncov/variants/variant-classifications.html">https://www.cdc.gov/coronavirus/2019-ncov/variants/variant-classifications.html</a> (last visited Jan. 12, 2023).
\31\ CDC, What You Need to Know About Variants (updated Aug. 11,
2021), <a href="https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html">https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html</a> (last visited Jan. 12, 2023).
\32\ CDC, COVID Data Tracker-Variant Proportions (updated Jan.
28, 2023), <a href="https://covid.cdc.gov/covid-data-tracker/#variant-proportions">https://covid.cdc.gov/covid-data-tracker/#variant-proportions</a> (last visited Feb. 1, 2023); Aliza Rozen, What You Need
to Know About XBB.1.5, the Latest Omicron Variant.
\33\ CDC, COVID Data Tracker--COVID-19 Vaccinations in the
United States (updated Jan. 26, 2023), <a href="https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total">https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total</a> (last visited
Feb. 1, 2023).
\34\ CDC, The Possibility of COVID-19 after Vaccination:
Breakthrough Infections (updated June 23, 2022), <a href="https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/why-measure-effectiveness/breakthrough-cases.html">https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/why-measure-effectiveness/breakthrough-cases.html</a> (last visited Jan. 12,
2023).
\35\ CDC, Rate of COVID-19 Cases and Deaths by Vaccination
Status, <a href="https://covid.cdc.gov/covid-data-tracker/#rates-by-vaccine-status">https://covid.cdc.gov/covid-data-tracker/#rates-by-vaccine-status</a> (last visited Jan. 12, 2023).
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As of January 24, 2023, USCIS had 697,290 asylum applications
pending final adjudication. The vast majority of these pending
applications are awaiting an interview by an asylum officer. The USCIS
backlog will continue to increase at a faster pace if USCIS is unable
to safely and efficiently conduct asylum interviews.\36\
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\36\ DHS recognizes that the backlog has increased since the
original temporary final rule was extended; however, if all
applicants were required to bring their own interpreter as was done
pre-COVID-19, the interpreter may have to sit in a separate office
during the interview to mitigate potential COVID-19 exposure,
thereby reducing available office space to schedule additional
interviews in a safe manner. This would likely increase the backlog
at a faster rate than under this rule.
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Upon the Administration's January 2023 announcement of its plan to
extend the emergency declarations through May 11, 2023, it became clear
to USCIS that another extension of this temporary final rule, which
otherwise would expire in March 2023, would be warranted. However, that
did not leave DHS with sufficient time to provide notice and receive
comment before the expiration of the third extension of this rule. DHS
is thus publishing this fourth extension as a temporary final rule. As
discussed more thoroughly above, given the continuing national
emergency caused by COVID-19, and the extension of the emergency
declarations through May 11, 2023, there are still urgent and
compelling reasons to extend and continue this temporary final rule.
The temporary final rule is 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. Extending the
temporary final rule will allow USCIS to better manage how many people
attend asylum interviews and the precautions used during those
interviews, thereby reducing the likelihood of COVID-19 transmission
and protecting the health and safety of USCIS employees and asylum
applicants. To not extend this measure could cause serious detriment to
public safety and health.
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 extension 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. Small Business Regulatory Enforcement Fairness Act of 1996
OMB's Office of Information and Regulatory Affairs has determined
that this action is not a major rule as defined by Subtitle E of the
Small Business Regulatory Enforcement Fairness Act of 1996 (also known
as the Congressional Review Act). 5 U.S.C. 804(2). 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.
E. Executive Order 12866 and 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 which
has been extended past the expiration of the third temporary final rule
extension until May 11, 2023.
This action will continue to help asylum applicants proceed with
their interviews in a safe manner, while protecting agency staff
throughout the next year or until the health concerns posed by COVID-19
are resolved. As a result of the temporary final rule and subsequent
extensions, USCIS conducted 32,012 total asylum interviews between
September 23, 2020 and March 7, 2022 and an additional 27,405 asylum
interviews between March 7, 2022 and January 24, 2023. This fourth
extension is not expected to result in any additional costs to the
government. In addition, even with the provision that permits, at
USCIS' discretion, an applicant for asylum to provide an interpreter
when a contract interpreter is unavailable, there are no additional
costs to the applicant relative to what would be the requirements if
the temporary final rule were not extended. In those limited
circumstances, the interpreter will still be required to follow USCIS
COVID-19 protocols in place at the time of the interview. Following
those COVID-19 protocols will not result in any additional costs for
either the applicant or the interpreter.
Such contract interpreters will continue to be provided at no cost
to the applicant. USCIS has an existing contract to provide telephonic
interpretation and monitoring in interviews for all of its case types.
USCIS has provided contract monitors for many years at interviews where
the applicant brings an interpreter. In other words, almost all
interviews that utilize a USCIS provided interpreter under this
temporary final rule would have required instead a contracted monitor
during asylum interviews conducted pre-pandemic. Additionally, the cost
of monitoring and interpretation are identical under the current
contract and monitors are no longer needed for interviews conducted
through a USCIS-provided contract interpreter. Therefore, the continued
extension of the temporary final rule is projected to be cost neutral
or negligible for the government because USCIS is already paying for
these services even without this rule.
In the limited circumstances where a contract interpreter is
unavailable, USCIS will either reschedule the interview and attribute
the interview delay to USCIS for the purposes of
[[Page 16378]]
employment authorization pursuant to 8 CFR 208.7, or USCIS may, in its
discretion, allow the applicant to provide an interpreter.\37\ In such
cases, the applicant would be in the same position they would have been
without this action.
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\37\ 8 CFR 208.9(h)(1)(i).
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DHS recognizes there are both quantitative and qualitative benefits
that could be realized by providing an applicant for asylum the
opportunity to bring their own interpreter when a contract interpreter
is unavailable, such as the costs avoided that would otherwise be
incurred due to rescheduling if a contract interpreter is unavailable--
both for the applicant and USCIS--and the overall positive effect on
applicants of having their asylum application timely adjudicated. Once
this rule is no longer in effect, asylum applicants unable to proceed
with an affirmative asylum interview before a USCIS asylum officer in
English will again be required to provide their own interpreters under
8 CFR 208.9(g). By extending the temporary final rule beyond the end of
the national emergencies, USCIS can facilitate an orderly and efficient
return to prior practice and alleviate the burden these changes may
place on applicants, contracted interpreter services, and USCIS offices
scheduling affirmative asylum interviews.
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 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 form instructions regarding interpreters.
USCIS will continue to post updates on its Form I-589 website, <a href="https://www.uscis.gov/i-589">https://www.uscis.gov/i-589</a>, and other asylum and relevant web pages regarding
the interview requirements in this regulation, as well as provide
personal notice to applicants via the interview notices issued to
applicants prior to their interview.
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 Pub. L. 110-229; 8 CFR part 2; Pub. L. 115-218.
0
2. Effective from March 16, 2023 through September 12, 2023, amend
Sec. 208.9 by revising paragraph (h) introductory text to read as
follows:
Sec. 208.9 Procedure for interview before an asylum officer.
* * * * *
(h) Asylum applicant interpreters. For asylum interviews conducted
between March 16, 2023, through September 12, 2023:
* * * * *
Alejandro Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2023-05572 Filed 3-15-23; 11:15 am]
BILLING CODE 9111-97-P
</pre></body>
</html>Indexed from Federal Register on March 17, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.