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Rules and Regulations
Federal Register Vol. 86, No. 178
Friday, September 17, 2021

This section of the FEDERAL REGISTER
contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510.

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I. Legal Authority To Issue This Rule and Other Background
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Part 208
CIS No. 267120; DHS Docket No. USCIS
20200017
RIN 1615AC59

Asylum Interview Interpreter Requirement Modification Due to COVID19
U.S. Citizenship and Immigration Services USCIS, Department of Homeland Security DHS.
ACTION: Temporary final rule; extension.
AGENCY:

The Department of Homeland Security DHS is extending for a second 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 COVID19 pandemic. This rule also provides that if a USCIS interpreter is unavailable, USCIS will either reschedule the interview and attribute the interview delay to USCIS for the purposes of the asylum employment authorization regulation, or USCIS may, in its discretion, allow the applicant to provide an interpreter.
DATES: This temporary final rule is effective from September 20, 2021, through March 16, 2022. As of September 20, 2021, 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, is further extended from September 20, 2021, to March 16, 2022.
FOR FURTHER INFORMATION CONTACT:
Andria Strano, Acting 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
205880009; telephone 240 7213000
not a toll-free call.
SUMMARY:

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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 107296, 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 103a1, 8 U.S.C.
1103a1, and granted the Secretary the power to take all actions necessary for carrying out the immigration laws, including the INA, id. 1103a3. The HSA also transferred to DHS
responsibility for affirmative asylum applications made outside the removal context. See 6 U.S.C. 271b3. That authority has been delegated within DHS to U.S. Citizenship and Immigration Services USCIS. USCIS
asylum officers determine, in the first instance, whether a noncitizens affirmative asylum application should be granted. See 8 CFR 208.4b, 208.9.
With limited exception, the Department of Justice Executive Office for Immigration Review has exclusive authority to adjudicate asylum applications filed by noncitizens who are in removal proceedings. See INA
103g, 240; 8 U.S.C. 1103g, 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 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 208d5 of the INA, 8 U.S.C.
1158d5, imposes several mandates
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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. INA208d5B, 8
U.S.C. 1158d5B. 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 Service, a competent interpreter fluent in both English and the applicants native language or any other language in which the applicant is fluent. 8 CFR
208.9g. This requirement means that all asylum applicants who cannot communicate in English must bring an interpreter to their interview. Doing so, as required by the regulation, poses a serious health risk because of the COVID19 pandemic.
Accordingly, this temporary rule extends the temporary final rule published at 85 FR 59655 for a second time to continue to mitigate the spread of COVID19 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 extend the requirement in certain instances allowing noncitizens interviewed for this discretionary asylum benefit to use USCIS-provided interpreters during interviews. This temporary rule also provides that 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.
C. The COVID19 Pandemic On January 31, 2020, the Secretary of Health and Human Services HHS
declared a public health emergency under section 319 of the Public Health Service Act 42 U.S.C. 247d, in response to COVID19, which is caused
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