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Law360 (September 23, 2020, 8:54 PM EDT) -- Migrants seeking asylum outside of removal proceedings will have to use government-provided translation services, which will be offered for free in 47 languages as part of the Trump administration's effort to slow the spread of COVID-19.
The U.S. Department of Homeland Security announced Tuesday the new temporary rule, which will remain in place until March 22, saying that migrants who speak one of the designated 47 languages will be required to use an interpreter provided by U.S. Citizenship and Immigration Services if they cannot complete their asylum interview in English.
"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," DHS said in the Federal Register notice formalizing the rule.
The notice also said that the temporary rule might assist asylum-seekers by removing challenges associated with finding an interpreter.
The rule may also enable USCIS to conduct more interviews by reducing the amount of people attending in-person. Since USCIS conducts asylum interviews with each party seated in a separate office to reduce the risk of COVID-19 transmission, up to four offices are required for each interview, DHS said.
Asylum-seekers who communicate in a language not provided by DHS' contract interpreters will still be responsible for securing their own interpreters, with USCIS offering "relay" interpreters if the applicant cannot find someone to translate directly from their language to English.
The notice stated that migrants in defensive asylum processing — those facing removal — would not be affected by the new rule, given the "broad division of functions and authorities" between the Executive Office for Immigration Review, which oversees removal proceedings, and USCIS, which handles affirmative asylum processing.
According to DHS data from 2018 — the most recent year available — on the annual numbers of asylum admissions, the department granted asylum affirmatively to 25,439 individuals with 105,472 cases filed, while the U.S. Department of Justice, which oversees the EOIR, granted asylum defensively to 13,248 individuals in 159,473 cases filed that year.
Some immigration attorneys pointed to potential problems with the new policy on Wednesday.
Yliana Johansen-Méndez, legal services director at the Immigrant Defenders Law Center and a former asylum officer, told Law360 that the quality of the interpreters contracted by DHS varies greatly, though they all undergo background checks and vetting.
"There were times when the Spanish interpreter was hindering my ability to conduct the interview and I would stop the interview, hang up and call back to request a different interpreter," she said.
Johansen-Méndez also explained that before the new rule, USCIS contract interpreters served as monitors to guarantee the quality of the translation provided by asylum-seekers' own interpreters.
"If an applicant cannot provide their own interpreter, and the officer and attorney do not speak the applicant's native language (as is often the case), then there will be no method by which to do quality control of the interpretation. This change in USCIS policy denies them that safety net," she said.
A USCIS spokesperson told Law360 that the contract interpreters' experience with the agency had prepared them to serve as primary interpreters under the new rule in a statement Wednesday.
"Serving as interpreters during asylum interviews is not an unfamiliar or new function for contract interpreters to perform, nor will using them in this limited and emergency circumstance cause additional costs to USCIS or the public," the representative said.
The spokesperson also said the agency was still assessing its operational capacity for the coming fiscal year and could not estimate how many asylum interviews it expects to conduct while the rule is in effect.
--Editing by Adam LoBelia.
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