The Importance of Language Access in Immigration Proceedings

On September 22, the Department of Homeland Security sent out a press release that seemed innocent but worried us as immigration attorneys. 

It began, “U.S. Citizenship and Immigration Services (USCIS) today announced a temporary final rule to help prevent the spread of the coronavirus (COVID-19) by using government-contracted telephonic interpreters for affirmative asylum interviews at no cost to the applicant.” This rule says that for the next 180 days, USCIS will help reduce the risk of spreading the Coronavirus in the courts by reducing the number of people in them, but that they will do so while respecting applicants’ language access rights. 

That rule sounds like one of the rare occasions during this administration when a decision didn’t make the process more punishing for those seeking status in the US. 

But Andrew Dafoe says not so fast. Dafoe is a Louisiana Supreme Court-certified translator and the founder of TNOLA Languages, a New Orleans-based company that provides legal and medical translations across the Gulf South, and he sees real problems with language access issues in USCIS’ eagerness to rely on telephonic translation. Recently, we talked via email about his concerns, which boil down to a handful of issues:

  • - The loss of translation quality since translators won’t have access to non-verbal cues
  • - The loss of translation quality as a result of the technology
  • - The loss of translation quality due to a lack of preparation
  • - The loss of control of who speaks for the applicant

Dafoe has, understandably, a lot to say about the issue, so we’ve included our conversation. As immigration lawyers, we’re very concerned about language access in the courts. Without it, the court may reach a decision but there can be no illusion that justice was served or that the legal process actually took place. If participants can’t participate meaningfully on their own behalf, the proceedings around them are merely a high-stakes charade.

On the surface, USCIS’ decision sounds like a good thing, guaranteeing interpreters to those who appearing for interviews. Is it? 

I don't think there's an easy answer to that. Or maybe I should say this decision is going to have both positive and negative effects, and the full extent of those effects may still be unknown.

Let's start with the positives. Access to interpreters has long been an issue for those appearing for interviews. USCIS has historically required folks to bring their own interpreter. That policy is problematic, in that it either creates an additional cost in the case they wish to hire a professional, or increases the likelihood of mistranslation because the applicant brings someone who is under-qualified, but willing to act in volunteer capacity, such as a family member or friend. 

However, there are pretty serious negative effects of this policy. There is inherently going to be a loss of quality when using remote interpretation versus in person, even if all other factors are the same. There is a wealth of information and subtleties that are communicated non-verbally when two individuals are in the same location. When you add technical difficulties, call quality, issues with phones or speakers, the chance of incorrectly hearing or interpreting statements or phrases continues to go up.

The stated reasons of it being in the interest of safety regarding the COVID-19 pandemic also sound positivie on the surface level, however, when you look at the fact that these interviews have been taking place since the asylum offices were re-opened following the onset of the pandemic, and that they are still happening in person with both counsel and clients, it seems much less logical that there would suddenly be this effort to change protocols.

Does the decision mean that the applicant and his or her lawyer can’t bring their own translator? Why is that a problem?

Effectively yes. 

This is a problem because it removes the agency and control that the applicant has in terms of choosing their interpreter. The same way individuals are able to choose their attorney, they should be able to choose their interpreter based on qualifications, experience and other factors. This temporary rule preventives both the applicant and their legal counsel from having any say in who provides the interpretation.

What’s lost when the translator participates by telephone? 

Apart from the lack of non-verbal cues, and the potential for technical difficulties already mentioned, there is also an element of preparation. The remote interpreters who service this large government contract are often contacted on demand at the time service is needed. They are not given time to prepare for the encounter by reviewing relevant terminology. 

To give an example, as an in-person, pre-scheduled interpreter, you would have the opportunity to speak with the applicant or counsel prior to the interview and ask questions about the content of it. If the statements of the applicant will all surround a particular political party, its opposition, and slang/regionalisms from a particular country or region, then it may be necessary for that interpreter to review terminology related to that to ensure accuracy. The over-the-phone interpreters are essentially being thrown into the encounter blindly. The previous call may have been for a doctor's office, and the one following it could be something totally unrelated. That greatly reduces their ability to appropriately prepare for any one encounter.

Why is it important to have good quality, accurate translators?

The interpretation provided is absolutely crucial to these cases. The interviewing officers make a determination based on the testimony given by the applicant. If an interpreter incorrectly renders any part of their statements, it can have significant effects on the outcome of their case. The interpreter's role is to provide a voice for the applicant which can be understood by the interviewing officer and vice versa. Without that, the whole process falls apart.

Do translators sometimes perform other functions for applicants?

The primary role of the interpreter is a conduit of information. There are times, however, when they may have to step out of that role and take on the role of clarifier or even cultural mediator. In order to do this without effecting their neutrality, it must be done in a transparent way. For example, they would need to state, "The interpreter needs clarification regarding the word _______." At that point, they could ask clarifying questions, which should be rendered in both languages, so that all parties present can hear.

Similarly, there may be cultural significance to a phrase or statement, that may not be conveyed by the English equivalent. In those situations, it may be appropriate for the interpreter to offer cultural mediation, again, in a neutral and transparent way.

With regards to the Asylum Office in particular, there is a series of procedures including the submission of paperwork, identity confirmation, picture taking and finger printing that happens before the actual interview. It's my understanding that the administrative staff that handles those functions and interacts with applicants prior to the interview, will not be utilizing the contract phone services. That could present huge problems, as those stages often involve very important instructions such as what documents are required, when their next date is, how they will receive notice, and more.

Is there a bigger issue at play here that we need to keep our eyes on?

Language access is always something that needs to be monitored, Recently, there was also policy changes that would include removing actual interpreters from Master Calendar hearings, and instead provide only pre-recorded video and audio to inform those appearing in immigration court what was happening. Our entire legal system is based on the assumption that one has the right to be present and participate in their own defense/proceedings. If you remove linguistic access, it becomes impossible to truly participate in that process. 

I can't speak for the individual officers, however, I know that good interpretation makes the interview process go much smoother and much faster. Whereas bad interpretation can make a difficult experience much worse for all parties, including the officers. I can't help but wonder if this policy is simply another stumbling block thrown in to reduce the efficacy of the asylum offices and their officers. This is not the first new policy to be introduced or proposed by this administration with regards to asylum. The courts have stopped a number of those from going into effect, but the underlying intention of reducing access to asylum is pretty apparent. In my opinion, this is just the latest effort in this line.

Is there a better solution than bringing interpreters in telephonically? 

From a language services perspective, the best solution would be to provide legal/court certified in-person interpreters. From a language justice perspective, those services should be provided free of cost to the applicant. In relation to the current health crisis and how to best provide those services safely, I'm not an expert. However, logic would suggest that if they are finding a way to keep the officers, administrative staff, as well as attorneys and applicants appropriately protected within the CDC guidelines, then the interpreter should also be allowed to operate under those protocols. Alternatively, if it's unsafe for the interpreter to be present, then shouldn't it be unsafe for all parties?

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