Very Lost in Translation

As a follow-up to post below, "Lost in Translation," please take a look at this troubling report on translation in immigration courts across the nation from the National Language Access Advocates Network (February 2, 2010). The conclusion is that immigration courts fall far short of the requirement to provide competent interpretation to those with limited English proficiency by failing to provide interpretation for critical encounters, and by providing inaccurate interpretation. http://brennan.3cdn.net/5c3459d5d38a1553e3_e3m6bxf8z.pdf. I would also note that I received a comment to my post from a certified translator who confirmed my perceptions about the sometimes poor quality of courtroom translation, and quite correctly pointed out that professional translation is much more that simply being bilingual. As someone who has done some translation work in the past, I can attest to that!

The above-cited report concludes:

Language Access Problems in Immigration Court

The Immigration Courts run by the Executive Office of Immigration Review (“EOIR”) at the

Department of Justice are bound by the language access requirements set out in DOJ’s 2002

Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against

National Origin Discrimination Affecting Limited English Proficient (“LEP”) Persons.1 At a

minimum, they must provide competent interpretation for LEP individuals during all courtroom

proceedings, and during all critical encounters outside the courtroom.2 Immigration Courts fall

far short of this requirement by failing to provide interpretation for critical encounters, and by

providing inaccurate interpretation.

● No interpretation for exchanges between non-LEP individuals Interpreters convey only the

statements of non-English-speaking respondents and witnesses, and questions or statements

addressed directly to them by the court or attorneys.3 The result is that LEP individuals cannot

comprehend the testimony of English-speaking witnesses and exchanges between the

Immigration Judge and the Department of Homeland Security Trial Attorney or their counsel.

Failure to interpret exchanges between a lawyer and judge

almost led an attorney to accept a removal order without his

client’s consent

“The attorney of one man from El Salvador almost accepted an

order for removal rather than the voluntary departure, which has

much less dire consequences, because none of the exchanges

between the lawyer and the judge were translated.”4

● No interpretation outside the courtroom In many Immigration Courts, LEP individuals are

not given information in any language other than English when they arrive at the court for the

first time. The EOIR employees who interact with the public often do not speak to people in any

languages other than English, and they do not provide interpretation of any kind. As a result,

many people arriving at court for the first time do not understand what they need to do or where

they need to go.

● Interpreters translate incorrectly

Immigration Judge found that a Buddhist woman’s testimony

was not credible, because of interpreter error

“[A]n interpreter . . . paraphrased a Buddhist woman’s reaction to

being persecuted as ‘Oh, my God.’ The Immigration Judge relied

on this inaccurate translation of her reaction in finding that she

2

was not credible, stating that Buddhists do not believe in God and,

therefore, a Buddhist would not have used that phrase.”5

Interpreter error gave an Immigration Judge the mistaken

impression that a respondent had started fires at a demonstration

“[A]n inaccurate translation led an Immigration Judge to believe

mistakenly that the immigrant had started fires at a demonstration,

when in fact the immigrant testified that fire trucks were called to

hose down political demonstrators.”6

A respondent had a miscarriage after her husband beat her; the

interpreter wrongly stated that the woman had an abortion

“[A] Spanish interpreter from Spain, while interpreting for a

Honduran woman, made an important error. She was using a

word in Spanish that can mean either ‘miscarriage’ or ‘abortion.’

He simply stated in English that she had an abortion, rather than

clarifying with her which meaning was correct. She had actually

had a miscarriage, after being beaten by her husband. This

difference in meaning was actually quite important to her case.”7

● Interpretation is conducted in the wrong language

Immigration Court forced to reopen Kanjobal speaker’s removal

proceeding because interpretation was provided in Spanish

Francisco Juan Martin, who was born in Guatemala, appeared

pro se at a master calendar hearing on August 16, 2007. Although

Mr. Martin’s native language is Kanjobal, the court interpreter

interpreted the proceedings into Spanish only. Consequently, Mr.

Martin was unable to understand the judge’s order that he must

apply for cancellation of removal by September 25, 2007. When

he failed to apply by that date, he was ordered removed from the

country. It was only after the BIA heard his appeal that he was

allowed to apply for cancellation.8

Immigration Judge called French interpreter for Mooréspeaking

man

In a case at the Varick Street Immigration Court in New York City,

“a man . . . spoke Mooré, a dialect from Burkina Faso. The

immigration judge attempted to call a Mooré interpreter, but was

unable to work the phone system to contact one. Instead, the

immigration judge called a French interpreter. The detainee

barely spoke French, and the difficulty of communication over the

phone only exacerbated the misunderstanding and inability to

effectively convey questions and answers.”9

3

Detainee languished in detention while Immigration Court tried

to find a Mam-speaking interpreter

In a case at the Varick Street Immigration Court in New York City,

“a Mam-speaking detainee was provided with only a Spanish

interpreter and was therefore unable to comprehend basic

questions. The case was continued and the detainee was returned

to detention until the later date.”10

● Interpreters act unprofessionally Law students observing the Varick St. Immigration Court

in New York City have seen interpreters engaging in “audible private cell phone conversations

while court was in session; tardiness by over an hour; flipping through magazines while

interpreting; and, inappropriate comments about cases and detainees after detainees were taken

from the courtroom.”11

Interpreter refused to interpret respondent’s testimony

“[A]n interpreter . . . flatly refused to translate his client’s

testimony about being attacked and disfigured by anti-Semites in

the Ukraine; the interpreter opined, ‘that sort of stuff doesn’t

happen in the Ukraine.’”12

● Inadequate telephone and videoconference technology exacerbate problems Even the

most sophisticated telephone technology makes it impossible to catch the visual cues on which

interpreters rely to determine the meaning, style and tone of the speech to be translated.13

Speaker phones, the least expensive and most commonly used forms of courtroom remote

interpretation technology,14 have the additional drawbacks of poor sound quality.15 Without the

proper equipment, speaker phone interpreting also prevents respondents from communicating

confidentially with counsel through an interpreter.16

Immigration Judge slams telephone interpreter system

“In one instance, the telephone interpreter simply became

unresponsive midway through the hearing. After repeated attempts

to call out to her, the immigration judge hung up and tried several

times to dial back into the service, getting a busy signal each time.

Frustrated, the judge scheduled a continuance and promised to

arrange for a live Korean interpreter on that date. Months later,

the same judge colorfully expressed his annoyance with the

telephone interpreter service, referring to it as ‘crap’ and ‘a

waste.’”17

While interpreting through videoconferencing has the potential to address some of these

concerns, its implementation in Immigration Court been problematic. In many courts,

videoconferencing technology consists of a webcam stream, fed to a television monitor split into

several frames.18 Often, the resulting image is small, grainy, blurry, and does not convey the

visual cues on which interpreters rely. Many videoconferencing systems also preclude

confidential attorney-client communication. Immigrants using interpreters are more likely to

4

experience problems with videoconferencing and to have a higher rate of removal orders during

Master Calendar Hearings.19

What DOJ Should Do

A. Require interpreters to interpret all speech occurring in an immigration proceeding.

B. Ensure that Immigration Court personnel who deal with the public can communicate with

LEP individuals.20

C. Update the Immigration Judge Benchbook regarding the following issues, and train all judges

in those protocols:

1. the prohibitions on interpreter paraphrasing or opining;

2. the need to ensure that the interpreter speaks the specific language and dialect spoken by

the LEP individual;

3. the importance of interpreters’ adhering to ethics requirements such as conflicts rules;

and

4. how to ensure that interpretation is effective in videoconferences and over the telephone.

D. Improve interpreter training and screening.

E. Improve the monitoring of court interpreters by:

1. asking for additional types of feedback on the Contract Interpreter Performance form;

2. soliciting feedback from attorneys; and

3. using trained, impartial personnel to conduct spot checks of interpreter performance.21

F. Curtail the use of telephone interpreting, and of videoconferencing when interpretation is

necessary.22 Ensure that when they are used appropriate equipment is provided.23

G. Update EOIR’s Language Assistance Plan as required by Executive Order 13166 (and

contemplated by EOIR’s initial Language Assistance Plan), to incorporate standards for

Immigration Court language access that are at least as high as the standards DOJ has set out

for state court language access in its LEP guidance for DOJ recipients.24

1 Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin

Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41455, 41459 n.4 (Dep’t of Justice

June 18, 2002) (“DOJ LEP Guidance”) (noting that “[p]ursuant to Executive Order 13166, the meaningful access

requirement of the Title VI regulations and the four-factor analysis set forth in the DOJ LEP Guidance are to

additionally apply to the programs and activities of Federal agencies, including the Department of Justice.”); DOJ

Coordination & Review Section, Departmental Plan Implementing Executive Order 13166, § 4.23, available at

http://www.justice.gov/crt/cor/lep/dojimp.php#6.%20Executive%20Office%20for%20Immigration%20Review

(web page last updated Jan. 10, 2001) (“EOIR will review its existing language assistance services to ensure that

its LEP practices are consistent with the compliance standards for adjudicatory systems receiving federal financial

assistance as set forth in the LEP Guidance for DOJ Recipients”).

2 See, .e.g., 67 Fed. Reg. at 41471.

5

3 See Muneer Ahmad, Interpreting Communities: Lawyering Across Language Difference, 54 UCLA L. REV. 999,

1026 n.87 (2007); Chicago Appleseed, Assembly Line Injustice (2009), p. 19, available at

http://www.appleseeds.net/Portals/0/Documents/Publications/Assembly%20Line%20Injustice.pdf.

4 Detainee Working Group of the New York University Chapter of the National Lawyers Guild, Broken Justice: A

Report on the Failures of the Court System for Immigration Detainees in New York City (Vol. I: Sep. 2006-May

2007), p. 18.

5 Appleseed, Assembly Line Justice (2009), p. 19, available at

http://www.chicagoappleseed.org/programs/immigration_court_reform.

6 Appleseed, Assembly Line Justice (2009), p. 19, available at

http://www.chicagoappleseed.org/programs/immigration_court_reform.

7 Email from Meredith Rapkin, Villanova School of Law (Jan. 7, 2010).

8 In re Francisco Juan Martin, No. A091 418 436, 2009 WL 263117 (BIA Jan. 2, 2009).

9 Detainee Working Group of the New York University Chapter of the National Lawyers Guild, Broken Justice: A

Report on the Failures of the Court System for Immigration Detainees in New York City (Vol. I: Sep. 2006-May

2007), p. 18.

10 Id.

11 Id.

12 Appleseed, Assembly Line Justice (2009), p. 21, available at

http://www.chicagoappleseed.org/programs/immigration_court_reform.

13 67 Fed. Reg. at 41462. See also National Center for State Courts, Future Trends in State Courts (2009), p. 37,

available at www.ncsc.org/Web%20Documents/FutureTrends2009.pdf; National Association of Judiciary

Translators and Interpreters, Position Paper: Telephone Interpreting in Legal Settings (2009), at 3, available at

http://www.najit.org/Publications/Position%20Papers/Telephone%20Interpreting.pdf.

14 See EOIR, Immigration Judge Benchbook, Introduction to the Master Calendar, available at

http://www.justice.gov/eoir/vll/benchbook/tools/Purpose%20and%20History%20of%20MC.htm (“It is often

necessary at master calendar hearing to use the services of the contract interpreter by means of the telephone

which is located on the bench. . . . If the interpreter is not on hand, the immigration judge must use the telephone

to contact the interpreter, who will then assist by speaker phone.”).

15 National Association of Judiciary Translators and Interpreters, Position Paper: Telephone Interpreting in Legal

Settings (2009), at 3, available at

http://www.najit.org/Publications/Position%20Papers/Telephone%20Interpreting.pdf.

16 National Center for State Courts, Future Trends in State Courts (2009), p. 37, available at

http://www.ncsc.org/Web%20Documents/FutureTrends2009.pdf. In federal judicial proceedings, the respondent’s

right to confidential attorney-client communication through the aid of an interpreter is guaranteed by federal law.

28 U.S.C. § 1827(d) (requiring courts to provide interpreter services where the respondent’s LEP status inhibits his

“comprehension of the proceedings or communication with counsel or the presiding judicial officer.”). Some

states, including New Jersey and Wisconsin, also require telephone interpreting equipment that enables

confidential attorney-client communication. See Wisconsin State Courts, Guide to Telephone and Video

Interpreting (Sept. 6, 2006), available at www.wicourts.gov/services/interpreter/docs/telephoneinterpet.pdf; New

Jersey State Courts, Operational Standards for Telephone Interpreting (Jan. 2001), at 5, available at

https://njcourts.judiciary.state.nj.us/web0/directive/vicops/timan1.pdf.

17 Findings of National Lawyers Guild Detainee Working Group regarding observations of Varick Street

Immigration Court 2008-2009 (provided by Gene Smilansky 10-16-09).

18 See Assembly Line Injustice, p. 22.

19 Legal Assistance Foundation of Metropolitan Chicago & Chicago Appleseed Fund for Justice, Videoconferencing

in Removal Hearings: A Case Study of the Chicago Immigration Court (2005), p. 41, available at

http://appleseeds.net/Portals/0/Documents/Publications/Center%20Pubs/Chicago%20Videoconferencing%20Repo

rt.pdf.

20 To assess the ability of Immigration Court staff to communicate with LEP individuals, EOIR could send bilingual

testers into the public areas of Immigration Court. For successful examples of such language access testing in

New York City, Washington, D.C.’s Office of Human Rights, and the social services agencies of Wisconsin and

Washington State, see Laureen Laglagaron, Is This Working? Assessment and Evaluation Methods Used to Build

and Assess Language Access Services in Social Services Agencies (2009), pp. 25-28,

http://www.migrationinformation.org/integration/language_portal/files/Language-Access-in-Social-Services.pdf;

Washington, D.C. Office of Human Rights, Implementation of the D.C. Language Access Act of 2004: A

6