Due Process Concerns

Below are preliminary resources regarding the rights of individuals to participate in legal proceedings. This is not comprehensive legal research but rather only serves as a starting point for further inquiry.

ADMINISTRATIVE DECISIONS AND COURT CASES
  • Matter of Tomas, 19 I. & N. Dec. 464, 1987 WL 108944 (B.I.A. 1987). The Board of Immigration Appeals stated that where respondents are not fluent in English, the presence of a competent interpreter is essential to assure fundamental fairness, particularly in phases which require the respondents’ meaningful participation. The Board noted that the respondents, indigenous Guatemalans who spoke Kanjobal, had the burden of proving their entitlement to asylum and withholding of deportation, and had to be given a meaningful opportunity to present testimony on their own behalf. It was thus a reversible error for the immigration judge to deny a continuance to obtain a Kanjobal interpreter and to expect the respondents to proceed with a Spanish interpreter.
GOVERNMENT REGULATIONS AND POLICIES
On May 31, 2012, EOIR released a comprehensive language access plan. Here are links to the press release and the plan itself:
The EOIR’s Immigration Court Practice Manual says this about interpreters:
4.11 Interpreters
Interpreters are provided at government expense to individuals whose command of the English language is inadequate to fully understand and participate in removal proceedings. In general, the Immigration Court endeavors to accommodate the language needs of all respondents and witnesses. The Immigration Court will arrange for an interpreter both during the individual calendar hearing and, if necessary, the master calendar hearing. See 8 C.F.R. 1003.22, Chapter 4.15(o) (Other requests).
The Immigration Court uses staff interpreters employed by the Immigration Court, contract interpreters, and telephonic interpretation services. Staff interpreters take an oath to interpret and translate accurately at the time they are employed by the Department of Justice. Contract interpreters take an oath to interpret and translate accurately in court.See 8 C.F.R. 1003.22.

Q:   Should I Bring an Interpreter to My Asylum Interview?
A:   We do not provide any interpreters during the asylum interview, except in the case of hearing-impaired applicants*. You must bring an interpreter if you do not speak English well enough to proceed with the interview in English. The interpreter must be fluent in English and a language you speak fluently and must be at least 18 years old.

The following persons cannot serve as your interpreter:

  • Your attorney or representative of record
  • A witness testifying on your behalf at the interview; or·
  • A representative or employee of the government of your country.

The regulation relating to interpreters can be found at: 8 CFR 208.9(g).

Although we do not provide interpreters for the interview, we use contract interpreters to monitor affirmative asylum interviews at local asylum offices and other locations. In general, the role of the contract interpreter is limited to monitoring interpretation by an interpreter provided by the applicant. Contract interpreters may be expected to occasionally interject if the applicant’s interpreter fails to provide adequate, accurate, and neutral interpretation.

ACADEMIC LITERATURE, PRACTICE GUIDES AND POLICY PROPOSALS
  • American Bar Association, Standards for Language Access in Courts, (2012). “The Standards and extensive commentary provide guidance to courts in designing, implementing, and enforcing a comprehensive system of language access services that is suited to the needs in the communities they serve. A system of language access services is required as a fundamental principle of law, fairness, and access to justice, and to promote the integrity and accuracy of judicial proceedings, so that persons needing to access the court are able to do so in a language they understand, and are able to be understood by the court. The Standards were developed as a joint project of 5 entities, and with the guidance of a large advisory group comprised of judges, court administrators, advocates and others.”
  • Laura K. Abel, Language Access in the Federal Courts, 61 Drake L. Rev. (2013). A survey of language access throughout the federal court system, with a significant focus on immigration.
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