I spent four years in a law office that had strict rules for working with people with limited English proficiency (LEPs). We were trained in how to recognize competent interpretation. A major point of emphasis was that an interpreter is supposed to be nothing more than a “conduit” between the conversing parties. That is to say that the interpreter communicates exactly what both parties say, no more, no less. Even if one person is confused and the interpreter feels she knows how to clarify a point, she is not supposed to interject – she is merely supposed to interpret this confusion. The interpreter’s role is solely to enable the parties to communicate, not to insert herself into the conversation.
When I observed immigration court for the first time, I was surprised to find a more lax interpretation standard. The interpreter, who doubled as the court clerk, seemed to be competent (I understand Spanish and could follow the interpretation), but she interpreted only the questions that the judge directed toward the respondent, Mr. Rivera (not his real name). The vast majority of the hearing went uninterpreted. And Mr. Rivera sat there as his lawyer, the government attorney and the judge talked about him, without being able to understand what was being said.
Interpreting only the questions directed towards a respondent is highly problematic. While it’s true that a large part of court proceedings involve complex legalese and that he had a lawyer there with him, Mr. Rivera nonetheless had the right to know what was happening in his case. Moreover, the crux of these cases usually turns on specific facts about the person’s history, character, family information; facts the respondent is in the best position to know. Mr. Rivera had no opportunity to correct any errors that may have been made in the conversation. And, even if he hadn’t understood perfectly the interpretation of the proceeding, he also lost the ability to later ask specific questions about what had transpired.
Given the high numbers of LEPs in immigration court proceedings, I had expected a more comprehensive approach to language access than the one I saw. And I wasn’t basing this solely on my past experiences. What really struck me was that the immigration court’s practice of partial interpretation seemed to be in tension with federal civil rights laws. Failure to take meaningful steps to ensure access for LEPs amounts to discrimination on the basis of national origin, which is prohibited by Title VI of the Civil Rights Act. According to the Department of Justice, providing meaningful access includes providing competent interpretation in all court proceedings, offering court-related programs in multiple languages, ensuring effective communication between LEPs and court staff and providing interpretation services free of charge to the LEP. Specifically, interpretation and other language access services should be treated as a basic operating expense of the court system. Language is so intrinsically linked to access to justice that it’s the job of the courts to provide competent interpretation. (Language Access Guidance Letter to State Courts from Assistant Attorney General Thomas E. Perez, Department of Justice, August 17, 2010.)
Mr. Rivera’s experience is a common one. Observers have consistently noted failure to interpret the entire proceeding. Other commonly reported problems include misinterpretation, disrespect towards the individual by hired interpreters, and, most egregiously, cases where no interpreter was provided, despite language barriers, or the interpreter failed to show up.
Among all of these problems, there was one hopeful sign. An observer has noted at that at least one judge, Judge Brennan, has made it a point to require her interpreters to interpret the entire proceeding, not just the questions directed to the respondent. We are not sure yet whether this is a regular practice, but if it is, it would be an important step toward great accountability in ensuring proper court access for all people, regardless of their English proficiency.