Introduction and summary
In the summer of 2018, Mario Perez Domingo and his two-year-old daughter fled the rampant persecution against Indigenous communities in Guatemala and sought protection in the United States. They were picked up along the U.S.-Mexico border1 by a U.S. Border Patrol agent who accused Domingo of providing a false birth certificate to establish his relationship with his daughter.2 The agent repeatedly asked Domingo in Spanish if he was the little girl’s father, but Domingo—who spoke only Mam, a Mayan language spoken by Indigenous people in Guatemala and Mexico—was scared, confused, and unable to understand the agent’s question. As a result, the agent separated him from his daughter; they were only reunited following weeks of separation, after Domingo took a DNA test and the Guatemalan consulate confirmed the authenticity of the birth certificate.3 If the necessary translation and interpretation services had been available, this whole ordeal would likely have been avoided.
Domingo’s case is one of many examples of how the lack of adequate interpretation and translation services in U.S. Department of Homeland Security (DHS) and Department of Justice (DOJ) proceedings can have devastating consequences for asylum-seekers.4 Yet under U.S. law, asylum-seekers with limited English proficiency (LEP) have a right to an interpreter and to translated materials while they navigate the asylum system.5 For more than 20 years, the federal government has required all federal agencies—including those that regularly come into contact with migrants6 and asylum-seekers—to provide meaningful language access7 to individuals with LEP.8 But the increasing diversity of languages spoken by migrants and asylum-seekers, a shortage of interpreters, and a lack of translated materials, among other factors, have led to a significant failure of the asylum system to ensure that everyone has access to information in a language they understand. Federal agencies that regularly come into contact with migrants and asylum-seekers must do more to ensure that these populations—including those who speak languages of lesser or limited diffusion9—have access to interpreters and translated materials in their language.
Language access is a civil right and is guaranteed under the Due Process Clause
Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.10 In August 2000, President Bill Clinton signed Executive Order 13166, which affirms Title VI’s language access requirement and outlines additional requirements.11 The order requires federal agencies to ensure that individuals with LEP have meaningful access to all services. It also requires federal agencies to ensure that public or private entities that receive any federal financial assistance provide meaningful language access to individuals with LEP.
Under this executive order, DHS agencies each created and regularly update their own language access plans.12 DOJ’s Executive Office for Immigration Review (EOIR), which administers the nation’s immigration courts system, also has a language access plan that provides specific guidance to staff concerning language access for people with LEP.13 Yet while each agency plans for language access, the reality on the ground can be very different, and there are inconsistencies across agencies—for example, between component agencies within DHS, as documented by the DHS Office of Inspector General (OIG).14
This report is presented in four sections. The first section highlights the diversity of the languages spoken by migrants and asylum-seekers and describes how the arrival of more non-English speakers poses a new set of challenges to language access needs in the asylum system. The second section outlines the major challenges government agencies that regularly come into contact with migrants and asylum-seekers face in ensuring language access. The third section lays out the various ways in which the Biden administration has prioritized language access since taking office. Finally, the fourth section makes agency-specific recommendations that would allow DHS and DOJ to overcome challenges and ensure meaningful language access at every step of the asylum process. These agencies must implement solutions to protect asylum-seekers’ right to due process.
The languages that migrants and asylum-seekers speak have diversified in recent years
The U.S.-Mexico border has seen a continuing diversification of migrants over the past decade, and thus a diversification of languages spoken by people arriving at the border. Although Mexicans represented 34 percent of all migrants who arrived at the southwestern border in fiscal year 2022, the number of migrants from other countries has increased significantly.15 Many migrants hail from Northern Central American countries, but U.S. Customs and Border Protection (CBP) has also apprehended an increased number of Caribbean and South American migrants.16 Growing numbers of migrants from African and Asian countries are also arriving at the border.17
And while English-to-Spanish interpretation and translation services are relatively more available to arriving individuals than less commonly spoken languages, an increasing number of migrants—such as Domingo—from majority Spanish-speaking countries actually speak Indigenous languages rather than Spanish.18 Other migrants from Africa or Asia speak various regional languages, from Wolof to Tigrinya to Tamil. In addition, some migrants arriving at the southwestern border are deaf or hard of hearing and need sign language interpreters. However, while American Sign Language (ASL) is predominantly used in the United States, there is no universal sign language, and there are different sign languages and dialects in different countries and regions around the world.19 Therefore, most deaf or hard-of-hearing asylum-seekers are unable to understand ASL interpreters and require interpreters in the sign languages they know.
The arrival of more non-English speakers poses a unique set of challenges for language access in the already backlogged asylum system.20 Language access is important at every step of the asylum process,21 from the first contact with a Border Patrol officer to the credible fear interview22 with U.S. Citizenship and Immigration Services (USCIS) to asylum hearings in the immigration court system.23 A lack of interpretation and translation services has grave consequences,24 as when interpretation or translation services are unavailable, migrants may be unable to navigate the asylum system or exercise their rights. For instance, language barriers can prevent asylum-seekers from reporting abuse they have experienced in detention. A lack of interpretation or misinterpretation can also negatively affect the immigration process and lead to family separation, extended detention, and even wrongful deportation.25
Language access in defensive and affirmative asylum applications
When migrants arrive at U.S. ports of entry seeking protection, they first encounter CBP officials. CBP has a language access plan that prioritizes Spanish in terms of proficiency and training requirements for its Border Patrol agents as well as available interpretation and translation services.26 CBP offers translated materials in Spanish, Arabic, French, German, Japanese, Korean, Traditional Chinese, and Russian.27 Recognizing the need to provide more extensive language access, in 2020 CBP published a Supplementary Language Access Plan that, among other things, provides guidance to employees on the agency’s responsibilities and available resources to provide language assistance to Indigenous language speakers.28 To assist its officers in identifying individuals who speak Indigenous languages or languages of lesser diffusion, CBP has various tools and resources, including the “I Speak Language Identification Poster” and the “I Speak Indigenous Language Identification Poster.”29 These posters are designed to help CBP officials accurately identify languages spoken by individuals with LEP.
Migrants encountered at the southwestern border are placed into expedited removal proceedings, an accelerated process through which DHS officials can quickly remove noncitizens deemed inadmissible.30 If an individual in expedited removal proceedings indicates to a CBP official that they fear returning to their country, or fear persecution or torture if they return, then they are referred to a USCIS asylum officer for a credible fear interview.31 Before an interim final rule USCIS introduced in May 2022, if an asylum officer determined an individual had a credible fear of persecution or torture, they would refer them to the immigration court system to pursue a defensive asylum application. Under the new rule, an individual determined to have a credible fear may be referred to an asylum merits interview with USCIS or to EOIR.32 If an asylum officer finds that the person does not have a credible fear, they are ordered removed, but before removal can get an immigration judge to review that decision.33
USCIS has a language access plan to ensure that individuals with LEP—including those seeking asylum—have meaningful access to the agency’s services and information.34 USCIS’ Asylum Division adjudicates applications for asylum, which are routinely called affirmative asylum applications since individuals are not in removal proceedings.35 The Asylum Division also conducts credible fear interviews for individuals in expedited removal proceedings who have expressed a fear of returning to their country or a fear of persecution if they do return. Yet although USCIS provides interpreters for credible fear interviews, it did not provide interpreters in affirmative asylum applications until September 2020 when it announced a temporary final rule providing telephonic interpreters for affirmative asylum applicants with LEP.36 This rule has been extended four times, with the most recent extension effective until September 12, 2023.37
Most individuals with LEP who arrive at the border process their defensive asylum application through EOIR, and the immigration court then arranges for asylum-seekers to have an interpreter.38 Most staff interpreters speak Spanish; a limited number speak Mandarin and Haitian Creole. For additional needs, EOIR contracts with private companies.39
Major challenges in ensuring language access in the asylum system
While each of DHS and DOJ’s agencies that come into contact with migrants and asylum-seekers have a language access plan for individuals with LEP, these agencies are failing to provide interpretation and translation services in an adequate and timely manner. For instance, the DHS Office for Civil Rights and Civil Liberties (CRCL) regularly receives complaints filed by advocates and attorneys on behalf of detained individuals with LEP who have been denied meaningful language access while seeking asylum in U.S. Immigration and Customs Enforcement (ICE) detention.40 In March 2022, CRCL submitted a retention memo to notify ICE of some of these complaints and describe the allegations, including lack of meaningful language access.41 And while these complaints alone do not paint a full picture of the large-scale impact of the lack of language access across the asylum system, there is evidence that they are happening on a much wider scale than documented.42 There is ample evidence, for example, that many asylum-seekers do not know they have a right to meaningful language access—and are deported because they are unable to win their asylum case without such access.43 Identifying these issues and filing a CRCL complaint usually requires legal assistance.
Incorrect identification of languages spoken
CBP’s language access plan requires agents to identify individuals with LEP, as well as the languages they speak.44 If the language spoken by the migrant or asylum-seeker is Spanish, Spanish-speaking personnel or staff who have completed CBP Spanish language training may provide assistance in certain situations that do not involve complex information.45 The plan clearly outlines that in instances where no agents speak the language spoken by an individual, CBP must contract with an external interpreter, typically by phone.46
While this plan seems straightforward, in practice CBP officials do not always follow its outlined procedures and protocols. Cases have been documented in which CBP officials have wrongfully assumed that Indigenous language speakers from majority Spanish-speaking countries speak Spanish.47 It is also important to note that many Indigenous languages—including the language spoken by Domingo, Mam—have various dialects and regional differences. It is crucial, therefore, for officials to identify not only the Indigenous language but also the dialect or regional variant of the language. When asked by a Border Patrol agent if they speak Spanish, some Indigenous language speakers say yes, despite not understanding the question.48 Many migrants can feel intimidated by an authority figure standing in front of them with a gun.49 There is also an important cultural aspect to consider: Many Indigenous people grew up being made fun of for not speaking Spanish and may be ashamed to admit they do not speak it fluently.50 Some of them also think that saying they speak Spanish might help them stay in the United States.51 There is also ample evidence that individuals in ICE custody have been forced to undergo their credible fear interviews in languages they did not fully understand.52 For instance, many African asylum-seekers have been forced to undergo their credible fear interview with French or Portuguese interpreters despite expressing on multiple occasions that neither was their best or native language of communication.53
The same problems can arise in court proceedings. Indigenous asylum-seekers whose primary language is not Spanish may agree to a Spanish interpreter—or at times, judges use Spanish interpreters because they incorrectly assume the language someone speaks based on their country of origin.54 While some Indigenous language speakers also speak some Spanish, they do not always do so well enough to navigate the United States’ complex immigration system and explain why they fear returning to their home countries in a credible fear interview or an asylum adjudication.55 There are also documented cases in which immigration judges have incorrectly assumed that asylum-seekers from Cameroon who speak Cameroonian Pidgin English can fully understand Standard American English and thus can proceed with their hearing without an interpreter present.56 Judges’ failure to ascertain asylum-seekers’ best language for communication violates their right to due process and can have devastating consequences. This is especially true for those who do not have legal representation.57 In September 2021, the U.S. Court of Appeals for the 3rd Circuit ruled that an asylum-seeker was denied due process when the individual was denied asylum after an immigration judge failed to meaningfully evaluate the need for an interpreter.58
Shortage of interpreters
There is also a shortage of interpreters for languages that are not commonly spoken by migrants.59 Immigration proceedings are not always interpreted in full, especially those conducted using video teleconferencing.60 Evidence indicates that court interpreters frequently limit interpretation to questions that the immigration judge directs to the asylum-seeker, rather than interpreting the full scope of legal arguments between the DHS counsel and the immigration judge.61
In addition, due to a shortage of interpreters who speak Indigenous languages, many immigration courts rely on over-the-phone interpretation services that are not as accurate as in-person interpretation.62 In asylum claims, judges are required to assess credibility when adjudicating a request for relief, but valuable descriptions can be lost through telephonic interpretation.63 Moreover, technical and internet issues during hearings conducted using video teleconferencing greatly reduce the accuracy of interpretation. The same is true for credible fear interviews using phone interpretation, as asylum officers are required to consider the credibility of asylum-seekers’ statements.64
Indigenous language-speaking migrants who do not have legal representation may decide to go through the asylum process in Spanish to expedite their application despite not being fully fluent in the language.65 Going through the process in a language that one does not fully comprehend can have devastating consequences: If at any point in the process the recorded version of a migrant’s story is incorrect or incomplete, it can affect their asylum case, as it can be difficult to correct the story later.66
While several nonprofits and law firms have called for Indigenous-language speakers to volunteer at the border due to the shortage of interpreters and translators in many languages, this could lead inexperienced interpreters or untrained bilingual people to act as interpreters.67 Mistranslation, whatever its cause, can lead to serious consequences. A Mayan Guatemalan woman detained in Texas, for example, was deported due to mistranslation.68 She told her interpreters that she had trouble in Guatemala because of her “blouses.”69 The significance of this was lost in translation—she meant she was persecuted in Guatemala for being Indigenous and wearing her huipil, a handwoven Mayan blouse. But her interpreter either did not understand or did not explain, her asylum claim was rejected, and she was deported.70
Individuals in ICE custody may need telephonic interpreters to assist them with various interactions, including medical appointments and meetings with a deportation officer.71 Yet according to ICE data, interpretation services were successfully provided more than 50 percent of the time for just two of the 10 most requested Indigenous languages.72
The immigration court system is overwhelmed with a backlog of nearly 2 million cases; more than 800,000 of these are pending asylum cases.73 The lack of interpreters in some languages—specifically Indigenous languages of lesser or limited diffusion—exacerbates the asylum backlog and ultimately forces many asylum-seekers to languish in detention centers as they await their day in court.74
Written materials are not consistently translated or available
Many asylum-seekers placed in ICE custody have denounced the unavailability of reading materials translated into various languages.75 Meanwhile, ICE’s Performance-Based National Detention Standards require the translation of materials in law libraries76 because many detained asylum-seekers who do not have legal representation rely heavily on law libraries to fill out their asylum application.77 Asylum-seekers in ICE detention have also condemned the lack of translated materials in ICE facilities, including materials that are formally available. In 2019, for instance, the Sikh Coalition filed a complaint with the DHS OIG and ICE regarding violations of the civil rights of Sikhs in ICE detention,78 and one of the concerns was that Punjabi-speaking individuals in ICE facilities reported not having access to official resources for detainees.79 According to the initial complaint, the National Detainee Handbook is translated into Punjabi but was not provided to Punjabi-speaking detainees at several detention facilities.80 ICE’s policy, however, mandates that this handbook, along with a local facility handbook, be provided to all detainees when they arrive in ICE facilities.81 The handbooks cover essential information, from the grievance system to the services and programs available at the facility to access to legal counsel.82
While the National Detainee Handbook is available in 10 languages other than English, it is not available in any Indigenous or other less-common languages.83 This lack of availability can have severe consequences. Detainees who cannot understand the important information contained in the handbook may have no other way of being aware of their rights. Further exacerbating this is the fact that many of these detainees do not have access to counsel and must rely solely on the legal materials made available to them while they prepare for their asylum cases.84 Asylum-seekers with LEP who are in removal proceedings are sometimes ordered removed for failing to fill out the all-English asylum application within the allotted two to four weeks, effectively denying them due process.85 Even though EOIR issued informal guidance that clearly gives immigration judges the authority to grant continuances if good cause is shown, in practice judges continue not to grant continuances when they are warranted.86 In addition, written materials from both ICE and CBP are only accessible in select languages—and even if they are accessible in more languages, they are only accessible to migrants who have comparable literacy levels.87 Many migrants are illiterate and may not be able to review and fully understand complex materials even when they are written in their native language.88
Therefore, when it comes to translated materials, there are essentially two major shortcomings: 1) Many of these materials have only been translated into a few select languages, leaving many detainees who speak languages of lesser or limited diffusion without access, and 2) even in cases where translated materials are available, they are not always given to detainees.89 EOIR does not provide translated versions of the asylum application form to migrants who arrive at the border seeking protection in the United States.90 This unavailability of translated materials—even in Spanish—hinders migrants’ ability to pursue relief options in the United States.
The Biden administration has prioritized language access
Since entering office, the Biden administration has taken steps to prioritize language access and has affirmed the federal government’s commitment to improve accessibility for individuals with LEP. For instance, in May 2022, the DOJ appointed a language access coordinator within its Office for Access to Justice.91 In November 2022, Attorney General Merrick Garland released a memo for the heads of federal agencies and civil rights offices regarding the need to strengthen commitment to meaningful language access for individuals with LEP.92 DOJ is requesting that each federal agency provide an updated language access plan within 180 days of the memo. Most recently, in February 2023, DHS shared a Draft Indigenous Languages Access Plan, which was developed with the input of Indigenous migrant community leaders.93
The recommendations outlined in the next section can help inform agencies as they seek to update their language plans to better comply with the federally mandated requirement to provide meaningful language access to individuals in the asylum system with LEP.
Policy recommendations
The lack of language access at various steps of the asylum process can have grave consequences for asylum-seekers, including denial of their claims and even immigration detention and deportation. DHS and DOJ can take various actions to address the challenges caused by a lack of meaningful language access. Congress should also provide additional resources for and attention to this issue.
Recommendations for DHS and its agencies
DHS should ensure that CBP agents are well trained to not only appropriately identify individuals with limited English proficiency but also to identify the languages they speak. They should appropriately use the tools that are already at their disposal such as the “I Speak” posters to identify individuals’ preferred language. CBP agents should not assume individuals’ preferred language based on their countries of origin and should document their preferred languages upon first encountering them. This record should follow LEP individuals throughout the system, across different agencies.
DHS should also ensure that important written materials in CBP and ICE facilities are translated into at least the five most commonly spoken Indigenous languages. Most importantly, these materials should be made available to all individuals in custody. ICE should provide congressional committees of jurisdiction with a publicly available report on the availability of written translations of both the National Detainee Handbook and the local facility handbook at all ICE detention centers. Similarly, CBP should provide congressional committees of jurisdiction with a report on the availability of written translations of materials at all its processing facilities.
In recognition of the low literacy rates among some communities, instead of relying solely on translated materials, CBP and ICE personnel should be prepared to provide prerecorded messages of vital information in the individuals’ preferred languages.94 DHS should also continue consulting with external parties and key stakeholders to ensure that translated documents accurately reflect their English versions and to avoid any discrepancies, including in any new documents and materials that are circulated. To this end, DHS must put in place oversight policies to ensure that 1) interpretation and translation service providers and contractors are competent to provide these services, avoiding any mistranslation and misinterpretation issues and 2) these services are actually being used.
CBP and ICE officials, in recognition of the shortage of interpreters in languages of lesser or limited diffusion, must make sure that individuals with LEP, in cases when interpreters are unavailable, are not forced to sign documents they do not understand.95 For Indigenous languages—particularly those of lesser or limited diffusion—CBP and ICE should also consider relay interpretation between English, Spanish, and the Indigenous languages. Relay interpretation is “the practice of interpreting from one language to another through a third language.”96 In this case, it would mean an English-Spanish interpreter interprets from English to Spanish and a second interpreter who is fluent in Spanish and the Indigenous language would then interpret for the asylum-seeker or migrant.97 While relay interpretation is not always ideal, it can circumvent the shortage of interpreters in Indigenous languages or Indigenous languages of lesser or limited diffusion.
USCIS should translate the instructions of the I-589 application for asylum into at least the 10 languages most commonly spoken by asylum-seekers. Because asylum-seekers who do not have access to a professional interpreter in their asylum interviews do not have meaningful access to the asylum process, USCIS should also make permanent its temporary final rule to provide telephonic interpreters for affirmative asylum applicants who have LEP.98
Recommendations for the DOJ and its agencies
DOJ should provide specific guidance and training to immigration judges on the appropriate process to identify asylum-seekers with LEP and what interpretation they require. The agency should also ensure that all proceedings in immigration court are fully and appropriately interpreted, including any legal arguments between the DHS counsel and the immigration judge. Indeed, the agency should ensure meaningful language services at all points of contact, including when calling the court clerk’s office and at the filing window.
Recognizing that the quality of interpretation can be greatly reduced when an interpreter is interpreting for a long period of time, EOIR should adopt team interpretation99 for all merit hearings that go beyond 30 minutes.100 This will ensure that the interpretation’s quality and accuracy remain the same throughout the hearing.
DOJ should also put in place oversight policies to ensure that interpretation and translation service providers and contractors are competent to provide these services, avoiding any mistranslation and misinterpretation issues. EOIR should issue clear requirements regarding certifications and quality control for its in-court interpreters. However, there is no official certification mechanism for linguists in many Indigenous languages spoken by migrants. But organizations such as Comunidades Indígenas en Liderazgo do provide training to Indigenous language-speaking individuals who wish to become interpreters.101
In addition, DOJ must formalize guidance issued to immigration judges regarding granting continuances to asylum-seekers who are unable to fill out their application due to a lack of translation and/or interpretation services. In cases where an interpreter is consistently not available in a language, there should be a presumption of release from custody or at the very least of administrative closure or termination. In court proceedings where over-the-phone interpretation or video teleconferencing tools are used, courts must take into consideration that technical and internet issues can affect the quality of the interpretation. DOJ must invest in better quality interpretation and video teleconferencing devices.
Finally, DOJ should expand initiatives with nonprofit organizations to educate migrants with LEP about the immigration court process.102 Legal Orientation Programs provide orientations to detained individuals in ICE custody about their rights and the immigration court process. These programs also assist detainees in their efforts to seek pro bono legal representation.103
Conclusion
The demographics of individuals arriving at the border seeking protection have changed dramatically over the past decade, but the agencies and institutions processing their cases have not adapted at the same pace.104 Although each of the agencies that regularly comes into contact with migrants has a language access plan detailing how to provide meaningful language access to people with limited English proficiency, asylum seekers with LEP are too often denied the right to language access in the asylum system. Compounding this is a shortage of interpreters, especially in Indigenous languages and languages of lesser or limited diffusion, as well as a lack of availability of translated materials. But even when interpretation and translation services are available, they are too often not provided at various points in the asylum system.
The Biden administration has taken steps to prioritize language access, including by requesting that federal agencies update their language access plans. In addition to making necessary updates to these plans, agencies should adopt the measures listed above to address the lack of meaningful language access. This would enhance compliance with the federally mandated language access requirement as well as better ensure that asylum-seekers’ right to due process is respected.
Acknowledgments
The author would like to thank Debu Gandhi, Silva Mathema, Nicole Prchal Svajlenka, Elisa Massimino, and Tom Jawetz for their review of this report, as well as My Khanh Ngo and Hannah Schoen from the American Civil Liberties Union for providing their expertise.