Language barriers can have a major impact on the asylum process for migrants, and the effects of those barriers have become an issue of increasing importance in the discussion of how to better manage the asylum process. Communication between federal officials, migrants, and their attorneys is critical, with a non-citizen’s understanding of the system’s processes and policies forming an important part of the federal government’s argument that due process exists in the immigration system. This primer explains the functions and challenges of language access in three aspects of the immigration system: enforcement actions, asylum processing, and the court system.
Within the immigration context, language access refers to the ability of non-citizens to engage in immigration processes in their primary language. In the United States, individuals who do not speak English as their primary language, or have a limited ability to read, speak, write, or understand English are classified as Limited English Proficiency, or LEP. The presence of LEP individuals in the immigration system is widespread, with approximately 89% of migrants in immigration court hearings receiving their hearings in a language other than English in 2018.
Under federal law and executive orders, ensuring that these people receive equal treatment from federal agencies requires that every government agency receiving federal funds including state and local agencies must make a reasonable effort to provide meaningful language access for LEP individuals. These requirements extend to all persons in the United States, including those in the immigration system. For the Department of Justice and the Department of Homeland Security, language access is provided through Language Access Plans, agency policies that outline the rules and expectations of agency employees in accordance with the legal requirements for language access.
In 2000, President Bill Clinton signed Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency,” which established the legal foundations for providing language access programs to non-citizens. The order, which enforces Title VI of the 1964 Civil Rights Act,1 requires agencies that receive federal funds to reasonably provide language services for all persons using their services.
The policies and their legal bases have been largely unchallenged and unchanged since their inception with a few exceptions. After a 2010 Government Accountability Office report criticized their lack of language access programs, DOJ and later DHS established the Language Access Plans. DHS has made this a formal implementing regulation, establishing LAP standards and oversight procedures for their component agencies.
When migrants are detained at the U.S. border, the Border Patrol agent must identify the language of the migrants. After the agent identifies the language, they may utilize contracted translators who are available by phone for field operations or available in person at some CBP offices. CBP and ICE staff prioritize resource allocation to specific languages based on the most common languages encountered at a site.
DHS also provides Border Patrol agents with language training. All new Border Patrol agents are stationed at the U.S.-Mexico border for their initial postings and probationary period, even if they later transfer to other stations along the U.S.-Canada border or other locations. Given that most migrants encountered at the Southern border list Spanish as their primary language, Border Patrol agents receive eight weeks of Spanish training at the Border Patrol Academy and are tested on their Spanish abilities. DHS also encourages agents and other DHS staff to use “I speak” visual cards in more than 65 languages to identify a migrant’s native language and provide them with translation services in instances where a staff translator is not available.
In addition to CBP’s protocols, Immigration and Customs Enforcement agents distribute the Enforcement and Removal Operations National Detainee Handbook to detainees that provides an explainer on a migrant’s rights to individuals in ICE custody. This handbook is translated into Spanish and any language determined necessary by the Field Office Director, varying by location. The handbook also includes legal resources for migrants and instructions on the detention process.
Language access plans in immigration courts and the Executive Office of Immigration Review (EOIR) are under the jurisdiction of the DOJ, whose 2012 LAP remains federal policy. EOIR employs staff interpreters, contract interpreters, and telephonic interpretation services to meet LEP needs. These services are costly, with EOIR’s interpreter costs increasing from $17,000,000 in fiscal year 2017 to approximately $110,000,000 in FY2019.2 Before a hearing, judges and supporting staff must identify the migrant’s primary language and provide services in this language. EOIR policy also requires interpreters at immigration proceedings to provide interpretation services that allow non-citizens to understand and participate in these proceedings. Until August 2020, EOIR hired most of its contractors from SOS International, a nonprofit organization specializing in translation services.3 However, any court documents submitted by LEP defendants must be in English with the signature of their translator.
Language access for asylum seekers varies depending on the type of asylum application. In defensive asylum processing, which is done through the immigration court removal process, migrants receive LEP services through EOIR following their initial encounters at the border with CBP officers at ports of entry or Border Patrol or ICE if apprehended inside the United States. In affirmative asylum claims where individuals have already entered the United States, U.S. Citizenship and Immigration Services (USCIS) offers LEP services that use different guidelines.
The main difference between these guidelines is that USCIS does not provide interpreters for affirmative asylum applicants, who must contract their own translators. In the case of credible fear, reasonable fear, and safe third country screening interviews of new arrivals, USCIS provides translators for asylum seekers. In both cases, USCIS assigns every asylum officer an interpreter who verifies the correctness of the third-party interpreter’s translations. If the monitor notes issues with the interpreter or interpretation, the officer may use a telephonic interpreter to complete the interview or reschedule it and require the applicant to bring a competent interpreter.
The arrival of Central American migrants who primarily speak indigenous languages between 2018 and 2019 generated language access issues at the U.S.-Mexico border. Although almost 75% of immigration court cases were conducted in Spanish in 2017, indigenous Mayan languages such as K’iche and Mam rose to the top 15 of immigration court languages in 2018, especially as more Guatemalans speaking these languages entered these proceedings. While courts and asylum applicants can easily find translators for languages such as Mandarin, Arabic, and Creole, the limited number of indigenous language speakers makes translation services difficult for these purposes, which may prevent them from upholding their Language Access Plans.
Language may also be a significant impediment to clearing the immigration court backlog. In 2017, a Government Accountability Office report found that DHS attorneys and other stakeholders said the failure to locate interpreters for LEP to comply with the DOJ Language Access Plan postponed cases. Courts also rely on telecommunication translations despite concerns about their effectiveness in removal proceedings. For affirmative asylum applicants, the individual translation requirement places the responsibility on migrants to find translators or postpone their asylum application, which may delay their cases.
Another issue these speakers face is a lack of literacy. Existing LAP tools and policies across agencies assume migrant populations have the literacy abilities to review processing forms and resources written in their native language. However, the Migration Policy Center found that 40 percent of migrant populations in the United States lack basic literacy. Among indigenous language speakers, this number drops to the 20th and 30th percentile, meaning that indigenous speaking migrants from regions such as Central America face another obstacle to understand immigration protocols like the removal and asylum process.4
Although addressing language access issues seem secondary to broader concerns about reforming the U.S. immigration system and managing the U.S.-Mexico border, resolving them is vital to these goals. Given that DHS and DOJ regularly interact with individuals who may not speak English, improving these agencies’ language offerings ensures that non-citizens have the information and knowledge to successfully navigate complex adjudication or removal processes such as asylum cases. An increase in the number of individuals who can make informed decisions about their immigration application and cases improves the immigration system’s ability to successfully manage immigration, by minimizing the miscommunication between immigrants and the U.S. government that can delay the completion of these processes and can create extensive immigration case and green card backlogs.
Various measures can address these challenges. A 2017 DHS Office of the Inspector General report noted that DHS should improve the coordination of interpretation services across USCIS, ICE, and CBP to maintain operational continuity. EOIR can also improve the screening and assessment of interpreters and require them to translate all parts of proceedings.5 The agency can also expand initiatives with non-profit organizations like the Legal Orientation Program, which educate detained immigrants about the immigration court process so they can assess their legal options, for limited English proficiency speakers.6 To be sure, agencies must monitor these costs closely, including tracking their contracts with interpretation firms to make adequate requests for congressional funding and prevent these firms from changing their fees over time.7 Adopting measures like these will not only improve the experience of migrants in the United States, but also improve the immigration system’s ability to achieve these outcomes.
1 This section of the Civil Rights Act prohibits discrimination “on the ground of race, color, or national origin.”
2 The increasing costs for interpretation services received a reprimand from the Senate Commerce, Justice, Science Appropriations Subcommittee in its FY20 budget report. Page 85 of the report stated: “The Committee is also concerned with the ballooning costs associated with EOIR’s interpreter contract. According to the EOIR Director, ‘‘[i]n fiscal year 2017, interpreter costs were approximately $17,000,000. In fiscal year 2018, they increased to almost $60,000,000, and in fiscal year 2019, they are expected to approach $110,000,000 … EOIR has also told the Committee that at one point it anticipated interpreter costs to be $170,000,000. While this type of severe cost fluctuation should be avoided, this is an issue that should be anticipated and accounted for at the time a contract is awarded.”
3 The organization’s website has noted stated whether EOIR renewed its contract for translation services. EOIR began seeking a new contractor in December 2019.
4 Several European countries have developed illiteracy measures for refugee populations. In Germany, the BAMF restructured refugee orientation materials for illiterate refugees, developing pictorial instructions.
5 Currently, interpreters only translate statements made to non-citizens in these proceedings, not other parts of the hearing process.
6 The United States does not provide non-citizens with counsel during their immigration court proceedings. A 2016 study found that only 37 percent of immigrants in removal proceedings had contracted counsel. However, assessments of the Legal Orientation Program found the initiative which reduce case processing times by improving a non-citizen’s ability to navigate the court process.
7 A June 2020 DOJ Office of the Inspector General audit of EOIR found that the agency suspended various operations because its leadership did not have an adequate budgeting process to anticipate the costs of interpretation contracts when submitting these requests to Congress. Furthermore, the leadership also did not track the growing costs of these contracts as its docket expanded and contractors renegotiated their fees, leading them to spend its FY19 appropriations at a faster rate than anticipated.