Lost in Translation: Mitigating the Harm of Misinterpretation in Immigration Proceedings

A merits hearing before an Immigration Court is sometimes the only venue where an applicant's story is heard. Miscommunications in these hearings can be fatal. Yet every day in Immigration Courts across the country, life-altering decisions are made based on incorrect and misleading interpretations.

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Improper interpretation during immigration proceedings can be just as damaging as an incomplete record or poor representation. It is frustrating to feel as if you are not being understood. It is more frustrating still when an Immigration Judge truly does not understand you — not because you are failing to testify clearly, but because the interpreter is not accurately conveying what you are saying.

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Immigration hearings turn on credibility. An applicant's entire case may rest on whether an Immigration Judge believes their account of persecution, fear, or hardship. When interpretation fails, the Judge is not evaluating the applicant's actual story. They are evaluating a garbled, incomplete, or inaccurate version of it.

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The Problem Is Pervasive

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From Spanish to Fulani, Russian to Nepali, interpretation issues arise in Immigration Courts regardless of what language an applicant speaks. Court-provided interpreters are not always specialized, and interpreter certification requirements do not guarantee fluency in every regional or tribal dialect a particular applicant may speak. Sometimes the interpreter does not know the applicant's local dialect and may have trouble understanding what the applicant means. In other cases, the interpreter does not speak the applicant's native language at all and instead communicates through a more widely spoken regional language like Spanish or French, which may itself be the applicant's second or third language.

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Even an applicant who testifies consistently can be found not credible if the interpreter's translations of the applicant's statements are not consistent. An interpreter's inability to communicate with an applicant in the applicant's primary language substantially increases the likelihood of miscommunication. When an interpreter translates a question into a language or dialect the applicant is not fluent in, the applicant may be unable to fully understand what is being asked and may provide an inconsistent answer. At the same time, if an interpreter does not understand the applicant's native language or dialect the interpreter may not be able to accurately translate the applicant's responses and may simply proceed with their best guess as to what the applicant is trying to say. The end result is that the testimony the Immigration Judge hears may not accurately reflect the applicant's true story.

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Interpretation Errors Sow Doubt in Proceedings

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Incorrect interpretations produce mix-ups and misunderstandings that can compound over the course of a hearing. Apparent inconsistencies in testimony and conflicts in the narrative caused by faulty interpretations may cause the Immigration Judge to doubt the applicant's reliability as a witness and conclude that the applicant lacks credibility.

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This is no small concern. The United States Immigration Court system handles cases from applicants who speak hundreds of languages and dialects. Many of these applicants fled to the United States for safety and have little evidence to support their claims other than their own testimony. And where an applicant's testimony is central to establishing eligibility for relief, the consequences of an adverse credibility finding are severe.

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Under the REAL ID Act of 2005, Immigration Judges can base a credibility determination on the totality of the circumstances, including the consistency of the applicant's testimony. Interpretation issues muddy an applicant's testimony and create inconsistencies in the record, causing a significant gap between what an applicant says and what the Immigration Judge hears. What's more, these errors often remain entirely invisible until the damage has already been done and the Immigration Judge has found the applicant not credible. And once an adverse credibility finding has been made, it can be very difficult to overturn on appeal.

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What Can Be Done

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There are several ways applicants and their attorneys can protect the record and address interpretation problems:

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Request the presence of an observer who speaks the applicant's language or dialect: At the Immigration Judge's discretion, an applicant may request the presence of an observer who speaks both their native language or dialect and English, who can alert the Court or the applicant's attorney of any interpretation issues. An observer does not have to be a certified or paid interpreter; they can be a friend, family member, or another community member.

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Raise objections immediately. If an applicant or their attorney believes the interpreter has misstated the testimony, they should object immediately and before the hearing moves on. Immigration Judges have the authority to correct the record, request clarification, or call for a new interpreter. Objections should be specific – identifying the precise statement that was misinterpreted gives the judge something to work with and preserves the issue for appeal.

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Request a different interpreter. If interpretation problems are ongoing and the applicant is struggling to communicate through the interpreter, the applicant or their attorney may request that a different interpreter be assigned to the case. Immigration Judges are more likely to grant this request if the interpretation problems have been documented as they occurred throughout the hearing. Therefore, it is also important to immediately object to each incident of misinterpretation.

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Document the problem after the fact. Even if interpretation issues are not raised during the hearing, there are still options to correct the record. For example, an applicant or their attorney may get a certified transcript of the hearing and have the transcript reviewed by a qualified translator who is able to identify discrepancies between the original-language testimony and the English interpretation in the record. This evidence may then be used to support a motion to reconsider or an appeal based on inconsistencies caused by the misinterpretation.

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Challenge the interpretation on appeal. If an Immigration Judge's adverse credibility finding rests on inconsistencies caused by interpreter error, this determination may be challenged before the Board of Immigration Appeals. An applicant's right to a competent interpreter is grounded in the Fifth Amendment's due process guarantee and has been recognized by federal courts across the country. Where the record shows that the interpretation was so deficient as to deprive the applicant of a full and fair hearing, the Board may remand the case back to the Immigration Judge for new hearing with a different interpreter.

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Takeaways

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Immigration Judges hear many cases, and they rely on interpreters to give them an accurate account of each applicant's testimony. But when that testimony is distorted by interpretation errors, an applicant's future in this country can be determined by statements they never actually made.

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Interpretation is the means by which an applicant's voice reaches the Immigration Judge. And when that process breaks down, the consequences can be disastrous. The right to present your case is meaningless if the words you speak are not accurately conveyed to the decision-maker.

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If you believe that interpretation errors affected your immigration hearing, or if you are preparing for a hearing and want to protect the integrity of your testimony, contact an experienced immigration attorney. The record that is built — or lost — at the hearing level is the record that will follow your case on appeal.

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