July 2022 | 2022 | International justice in the news | Programs in International Justice and Society
This month’s feature is contributed by LCJ Hub member Hillary Mellinger, assistant professor of criminal justice and criminology at Washington State University. Hillary’s research focuses on language access within the immigration and criminal justice systems in the United States, the challenges asylum seekers and attorneys face in the United States Office of Asylum, and the criminalization of migration. Prior to earning her doctorate, she worked as a Board of Immigration Appeals (BIA) Accredited Representative at the Tahirih Justice Center, a national non-profit organization that supports immigrant women and girls fleeing gender-based violence through a combination of legal, social service and public policy representation.
In a rrecently published open access article, I describe the difficulties faced by asylum seekers and lawyers regarding interpretation at the Asylum Office. While U.S. immigration courts are required to provide interpreters under the Court Interpreters Act of 1978 (28 USC § 1827), the Asylum Office is subject to a different legal statute, which requires asylum seekers to procure their own interpreters at no cost to the government (8 CRF § 208.9(g), with exceptions for sign language, unaccompanied children, or other exceptional circumstances (see, for example, the Affirmative Asylum Procedures Manual 2016 and the United States Department of Homeland Security Language Access Plan 2019). In 2000, President Bill Clinton signed Executive Order 13166which required federal agencies to provide language services to people with limited English proficiency.
In my article, I describe how the Asylum Office balances the competing mandates of federal regulations (which require asylum seekers to provide their own interpreters, with some exceptions) with EO 13166 (which requires the asylum to provide language services). I focus on three research questions: When do asylum officers exercise their discretion to provide interpreters? Is this discretion exercised consistently? Does the presence of an interpreter affect the dynamics of the asylum interview, and if so, how?
To answer these questions, I analyzed empirical and qualitative data that I gathered from 28 interviews with U.S. immigration attorneys who represented asylum seekers before two of the eight U.S. regional asylum offices. : Arlington Asylum Office and Houston Asylum Office. I chose these offices because they were associated with relatively high asylum grant rates and relatively low asylum grant rates, respectively. As I explain in my article, the US Asylum Office does not collect data on its provision of language services, which makes it impossible to conduct a mixed-methods or purely quantitative study.
My search had four results. First, respondents said that unaccompanied children were more likely than adults to have access to interpreters. Second, interviewees indicated that adults only had access to interpreters in rare ‘extraordinary circumstances’. Third, interviewees recounted that bilingual asylum officers sometimes offered to conduct asylum interviews in a language other than English, although asylum seekers were not informed in advance of this possibility. Fourth, 17 interviewees expressed concern that interpreters negatively affect the dynamics of asylum interviews by exacerbating language barriers.
I situate these findings within the socio-legal literature on “law on the books” as opposed to “law in action,” which refers to the disparate ways in which the black-and-white written text of the law is implemented. in everyday life. I also place my findings within the broader framework of research on intersectionality, language access within the U.S. immigration system, and possible unintended consequences of interpretation on asylum outcomes.
Importantly, my study was conducted before the COVID-19 pandemic. However, since September 23, 2020, the Asylum Office has been operating under a temporary rule in which it provides telephone interpreters for 47 languages. Asylum seekers who do not speak one of these 47 languages, or who prefer to speak another language, must provide their own interpreters. This temporary rule is set to expire on March 16, 2023. Because my study analyzes data collected prior to this temporary rule, my findings cannot explain how the pandemic has changed the nature of language access at the Asylum Office.