18 Apr What’s Going on in Immigration Courts?
By Dan DeCoursey
My intention in this article is not to take sides, but rather to look more closely at the immigration courts to understand how we got here, and where we could go from here.
Like many NAJIT members, I am a court interpreter who has never worked in immigration courts. Nonetheless, I consider immigration court interpreters my colleagues, and I believe it’s important to keep abreast of their working conditions. Delving into this situation, however, has not been easy. I was very disappointed to find that Google searches were turning up virtually no articles on the situation, not even from local news sources. Moreover, labor disputes are contentious affairs, and this one is no exception. Emotions can run high, and objective viewpoints can be hard to come by. The fact that many of the interpreters most familiar with this situation are reluctant to speak about it openly makes writing about this topic even more daunting. My intention in this article is not to take sides, but rather to look more closely at the immigration courts to understand how we got here, and where we could go from here. It is in everyone’s interest that this dispute be resolved as quickly as possible so that our immigration courts may carry out the difficult and essential task of adjudicating removal proceedings both efficiently and fairly. Perhaps a little background information could help.
Immigration Courts Are Not Criminal Courts
What surprised me the most in my research is how different immigration courts are from criminal courts. The Executive Office for Immigration Review (EOIR), an agency within the Department of Justice (DOJ), is charged with adjudicating immigration cases to determine whether certain individuals should be removed from the United States. While criminal courts are part of the judiciary, immigration courts fall within the executive branch of government. These proceedings are considered administrative rather than criminal proceedings. While defendants in criminal court have the option of a jury trial, respondents in immigration court face a bench trial conducted by a sole immigration judge (IJ). In criminal courts, the prosecutor has the burden of proof, whereas in immigration court, the assistant chief counsel only needs to prove alienage, which is often conceded by the respondent. Once alienage is established, then the burden shifts to respondents, who must demonstrate that they qualify for relief from deportation. Unlike in criminal courts, indigent respondents do not have the right to a court-appointed attorney. Those who cannot afford private legal representation and are unable to find a non-profit organization to represent them have no choice but to represent themselves.
In criminal court, defendants with limited English proficiency (LEPs) have a right to be linguistically present during all phases of the proceedings. That is, they have a right to have the entire proceedings interpreted into their primary language. In addition, they are entitled to be physically present during proceedings. In immigration court, however, attorneys may waive their clients’ right to full and complete interpretation of the entire proceedings, in which case only the respondent’s testimony is interpreted. I was told that attorneys often waive interpretation of the preliminary proceedings in understaffed immigration courts so that interpreters are well rested to interpret the respondent’s testimony, which is the longest phase of the proceeding, and the one in which interpretation accuracy is most crucial. Oftentimes, detained respondents appear via video teleconferencing (VTC) equipment. Respondents may request that experts appear telephonically to reduce the costs of their appearances, which are not covered by the court.
Many criminal courts directly hire both staff and contract interpreters to cover their interpreting needs. While the EOIR directly employs some Spanish-language staff interpreters, for the majority of its interpreting needs, the EOIR outsources to a private language service provider to hire, train and assign contract interpreters for immigration courts. One interpreter I spoke with believes that the EOIR is increasingly relying on contract interpreters to cover its interpreting needs. According to one article I found, there are currently 67 staff interpreters and 1,650 freelance interpreters working in immigration courts. (However, it should be noted that some of these freelance interpreters are for rare languages that might only be needed a few times a year.) Not surprisingly, immigration courts rely heavily on interpreters. In 2014, only 15% of individual hearings in immigration court were conducted in English.
A System Overwhelmed
Anyone who works for criminal courts would agree that the past few years have been a rough patch. In most parts of the country, both state and federal courts have suffered hiring freezes, work furloughs, attrition and layoffs. The more I read about immigration courts, however, the more I get the sense that they have been truly overwhelmed. A Google search of “immigration court backlog” will give you an idea. Immigration courts recently broke a record: currently they have a backlog of over a half a million cases. In his testimony to Congress last year, EOIR director Juan P. Osuna said the courts were facing “unprecedented pressure,” in large part due to increased enforcement along the border and the surge in unaccompanied minors arriving from violence-plagued areas in Central America. The Department of Justice initiated “rocket dockets” to quickly resolve the cases of unaccompanied minors. Meanwhile, the average wait for non-priority cases was pushed back nearly two years. Immigration judges’ caseloads increased from an average of 641 cases per judge in 1998 to 1,545 cases in 2014. According to one study, immigration judges have a higher burnout rate than hospital workers and prison wardens. In order to alleviate the backlog, Congress approved additional funding last year to enable the EOIR to hire more immigration judges.
A New Contract
In 2015, Lionbridge’s long stint as provider of contract interpreters for immigration courts ended; the Department of Justice changed gears and awarded the contract to SOS International (SOSi). Lionbridge had been awarded $14 million annually to provide these services, and in the second quarter of last year the company failed to make a profit. SOSi was awarded $12 million to take over the contract in November 2015. SOSi offered interpreters less generous rates, lower travel reimbursements and more limited cancellation policies than those offered by Lionbridge, and according to one source, up to a third of immigration court interpreters refused to sign the contract.
In September of 2015, NAJIT formed an Ad Hoc Immigration Committee. Shortly afterwards, during the meeting of the Translation and Interpreting Summit at the American Translators Association (ATA) Conference in November, the ATA was asked to draft a letter to the EOIR on behalf of several organizations, including NAJIT. The letter expressed the following:
To our understanding, the payment rates and working conditions for interpreters proposed under the new contract let by EOIR pose a significant threat to the orderly operations of the nation’s immigration courts, and therefore to the civil rights of immigrants under EO 12166 appearing in these courts.
We are very concerned that vulnerable minorities will be underserved by unqualified and unprofessional interpreters as a result of the conditions in the contract let by the EOIR.
In addition, it was pointed out that the “rates offered under the new contract undercut the current market significantly,” and that with “additional overheads for recruiting, project management, and quality assurance,” the current contract pricing was “unrealistic.” NAJIT sent its own letter to the EOIR, indicating that “the proposed contract does not require previous work experience for spoken language interpreters and translators nor does it require that spoken language interpreters and translators hold certification.” NAJIT warned of the possibility that qualified interpreters and translators would refuse to provide their services, and the “result will be a considerable and dangerous drop-off in the quality of languages services provided to a very vulnerable population.”
These efforts have appeared to pay off. In certain areas of the country, I was told by several colleagues that interpreters were able to reach a more favorable agreement with SOSi, but this agreement was short-lived. Once it was about to expire towards the end of the preceding fiscal year, SOSi encouraged many contract interpreters to offer more competitive rates. Interpreters I spoke with told me that in certain parts of the country where a large number of contractors refused to lower their rates, SOSi has been hiring out-of-towners to cover the immigration courts’ interpreting needs.
Where Do We Go From Here?
Carmen Febres-Cordero, chair of NAJIT’s Ad Hoc Immigration Committee, told me that many experienced contract interpreters are seeking better opportunities with criminal and civil courts and in medical settings. Those who work exclusively for immigration courts, however, are feeling the squeeze, and for many of these interpreters, negotiations with SOSi appear to have reached a standstill. Febres-Cordero said that the committee is in the process of “gathering information so we can contact the corresponding authorities with facts, in a clear and concise manner.” She is hopeful that the Department of Justice is listening and will analyze the situation to promote any necessary changes.
I hope Febres-Cordero is right. A workable solution agreeable to all parties would allow our immigration courts to avoid what occurred in the courts in the United Kingdom, where thousands of cases were postponed due to a lack of interpreters, many court interpreters moved on to better-paid work and the language service provider eventually declined to bid for a renewal of its contract. With a record backlog of limited-English-proficient respondents, our immigration courts need more than ever a reliable source of experienced interpreters in an enormous variety of languages to function properly and efficiently. For the sake of everyone involved, let’s hope NAJIT’s efforts pay off once again.
[Dan DeCoursey is the editor-in-chief of Proteus.]