By Jeyle Sanchez, J.D. Class of 2024
The mission of the U.S. Citizenship and Immigration Services (USCIS) is to “uphold[] America’s promise as a nation of welcome and possibility with fairness, integrity, and respect for all we serve.”1 But, how fair can the immigration process truly be when there is inherently a language barrier that keeps individuals from understanding the immigration process and receiving full representation in cases that change their lives?
Generally speaking, individuals appear before USCIS for determinations on immigration cases for people who are already in the United States applying for statuses like lawful permanent residency, asylum, work authorization, and citizenship.2 On the other hand, the Executive Office for Immigration Review (EOIR) is the immigration court system that reviews charges of immigration law violations and decides whether an individual may be allowed to stay in the U.S.3 According to the Department of Justice’s most recent Statistic Yearbook for Fiscal Year 2018, the most commonly spoken language by people facing deportation in Immigration Court was Spanish.4 In fiscal year 2023, the U.S. Customs Border Patrol reported over 1.2 million encounters with people from El Salvador, Guatemala, Honduras, and Mexico alone.5 With the amount of encounters increasing on a year to year basis, it is more important now than ever that there is language accessibility in all aspects of the immigration process: documents and forms, interpretation services at interviews, and more foreign-language speaking attorneys.
Given the increasing number of people needing assistance with immigration legal issues in the last few years, one might expect that language accessibility would have increased accordingly to meet the need. However, this is not the case. There are currently 1,961 Spanish speaking immigration attorneys registered with the American Immigration Lawyers Association (AILA).6 While on the surface this may seem like a large number of attorneys for immigration as a whole, the ratio of Spanish speaking attorneys to encounters at the southern border in 2023 is roughly 1,275 encounters per Spanish speaking attorney. This is further exacerbated once you filter to Virginia Spanish-speaking immigration attorneys, where the number drops dramatically to 62 Spanish speaking registered attorneys for the entire state.7 Further, these numbers fail to take into account the Central American indigenous languages where even fewer if any attorneys speak the language, leaving the burden on the applicant to find an attorney in their area that speaks the language or to find an interpreter who would be willing to interpret throughout the long immigration process.8 While the numbers in Spanish seem daunting, they are even worse in other languages, as Spanish is the most accessible of the languages spoken by immigrants.9
Another layer of complication is filling out the relevant and critical forms in English when an individual does not speak, read, or write in English. This difficulty is compounded by the differences between USCIS and EOIR. While EOIR has made certain forms available in Spanish, thus alleviating some of the language barriers, the charging documents and notices of hearings are only available in English.10 However, even though some EOIR documents are available in Spanish, everything must ultimately be submitted in English or with a certified English translation.11
Once someone can fill out and correctly file the forms, complications about interpretation continue. At USCIS, an interpreter is not provided for asylum interviews.12 On the other hand, according to the Immigration Court Practice Manual, “[i]nterpreters are provided at government expense to individuals whose command of the English language is inadequate to filly understand and participate in removal proceedings.”13 While having a provided interpreter during an EOIR proceeding is extremely helpful, it may lead to some inconsistency in interpretations. Languages have many dialects and there are differences within each language depending on the region from which an individual is. This may lead to a difference in critical terminology—such as slang or threats–that may impact an applicant’s ability to win their case.
Having access to full representation in your native language is imperative to a full and fair immigration process – from having an attorney that speaks your language to being able to access the immigration application forms in your language. The immigration application process is filled with hurdles, but the language barrier hurdle is seemingly a hurdle that could be addressed with the help of either immigration attorneys that speak the language or having the application forms needed through USCIS and EOIR available in more languages and be acceptable to submit in those foreign languages.
[1] Mission and Core Values, U.S. Citizenship and Immigration Services, https://www.uscis.gov/about-us/mission-and-core-values.
[2] Chapter 1 – Purpose and Background, U.S. Citizenship and Immigration Services, https://www.uscis.gov/policy-manual/volume-1-part-a-chapter-1#:~:text=USCIS%20is%20the%20government%20agency,200%20offices%20around%20the%20world..
[3] Executive Office for Immigration Review (EOIR), USA, https://www.usa.gov/agencies/executive-office-for-immigration-review#:~:text=The%20Executive%20Office%20for%20Immigration,in%20the%20country%20or%20not.
[4] Statistic Yearbook Fiscal Year 2018, U.S. Department of Justice Executive Office for Immigration Review, 18, https://www.justice.gov/eoir/file/1198896/dl?inline.
[5] Southwest Land Border Encounters, U.S. Customs and Border Patrol, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters. Data on Border Patrol “encounters” is often misleading. “Encounters” is not the number of individuals encountered by Border Patrol, but the number of times that Border Patrol encounters anyone. For example, an individual may be encountered by Border Patrol three times. This would count in the data as three encounters, even though it was only one individual encountered all three times. While the data is useful, it is important to recognize that 1.2 million encounters is not equal to 1.2 million people.
[6] Find an Immigration Lawyer, American Immigration Lawyers Association, https://www.ailalawyer.com/english/SearchResult.aspx?practice=&prac=&language=89&lang=Spanish&city=&state=&st=&country=&cy=&zip=&miles=100&last=.
[7] Find an Immigration Lawyer, American Immigration Lawyers Association, https://www.ailalawyer.com/english/SearchResult.aspx?practice=&prac=&language=89&lang=Spanish&city=&state=46&st=Virginia&country=&cy=&zip=&miles=100&last=.
[8] For an example on the importance of Central American indigenous languages, see Rachel Nolan, A Translation Crisis at the Border, New Yorker, https://www.newyorker.com/magazine/2020/01/06/a-translation-crisis-at-the-border.
[9] Top Languages of US Immigration Court, Legal Language Service, https://www.legallanguage.com/legal-articles/top-languages-of-the-us-immigration-court/#. See also, Languages spoken among U.S. immigrants, 2018, Pew Rsch. Ctr., https://www.pewresearch.org/hispanic/chart/languages-spoken-among-u-s-immigrants-2018/.
[10] List of Downloadable EOIR Forms, Executive Office for Immigration Review, https://www.justice.gov/eoir/list-downloadable-eoir-forms.
[11] File EOIR Forms, Executive Office for Immigration Review, https://respondentaccess.eoir.justice.gov/en/forms/#:~:text=All%20responses%20to%20EOIR%20forms%20must%20be%20submitted%20in%20English.
[12] From 2020 to September 2023, interpreters were provided by USCIS for affirmative asylum interviews as a pandemic mitigation measure. However, since September 11, 2023, the rule has reverted to its pre-pandemic policy and now asylum applicants must bring their own interpreter. Affirmative Asylum Applicants Must Provide Interpreters Starting Sept. 13, U.S. Citizenship and Immigration Services (Sept. 11, 2023), https://www.uscis.gov/newsroom/alerts/affirmative-asylum-applicants-must-provide-interpreters-starting-sept-13.
[13] 4.11 – Interpreters, Executive Office for Immigration Review, https://www.justice.gov/eoir/reference-materials/ic/chapter-4/11#:~:text=Interpreters%20are%20provided%20at%20government,of%20all%20respondents%20and%20witnesses.
William & Mary Law School Immigration Clinic Blog 