This month’s feature is contributed by LCJ Hub member Hillary Mellinger, an Assistant Professorof Criminal Justice and Criminology at Washington State University. Hillary’s research focuses on language access within the U.S. immigration and criminal justice systems, the challenges that asylum applicants and attorneys encounter at the U.S. Asylum Office, 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 nonprofit organization that supports immigrant women and girls fleeing gender-based violence through a combination of legal representation, social services and public policy. 

In a recently published, open-access article, I describe the challenges that asylum applicants and attorneys encounter regarding interpretation at the Asylum Office.  Whereas U.S. immigration courts are required to provide interpreters pursuant to the Court Interpreters Act of 1978 (28 U.S.C. § 1827), the Asylum Office is beholden to a different legal statute, one that requires asylum applicants to procure their own interpreters at no expense to the government (8 C.R.F. § 208.9(g), barring exceptions for sign language, unaccompanied children, or other exceptional circumstances (see, e.g., the Affirmative Asylum Procedures Manual of 2016 and the 2019 Language Access Plan of the U.S. Department of Homeland Security).  In 2000, President Bill Clinton signed Executive Order 13166, which required federal agencies to provide language services to individuals with limited English proficiency.

In my article, I describe how the Asylum Office balances the competing mandates of federal regulations (which require asylum applicants to provide their own interpreters, with only a few exceptions) with EO 13166 (which requires the Asylum Office to provide language services).  I focus on three research questions: When do asylum officers exercise their discretion to provide interpreters? Is this discretion exercised in a uniform way? Does the presence of an interpreter affect the dynamics of the asylum interview, and if so, how?

To answer these questions, I analyzed empirical, qualitative data that I collected from 28 interviews with U.S. immigration attorneys who represented asylum applicants before two of the eight regional U.S. Asylum Offices: the Arlington Asylum Office and the Houston Asylum Office.  I selected these offices because they were associated with relatively high asylum grants rates and comparatively low asylum grant rates, respectively.  As I explain in my article, the U.S. Asylum Office does not collect data on its provision of language services, thereby rendering it impossible to conduct a mixed-methods or solely quantitative study.

My research had four findings. First, interviewees stated that unaccompanied children were more likely than adults to be provided with interpreters. Second, interviewees reported that adults were only provided with interpreters in rare, “extraordinary circumstances.” Third, interviewees related that bilingual asylum officers would sometimes offer to conduct asylum interviews in a language other than English, although asylum applicants were not provided with advance notice of this possibility.  Fourth, 17 interviewees expressed concern that interpreters negatively affected the dynamics of asylum interviews by exacerbating language barriers.

I situate these findings within sociolegal literature on the “law-on-the-books” versus the “law-in-action”, which refers to the disparate ways in which the written, black-and-white text of the law is implemented in everyday life.  I also place my findings within the broader scholarship on intersectionality, language access within the U.S. immigration system, and the possible unintended consequences of interpretation on asylum case outcomes.

Importantly, my study was conducted prior to the COVID-19 pandemic.  However, since September 23, 2020, the Asylum Office has operated under a temporary rule in which it provides telephonic interpreters for 47 languages. Asylum applicants 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. Since my study analyzes data collected prior to this temporary rule, my findings cannot speak to how the pandemic has changed the nature of language access at the Asylum Office.