Quality interpreting will be tougher and less profitable.

September 3, 2019 § 4 Comments

Dear colleagues:

Government officials are entrusted with taxpayer’s money and they should be good stewards when allocating said resources. Good governments are charged with guaranteeing equality and quality services to those who elected them, and they must wisely decide where to invest and where to cut expenses. Sometimes well-intentioned authorities get it wrong, and unless they rectify, consequences can be ugly.

There are two instances where the United States federal government has adopted policies, and is considering even more steps, that will negatively affect our profession: One of such actions, already in place, impacts those interpreters practicing before the immigration courts; the other one will make accurate interpreting extremely difficult in the healthcare sector.

Even though we have read and heard many voices protesting these government decisions, and that is very good, they all argue the negative effects from the perspective of the beneficiary of the professional service: the millions of individuals living in the United States who do not speak English, but nobody has argued why these changes must be opposed from the interpreters’ perspective. My following comments result from conversations I had with fellow interpreters, immigration attorneys, and my own experience and observations as an interpreter, and from my days when I saw the immigration court system up close as part of an immigration law firm. This should complement what others have said.

Interpreting immigration proceedings.

The Executive Office for Immigration Review (EOIR) which runs the immigration courts, a branch of the Executive Branch of the federal government, not part of an independent judiciary, and run by officials appointed by the current administration, to lower its operational costs, replaced in-person interpreting services during an individual’s first court appearance with “pre-recorded, subtitled orientation videos, or telephone calls…”

These initial appearance hearings, called “Master Calendar Hearings” are the procedural moment when a person sees the immigration judge for the first time, after receiving a “Notice to Appear” (NTA) in court because of a removal proceeding the U.S. government, through the Department of Homeland Security (DHS) has instituted against him or her. The notice informs the individual of the charges, gives the time and place of the hearing, and it informs immigrants of their right to have an attorney to represent them at no cost to the government (remember, immigration court is Civil Law. Only criminal cases are covered by the constitutional right to have a defense attorney free of charge).

Master Calendar Hearings are very important. During this appearance, a person, technically called the “respondent,” who apparently is not an American citizen, learns of the charges against him, the facts of his case, is informed of his legal rights, and is given the chance to retain an attorney at his own expense or appear without legal representation (pro-se) during the proceedings. The person could request bond or ask for a bond redetermination hearing before the immigration court.

Respondents are told of their rights as a group. In some courts between 80 to 100 people at a time. During the hearing, the judge briefly addresses each individually, asking them their name, date of birth, address, and whether or not they plan to retain an attorney. Judges also ask them if they have questions, if they understand English, and when needed, an interpreter is appointed at no charge. This is very important because respondents need to know that failure to appear to any subsequent hearings will be held without them been there (in absentia) and the result will be a final order of removal and a 10-year bar to any future immigration benefits in the United States. Occasionally, people ask for voluntary departure or concede removability at this hearing.

Before the pre-recorded policy was implemented, judges listened to respondents’ answers to their questions, and conveyed information through an interpreter in close to 90 percent of the cases, this is immigration court where English speakers are the exception. If respondent’s language rarely was spoken in the area, and there were no staff or contract interpreters readily available, judges would use a telephone interpreting service, and for those cases where interpreters were not found, immigration courts would continue the hearing to a future date when an interpreter would be available.

I cannot imagine, and it shows a lack of knowledge on the way immigration courts work, how could a judge ask questions, provide information, and communicate with a non-English speaker. I can even see how a judge can even know that the individual understood the recordings. Some will not understand the spoken language in the video; others cannot read the subtitles in their own language because they may be functionally illiterate. Some may not pay attention to the video. I know how important is to know what to do if an emergency occurs when on an airplane, but I rarely pay attention to the video airlines show teaching me how to buckle my seatbelt. The most logical outcome will be: The judge continues the Master Calendar Hearing until there is an interpreter for the respondent. The consequence of this outcome: a second Master Calendar Hearing, easily avoidable when interpreters are available the first time. Taxpayers’ savings: gone.

Unfortunately, many respondents will be embarrassed to admit they did not understand the video, others may choose a hearing they do not understand instead of sitting in detention for a few weeks waiting a rescheduled hearing with an interpreter; others may concede removability when they had relief because nobody told them so.

Under this new policy, interpreters will encounter the respondent at the hearing on the merits, called “individual hearing”, for the first time. From the interpreter’s perspective, these hearings are similar to a traditional trial, there are legal arguments by the parties, direct and cross-examination of witnesses, references to caselaw, and quotations of official documents on the situation of countries, regions, and other relevant information. When an interpreter is involved from the Master Calendar Hearing, she has time to prepare for the assignment, research country conditions reports, get acquainted with the relief the client is seeking, and develop a glossary of terms relevant to the case and to the respondent’s speech.

Accurate interpreting during individual hearings is difficult because of the wide variety of issues that can be discussed. This is complicated even more due to the cultural differences and level of education of many respondents.  Interpreting during an individual hearing when a pro-se respondent went through a Master Calendar Hearing with a pre-recorded video will be a very difficult task. It is almost impossible to interpret without context, and the Executive Office for Immigration Review expects accurate quality interpreting services under these deplorable circumstances.

In an environment where the federal government wants to slash down all language resources needed in immigration proceedings, therefore compromising the quality of the interpreting services in immigration court, it is very telling that SOSi, the sole agency providing interpreting services in immigration courts nationwide, under a public contract reviewable every year until 2021, has remain silent on this issue. They already showed how willing they were to win that contract a few years ago when their lowest bid ousted long-time provider LionBridge. We all remember how the first thing SOSi did was to reduce interpreter fees from $60 to $35 dollars per hour (they later lost to the interpreters before the National Labor Relations Board NLRB). We must not forget SOSi is a well-established, powerful contractor with the U.S. Department of Defense (DOD) with a vested interest and a priority to keep its client: The United States federal government happy.

Dear colleagues, all immigration interpreters: staff or contractors, will face a terrible environment where they must do more, much more, with a high probability of a less than perfect rendition, because of the erroneous, and in the long-run more expensive policy enacted by the EOIR. Independent contractors will also have a less profitable immigration practice because all Master Calendar Hearings will be gone. How do you like this: tougher work, less income, providing interpreting services for an agency focused on keeping a federal contract, that cares nothing about interpreters or quality service, all to comply with an absurd government policy that brings nothing favorable to the interpreter to the table?

Healthcare interpreting.

In compliance with Title VI of the Civil Rights Act, which prohibits discrimination based on national origin, including language proficiency, and President Bill Clinton’s Executive Order 13166 (2000) during President Barack Obama’s administration the U.S. Congress passed the Patient Protection and Affordable Care Act, popularly known as “Obamacare” in 2010.  Section 1557 of the Act prohibits discrimination in federally-funded or administered healthcare programs on basis of national origin, including language proficiency.

Once the law came to full force, healthcare providers had to provide “qualified” interpreters to those who are not English proficient. Since then, we have come a long way; there are now healthcare interpreter certification programs in several languages, criteria to resort to other qualified individuals in those languages lacking certification programs, and explicitly banning interpreting services by children and relatives of the patient. Interpreting services for languages of lesser diffusion, and for remote areas of the country where in-person certified interpreters were not physically available, a video remote interpreting (VRI) option was developed. I want to make it clear: I dislike VRI for many reasons, but I understand that it was better than the alternative: having a child doing the rendition or no interpreter.

On May of this year, the Office of Civil Rights (OCR) of the United States Health and Human Services Department (HHS) issued a proposed change to Section 1557 which affects many segments of the population, including the elimination of written translated notices informing non-English speakers of their right to have an interpreter, and the option to get interpreting services by video in regions where no interpreters were physically available. Citing savings of $3.2 billion dollars over a 5-year period, the 204-page amendment proposes telephone interpreting instead of the more expensive video remote interpreting.

The patient-physician relationship is very private, often it happens during difficult times, and it could include communicating the worse possible news. Medicine is an imperfect science and it depends on accurate diagnosis, precise instruction, and strict compliance by the patient. Unless a patient is English proficient, none are possible without an interpreter.

VRI is a horrible solution, interpreters who provide this service are at the mercy of the weather, the speed of the internet service, the reliability of the electric company, and the quality of sound, among other things that have nothing to do with interpreting. Telephonic interpreting, maybe good for a 9-11 emergency call, or to make an appointment to the hairdresser, when used for healthcare interpreting is borderline criminal.

Those who think interpreting is all about hearing what a person says and translating it into a different language show their ignorance. Interpreting is much more than that. Communication includes facial expressions, tone of voice, body language, and many other factors that need to be picked by the interpreter to do a good job. Interpreting for a medical examination, laboratory work, therapy session, need this visual component more than many other human interactions.

How can an interpreter be satisfied and confident of a telephonic interpretation where the doctor asks the patient: “Is the pain sharper here… or here?”  How can a physician diagnose correctly if the patient reveals his injury by pointing to a body part and nothing else?

Many of the non-English proficient patients come from cultures when it is difficult to take about the human body, even to mention human parts by their name. They solve this uncomfortable situation by pointing to their intimate body parts instead. Hated VRI at least allows the distance interpreter to see what the patient is doing and render an accurate interpretation. Same is true for those patients, many farmers and construction workers from Spanish-speaking countries, wrongly name a body part, or refer to their own body by the name generally applied to animal parts. Hearing “my foot hurts” when they hold their thigh, or “my gizzard is swollen” can be accurately interpreted when the interpreter sees on the screen how the patient holds his thigh or points at his stomach. With telephonic interpreting this would take a lot of time and many questions to the patient. Sometimes it is impossible.

Medical insurance paperwork without a translated notice informing non-English speakers they can request an interpreter for their medical appointment, and long, often uncomfortable telephonically interpreted doctor visits will cause many discouraged patients, who are not proficient in English, staying home, skipping medical appointments, and waiting until it is too late, and more expensive, to provide medical treatments. To say that healthcare services, arguably the most profitable activity in the United States, needs to cut expenses by amending Section 1557 is difficult to buy. This is the business that charges you $75 for the plastic pitcher of water you used during your hospital stay.

To the interpreter, it will mean a more difficult task, a professional practice that goes beyond interpreting and into the world of having to divine what a patient said. More difficult work, same pay, and a diminished rentability. When patients stop going to the doctor because of telephonic interpreting, when people stay away from hospitals because nobody ever told them they could have an interpreter during the medical examination, the need for interpreters will plummet. If implemented, on top of the thousands of deaths it will cause, HHS decision to eliminate right to an interpreter translated written notices, and to replace VRI with a telephone line will be remembered as the decision that killed healthcare interpreting as a profitable practice.

If you are a practicing immigration court or healthcare interpreter, and you want to continue in your filed, working in a fulfilling profession that makes you a nice profit, join the activists working on behalf of immigrants, patients, immigration attorneys associations, the immigration judges union, and healthcare rights activists, and share with them your perspective, make them understand that the quality of your service will suffer because of reasons with nothing to do with the way you practice your craft; explain to them that less profitability will be the easiest way to show the door to the best interpreters practicing immigration and healthcare, leaving only (with a few exceptions) those of a lesser quality and professionalism. Share stories like the ones I have included here. I now ask you to tell us what are you doing as a contingency strategy if profitability leaves immigration court and healthcare interpreting.

U.S. Immigration Court interpreters’ other enemy.

October 18, 2016 § 4 Comments

Dear Colleagues:

About two months ago the California immigration court interpreters started a movement to force the hand of SOSi and the EOIR with the goal of achieving better work conditions, a professional pay for the services rendered, and to keep the authorities from hiring new interpreters and interpretation students for a lower fee.  This entry will not deal with the merits or the outcome of such movement. We will talk about the elephant in the room: the big obstacle to the professionalization of the interpreting services in American immigration courts that can be changed by the interpreters themselves.

I know that this blog entry will make some uncomfortable, and I do not like to do that. Unfortunately, my life-long effort to fight for the professionalization of interpreting does not allow me to keep silent. To me, that would be equivalent to betraying my own professional standards. I write this piece with respect and with no desire to offend, knowing that by the time some of you finish reading this article, you will feel offended. I only ask you to reflect on what bothered you, and honestly acknowledge, at least to yourself, that you are not really up to save the profession (as a true profession, not as a laborer’s occupation) in the immigration court arena.

For several years now, there has been a tendency to credentialize interpreters who provide services to the public, who perform a fiduciary function.  Because of the wide variety of languages regularly spoken in the United States, and due to the millions of people who do not speak English at all, or at least good enough to go through a legal or medical process, most efforts have been applied to the certification of Spanish interpreters, by far the most popular foreign language nationwide, and finding other solutions for the other languages.

Court interpreters had an early start and developed the federal Spanish court interpreter certification exam. Many States followed and the States’ Consortium for State Court Interpreter Certification was born, later taking us to the current Language Access Advisory Committee (LAAC) and Council of Language Access Coordinators (CLAC).

Healthcare interpreters followed suit and developed two different interpreter certification programs (the Certification Commission for Healthcare Interpreters: CCHI, and the National Board of Certification for Medical Interpreters’ CMI program) both of them widely spread and recognized throughout the United States. Granted, the term “medical interpreter” to describe the functions of these professionals is less accurate that “healthcare interpreter”, and compared to the court interpreter certification federal and state-level exams, both healthcare certifications are way behind in content and degree of difficulty; but unlike court interpreter certification programs, healthcare interpreters have achieved something extremely valuable that court interpreters can only dream of: an examination administered by an independent entity, just like lawyers and physicians, instead of the uncomfortable government-run court interpreter programs that always raise the issue of the real conflict of interests when the entity certifying interpreters is the same one who hires them.

At any rate, healthcare interpreters in the United States now have a way to prove that they are minimally qualified to do their job, that they adhere to a code of ethics, and that they comply with continuing education requirements that will keep them current in language, interpreting, terminology, and medical issues. In other words, healthcare interpreters sitting at the table with court interpreters can now bring up their credential and feel at the same professional level than their legal colleagues, instead of having to give a speech about how certifications do not mean a thing, that it is working in the trenches that makes you a good interpreter, and that your field is so unique that no existing certification exam could test what is needed to work in that field.

Well, dear friends and colleagues, this takes me straight to a very real, and somewhat uncomfortable problem, faced everyday by immigration court interpreters in the United Stets: They have no certification program requirement to work in court, and for that reason, there is no way to prove a certain minimum level, thus allowing bad interpreters to work in the immigration court system for years.

Court interpreting is a highly skilled occupation that requires of a professional provider. By its nature, it is also a fiduciary function where a judge, attorneys, respondents and witnesses must trust the knowledge and skill of the interpreter who will speak throughout the proceedings while at least half of those present will not understand a word of what was said. It is an awesome responsibility that cannot be left to the paraprofessional or the untested.

Presently, all Article Three courts in the United States, at all levels (federal and state) have a Spanish language court interpreter certification program that includes minimum requirements to take the exam, passing a comprehensive and difficult test (at least at the federal level), observing a code of ethics, and (with the exception of the federal program) complying with continuing education in the legal, interpreting, and language fields to be able to keep the certification. These courts are part of the Judiciary Branch of government.

Immigration Courts are not a part of the Judiciary. They are in the Executive Branch of government and are referred to as Article One courts because of their legal basis in the U.S. Constitution. The thing is, my colleagues, these courts deal with societal, family, and personal values and interests as important as those heard by Article Three judges. They are courts of law that abide by a set of substantive and adjective laws.  For practical reasons, they operate just like any judicial court: there is a judge, there are parties (one of them will be the government just like in criminal law), there are witnesses, and there are attorneys.  Although the controversies are different, immigration proceedings also include a first appearance, motions hearings, a court trial, and a verdict. There is a burden of proof, rules of evidence and procedure, and the possibility of an appeal to a higher court (Board of Immigration Appeals). The fact that the terminology calls these hearings “master calendar”, “bond redetermination”, “credible fear”, or “individual hearing” does not make much difference.   The cases are as different from those interpreted in an Article Three courtroom, as a criminal case differs from a civil or a family law proceeding.

The skills required to interpret are the same as in any other type of court proceeding: There is a need for simultaneous and consecutive interpreting, as well as sight translation. Interpreters use equipment just the same (in fact, in many cases even the same brand), and the expected ethical and professional conduct of the interpreter is the same.

It is a fact that immigration court interpreters are disrespected by their client: the EOIR on a daily basis. There is no denial that they make little money, work long hours, and they do it solo, regardless of the complexity or duration of a hearing. It is also well-known that they are treated in humiliating fashion by being forced to jump through many administrative hoops that no other court interpreter will ever face, in part because they are subcontracted by a multinational agency that tries to keep control over the interpreters without physically being at the courthouse, but also in part because interpreters are not considered professionals, they are not acknowledged as officers of the court.

I firmly believe that the only way to earn the credibility they need so much, Spanish language (for now, and ideally all widely used language combinations later) immigration court interpreters in the United States must demand a court interpreter certification requirement to be able to work.  They need it for their credibility among their peers and with the public opinion.  Once they have a credential, together with a code of ethics and continuing education requirements, they will be in a much better position to negotiate with anybody.

Because immigration court is a federal matter, and the services provided by the interpreter are the same as the ones in all federal courts, I think that the certification they need to have is the already existing FCICE. It would be very simple, all they need to do is convince the EOIR of this need. The exam already exists, all these interpreters would need to do is register and take the test. Then, if both, EOIR and the immigration interpreter community think it is appropriate, there could be a short immigration terminology exam (although I don’t think it necessary just like current certified court interpreters do not need to test every time they interpret a different kind of hearing. Part of an interpreter’s duty is to get ready for an assignment and that professional obligation should be enough).  This would be the best way to demonstrate that their simultaneous, consecutive, and sight skills are at a minimum level to deserve that trust we discussed above. In fact, by getting EOIR to agree, immigration interpreters would have until the Summer of 2018 to take and pass the written portion of the federal exam, and then until the Summer of 2019 to take and pass the oral test. In the meantime, it could be agreed that those currently working would continue to do so until the Summer of 2018.

This solution would immediate put immigration court interpreters at the same negotiating level as their Article Three federal counterparts; In fact, it would benefit everyone: Currently federally certified Spanish court interpreters would consider working in immigration court as the pay would be the same (or almost), and newly federally certified immigration court interpreters would have the opportunity to broaden their professional horizons and work in federal courts.

Of course, this means that two things must happen: First, the certification exam cannot be a “Mickey Mouse test” like the ones offered to immigration court interpreters by multinational agency contractors; they have no scientific value and a very poor reputation. And second, immigration court interpreters need to understand that those who do not pass the exam must go, regardless of the time they have been a fixture at the immigration courthouse. Any other “solution” would defeat the purpose and discredit the credential. This, my friends, is the “other” enemy of the U.S. immigration interpreter: the bad interpreter who has never been able to pass a court certification exam, knows that they never will, and spend all their time and energy trying to convince others that certifications are worthless, exams are rigged, and that the only way to learn the profession in in the courtroom.  These people have to go away. They are like a cancer that is slowing down the progress of the rest of their colleagues.

To argue “unity” to protect and keep these individuals is misleading. Professional unity can only happen among professionals, and the individuals I just described above may be paraprofessionals but they are definitely not professional material. Imagine for one moment going to the hospital for emergency surgery and being told that the person who will operate on you has never taken or passed the Board, but has a lot of experience. Would you let this non-doctor cut you open?

I understand it is very hard to set aside our emotions and empathy for these individuals, but it is time to think of yourselves, your families and your peers. Unless you want to continue to struggle as an immigration court interpreter, you have to get certified. A decision to dodge the certification issue, or to settle for a lower standard of certification, because someone who cannot pass the test convinced you to support other options, will be a vote for the status quo, sacrificing the good ones to protect those who do not deserve to be there.

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