Do some state courts treat foreigners as second-class litigants?
February 22, 2017 § 1 Comment
For years, and especially during the past few months, there has been a lot of talk about the communities of foreign-born individuals who are physically present in the United States. All aspects of their lives have been debated and scrutinized: from their immigration status to their religion, from their ethnic origin, to the language they speak at home. Many articles have been written, and many discussions have been held about their right to stay in the country, the impact they have on the economy, and the actions of the federal government regarding their admission to the United States and the exclusion proceedings instituted against them. The policy the federal government has adopted towards foreign-born individuals in the United States has been rightfully questioned, criticized and denounced.
As interpreters, we deal with foreign-born people on a daily basis. We see what happens at the immigration courts (EOIR), the United States Immigration and Citizen Services’ (USCIS) interviews, Equal Employment Opportunity Commission (EEOC) hearings, and the federal judicial system. The news are not always good, but at least they are on the spotlight. Scandals such as SOSi’s abhorrent practices towards immigration court interpreters, the White House’s six-country travel ban, and the talk about the wall between Mexico and the U.S. are forcing the issue, and eventually things will have to change.
Unfortunately, foreign-born individuals physically present in the United States as immigrants, non-immigrants, and undocumented, face another terrible injustice that is turning into a reality, and eventually it could become an everyday threat: I am referring to a practice followed by state courts in many places that is gaining popularity and acceptance by the establishment, sometimes due to ignorance or indifference, and many times because of incompetence and greed.
This modern form of potential discrimination by state-level Administrative Offices of the Courts against people whose first language is not English has to do with access to justice: It is evident to me that state governments could be systematically discriminating against people who lack fluency, or do not speak English, by denying them the services of certified court interpreters in languages with a certification program, just because state government officials want to save money.
It is undeniable that those states where the language access program is not managed by a professional interpreter are at a tremendous disadvantage because there is a person with neither knowledge nor interpreting background at the helm; but the problem is even worse. Some states where the head of the program is an interpreter, and many state-level courthouses with full and part-time staff interpreters are just passively allowing for this to happen without moving a finger for fear to lose their jobs.
The potentially discriminatory practice goes like this:
During the Obama administration, state-level courts were made aware of the fact that the federal government was going finally to enforce, after almost forty years, Title VI of the Civil Rights Act which allows the withholding of federal funds dedicated to the states when the latter do not provide universal access to all the services offered, even if some accommodations need to be made in order to avoid discrimination based on many categories, among them not being able to speak, or fluently speak English. This included all state-level courts.
Before this development many states were running court interpreter certification programs. California had its own program, and in July 1995 Minnesota, New Jersey, Oregon and Washington State founded a consortium. Other states joined the consortium, and many states began to offer the services of certified court interpreters for criminal cases. A handful of states even provided certified court interpreters for certain litigants in civil cases. Unfortunately, lack of vision by the Administrative Offices of State Courts and by State Legislatures made the profession’s growth difficult because they refused to pay certified court interpreters a professional fee commensurate to the difficult, and sometimes dangerous, services provided.
This reality, coupled with judges’ ignorance that permitted non-certified court interpreters to appear in court, even though the needed language pair has a certification program, and certified interpreters were available, created an exodus of many of the best interpreters who migrated to more profitable interpreting fields, and made the profession less than attractive to new generations.
When the notice of enforcement of Title VI of the Civil Rights Act arrived, the states were faced with the possibility of losing huge amounts of money from the federal government. They knew that to save “their” money, they would need to provide access to justice to all individuals who did not speak English.
They finally realized what they had done (although they did not recognized it, or refused to acknowledge their fault). There were not enough interpreters to fulfill the federal mandate, and they did not want to lose their subsidies!
The best thoughtful solution to this problem would have been to boost the popularity of court interpreting as a profession by actively promoting the career and by making it more appealing. Responsible States would have developed a plan to encourage teaching of court interpreting at universities, colleges and community colleges. They needed to launch a campaign among high school students informing them of the potential opportunities as certified court interpreters. They needed to increase the times they offered their certification examinations, and they needed to pay an attractive professional fee, with cost of living adjustments, to all certified court interpreters. They needed to do this by lobbying State Legislatures for more funds, and if unsuccessful, by cutting or reducing other non-essential services and devoting those resources to the certified interpreter program. It was a matter of priorities and doing the right thing.
This did not happen. Instead of doing these things, state officials got together to see how they could keep the federal money coming their way. This is how the states came up with the Language Access Services Section (LASS), the Language Access Advisory Committee (LAAC) and the Council of Language Access Coordinators (CLAC). A system designed to protect their federal funds while giving the appearance of granting language access to all foreign-language speakers in State-court systems.
As a result of these developments, states opted for the easiest and cheapest solution, which basically follows three major principles: (1) Use video remote interpreting (VRI) as much as possible to reduce costs of an in-person interpreting service, and pay less to the interpreter as they would get paid by the minute, or in more “generous” states by the hour at a much reduced fee; (2) Use all those who demonstrated that they are not fit to become certified court interpreters, by creating a “new classification” of “credentialed interpreters” (Nevada) or “Justice System interpreters” (New Mexico) so that individuals who failed the court interpreter certification exam can work interpreting court proceedings; and (3) Use certified court interpreters as little as possible, while giving the appearance that these questionable new classifications had to be retained because no certified court interpreter was “reasonably available” to do the job.
This is happening in many states, and I ask you to please include in the comment section a report of what is going on in your own states. Because what is currently taking place in Nevada and New Mexico has come to my attention, I will share the main points with all of you.
The Nevada Administrative Office of the Courts is considering implementing this new category of paraprofessionals by rewarding those who fail the court interpreter certification test with access to work in court as interpreters. These decisions are being considered by the Nevada Court Interpreter Advisory Committee which is integrated by judges and administrators, and no independent certified court interpreter is part of the committee. Interpreters do not get notice of the Committee meetings, and so far, the person in charge of the interpreter program at the Nevada Administrative Office of the Courts apparently has shown no desire to inform interpreters ahead of time so they can at least attend the meetings.
Nevada courts use the services of way cheaper paraprofessional non-certified court interpreters even when certified ones are available, and currently, this state’s certified court interpreters are among the lowest paid interpreters in the country, despite the fact that judges and administrators make six figure salaries in Nevada. It is clear that there is a problem with the state judiciary’s priorities.
The New Mexico Administrative Office of the Courts is already rewarding those who fail the court interpreter exam by using the services of these much cheaper paraprofessional “justice System interpreters” (JSI) even when certified court interpreters are available. Under the excuse of unsuccessfully attempting to find a certified court interpreter, they are retaining the services of these individuals even when certified court interpreters were ready and willing to do the job. The State is also resorting to the way cheaper video remote interpreting (VRI) even when interpreters appear from other states and are not familiar with New Mexico law and procedure. It is very concerning that they are using this system and these interpreters for hearings of such importance as sentencing hearings.
The New Mexico Language Access Advisory Committee does include a disproportionate minority of independent interpreters; however, it is said that its meetings are sometimes hostile towards independent interpreters who raise objections to the dismantling of the certified court interpreter program, and that some interpreters have been refused work in the state court system even after all possible grounds for denial have been dissipated and proved unfounded.
Despite the fact that judges and the Director of the Administrative Office of the Courts make six figure salaries, New Mexico certified court interpreters have not seen a fee adjustment in a number of years, their expense reimbursements have been significantly reduced, and instead of having a professional relationship with a judiciary that makes an effort to prioritize access to justice and find funds to do it, they have been warned by the AOC that there is no money. They face an administration with an attitude that could be interpreted as contempt towards foreign language litigants, moved by a philosophy at the top that apparently believes that the AOC only has a legal obligation to provide “an interpreter”, not a certified court interpreter. To me, this is the pull the rabbit out of the hat principle where you create an “interpreter” category in order to get federal money. It is not about having a warm body next to the non-English litigant. It is about quality. The federal law requirement had in mind a professional service.
I do not believe that this is the time for interpreters to take it on the chin. There is a lot of turmoil in the country at this time, but the rights of foreigners are center-stage. Let’s seize the moment to protect the profession and make sure that states do not get away with this plan which could potentially discriminate against speakers of a foreign language by treating them as second-class litigants.
I suggest you educate your communities, talk to your state legislators, and speak to your local media. All of it is necessary, but I also propose you do two additional things that could make the difference:
First, I wonder how many litigants are aware of the fact that the individual provided by the court to “interpret” for them is not a certified court interpreter; that in fact, they will be dealing with somebody who has already demonstrated that he or she is not fit to be a certified court interpreter because he or she failed the exam. I would approach people in the courthouse and make them aware of this circumstance; I would even print a flyer explaining to them that this “interpreter” categories are as good as a three dollar bill, regardless of what the government tells them. Ask them how they would feel if instead of a licensed physician, their outpatient surgery was going to be done by somebody who failed to become a licensed doctor. Ask the foreign language speaker’s attorney what she or he would do if the court were to appoint a person who failed the state bar as the litigant in a divorce proceeding because there were no children to the marriage. You will see how fast they demand a real certified court interpreter for their case.
Second, organize yourselves either through your local professional interpreter association, or independently, and volunteer to attend court hearings where this paraprofessionals are “interpreting” (after all court is open to the public) and keep score. Write down every time one of these individuals is late for court, acts unethically, does something unprofessional, and makes an interpreting mistake. Write down how they enter their appearance in court, see if they claim to be certified court interpreters. After a few months, or during election time, send this information to the State Bar, to the publishers of voters’ guides, to the political parties, to non-for-profit organizations with tremendous weight in court elections such as Mothers Against Drunk Drivers (MADD) and to the local media. This way people will know who are the judges who care about access to justice, and who are the judges who only care about getting federal money.
I do not believe that these actions will solve all problems, but they will help to expose these programs for what they really are. If you do not do it, nobody will; not because they do not care, but because they do not know. I now invite you to share with the rest of us the current situation in your own state administrative office of the courts.
Immigration interpreters: Show courage, or prepare to die!
December 5, 2016 § 11 Comments
Last week many of our immigration court interpreter colleagues in the United States received written communication from SOSi, the government’s contractor, asking them to accept a new adhesion policy, which would require them to bid as low as possible in order to qualify for continuing sub-contractor status, as immigration court interpreters, after their current contract expires in a few weeks.
This notice, in the form of an ultimatum, required interpreters to provide their lowest possible hourly “rate” bid for the entire period of performance, and would become the sole basis for priority of case assignments in the future. Moreover, the agency set top possible fees according to language combinations, and indicated that those bidding above said amounts would not be considered.
The maximum fees to be used as point of departure for this dive to the bottom of the barrel are insulting at best. If you received the communication you saw the proposed maximum amounts, but for those of you who did not, it is important to be aware of the fact that these fees are way below the court interpreting fees set by the other federal courts (Article Three). The communication expressly mentions that SOSi will not honor the full-day or half-day rates policy that all other federal courts observe. They also decided that travel expenses will be standardized with no room for negotiation, ignoring variations in cost of living, weather impact on travel, and so on. Finally, for obvious corporate reasons such as lack of candidates to be exploited at this time, and keeping up with this “serf-landlord model”, the agency gives interpreters a chance to extend their present fee conditions for a period of 45 days or until the end of January 2017.
The current Article Three federal court interpreter fees are: for a full-day of work $418.00, for the first half of the day: $226.00, for the second half of the day: $192.00, and $59.00 per hour or part thereof when the interpretation goes past 8 hours.
If you consider that the above federal court fees are for interpreters working under better conditions, such as team interpreting, access to court files for preparation, sometimes one or two cases for the day, reimbursement of travel expenses according to cost of living of the place interpreters travel to; and then you compare it to the conditions historically endured by immigration court interpreters: working solo (with bathroom breaks if you are lucky) hostile treatment in many courts, dozens of cases when interpreting Master Hearings, etc., then you come to the natural conclusion that immigration court interpreters should make the same fees as other federal court interpreters, or perhaps even more if working conditions do not improve. We cannot forget the difference in time elapsed before payment either. As you probably guessed, immigration court interpreters have to wait longer to see their meager paychecks.
I am not going to go back to my conversations with many of you about a year ago when I warned you of future deplorable working conditions with this agency, and many of you assured me that everything was fine, that you had negotiated a better deal than ever before, and that SOSi had realized that interpreters should be treated as professionals. Well, it turns out that I was right, and that all those of you who refused to sign a contract and decided to look for other green pastures did the appropriate thing, broaden their professional horizons, and avoided having to deal with an agency that is so demeaning to all professional interpreters.
Obviously, as I said before, these posts are directed to those real professional court interpreters who are constantly improving their skills and pursuing certification (or qualification for those languages where no certification is available). I have nothing for those who refuse to pursue certification; that avoid continuing education, or argue that immigration court interpreting is so unique that no professional credential can benefit them.
But to those proud professional immigration court interpreters who view their occupation as a professional service and understand the importance of what they do, I invite you to consider this: Another year went by and SOSi continues its path to commoditization of immigration court interpreting; they moved ahead with their plan to transform you into language laborers who will blindly obey any order given without questioning. Their goal is to profit as much as possible (nothing wrong with that) by creating the illusion that they are providing a professional service while in reality delivering sub-standard interpretations without any regard for the consequences on the lives of those directly (respondents) and indirectly (American society at large) involved (this is wrong).
Dear colleagues, this is your last chance to act; by next year the monster will be too big for you. It is clear that the agency’s goal is to get the cheapest possible “interpreter” available, and to continue to look for a cheaper one. It is also clear that they do not have enough of these language laborers at this time. Thus the reason for them to extend your current contractual terms for another 45 days or so. They need this time to find your replacement, not based in quality, but in bargain price.
As of today, without you they have to close shop. They just cannot provide the service EOIR hired them to do. Understand that you have leverage, keep in mind that by next year, with a more aggressive prosecution of immigration cases under a new White House, EOIR will surely need more interpreters than ever before. It is simple demand and supply. Today you control your destiny.
For this reason, it is important that you act, seize the moment, and protect your dignity. I invite you all to send a message loud and clear to SOSi, EOIR, and the immigration attorneys. Send your bids for a fee not lower than the federal court interpreter fee, and send it for full-day, half-day, and overtime. Tell them that reimbursement of travel expenses will be negotiated on a case by case basis, and do not sign the contract extension. Moreover, send your bids to SOSi, but copy the Executive Office for Immigration Review (EOIR), your local immigration courthouse, and the American Immigration Lawyers Association (AILA). Let them all know that you are professionals providing a critical service to the administration of justice.
Explain that you cannot accept the proposed conditions because of the complexity of what you do. Tell judges and lawyers that a SOSi certification is not a court interpreter certification at all; let them know that Spanish interpreters can obtain a federal court certification, that other languages can get state-level certifications, and that for those languages with no certification program, there are other options to prove your professional qualifications such as college degrees, translator certifications by the American Translators Association (ATA) or a passing grade on the translator or seminary-level interpreter exams by the U.S. Department of State (DOS).
During the last twelve months I learned how many people at EOIR were under the impression that a certification by SOSi was the same as the federal court interpreter certification. I saw the faces of many immigration attorneys when they learned that so many of the interpreters they regularly use in immigration court are not court certified, and I heard many of them telling me that, knowing now of this lack of certification, they understood why they never saw them in any other courthouse.
It would be unfortunate to learn that some of you decided to lower your head and take the extension, or bid according to their unconscionable terms. It would also be a gigantic waste of the greatest opportunity you will ever have to finally professionalize immigration court interpreting. Giving in, or giving up at this time would be the first step to your professional death. Immigration court interpreters, it is time to show courage and determination, or to prepare to die.
I now invite you to share your comments on this important topic at this crucial time.
U.S. Immigration Court interpreters’ other enemy.
October 18, 2016 § 4 Comments
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.
U.S. immigration interpreters under siege again.
August 23, 2016 § 8 Comments
It is not common that I write a blog entry hoping to be wrong, but on this occasion I hope I am mistaken. Let me explain:
2015 was a very difficult year for our immigration court interpreters in the United States. After decades of working with the same agency, the Executive Office for Immigration Review (EOIR) granted their court interpreting services contract to a new contractor that is better known for their multi-million dollar contracts with the United States Department of Defense than for their interpreting services. This new contractor: SOSi, won the licitation process by bidding lower than anybody else, and to keep the operation profitable for their stakeholders, they attempted to hire inexperienced interpreters and pay them extremely low fees under unimaginable work conditions.
The interpreters rallied against the newcomer’s offer, united like never before, and took to the social media, traditional media, and professional associations for support. The movement became quite strong and as a result of these actions by our immigration court colleagues and their allies, SOSi was left with no choice but to offer contracts to many of the more experienced interpreters under work conditions similar to the ones they were used to with the former contractor, and in many cases with the interpreters getting better fees than before. SOSi agreed to these terms and addressed some of the main concerns that the EOIR had about the way they were to offer interpreting services nationwide by hiring some of the support staff that had previously worked for the previous contractor: LionBridge.
At the time, it looked like SOSi got it and decided to do things the right way; unfortunately, their temporary contract with the United States Department of Justice was about to expire and they had to move quickly to turn that provisional contract into a permanent contractual obligation. To achieve their goals, once that interpreters, immigration judges, and public opinion subsided, they decided to go after the interpreters once again.
During the last few days, many immigration interpreters received an email from SOSi notifying them the following changes to their policy:
“…In the coming weeks, we plan to release a competitive Request for Quote (RFQ) to anyone who is interested in continuing to work on the program…”
In other words, in a few weeks, interpreters will have to bid for work at the EOIR, and assignments will go to the lowed bid. Is SOSi going to pay its interpreters the same rock-bottom fees they had in mind a year ago when their master plan was derailed in part by their ineptitude, but mainly because the quality interpreters refused to work for such insulting fees.
I hope I am wrong, but as I continue to read SOSi’s communication, I detect a Machiavellian cleverness I did not see last year. Let’s read another segment of the same email:
“…In the meantime, we are issuing extensions to current Independent Contractor Agreements (ICAs) at the current rates. You will have seven days to review and execute those extensions in order to be eligible to continue working on the program past August 31, 2016….”
The way I read the paragraph, and I hope I am wrong, I get the impression that SOSi is taking away from the interpreters the argument of “contracts with rock-bottom fees” by offering its current contractors a new contract under the same professional fees (incorrectly called “rates”). By doing this, the Defense Contractor turned interpreting service provider, if questioned by EOIR, can defend itself arguing that their individual interpreter contracts contain the same terms as the prior contract, and that the interpreters who work for a lower fee than the one in their contract, do so by voluntarily participating in the “competitive request” process in order to get more work. Of course, we can assume (from the contractor’s own words) that there will be very few assignments for those interpreters who do not participate in the bidding process. They will probably work only when nobody else is available.
Finally, SOSi’s communication states that “…The goal of the changes is to provide the best, most cost-effective service to the DOJ…”
Of course they have to watch these costs; that is an essential part of their contract with the government. The problem is that they also need to make a profit, and the more the better. The question is: How can you increase your profit when your client (EOIR) will not pay you more? To me, the answer seems clear: They will pay less to the service provider (the interpreter).
I could be wrong, but I do not believe that SOSi will pass on to the EOIR the “savings” from low-bidding interpreters on a case-by-case basis. Record keeping and reporting of these individual cases would be more expensive than simply paying the contractually agreed fees. From the email, I understand that SOSi will get the same paycheck from the government, but their profit will go up from the money they will save by paying the interpreter a miserable fee. The United States federal budget for 2017 shows an increase on the appropriations that go to the EOIR from 420 million dollars to 428.2 million. There were no cuts, and in my opinion, even knowing that most of the EOIR budget goes to many other priorities, it is very hard to understand why SOSi would want interpreters to provide the same services for less money. (https://www.justice.gov/jmd/file/821961/download)
Dear friends and colleagues, I sincerely hope that my appreciations are all wrong and SOSi will honor the contracts, discard the “lower-bid” system that they seem to spouse, and things continue to improve for our immigration court colleagues; but in the event that I may be totally, or even partly right, I believe our colleagues will be better served by sounding the alarm and being in a state of alert and ready to act once again. There are just too many loose ends that require not just an explanation, but a public general commitment by SOSi not to go back to last year’s unsuccessful attempt to pay less for professional interpreting services. I now ask you to please share your thoughts on this issue, and if you have solid evidence (not wishful thinking) to prove my conclusions wrong, please share them with the rest of us.
An interpreter exam for a certification… or for a job.
February 29, 2016 § 4 Comments
A controversial issue that has been around for years has become quite popular in the past few months. The controversy surrounding the United States federal government’s contract award to Department of Defense’s contractor SOSi has put this corporation under the microscope of many individual interpreters and interpreter associations. This scrutiny has touched on the training and “blessing” (call it certification, accreditation or anything you want) provided to the individual interpreters contracted by SOSi to work in the immigration court system for the first time. After reading some of the posts in social media and the numerous letters, emails, and phone calls that I received from many friends and colleagues on this particular issue, I thought about it, and arrived to some personal conclusions that I think put in perspective what is happening in the American immigration court system and what many friends and colleagues would like to see implemented.
The first thing we need to do is define what an interpreter certification program and examination really are. A process that ends in a generally accepted and scientifically proven method of testing designs, after exhaustive detailed research and practice testing, a comprehensive exam that tests individual performance in all basic properties of the activity, in this case profession, that the applicant aspires to practice in exchange for a professional fee in the real world. Those passing this examination have demonstrated that they meet the minimum requirements acceptable to be a part of a profession subject to professional and ethical rules, legal statutes, and subject to liability in the event of malpractice.
This exam has to be designed in a way that it is objective, measures all candidates the same way, includes all elements relevant to the rating of a person’s performance, and for security and equity reasons has multiple versions in case somebody tries to circumvent the certification process, or fails to pass on the first, and often limited subsequent, attempts. For all of these reasons the exam has to be developed by a combination of peer professionals, in this case interpreters and interpreter educators, in addition to scientists that will apply a scientific method, including the application of a grading curve, to be able to offer a comprehensive and fair assessment tool which plays a key role in the issuance of a certification. This process takes a long time and is very, very expensive. Moreover, the administration of the examination to the candidates also requires a big financial investment for both, the actual testing and the rating of the completed exam. This is the main reason why there are so few real certification programs that can deliver unquestioned professionals. Law school graduates in the United States take the bar exam to be able to practice as attorneys, and despite the fact that each state has its own version of a portion of the exam, they all share a common universal test that is part of the final assessment of that student: the MBE or Multistate Bar Examination that has been developed by the National Conference of Bar Examiners to be universally applied in all fifty states and territories (with the exception of Puerto Rico). The purpose of the test is to assess the extent to which an examinee can apply fundamental legal principles and reasoning to analyze given fact patterns. The individual states decided to go to the NCBE to develop the test because it was extremely costly for any single state to come up with its own examination.
The same scenario applies in the court interpreting arena where the states looked for a similar solution when they went to the National Center for State Courts (NCSC). The result was the same as in the lawyers’ case. Each state can add any requirements to the certification process if considered necessary in that jurisdiction (written tests, ethics exams, background checks, good moral character, etc.) but they all administer the same examination in Spanish and other languages where a test is available. There are many languages without any certification exam due to the huge expense this represents and the lack of volume that could justify such an investment (not enough speakers of a given foreign language). Only the United States government has a different examination and process because it has the deep pockets to do it, but even the Administrative Office of the United States Courts tests candidates through the NCSC. In all scenarios the individual interpreters who rate the candidate’s exams are independent contractors or staff members of the judiciary. At different levels, all applicants who successfully pass this interpreter certification test, currently being offered only in Spanish, are considered qualified to render their professional services in a court of law within the jurisdiction where they took the exam, or nationwide in the case of the U.S. federal court system. Clients, agencies, government entities and businesses use this certification as an assurance of a certain minimum level of quality. These new certified interpreters have demonstrated that they can work assignments that may include sight translations, and simultaneous or short consecutive interpretations (when I speak of short consecutive I am referring to the very difficult consecutive interpreting that is used in court which requires short quick renditions, unlike consecutive interpreting in a conference or diplomatic setting where the consecutive rendition could take thirty minutes or longer). This is the only credential in the United States that tests interpreters in such a scientific way and in all modes.
There are other certifications in the U.S., but they either vanished because of its prohibitive cost and lack of demand, as it happened with the very good testing program offered in the past by the National Association of Judiciary Interpreters and Translators (NAJIT) or their testing method and results are in my opinion questionable as is the case of the “medical” and healthcare certifications offered in the United States, not by a governmental entity but by the private sector. These exams do not test in all modes of interpreting or the content of the exam is of lesser level than the one desired for a widely-recognized credential outside of the scope of a patient-physician interview at a hospital or medical office. This is not to put these certifications down, but to illustrate the fact that a universal scientific test is a complex and expensive matter. I know how difficult and time consuming this process is because I had the opportunity to participate as one of many individuals involved in the development and field testing of an interpreter test for military and conflict zone interpreters a few years ago.
Because the process is so long, difficult, and costly, most organizations resort to another solution: they develop a program to assess individual interpreters in the field that will be relevant for that organization, and sometimes, if the target applicants require it, the program also includes some training or at least basic orientation. These quicker and less expensive solutions can assist in determining the level of an interpreter in all modes, and sometimes are way more difficult than a certification program like the ones described above, but for the most part they are confined to the assurance of a certain minimum quality of service in the specific field or area where they operate.
The first example that comes to mind are the exams by the international organizations, or the United States Department of State conference level exam to assess the skill, knowledge and ability of the candidate. These are difficult tests that are rated by top interpreters who guard the quality of the service provided, and for this reason to pass these examinations, even though they do not confer a certification strictly speaking, means to the professional community that the candidate who just passed the assessment has a quality level that clients can rely on.
There are other exams of this type by both, government entities and the private sector that are nowhere as prestigious or difficult as the ones I mention above, but exist for commercial and legal reasons. Commercially because it is the way to get big contracts and important clients; legally because it is a certain protection against civil liability lawsuits that the entity offering the service, and the exam, might face down the road. Most of the multinational interpreting agencies administer a training, orientation or test (call it evaluation, exam, or anything else) to their prospective interpreters to be able to market themselves as providers of “certified” interpreters and to defend from potential malpractice or negligence lawsuits as discussed above. This practice is expensive (nowhere near a real certification program of course) but necessary to remain in business, and to a person not familiar with the profession it can create a sense of professionalism that could be the factor needed to get awarded a big contract. Although many of these entities ask their in-house interpreters to put together a quick assessment of those applying for interpreter assignments, some retain reputable institutions or renowned interpreters or educators to develop a training and evaluation program. Needless to say, the individuals passing this evaluation may be ready for the limited work they will have to do, but they will never be considered or treated as a certified interpreter or an individual who passed an exam with the U.S. Department of State or an international organization.
This brings me back to the communications I have been getting about the immigration court interpreters in the United States and the training that defense contractor turned language service provider SOSi is offering to those new individuals who want to work under this new contract awarded last year by the Executive Office for Immigration Review (EOIR).
The first thing to say is that SOSi has a temporary contract at this time, and even if extended to the maximum agreed to in the original contract, it will be for just a few years. Moreover, to win the bidding process, SOSi had to bid really low and that ties their hands as far as the size of the financial investment they can justify to their board. As precedent, you should know that all contractors have opted for the same type of solution in the past. There is no logic in investing the time and money developing a certification program that if they are lucky, might be ready by the time their EOIR contract expires.
I now want to talk about the program they are offering to their new interpreters, and I say new interpreters because I assume that those veteran colleagues who decided to go back despite all the problems with the contract terms and SOSi’s conduct during these months do not need to undergo the training and evaluation.
SOSi contracted out the development of this training and assessment of their candidates to an affiliate of an Interpreter training school. The program is offered on line and it includes 27 hours of on-demand training, 40 hours of on line interpreting practice, live sessions and random monitoring by an instructor, a mentoring service, and two assessments, with the second one being the final exam that according to SOSi and the trainer follows the U.S. Department of Justice and Executive Office for Immigration Review testing requirements. The program is supervised, and I assume developed in a significant part, by the director of the interpreter training school who happens to be a very well-known and recognized instructor. I have personally attended some of his talks when we have coincided at a conference and I must say that his presentations are of a very high quality. Moreover, this institution has been preparing interpreters to take court and healthcare interpreter certification tests for many years and with very good results. I do not know how the trainer got the contract from SOSi, but whether it was through a bidding process or by negotiation, I see no wrongdoing. If anything, I would say that the reputation of the interpreter training school is taking a big risk (calculated by their front office, I am sure) by working with such an entity as SOSi.
Some colleagues have also raised the fact that the exams will be rated by the training entity’s instructors as a potential conflict of interest. I do not see it that way. The National Center for State Courts also outsources the rating of their certification exams to independent contractor interpreters and court staff. Most law students who are preparing for the Bar (including myself a long time ago) enroll in the Bar Bri courses to get ready for the exam. Bar Bri is no different from the trainer in this case. As to the argument that interpreter trainers will “pass” those attending the training to keep SOSi happy, I do not believe that a reputable institution like this one would play that game. In fact, as an interpreter trainer and certification exam rater myself, I have to tell you that it is in your best interest to stop those who are not qualified from entering the professional ring. Others have raised as a problem the fact that some of the raters may have never worked in immigration court. I do not see any validity to this argument either. Interpreting skills are the same for any court. The terminology and procedure may be different, but that can be learned by the student. This happens every day with conference interpreters who have to research and study multiple subject matters throughout their career.
In conclusion, I do not believe that it is practical nor feasible that a government contractor such as SOSi invest the time and money required to develop a certification program when all they have been awarded is a temporary (renewable at best) service contract. I think that, regardless of all the problems faced by the immigration court interpreters and the lack of competency shown by SOSi until now, they did what any contractor, capable or not, would do regarding its interpreters. I think that the interpreter trainers in this case did what they had to do to get the contract and now that it has been awarded to them, they will act as the professional institution we all know they are. Therefore, dear friends and colleagues, I do not believe that there are grounds to be concerned for this reason as long as we view this evaluation for what it is: an assessment of limited skills learned for the sole purpose of meeting a client’s needs, in this case SOSi and the EOIR, who apparently set the guidelines as to what needed to be tested.
This does not mean that we should give SOSi a pass. Our colleagues are still waiting for their services to be paid, people are still wasting time trying to get answers from an organization that does not respect its interpreters, and we cannot abandon them, but the “certification exam”, regardless of the skills it may evaluate, is not, in my opinion, something we can criticize. The only way to change the immigration court interpreter exam is to get the United States Department of Justice and the Executive Office for Immigration Review to follow the same path that their counterparts in the judicial branch of government are following, and implement a real interpreter certification program, or join the federal court interpreter certification program that already exists; but in order to do this, you will have to convince them of three things associated with this change: (1) That they need to go to Congress and ask for the resources, a tall order in our current political season, (2) That a real certification program will attract interpreters that will be better prepared, who will, after passing the examination, demand a higher pay and more professional conditions than the current interpreters, and (3) That a real certification program will mean that many of their current interpreters will not pass and they could face a real interpreter shortage never seen before. I now ask you to share with the rest of us your opinion about this issue.
A lesson to all interpreters.
October 12, 2015 § 9 Comments
We have seen over the past few weeks how a grassroots movement by some of our colleagues has produced results that until recently would have been considered unrealistic. I am referring to the freelance United States immigration court interpreters who, so far, have refused to accept the contractual conditions offered by a new federal government contractor that does not deal with them as language professionals but as unqualified laborers.
For many years, federal government contractors did their bidding and earned contracts from the immigration courts (EOIR) based on a widely accepted assumption that immigration court interpreters would take any fee offered to them, regardless of how low it was. This is how the bidding process worked and produced the abhorrent working conditions that LionBridge imposed on the interpreters, including extremely low fees, absurd cancellation policies, unprofessional treatment where the interpreters’ word had no credibility when their word conflicted with court staff, and even a penalty for those who wanted to be paid on time. For these reason many interpreters left, or never entered, the immigration court interpreting field. It was just unattractive to those who wanted to make a higher income and expected to be treated like professionals. Even now, the testimony of several attorneys reflects this reality when they comment that, many times, the quality of the interpretation in immigration court was lower than at those courts managed by the Administrative Offices of the Courts.
This is the environment that SOSi, the new bidder, encountered when they came into the picture. No wonder they pushed interpreter working conditions to a low never seen before. They assumed that this time would be like the others and interpreters would take the offer, no matter how unfair and insulting. They were wrong.
You see, friends and colleagues, a few things have changed since the last time the contract was awarded to LionBridge. By the time SOSi bids for the EOIR contract, there were more interpreters with a formal education than before; these colleagues had entered to the world of immigration court interpreting for many reasons: to gain some professional experience, to put their name out there, to have some income to begin to repay their student loans…
They worked as immigration court interpreters, but they were not there to stay; their time working over there would be a step towards a more fulfilling and better paid career. They did not plan to stay, but while they were there, they shared their ideas about professionalism and their personal dreams with the other interpreters who were already there. They inspired many of them to study to better themselves as interpreters, to go to a community college and study interpretation, to take a state or federal court interpreter certification exam, to become certified as healthcare interpreters, and so on. The crowd that SOSi encountered did not look much like the one its predecessor found some twenty years earlier. The result: They would not put up with worse working conditions than the horrendous ones they had suffered from the previous contractor, so they refused to sign the contracts, and the deadline for SOSi to take over interpreting services came and went without fulfilling their obligation because of their lack of the most precious and indispensable asset to provide interpreting services: the professional immigration court interpreter.
These colleagues took advantage of things that were not there the last time the contract was up for bids: social media, communication and peer support, information about the working conditions of other court interpreters working somewhere else, and the experience of our colleagues in the United Kingdom with another agency devoted to the degradation of the professional interpreter: Capita.
The refusal to sign these individual contracts happened all over the United States, the voice got louder, blogs spread the word and informed some not-so-well known facts about the contractor (https://rpstranslations.wordpress.com/2015/08/31/disrespecting-the-immigration-interpreter/) virtual forums were created, professional associations intervened, the media wrote about this issue in English (http://www.buzzfeed.com/davidnoriega/immigration-courts-could-lose-a-third-of-their-interpreters#.sopPZ5w26) in Spanish (http://www.eldiariony.com/2015/10/07/disputa-laboral-de-interpretes-amenaza-con-agravar-demoras-en-tribunales-de-inmigracion/) and discussed it on the radio (http://www.scpr.org/programs/take-two/2015/10/09/44770/backlog-at-immigration-courts-could-grow-with-a-pa/)
The contractor, probably frustrated by this “unexpected occurrence”, apparently decided to get help from local language services agencies all over the country to see if, by buffering this link between them and the professional immigration court interpreter, some colleagues would agree to sign the individual contracts, and, unless there is some legal figure no interpreter is aware of, as a result of their signature, they would become contractors of a sub-contractor (the local agency), putting them one more step away from the entity that won the contract: SOSi. In fact, I have heard from several interpreters in different cities who have contacted me with their concerns about the contents of this contract that has been offered to them.
Although the following is in no way legal advice, nor is intended in the slightest to be such a thing, I have decided to give my opinion about some of the portions of the contract as they were presented to me by my colleagues. Remember, this is just my opinion, based on my many years of professional experience as a professional interpreter, and my years in law school. Your opinion may be different and I will not dispute such a thing. Let’s see:
The most common concern about our colleagues can be summarized by this colleague’s observations: ‹In general, I have my doubts that my previously negotiated half/day and full/day rates would really be respected, in light of SOSi’s option to pay these “…unless EOIR determines that using a different CLIN would result in less cost to the government.” What does this mean in plain English?
There is a legal principle in civil law (and contracts are civil law) called the parol evidence rule. This principle states that all negotiations between the parties to a contract that took place before or simultaneously to the signing of a contract, that are not clearly spelled out on the document, are non-existent and therefore, non-binding and unenforceable. This means that all “negotiated rates” that are not in writing are irrelevant. (https://en.wikipedia.org/wiki/Parol_evidence_rule) (http://thelawdictionary.org/parol-evidence-rule/)
A follow up question to the last comment was this one: “what is a CLIN?”
Although I do not know for sure, I believe that “CLIN” in this context refers to “Contract Line Item Number” This would mean that if EOIR finds a legal way to pay less than the “previously negotiated rate” or If other interpreters are willing to work for less, the pay could be impacted.
Some interpreters are concerned about the travel expenses when they are asked to go out of town to interpret a hearing. Apparently, the section of this contract that addresses this issue does not mention the English<>Spanish interpreters. As far as travel expenses, keeping in mind that English<>Spanish interpreters cover the immense majority of the immigration cases, my feeling is that they could be leaving the English<>Spanish interpreters out of the equation because they feel they can meet these needs with Video Remote Interpreting (VRI) and with local folks if needed.
It is also worrisome that said contract seems to emphasize “telephonic interpreting”, indicating that this service will be paid at an hourly fee. As we all know, like all professional services providers, interpreters sell their time. Getting paid for the time interpreted based on an hourly pay would result in a detrimental situation for the interpreter, because nobody is paying for the time it takes to this professional services provider to get ready to do the rendition (travel to the courthouse or detention center, setting aside big chunks of time to do the assignment, etc.)
According to some colleagues, SOSi appears very firm on its insistence that interpreters compete for offered work assignments on a generally accessible “available assignments” website. In other words, interpreters would no longer be contacted individually, as with Lionbridge, to accept or reject offered assignments. Apparently, SOSi’s recruiters have explained the validity of this policy as a way to avoid having to hire assignment coordinators.
In my opinion, Immigration court interpreters must keep in mind that SOSi’s contractor history and system is based on bidding subcontractors. That is how most Department of Defense contracts work (and remember, they are primarily a defense contractor) so I don’t see them changing strategy. All interpreters could be considered subcontractors bidding for a job every time there is a need for an interpreter.
This is the most critical hour for our immigration court colleagues because this is when experienced agencies and contractors put in practice their well-rehearsed tactics. Some interpreters may decide to sign a contract even though the “promised, negotiated fee” is different from what the contract states, or it is hidden in an appendix or table. Immigration court interpreters will only achieve the dignified treatment they deserve, and has been denied for so many years, if they continue to speak with one voice, and it will get more difficult unless those with more experience and formal academic education step in and help their colleagues. We must remember that fear can derail any project, and the immigration court interpreters are not a homogeneous group. Unlike conference interpreters, many of them interpret at a questionable quality level, others may think, deeply inside, that the ridiculous fees offered by the contractor are not so bad, some may live from paycheck to paycheck, and may decide to sign the draconian contract; and some of them may not really be freelancers, but employees with no steady job.
The truth is, that to get to a professional fee, the interpreters have to be willing to stay away from the immigration courts for as long as it takes, and during that time, if they are truly freelance interpreters, they will find their income doing so many other interpreting assignments. If they are really independent professionals, they will have to come to terms with the realization that well-paid immigration court interpreting will not be an everyday thing; it will be one of many other interpreting assignments that the true freelancer will have to cover. EOIR is a client. It is not an employer.
The contractor, SOSi, LionBridge, or any other has a responsibility to their shareholders, and that is fine. The federal government has budgetary limitations, and that is fine. It is because of these undisputed facts that the independent immigration court interpreter needs to understand that to get the financial resources to cover his professional fee, the service will have to be more efficient. Less hours of work at the EOIR, but better pay. That is how the freelancing world works, and all interpreters will need to understand it; otherwise, the lesson learned will not be the one this entry begins with, but instead, the lesson will be that once again, because of the interpreters’ lack of determination and unity, things will stay the same. I ask my dear friends and colleagues not to waste this unique opportunity in their careers.
Although these lines merely contain my personal opinion, and in no way this pretends to be any legal advice for anybody, if I were facing the situation these immigration court interpreters in the United States have in front of them, I would hold on to signing anything until it is clear who stays and who does not. If SOSi stays, to become attractive to the interpreter community, they will probably make some changes to their contractual policy towards the interpreters. If there is a new different language services agency, I would wait to see what they have to say first. Also, for my peace of mind and for the safety of my professional future, I would never sign a contract after talking to the HR people. I would ask for the legal department because I would need to understand, and know, the contractual terms, and the likelihood that they will be honored by the language service provider. I now invite you to share your opinion with the rest of us, and for the benefit of as many interpreters as possible.