Interpreting at the Immigration Court: Is it really headed for disaster?

February 4, 2013 § 18 Comments

Dear colleagues:

Last year a colleague contacted me asking for advice.  She works as an independent contractor interpreter with the Executive Office of Immigration Review (EOIR) in the United States. This government agency is better known as the immigration court.  Before I get into the subject matter of this article, let me say a few things that we need to consider as the background of the situation I will describe on the next paragraph: (1) The immigration court is an administrative court. It is not part of the federal judiciary like district court or the court of appeals. It has no link to the U.S. Supreme Court. Its link is to the President of the United States through the Department of Justice. Its judges are administrative law judges appointed by the executive branch. They do not have life tenure nor need to be approved by the Senate as judicial branch judges do. (2) Immigration courts do not hear criminal cases. All cases are civil. Any criminal violation of the immigration laws (illegal reentry, alien smuggling, etc.) are heard by federal district court judges, not immigration judges. (3) There is no constitutional right to an attorney in immigration proceedings because immigration violations are not criminal in nature. For this reason the person accused of the violation is called the respondent and not the defendant. (4) All interpretation services in immigration court are provided by in-house staff interpreters who work for the EOIR, or by an interpretation agency that has a nationwide exclusive contract with the EOIR. This agency’s schedulers assign cases to the independent contractors on their lists, the independent interpreters submit their invoices to this agency, and the agency pays them, not the EOIR. (5) I know many interpreters and agency schedulers who work and have worked in immigration court.  Some of these interpreters, staff, agency supervisors are my friends, and every now and then I have interpreted in immigration court in many parts of the United States as an independent contractor.

It turns out that according to my colleague, by October 1 of last year, the beginning of the federal fiscal year, all immigration proceedings were supposed to be interpreted simultaneously using interpretation equipment. Until now most immigration hearings have been interpreted consecutively without equipment, and the interpretation has been done selectively, meaning that not everything has been interpreted to the respondent. Basically, the only parts of the hearing that are interpreted to the respondent are those when the judge and attorneys address him directly.  I know that by now you are thinking that simultaneous interpretation of the full proceeding is how court interpretation is done every day not just at the federal level, but at the state and local level as well. So, what is the big deal? The difference is that in immigration court, until now, they have been hiring many people who have never interpreted simultaneously.  Moreover, my colleague told me that this simultaneous interpretation was going to be conducted by a single interpreter regardless of the duration of the hearing. No team interpreting under any circumstances.  She also told me that they had contacted the agency but nothing good had come from that communication, except that they were told that they could learn simultaneous interpretation from an on-line tutorial the agency had posted on its “contractors-only” website and that if they ever needed a break they could ask the judge for a recess.  Once she explained their predicament, I thought of a possible solution to the problem.

I must say that between the time I spoke with my colleague and now, and (I believe) mainly because of the pressure applied by most reputable interpreter organizations in the United States, lead by the National Association of Judiciary Interpreters and Translators (NAJIT) The EOIR and the translation agency that hires the independent contractor interpreters have decided not to implement simultaneous interpretation at this time.

I have nothing against the agency that has the contract to provide interpretation services for the EOIR. In fact, I respect what they do: As a business, they are doing exactly what they have to do to profit for their shareholders while at the same time fulfilling the terms of their contract. Also, like I said, I know many interpreters who work in immigration court and some of them are good interpreters, and many more are dedicated and hard-working people; However, the reality is that when many interpreters think of immigration court the first thing that comes to mind is that it is in the hands of an agency that pays very little, demands minimum quality from its interpreters, takes a long time to pay, cancels assignments, and hires many of those interpreters who were not able to work anywhere else.

I have worked in immigration court in different parts of the country and unfortunately, in some ways, this idea is not far from the truth. The agency got this contract, by far the largest interpretation contract with the federal government, bidding a low-cost interpretation service and guaranteeing coverage in all required languages, even the most exotic ones. To fulfill this obligation they developed a program that encompasses a very good business model where they recruit people locally, subject them to a very basic interpretation test, run a security and work-eligibility background check, and provide some entry-level materials on-line. They also hire hard-working administrative staff that rounds up the interpreters at the local level as they are needed and schedules them. The agency has a group of independent contractors, most of them drawn from the same interpreter recruitment system, who have separated themselves from the rest and, after a basic training by the agency, have been willing to become quality-control supervisors of their peers at the local level. Finally, the program includes an interpreter payment system that is lower and less flexible than everything else in the market: No cancelation fees, no parking reimbursement, for many interpreters there is no minimum or a negligible minimum guarantee, a punch-clock system to pay the interpreter, penalties for not having the payment form stamped at the time required (even if the interpreter was already in the facility) and others.  Of course, the EOIR loved the system as a warm body is always standing next to the respondent, the contractor interpreter conveys the basic information to the alien, and the budgetary cost is very low (although I could not find out how much the EOIR pays the agency for each case interpreted.)

It is very difficult to hire so many interpreters, particularly in some of the less common languages. It would definitely be very expensive for the EOIR to attempt to hire all of these interpreters at the local level using a staff interpreter or a clerk. It would also be extremely hard to provide interpretation services at a minimum quality level in some of these languages or areas of the United States.  Maybe the agency system is not the only solution but it is the best. To raise the quality of the interpretation the agency must get these interpreters to do simultaneous interpretation and has to provide the service with two interpreters working together even if it is very hard to find two interpreters to work as a team, particularly in some languages.

As I was arriving to these conclusions it hit me: The federal court system (USAOC) is fulfilling the same needs with higher quality interpretation services, it is doing it at the local level, and it is doing it without an agency as an intermediary. This means that it can be done in immigration court! Then I thought, the federal court system requires of many interpreters every day, but not as many as immigration court where practically all cases require an interpreter. How would the small town get their interpreters for those respondents who speak less common languages? The answer came to me: There are NO immigration courts in any small towns in America. They are all in the largest urban areas and the border towns. It would not be difficult to get interpreters after all. I believe that immigration courts should follow the same procedure as the federal judiciary (and for that matter almost all of the state and local court systems in the country) For the most common languages where there are plenty of interpreters, they should implement and enforce a certification system like the federal court interpreter certification examination where the potential interpreter has to take and pass a very difficult exam before he or she can work in court.  For the other languages they could follow the same criteria used by the federal judiciary to determine who is qualified to work and who is not.  By simply implementing this change, if they pay the same as the judiciary using a half a day and full day fee system, the EOIR would have all federally certified and qualified court interpreters ready to work at a level never seen before in these courts before. This would also include the team interpreting system widely known, accepted, and used at the federal level.  Those presently working through the agency would need to get certified or qualified (depending on the language pair) which means that the good ones would have a higher income and by becoming certified or qualified interpreters, they would also have access to other markets such as the federal and state court systems. Other than waiting for the contract with the interpretation agency to expire, or finding a cost-effective way for an early termination, I see no reason to continue with the intermediary system anymore, unless the agency renegotiates its contract with the EOIR and changes its protocol demanding interpreters meet the same minimum requirements needed to work in the federal court system and pays accordingly. This would probably satisfy everybody without having to get rid of any of the current players.

In the meantime, I suggest these dedicated and hard-working individuals who are presently working in immigration court, and are not certified, start working on improving their skills, getting certified, and while the problem is permanently solved, I invite them to talk directly to the EOIR, and if necessary, to take their case to the media before they have a situation similar to what happened in Great Britain when another agency took over the interpreting services. I also suggest that until the team interpreter standard is adopted, they should take as many breaks as needed when working a long hearing alone, explaining to the judge that they are requesting the break because that type of hearing should be interpreted as a team. If you work as an immigration court interpreter, carry NAJIT position papers with you and give them to judges and attorneys, become members of NAJIT, ATA, and other local professional organizations, go to the annual conferences and present your case to the rest of the interpreter community, the agency does it all the time by getting their staff to present at these conferences. By doing so, you will begin to change the interpreters’ community perception that almost nobody wants to work where you are working. I invite the rest of you to brainstorm, and avoiding postings that contain nothing but complaints, to write down your suggestions so that our immigration interpreter friends and colleagues get what they need and deserve.

Update: on February 11, 2013 EOIR Chief Judge Brian M. O’Leary issued a memo ordering the implementation of simultaneous complete interpretation of all court proceedings without team interpreting. This order will be effective on May 1, 2013.

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