Courts of appeal have criticized immigration courts for their skills in adjudicating asylum cases, including the alarming observation, “…the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice.” The criticisms suggest incompetence by immigration judges, They are generally unsympathetic to the difficultly of the job immigration judges do. In four hours or less, an immigration judge must listen to the testimony of witnesses, integrate the testimony with written material presented by the parties and with government reports, and then present a well-reasoned decision addressing a foreigner’s credibility and the legal strengths of his claim for asylum. In the process, the immigration judge must run a tape recorder and arbitrate between the parties in an adversary system. He or she often does this not twice a month or twice a week, but twice a day.
What skills does such a task require? Firstly, a judicial temperament – a person who remains objective and ready to accept and process all the evidence and who comports himself or herself in a way where all the parties are assured that their words are being heard and listened to. Knowledge of immigration law would be helpful. Knowledge of world affairs would also be a plus. Finally, cultural sensitivity would be helpful. A foreigner who has no skills in interpreting a map should not be disbelieved because he cannot interpret a map presented to him. A foreigner who does not usually think about events chronologically should not be disbelieved because his narrative is organized differently than what came first and what followed after that next in time. The immigration judge should also be acutely aware that when an alien is testifying in a different language, there are limits to the accuracy of translation. Nary a case goes by where a family member or other observer does not inform me after the hearing that the interpreter got at least some of the testimony wrong. When an immigration judge latches onto a discrepancy, “Sir, in your written statement, you say that you were wounded in the hand and now you testify that you were wounded in the arm,” and finds deception and denies a case, can the immigration judge be sure that the interpreter was accurate or that the language of the alien distinguishes between arm and hand or perhaps even that the asylum seeker was not wounded in his arm and his hand and one of the wounds was not mentioned because the point was that the wounding occurred and not the exact locations? Unless a judge is aware of these potential areas of confusion, wrong decisions are bound to happen often.
The other day I encountered an amazing example of translation problems which could lead to wrong conclusions. An asylum seeker was interviewed at the border by an immigration officer. The asylum seeker recounted a harrowing tale of persecution and torture that met all the criteria for rendering the person eligible for asylum. The asylum seeker was full of faith that America would never compel repatriation. The asylum seeker had never seen even one compatriot deported back to the country of origin. Yet, there was a problem. The interviewer asked the asylum seeker, “Are you afraid of being returned to your country?” The question was translated and the answer was, “No.” The interviewer asked, “What will happen to you if you are sent back to your country?” The question was translated answer was, “I will be beaten, tortured, and killed.” The interviewer then asked, “ Well then, “Are you afraid of being returned to your country?” The question was translated and the answer was, “No.” The question was asked and answered “No,” four times. An immigration judge is charged with determining whether an asylum seeker has a “well-founded fear of future persecution.” Based on the negative answer given four times, an immigration judge might conclude that whatever may have happened in the past, the asylum seeker now has no fear of return.
A careful examination of the question reveals that what interviewer was asking and what the asylum seeker was answering were different questions. The question the asylum seeker heard and understood was not, “If you have to go back to your country, will you be afraid?” The answer would have been that of course the asylum seeker would be afraid because return would mean death. Rather, the question the asylum seeker heard and understood was, “Are you afraid that the United States government will send you back to your country?” Of this there was no fear – the asylum seeker was confident that when a fact finder heard the story, asylum would be granted. Far less compelling stories resulted in asylum grants. A culturally aware immigration judge would see source of the problem. One trusting in the absolute ability of translation to convey all meanings and nuance across language and cultural barriers could make a dreadful mistake.