Interpretation at the Asylum Office

• Published date: 01 July 2022
• Author: Hillary Mellinger
• Date: 01 July 2022
• DOI: http://doi.org/10.1111/lapo.12192

ORIGINAL ARTICLE

Interpretation at the Asylum Office

Hillary Mellinger

Department of Criminal Justice and

Criminology, Washington State University,

Pullman, Washington, USA

Correspondence

Hillary Mellinger, Department of Criminal

Justice and Criminology, Washington State

University, Wilson-Short Hall 10E, PO Box

644011, Pullman, WA 99164, USA.

Email: hillary.mellinger@wsu.edu

Funding information

American University Doctoral Student

Research Project

Abstract

The United States requires asylum applicants to bring

their own interpreters to the Asylum Office. However,

asylum officers have discretion to provide interpreters in

extraordinary circumstances. When do asylum officers

exercise this discretion? Is it exercised uniformly? How

do interpreters affect interview dynamics? To explore

these questions, I conducted 28 attorney interviews.

Interviewees reported that asylum officers inconsistently

exercised discretion and provided unaccompanied chil-

dren with interpreters more often than adults. Inter-

viewees noted that some bilingual officers conducted

interviews in a language other than English, and some

interpreters exacerbated communication challenges.

Since the Asylum Office does not collect interpretation

data, this study provides a glimpse into interpretation

challenges.

1|INTRODUCTION

Deisy, an unaccompanied child from Central America, tightly clasped her hands during her

interview at the Asylum Office.

1

Earlier that week, Deisy had called a nonprofit organization to

request assistance at her asylum interview. She had crossed the border alone and undetected by

immigration authorities, and filed for asylum with the assistance of a non-lawyer. She had no

one to provide her with legal representation or interpretation at her asylum interview, and she

was afraid.

Deisy was fortunate; the nonprofit organization found an attorney who could attend her

asylum interview. However, they could not find a professional interpreter on such short notice.

Frantic, they contacted me, a non-native and non-professional Spanish speaker, to ask if I could

help. I agreed, and met Deisy at the Asylum Office. During the three hours of her interview,

Deisy dutifully responded to the asylum officers’questions. As she articulated the violence that

DOI: 10.1111/lapo.12192

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits

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©2022 The Author. Law & Policy published by University of Denver and Wiley Periodicals LLC.

230 Law & Policy. 2022;44:230–254.

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she fled, her eyes never wavered from mine. The intensity of her gaze seemed to carry a plead-

ing, insistent message: “Please be my voice. Please get this right.”

The above anecdote is not unique to Deisy; it describes the interpretation challenges that

many asylum applicants encounter at the Asylum Office. Federal regulations require asylum

applicants whose cases fall within the jurisdiction of the Asylum Office to provide their own

interpreters at no expense to the government (8 C.F.R. §208.9(g)).

2

Asylum officers are only

able to provide interpreters in specific situations, such as for asylum seekers who require sign

language, for unaccompanied children, or in exceptional circumstances; even in these instances,

however, the provision of an interpreter is a discretionary act, rather than a due process guaran-

tee (USCIS, 2016; USDHS, 2015,2019).

I focus on three research questions: When do asylum officers choose to exercise their discre -

tion to provide asylum applicants with interpreters? Is this discretion exercised in a uniform

way? And how does the presence of interpreters affect the dynamics of the asylum interview?

Despite the red flags that interpretation challenges raise for access to justice, relatively few

studies have analyzed interpretation within the US immigration context (Abel, 2011;

Barak, 2021; Beck, 2017; Gentry, 2020; Mollo, 2006; Rao, 2021; Wallace & Hern

andez, 2017),

and even fewer have focused specifically on asylum cases (Benton, 2020; Dadhania, 2020;

Ignatius & Anker, 1992). However, without accurate interpretation, even the most well-

prepared cases could be denied due to linguistic misunderstandings. Indeed, the connection

between interpretation and access to justice is affirmed by the American Bar Association

(ABA), which notes that limited English proficiency persons “are unable, without language

access services, to protect or enforce their legal rights, with devastating consequences to life, lib-

erty, family, and property interests”(ABA, 2012, p. 2). Moreover, access to interpretation is

particularly consequential within the asylum context; indeed, “[w]ithout interpreters, the asylum

system could not function”(Dzubow, 2011).

The need for closer academic scrutiny of interpretation challenges at the Asylum Office goe s

beyond meeting practical and normative objectives; interpretation challenges also raise key

theoretical quandaries, such as the difference between the law-on-the-books versus the law-in-

action (Pound, 1910), what constitutes meaningful access to language services in the immigra-

tion context (Abel, 2011), and the ways in which an interpreter’s presence may unwittingly

affect case outcomes (Hale, 2008).

Although US law requires asylum applicants to provide their own interpreters, asylum offi-

cers nonetheless have discretion to provide interpreters in extraordinary circumstances. The

authority for this discretion can be found within two documents: the Affirmative Asylum Proce-

dures Manual (USCIS, 2016) and the Language Access Plan (USDHS, 2015,2019). Both docu-

ments are discussed in Section II of this article; for now, however, it is important to emphasize

that neither document provides a clearly defined or exhaustive list of the circumstances in which

asylum officers can exercise their discretion. This lack of clarity means that different asylum

officers, and potentially even different Asylum Offices, might exercise discretion in different

ways—that is, even though the law-on-the-books is the same for all Asylum Offices, the law-in-

action may vary across and within Asylum Offices.

Additionally, I argue that the gap between the law-on-the-books and the law-in-action may

partially be attributed to the intersectional identities of asylum applicants and the asylum offi-

cers who adjudicate their cases. “‘Intersectionality’refers to the interaction between gender,

race, and other categories of difference in individual lives, social practices, institutional arrange-

ments, and cultural ideologies and the outcomes of those interactions in terms of power”

(Davis, 2008, p. 68). Numerous studies have found that facially neutral laws are not applied in

neutral ways; for example, US vagrancy laws predominantly targeted African American males

in the post–Civil War period (Alexander, 2010). Intersectionality provides one compelling

explanation for why facially neutral laws-on-the-books are disparately applied, thereby

resulting in different versions of the law-in-action for different types of people.

MELLINGER 231