Sites of (mis)translation: the Credible Fear Process in United States Immigration Detention

SITES OF (MIS)TRANSLATION: THE CREDIBLE

FEAR PROCESS IN UNITED STATES

IMMIGRATION DETENTION

KIF AUGUSTINE-ADAMS* & D. CAROLINA NÚ~

NEZ†

“[E]very sensible and rigorous theory of language shows that a perfect

translation is an impossible dream. In spite of this, people translate.”

1

— Umberto Eco

ABSTRACT

The credible fear interview presents a high-stakes encounter in the cir-

cumscribed legal process afforded to individuals in immigration deten-

tion as they seek asylum in the United States. Limited research, however,

exists on the sociolegal consequences of translation and interpretation in

the asylum process generally and the credible fear context specif‌ically.

This article advances that scholarship in the context of the credible fear

process for detained individuals by focusing on two sites of potential

(mis)translation and (mis)interpretation: 1) explaining “credible fear”

and 2) transposing individual facts and trauma into the legal categories

that United States and international asylum law recognize as forming the

basis for asylum claims.

TABLE OF CONTENTS

I. INTRODUCTION ..................................... 400

* Ivan Meitus Chair and Professor of Law, J. Reuben Clark Law School, Brigham Young

University, adamsk@law.byu.edu.

† Associate Dean for Faculty and Curriculum and Charles E. Jones Professor of Law, J. Reuben

Clark Law School, Brigham Young University, nunezc@law.byu.edu. We thank all our law students

whose volunteer work through BYU Law School’s Refugee and Immigration Initiative at the South Texas

Family Residential Center made this research possible. Our thanks also go to our many colleagues whose

comments improved our work at the 16th International Conference “Law and Language,” Adam

Mickiewicz University, Poznan, Poland; Jurilinguistica II, Universidad de Pablo Olivade, Seville, Spain;

BYU Law School Faculty Work in Progress Series; and Corpus Linguistics 2019 Conference, BYU Law

School. We are also thankful to Michael for data and insight into government processes. We thank

Preston Lloyd for dedicated research assistance despite diff‌icult pandemic conditions. We are also, as

always, indebted to Annalee Hickman for her excellent research, editing, and proofreading skills. © 2021,

Kif Augustine-Adams & D. Carolina Nú~

nez.

1. UMBERTO ECO, EXPERIENCES IN TRANSLATION (Alastair McEwen trans., 2001).

399

II. THE CREDIBLE FEAR PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . 404

A. Procedures: Expedited Removal and Credible Fear

Interviews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404

B. The Meaning of Credible Fear in U.S. Law. . . . . . . . . . . . 405

C. Recognized Bases for Asylum . . . . . . . . . . . . . . . . . . . . . 410

III. METHODOLOGY AND DATA COLLECTION .................... 410

IV. INTERPRETING AND TRANSLATING “CREDIBLE FEAR”. . . . . . . . . . . . 412

A. “Credible Fear” as a Technical Term. . . . . . . . . . . . . . . 412

B. Dissecting “Credible Fear”. . . . . . . . . . . . . . . . . . . . . . 415

1. Frequency of “Fear” and “Temor” ............... 416

2. “Fear” and “Temor”: Collocates and Context. . . . . . . 419

V. TRANSPOSING FACTS INTO LAW . . . . . . . . . . . . . . . . . . . . . . . . . . 424

A. Race/Raza and Nationality/Nacionalidad............. 425

B. Political Opinion/Opinión Política................. 426

C. Membership in a Particular Social Group/Ser Miembro de

un Grupo Particular Social ....................... 428

VI. CONCLUSION ...................................... 429

I. INTRODUCTION

The credible fear interview presents a high-stakes encounter in the circum-

scribed legal process afforded to individuals in immigration detention as they

seek to claim asylum or other relief in the United States. Successful naviga-

tion of the credible fear interview has long been a detained person’s f‌irst step

towards release from jail and the opportunity formally to claim asylum under

U.S. law.

2

In contrast to proceedings in immigration court, however, the cred-

ible fear interview is meant to be non-adversarial.

3

2. See, e.g., Deborah Anker, Bahar Khoshnoudi & Ron Rosenberg, Expedited Removal: Applying the

Credible Fear Standard, in IN DEFENSE OF THE ALIENS 193, 194 (Lydio S. Tomaski ed., Vol. XXI, 1998).

3. U.S. CITIZENSHIP & IMMIGR. SERVS., RAIO, ASYLUM DIVISION OFFICER TRAINING COURSE,

CREDIBLE FEAR OF PERSECUTION AND TORTURE DETERMINATIONS 10 (2019) [hereinafter U.S. CITIZENSHIP

& IMMIGR. SERVS. (2019)].

400 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 35:399

The interview takes place with an asylum off‌icer—not before a judge.

4

Attorneys are rarely present.

5

In the event that an attorney or other legal as-

sistant accompanies the asylum seeker, the standard protocol insists on the

attorney’s silence during the interview itself, although the asylum off‌icer has

some discretion to allow a short closing statement. Even so, translation, both

literal and cultural, and its concomitant hazards permeate the credible fear

process and create a potentially adverse environment. Should any of the myr-

iad sites of translation or interpretation fail, even detained individuals and

families with the strongest cases face removal from the United States, with

potentially life-threatening consequences.

6

Beginning in 2014, a surge of women and children f‌leeing violence in El

Salvador, Guatemala, and Honduras sought refuge in the United States.

7

President Obama’s administration responded by implementing a draconian

new family detention policy, jailing the women and their children in for-

prof‌it immigration detention centers.

8

With the inauguration of Donald

Trump as U.S. president in January 2017, immigration detention skyrocketed

across the demographic landscape for everyone: families, unaccompanied

children, adults traveling with minors, and single adults.

9

The South Texas Family Residential Center (STFRC), a detention facility

operated at immense prof‌it by the private corporation CoreCivic, opened in

December 2014 primarily to house the surge of women and their children

from Central America.

10

The detention center’s modular units for security,

4. 8 U.S.C. § 1225(b)(1)(A)(iii) (2018).

5. 8 CFR § 208.9(b) (2020) (allowing an attorney or other representative to be present with the asy-

lum seeker in the credible fear interview, but as a practical matter, access to counsel within immigration

detention is severely limited). See STEPHEN W. MANNING, INNOVATION LAW LAB, THE ARTESIA REPORT,

https://perma.cc/4CU6-WBWY (last visited Nov. 11, 2020); INGRID EAGLY & STEVEN SHAFER, ACCESS

TO COUNSEL IN IMMIGRATION COURT (Sept. 2016), https://www.americanimmigrationcouncil.org/

sites/default/f‌iles/research/access_to_counsel_in_immigration_court.pdf.

6. See, e.g., Kevin Sieff, When Death Awaits Deported Asylum Seekers, WASH. POST (Dec. 26,

2018), https://www.washingtonpost.com/graphics/2018/world/when-death-awaits-deported-asylum-

seekers/; Sarah Stillman, When Deportation Is a Death Sentence, THE NEW YORKER (Jan. 8, 2018),

https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-sentence; Katie Morrissey,

Reporting in Honduras on Asylum Seekers Who Were Deported and Killed, SAN DIEGO UNION TRIBUNE (Oct.

11, 2020, 6:00 AM), https://www.sandiegouniontribune.com/news/immigration/story/2020-10-11/back-story-

reporting-in-honduras-asylum.

7. See JONATHAN T. HISKEY, ABBY CÓRDOVA, DIANA ORCE

´S & MARY FRAN MALONE,

UNDERSTANDING THE CENTRAL AMERICAN REFUGEE CRISIS: WHY THEY ARE FLEEING AND HOW U.S.

POLICIES ARE FAILING TO DETER THEM 1 (Feb. 2016), https://www.americanimmigrationcouncil.org/

sites/default/f‌iles/research/understanding_the_central_american_refugee_crisis.pdf; Karen Musalo &

Eunice Lee, Seeking a Rational Approach to a Regional Refugee Crisis: Lessons from the Summer 2014

“Surge” of Central American Women and Children at the US-Mexico Border, 5 J. HUMAN MIGRATION &

SECURITY 137, 138 (2017).

8. Wil S. Hylton, The Shame of America’s Family Detention Camps, N.Y. TIMES (Feb. 4, 2015),

http://www.nytimes.com/2015/02/08/magazine/the-shame-of-americas-family-detention-camps.html.

9. Exec. Order No. 13767, 82 Fed. Reg. 8793 (Jan. 25, 2017), www.whitehouse.gov/presidential-

actions/executive-order-border-security-immigration-enforcement-improvements/; J. RACHEL REYES,

CTR. FOR MIGRATION STUDIES, IMMIGRATION DETENTION: RECENT TRENDS AND SCHOLARSHIP tbl.2

(2018), https://cmsny.org/publications/virtualbrief-detention/.

10. Jim Forsyth, Largest Family Detention Center for Immigrants Opens in Texas, REUTERS (Dec.

15, 2014, 3:25 PM), https://www.reuters.com/article/us-usa-texas-immigration/largest-family-detention-

center-for-immigrants-opens-in-texas-idUSKBN0JT2H320141215; REYES, supra note 9; Dana Nickel,

2021] SITES OF (MIS)TRANSLATION 401