Freedom of expression at risk as US agency ends COVID-era interpretation services

Introduction

In a move that has caused much anger and confusion, the United States Citizenship and Immigration Services (USCIS) is no longer providing free interpretation services for asylum seekers. Since September 2020, USCIS provided applicants with its own telephonic interpretation services in 47 critical languages. However, on September 13, 2023, the agency rolled back its COVID-era temporary final rule (TFR), a policy which increased language access for many. While this temporary policy was designed to protect US Asylum Officers from heightened exposure to the COVID-19 virus, it was arguably low-income, limited English proficiency (LEP) asylum seekers who benefited most from heightened language access. By repealing these services, USCIS placed some of the 1.5 million individuals currently waiting for asylum hearings and some future applicants at greater risk of targeted scams and further administrative delay.

As a qualifying US governmental entity bound by Article 19 of the International Covenant on Civil and Political Rights (ICCPR), Executive Order (EO) 13166, the Department of Justice’s (DOJ) Civil Rights Division guidance, and the Department of Homeland Security (DHS) Language Access Plan, USCIS cannot continue to deny critical language interpretation services absent a necessary purpose for such restrictions on asylum seekers’ right to freedom of expression. Not only do the pre-pandemic regulations unduly burden the right to freedom of expression, they may also contravene the right to an interpreter if a petition contains disclosures of past crimes or other infractions.

USCIS has demonstrated a ready ability to provide its own extensive telephonic interpretation services over the past three years. If USCIS cannot continue to self-fund these critical interpretation services, DHS or Congress must step in to expand language access in accordance with the US government’s (USG) current human rights obligations.

Applicants have a right to impart information

While human rights discussions about the US affirmative asylum process naturally invoke the right to asylum enshrined in the 1948 Universal Declaration of Human Rights, the Refugee Convention of 1951 and its 1967 Protocol, USCIS’ recent curtailment of its own language interpretation services for asylum seekers puts another internationally-recognized human right into focus: the right to freedom of expression. Freedom of expression is recognized by Article 19 of the Universal Declaration of Human Rights (UDHR); it is further enshrined in Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and elaborated upon by the UN Human Right’s Committee’s General Comment 34. As a ratifying party to the ICCPR, the USG and its relevant entities must comply with and implement the provisions of the ICCPR just as it would any other domestic law, subject to the USG’s Reservations, Understandings and Declarations.

Article 19(2) of the ICCPR sets out the positive meaning of freedom of expression. Its scope is extensive and includes freedom to seek, receive, and impart information and ideas of all kinds. In the affirmative asylum interview context, the freedom to impart information is particularly salient because asylum seekers are required by law to credibly corroborate past or future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Without the assistance of a competent interpreter, an applicant’s ability to accurately convey their experiences greatly diminishes. Moreover, mistranslations and miscommunications could invite an Asylum Officer to make a negative credibility finding, which could prolong the affirmative process and/or launch the applicant into high-stakes removal proceedings.

If there is one case that demonstrates the critical importance of accurate language interpretation in the asylum context, it is the 1985 Miroslav Medvid Affair when a Soviet seaman likely seeking political asylum was ordered returned to his ship following an ineffective interpreter-assisted US Border Patrol interview. This infamous international incident hinged on the contested interpretation of the words “asylum,” “freedom,” and “to throw away.”

The US government must ensure procedural due process is met

As of September 13, 2023, USCIS’ position shifts the costs of providing competent language interpretation onto asylum seekers. In practice, the agency’s burden-shifting critically disadvantages low-income LEP applicants who struggle to afford quality interpretation and translational services in support of their asylum applications. Malicious actors target desperate, low-income LEP individuals who become victims of “cost-saving” immigration scams. Retaining unqualified, incompetent, or abusive legal service providers jeopardizes the quality of applicants’ written submissions and their translated oral responses during their asylum interviews. This is where the USG can step in and provide certified language interpreters to offset some of the language barriers which ultimately affect the quality of asylum proceedings for all parties.  

According to the US Bureau of Labor Statistics Occupational Outlook Handbook, interpreters and translators typically need a bachelor’s degree, and most states require certification for court interpreters. USCIS’ updated Language Access Plan for Asylum Division Interviews seriously relaxes this standard, merely requiring interpreters be at least 18 years of age, fluent in English, and fluent in a language spoken by the applicant. Unfortunately, LEP individuals are not positioned to verify the English language proficiency of potential interpreters absent some form of recognized accreditation. By providing its own cadre of certified language interpreters at the initial asylum interview stage, USCIS can ensure heightened protections and procedural legitimacy to asylum interview proceedings. When asylum-seekers lack access to a professional interpreter for their asylum interviews, they lack meaningful access to the asylum process. Therefore, USCIS must permanently reinstate its COVID-era policy to provide telephonic interpreters for affirmative asylum applicants.

USCIS funding comes primarily from filing fees paid by applicants or petitioners requesting benefits. These fees account for approximately 90 percent of USCIS’ total FY 2022 spending authority. If necessary, DHS can propose fee adjustments to ensure full cost recovery, although this would naturally place the financial burden back on applicants. If both agencies fail to act pursuant to their outstanding legal obligations under international and domestic law, Congress can provide additional funding for interpretation services.  

Conclusion

USCIS demonstrated that it can successfully provide telephonic interpretation services in at least 47 critical languages for affirmative asylum applicants. On its face, the agency’s current Language Access Plan acknowledges that asking applicants to provide their own interpreters, who could be incompetent, abusive, or disqualified by the Officer, unduly delays the adjudication process. Not only does USCIS’ pre-pandemic policy continue to disadvantage low-income LEP asylum seekers, but it also continues to waste agency time and resources while hampering the agency’s ability to accurately adjudicate petitions. The USG must reinstate its COVID-era interpretation services to protect asylum seekers’ right to impart information and ensure the quality and legitimacy of US asylum proceedings.