[lg policy] ndigenous Asylum Seekers Face Language Barriers at the Border

Harold Schiffman haroldfs at gmail.com
Fri Jul 27 11:28:56 EDT 2018

 Candice Bernd <https://truthout.org/authors/candice-bernd/> Truthout
<https://truthout.org> Published July 26, 2018
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When Norma finally reached the United States after more than a
month-and-a-half of journeying from Guatemala with her 5-year-old son, the
very same fear that had compelled her to flee home in the first place ended
up happening anyway: Her child was taken from her — not by the Guatemalan
men who had threatened just that, but by US border agents.

After an already arduous journey north, it was still only the beginning of
a long nightmare for Norma, who, unlike the vast majority of migrants
seeking asylum at the US border from Central America, is Indigenous and
primarily speaks the Mayan dialect of K’iche’ and only a limited amount of
broken Spanish. Like other people of her descent seeking a safe haven in
the US, her Indigeneity plays a significant role in her ongoing asylum

Norma’s husband, Daniel,* who speaks both K’iche’ and fluent Spanish,
helped interpret her ordeal during an extensive interview, telling Truthout
that Norma was attacked in Guatemala by a group of men just after she went
to withdraw the money that he had sent her. Daniel has lived and worked in
New York for the past five years and regularly sent money back to support
his family.

The men followed her and held her up just as she was leaving the bank,
telling her that if she didn’t give them her money and her personal
belongings, including her cellphone, they would take her child. Her
attackers continued to pursue her and her son with threats, but when she
went to the police to get help, they were unresponsive, the couple believes
because of Norma’s limited ability to explain what happened in Spanish.

After that, she felt she could no longer leave her home without risking her
son’s safety — or even his or her own life. Like thousands of other
Guatemalan families facing similar violence, she decided to leave, setting
off with her son in April.

Shortly after crossing the US border in May, she was detained with her son
by US Customs and Border Patrol (CBP) agents and moved to a processing jail
with him. She explained that they suffered terrible conditions, including
being put together into a freezing “ice box” room
without blankets before being moved into separate cells the next day, where
she could hear him crying before authorities told her he would be sent to a
separate detention shelter for children.

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On top of this traumatizing blow, Norma was then funneled through two more
detention and/or processing jails, at times going without showers or new
clothes for as long as a week, sleeping on cell floors, receiving little
food and unable to call her husband or even speak with an officer, she
recalled, before finally landing at the T. Don Hutto detention jail in
Taylor, Texas.
“She speaks very basic Spanish, and she speaks very slowly, thinking about
every word. She doesn’t speak Spanish very well.”

There, she said, she was finally able to call Daniel, but remained in the
dark about the whereabouts of her son. She would continue to be dazed and
confused for over a month about exactly what was happening to her and her
son, and especially the complexities of her own legal asylum process.

As Daniel explained, Norma tried to communicate with both CBP and
Immigration and Customs Enforcement (ICE) agents throughout this time in
Spanish, but “the problem is she speaks very basic Spanish, and she speaks
very slowly, thinking about every word. She doesn’t speak Spanish very
well,” he said.
*Language Barriers in Immigrant Detention*

As someone with little Spanish proficiency, Norma said she had difficulties
because of her language barriers. While she was eventually able to proceed
with the first legal step in her asylum process by having what’s known as a
“credible fear” interview with the assistance of an interpreter, she
couldn’t understand the jail’s basic procedures and rules. “Nobody talked
to her about anything. She was just in the room,” Daniel said. This
isolation and lack of clarity only amplified her anxiety: She was terrified
that she’d be deported back to Guatemala without her son, where, as Daniel
says, she “didn’t know what would happen to her.”

An ICE spokesperson told Truthout the agency manages telephone-based
translation services known as “language lines,” and pointed to the agency’s
June 2015 Language Access Plan
saying the agency’s Office of Diversity and Civil Rights leads a required
language-access working group to address language-related issues in

But the difficulties Norma described are something that civil rights and
refugee advocates like Margo Schlanger, the former head of the Department
of Homeland Security’s (DHS) Office for Civil Rights and Civil Liberties,
have pushed ICE to improve for years, including during the Obama
“Nobody talked to her about anything. She was just in the room.”

When Schlanger headed the civil rights office from 2010 to 2012, she was in
charge of the department’s language-access obligations under an executive
order signed by President Clinton in 2000. After she left DHS, she chaired
a working group of the Advisory Committee on Family Residential Centers, a
nongovernmental committee tasked with making recommendations to the DHS
secretary concerning language-access issues for people with limited English
and Spanish proficiency that was narrowly focused on family detention jails.

In October 2016, the committee published a report
outlining a set of recommendations to improve language access, finding that
DHS’s language-access policy “is neither appropriately implemented nor
appropriately communicated to families detained in ICE’s [family jails].”
Among the first recommendations is avoiding the use of family detention for
limited proficiency speakers entirely:

When DHS encounters an individual who speaks a rare language that poses
severe language access difficulties – such as a Central American indigenous
language – such a person should not be detained, but should rather be
released with a Notice to Appear, on their own recognizance or with the
support of a case management support program. In the rare event that this
approach is inappropriate or impossible, such persons should be provided
with appointed counsel who can facilitate both effective language access
and fair immigration proceedings.”

Beyond that, the report recommends ICE track languages spoken and provide
translations of all crucial documents, including the detainee handbook and
orientation materials, for any language spoken by 0.5 percent or more
detainees, or 50 detainees in the course of a year, whichever is lower. The
report also recommends the agency provide non-text strategies to assist in
understanding for people with low literacy levels, as well as “explore
various ways to provide live interpretation or bilingual staff.”

“We did not think that ICE was capable of running a safe and appropriate
detention setting for people who didn’t have either English or Spanish,”
Schlanger told Truthout. “I didn’t see any follow-through [on the report].
The committee was never formally disbanded, but after the [2016 US]
election, any idea that it was ever going to meet again was gone. … As far
as I know, no one in the new administration has even read [the report].”
“As far as I know, no one in the new administration has even read [the

Moreover, the committee’s report makes note of a May 2016 court filing
<http://www.clearinghouse.net/chDocs/public/IM-CA-0002-0024.pdf> by the San
Antonio-based Refugee and Immigrant Center for Education and Legal Services
(RAICES). The filing was made on behalf of plaintiffs in the 33-year-long
battle over conditions for migrant children held in family detention jails
in *Flores v. Reno*, and reviewed the situations of 250 families with
limited English and Spanish. It found that detention guards and staffers
“systematically fail to communicate with non-Spanish speakers in their
languages,” and claims the following anecdote
is typical:

When Elana and her two-year-old son first arrived at the Dilley[, Texas,]
detention center after being detained on August 26, 2015, she informed
officials that she spoke Mam, an indigenous Mayan language spoken by half a
million Guatemalans, and that her religion was Mam. But during the three
weeks that she and her two-year-old son spent in detention, neither ICE nor
Corrections Corporations of America (CCA) (the private prison contractor
operating the Dilley detention center) staff communicated with her in Mam.
ICE never found a Mam interpreter for Elana or gave her any documents
written in Mam.

The report also detailed problems with the language lines the agency uses
for translation. Even though the committee was unable to fully assess how
prevalent language line use is since ICE would not provide the committee
with the available data from those services, the report cited one ICE
compliance review of the family detention jail in Dilley that ICE included
in its own court filing in the *Flores* case. The review described “both a
documentation problem and an underuse of interpretation,” according to the
committee’s report.

Kate Lincoln-Goldfinch <https://www.lincolngoldfinch.com/>, an immigration
attorney who represented Norma while she was detained in Texas, told
Truthout that she used the language lines to speak with Norma about her
legal proceedings, but had some difficulty with them. “Because it’s such a
rare language, the first time we went through the language line, the
interpreter wasn’t available,” she said.

Her legal team was ultimately able to arrange an in-person interpreter for
Norma, but the interpreter’s services were limited to Norma’s legal
process. Norma gave no indication that she used the language lines for any
other purpose and Lincoln-Goldfinch confirmed as much, telling Truthout
that the guards at the Hutto detention jail spoke to her in Spanish for all
other matters.

Schlanger described the problems further, saying the lines are not useful
when it comes to the languages that have many “micro” dialects, and that
the lines typically aren’t used for group communication, including
orientation. “Even if [the language lines] are being used, which I’m not
convinced of … they’re only being used one-on-one, and so the result is
that they’re only being used for a certain narrow swath of communications
that take place,” she said.

The language problems aren’t limited to Indigenous peoples. ICE’s Language
Access Plan makes clear the agency encounters many other languages, but
Indigenous peoples speaking Mayan dialects are likely the largest
non-English or non-Spanish speaking population arriving from Central
America to seek asylum and subsequently detained in jails in the border
*Indigenous and in Need of Asylum*

According to ICE’s 2015 Language Access Plan
the agency encounters a number of Mayan dialects spoken in Guatemala and
southern Mexico, including K’iche’ (Quiche), Mam, Achi, Ixil, Awakatek,
Jakaltek (Popti) and Qanjobal (K’anjob’al). A CBP spokesperson confirmed to
Truthout, however, that the agency “does not track the language spoken by
an individual arrestee” at the border. Neither, a spokesperson confirmed,
does ICE “break down its detention population by language.”
“The entire concept of this system is completely foreign, and adding the
language barrier on top of that makes it nearly impossible to effectively
prepare them for what happens.”

While there remain no hard statistics available on Indigenous populations
crossing the border, Manoj Govindaiah, who directs family detention
services at RAICES, told Truthout that the organization works with hundreds
of Indigenous people every day. In fact, this year alone, the organization
has encountered 442 families speaking Indigenous languages in their work at
the family detention jail in Karnes City, Texas. They saw between 60 and 70
Indigenous families per month, with 33 by mid-July. The numbers, however,
open only a tiny window on this population.

Govindaiah explained some of the challenges RAICES faces when representing
and providing legal services for Indigenous-language speaking families in
immigration proceedings. The asylum process is remarkably complex even for
clients who are fluent in English and Spanish, he says, and explaining the
legal process and requirements for asylum-seekers once they are released
proves challenging. “The entire concept of this sort of system is so
completely foreign, and then adding the language barrier on top of that
makes it nearly impossible to effectively prepare them for what happens,”
he said.

Still, the organization is working with a group of Indigenous interpreters
who have offered to provide in-person services, and Govindaiah said RAICES
staffers do have access to language lines at the family detention jails
where they work most prominently.

In Govindaiah’s experience, Indigenous-speaking families are sometimes
issued what’s known as a “Rare Language Notice to Appear” allowing them to
bypass the credible fear interview process and be released with a court
date. While “this is great in a way,” Govindaiah says, it is also
problematic because “that family really does not receive information from
the asylum office on their rights and their obligations.”

Lincoln-Goldfinch echoed some of the difficulties faced by lawyers and
legal organizations when trying their best to provide Indigenous-language
speakers with adequate due process. In addition to the problems she
encountered with the language lines at Hutto, her team encountered several
logistical hurdles, including scheduling difficulties with the interpreter
they finally arranged. ICE officers didn’t make things easier: They
initially wouldn’t clear the interpreter, who was flown in to be at the
Hutto jail in person, for entry.

Norma’s case is still pending, and she’s scheduled for a hearing next month
in Texas. Lincoln-Goldfinch, however, is working with a law firm in New
York to transfer her case there, as well as reunify her and her son’s
cases, which became legally severed after her son was rendered
“unaccompanied” by border officials when he was separated from her.

Furthermore, Norma’s Indigeneity plays a significant role in her asylum
claim. As Daniel explained, gangs in Guatemala often specifically target
people who are Indigenous because they know that they “can’t do anything”
and “can’t give a detailed account of what happened to the police.” In
Norma’s case, Daniel said, the police “didn’t even do the paperwork or give
her a record of her claim.” He underscored that it’s not simply about a
language barrier, saying her treatment was also about “our difference in
ways and customs.”

Govindaiah confirmed that he sees similar experiences of persecution in his
work with detained families, saying many Indigenous-language speaking
families have expressed that they can’t communicate with the police, and
that women who have non-Indigenous partners often report verbal domestic
abuse referencing their ethnicity. Additionally, Central American women
have also reported being discriminated against in employment or in
educational opportunities because of their Indigenous clothing or language.

The persecution faced by Indigenous Central Americans, both in their
country of origin and in terms of the US’s specific state-sponsored
violence of detention and family separation at the border, is part of a
legacy of cultural oppression and erasure of Indigenous people spanning
hundreds of years.
*From Boarding Schools to Border Separations*

The US in particular has a long history of stripping Indigenous parents of
their children for the purpose of assimilating them, and that legacy
continues to this day.

As Truthout has detailed
Native children in the US were systematically taken from their parents and
placed in boarding schools under Article VII of the Fort Laramie Treaty of
1868 <http://www.pbs.org/weta/thewest/resources/archives/four/ftlaram.htm>
for more than a century, until the Indian Child Welfare Act
(ICWA) was passed in 1978.

Despite the fact that the law established requirements
<http://www.nicwa.org/Indian_Child_Welfare_Act/> for child welfare agencies
and state courts in their work with Native children, the US’s system of
cultural oppression simply morphed again, this time in the form of the
child welfare system. Repeated violations of the ICWA led the Bureau of
Indian Affairs to draft new guidelines
to strengthen the law in 2015, for instance.
“To be going through such a traumatic experience and not even having the
language to understand what’s going on around you is unfathomable.”

The separation of Indigenous children from their parents at the border only
adds to and accelerates the state’s cultural erasure of Native populations,
as children taken into custody by the Department of Health and Human
Services’ (HHS) Office of Refugee Resettlement (ORR) have been sent to
often white, potentially abusive foster homes
hundreds of miles from their parents.

The ORR did not respond to Truthout’s request for information about the
office’s language-access protocols and procedures. It remains unclear if
the office tracks the number of Indigenous-language speaking children taken
into custody, to what extent the office uses similar language lines to
communicate, or whether the office has any special procedures for
Indigenous children. While the HHS maintains a Language Access Plan,
Truthout was unable to find such a plan specifically for HHS’s ORR

Separations of Indigenous children happened routinely even before the Trump
administration enacted its “zero-tolerance” policy, potentially because
Indigenous-language speaking mothers can’t effectively counter the US
government’s claims that they may be “unfit.” Govindaiah told Truthout that
at the Karnes family jail alone, 24 Indigenous-language speaking families
reported separation from their children since January.

More than 900 children still remain separated from their parents even as
today marks a court-ordered deadline for the US government to reunify
families separated at the border. According to CBS
as many as 200 of those cases involve parents who declined to be reunited,
because, attorneys say, they are feeling pressured to sign away their
rights to do so and that some “don’t understand what they’re agreeing to;
whether the result of a language barrier, or documents that are too

Of the mothers torn from their children since the onset of the
administration’s zero-tolerance policy, Norma is one of the lucky ones.
Daniel explained that his son was moved to a detention shelter in New York
after being separated, and Daniel was eventually able to prove his
paternity and reunite with him. Norma joined them both once she was
released on bond from the Hutto jail this month.

Still, her ordeal is why international treaties and declarations, such as
the United Nations Declaration on the Rights of Indigenous People
<https://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>, endorsed by
the US in 2010, specifically prohibit state-sponsored separations. The
Declaration codifies Indigenous people’s right to “retain shared
responsibility for the upbringing, training, education and well-being of
their children,” as well as enshrining their rights as a collective status.

Trump’s executive order regarding family separations at the border — as
well as existing immigration law regarding family detention and conditions
for children — make no special provisions for Indigenous people, who face
unique challenges and a history of oppression at the US border.

“Poor Norma, stuck in a detention center with people who don’t speak her
language, and her son has been taken away. Thank God she has a little bit
of Spanish so she wasn’t *completely* disoriented,” Lincoln-Goldfinch said.
“To be going through such a traumatic experience and not even having the
language to understand what’s going on around you is … unfathomable.”

**Both Norma and Daniel’s full names have been withheld to protect their
identities as their family moves forward with their legal asylum claim.*

*Truthout’s marketing manager, Sophie Moon, translated Daniel’s statements
for this article.*


 Harold F. Schiffman

Professor Emeritus of
 Dravidian Linguistics and Culture
Dept. of South Asia Studies
University of Pennsylvania
Philadelphia, PA 19104-6305

Phone:  (215) 898-7475
Fax:  (215) 573-2138

Email:  haroldfs at gmail.com

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