Language Access in Immigration Court, DM 23-02

OOD

DM 23-02

Issued: June 6, 2023

Effective: Immediately

LANGUAGE ACCESS IN IMMIGRATION COURT

PURPOSE: Provide guidance to immigration judges on language access issues

pertaining to immigration court proceedings

OWNER: David L. Neal, Director

AUTHORITY: 8 C.F.R. § 1003.0(b)

CANCELLATION: Operating Policies and Procedures Memorandum 04-08, Contract

Interpreter Services

I. Introduction

Noncitizens with limited proficiency in English routinely appear before the Executive Office for

Immigration Review’s (EOIR’s) immigration courts. EOIR must ensure that every noncitizen

who appears before an immigration court has a full and fair opportunity to present their case.

See, e.g., Matter of R-C-R-, 28 I&N Dec. 74, 77 (BIA 2020) (stating that a noncitizen “who faces

removal is entitled to a full and fair removal hearing under both the [Immigration and

Nationality] Act and the Due Process Clause of the Fifth Amendment”). For EOIR to meet this

objective, noncitizens with limited proficiency in English must be provided with in-court

interpretation into their preferred language. In many cases, such noncitizens must also have

reasonable access to out-of-court translation services. Given the demographics of noncitizens in

immigration court proceedings, interpretation and translation services must be provided into a

wide range of languages. This memo will discuss interpretation and access to these other

services. It supersedes and rescinds Operating Policies and Procedures Memorandum 04-08,

Contract Interpreter Services.

II. Interpretation

Noncitizens whose best language is not English must be provided with complete and accurate

interpretation during all immigration court hearings. In practice, most noncitizens who appear in

Immigration judges should be aware that some noncitizens appearing before the immigration court have

communication disabilities. These include vision, hearing, and speech disabilities. Such noncitizens may or may

not be proficient English speakers. Specific guidelines on communicating in court with noncitizens who have

communication disabilities are beyond the scope of this memorandum, but immigration judges must ensure that

noncitizens with such disabilities have full and fair opportunities to present their cases.

immigration courts require such interpretation. Immigration judges must ensure that

interpretation into an appropriate language is provided whenever needed. Guidelines for doing

so are set forth below.

At the start of each case, the immigration judge should identify the noncitizen’s preferred

language or languages. Immigration judges should do this by asking, on the record at the initial

hearing, open-ended questions such as “What is the language you prefer communicating in?” or

“What is the language you speak and understand the best?” Immigration judges should not

present a noncitizen with a binary choice, such as by asking “Do you speak Spanish?” or “What

language do you prefer, Spanish or English?” Where a noncitizen is represented by counsel, the

immigration judge should ask counsel for the noncitizen’s preferred language and then confirm

counsel’s answer with the noncitizen. In certain cases, a noncitizen’s preferred language will be

a sign language.

Where a noncitizen represents at the initial hearing that their preferred language is not English,

the immigration judge should ensure that the noncitizen is provided with interpretation into their

preferred language going forward.

At the start of subsequent hearings, the immigration judge

should, on the record, verify with the noncitizen their preferred language. An immigration judge

should not encourage a noncitizen to proceed in a language other than the one the noncitizen

identified as their preference. Doing so raises fairness concerns and may cause complications

later in the proceedings. This principle applies even where an interpreter in the noncitizen’s

preferred language is not immediately available. In order to facilitate interpreting, immigration

courts should, to the greatest extent possible, group cases by language when scheduling master

calendar hearings. Where no interpreter in a noncitizen’s preferred language is available at a

particular hearing, whether an initial hearing or a subsequent hearing, there may be “good cause”

to continue the case under the regulatory standard. See 8 C.F.R. § 1003.29.

In addressing language issues in court, immigration judges should be cognizant that some

noncitizens have limited proficiency in the dominant language spoken in their country of origin

(for example, Spanish in Mexico and most Central and South American countries) and are fluent

only in an Indigenous language. Further, some languages have multiple variants, and speakers of

one variant may not fully understand speakers of another. Given these facts, determinations as to

the best language in which to proceed sometimes require the immigration judge to engage in an

in-depth inquiry. For example, where a noncitizen from a Central American country reports

speaking Spanish, an immigration judge may need to inquire into whether they also speak an

Indigenous language and, if they do, whether they prefer to speak Spanish or the Indigenous

language. Where a noncitizen’s preferred language is one with multiple variants, the

immigration judge may need to inquire into which variant the noncitizen speaks. In such a case,

the immigration judge should be cognizant that an interpreter and a noncitizen may speak

different variants from one another. Accordingly, before a noncitizen starts testifying through an

interpreter, the immigration judge should verify with both the noncitizen and the interpreter that

they understand one another fully. Once the noncitizen starts testifying, if the interpreter and the

Some people are fluent in more than one language. Where a noncitizen reports that they speak and understand

more than one language equally well, the immigration judge should inquire which of those languages the noncitizen

prefers to use in immigration court, and then ensure the noncitizen is provided interpretation into that language

going forward.

noncitizen appear to be having problems communicating, the immigration judge should stop the

testimony and assess how to proceed.

III. Out-of-Court Translation

Noncitizens in proceedings before EOIR whose preferred language is not English often require

not just in-court interpretation but also access to out-of-court translation services. For example, a

noncitizen may require such services to assist them in completing an application, accessing self-

help or other legal resources, or reading case-related documents. Immigration judges must use

the powers at their disposal to facilitate access to such services, under the guidelines below.

Immigration judges presiding over dockets of detained noncitizens must familiarize themselves

with resources available to noncitizens at the detention facility. They should learn, for example,

whether there is an on-site library where detainees can access assistance in filling out

applications. If such a library exists, immigration judges should be familiar with (1) what its

hours are, (2) whether the facility places restrictions on detainees’ access to the library, and how

to address any such restrictions, and (3) what translation services, including pertaining to

Indigenous or rare languages, are available to detainees through the library. Assistant Chief

Immigration Judges should coordinate with local Department of Homeland Security officials to

promote familiarity with the library and access to language assistance services.

Immigration judges generally have “broad discretion to conduct and control immigration

proceedings.” Matter of Interiano-Rosa, 25 I&N Dec. 264, 265 (BIA 2010). They may, in the

exercise of this discretion, set and enforce deadlines for filing applications and other documents.

See 8 C.F.R. § 1003.31(h) (“The immigration judge may set and extend time limits for the filing

of applications and related documents and responses thereto, if any. If an application or

document is not filed within the time set by the immigration judge, the opportunity to file that

application or document shall be deemed waived.”); Matter of Interiano-Rosa, 25 I&N Dec. at

265 (stating that “Immigration Judges have authority to set filing deadlines for applications and

related documents,” and that “[a]n application or document that is not filed within the time

established by the Immigration Judge may be deemed waived”).

That said, deadlines set by immigration judges should be reasonable given the circumstances of

the case. Applications filed in immigration court must be completed in English,

and foreign

language documents must be accompanied by an English translation. See 8 C.F.R. § 1003.33

(“Any foreign language document offered by a party in a proceeding shall be accompanied by an

English language translation and a certification signed by the translator that must be printed

legibly or typed. Such certification must include a statement that the translator is competent to

translate the document, and that the translation is true and accurate to the best of the translator's

abilities.”). In determining reasonable filing deadlines, an immigration judge should consider the

noncitizen’s proficiency in speaking and writing English. Where a noncitizen lacks English

proficiency, the immigration judge should consider the availability of translation services to the

See, e.g., Instructions, Form I-589, Application for Asylum and for Withholding of Removal, available at

https://www.uscis.gov/sites/default/files/document/forms/i-589instr.pdf.

noncitizen, including at the detention facility in cases where the noncitizen is detained.

Where a

noncitizen’s preferred language is an Indigenous or rare language, more time may be needed to

find language assistance and complete an application than in other cases. This is partly because

some Indigenous languages have no written form, potentially complicating the translation

process. There will sometimes be reason to extend a filing deadline where a noncitizen has made

diligent efforts to prepare documents for filing but where they have been unable to access

translation services or the translation process has taken longer than forecast.

IV. Conclusion

Fairness considerations dictate that noncitizens with limited proficiency in English who appear

before the immigration courts always be provided with in-court interpretation, and with

reasonable access to out-of-court translation services where needed. Immigration judges must, to

the extent their authority allows, ensure these dictates are met. This memorandum is intended to

set out best practices related to language access for immigration judges and other EOIR

personnel to follow. If you have any questions, please contact your supervisor.

Internet-based translation services such as Google Translate are not sufficiently accurate for translating official

documents or statements submitted under penalty of perjury. Immigration judges should therefore not advise

noncitizens to use such services for immigration court filings.

This memorandum is not intended to, does not, and may not be relied up on to, create any right or benefit,

substantive or procedural, enforceable at law or in equity by any party against the United States; its departments,

agencies, or entities; its officers, employees, or agents; or any other person. In adjudicating cases, immigration

judges and appellate immigration judges must always exercise their independent judgment and discretion, consistent

with the law. See 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10(b).