Interpreting for asylum seekers and their attorneys: the challenge of agency

ABSTRACT

This study is a theoretical reflection based on the description of unique dynamics of interpreters working with asylum seekers and attorneys in the U.S. context, an area of practice that has largely been overlooked in the literature. It is argued that these interpreters face challenges with respect to agency and neutrality as they provide interpreting services alongside written translation and other linguistic services that often fall outside the scope of their work in other legal contexts. The collective goals of attorneys and clients and their various communication needs both during and outside of meetings may require interpreters to adjust their roles and interpreting approaches in order to be effective communication partners. Moreover, their direct contact with the attorneys and asylum seekers themselves gives way to the development of relationships and a certain level of rapport, especially since asylum cases may last for more than a year. While dissociating oneself from the interpreted event is often the ethical canon in different areas of interpreting and a means to earn professional trust from the other parties, doing so in attorney-client asylum cases may have the counter effect and run contrary to the goal of the attorney and client for a successful filing.

KEYWORDS:

• Agency
• asylum
• asylum interpreting
• legal interpreting
• attorneys
• clients

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Jeffrey Killman is an assistant professor of Spanish at the University of North Carolina at Charlotte, where he teaches a range of topics including translation practice, translation technologies, and translation theory. Killman holds a Ph.D. in Translation Studies from the University of Málaga, Spain and is certified as a Spanish court interpreter in North Carolina. His research centers mostly on legal translation and translation technologies, and his publications have appeared in various edited volumes and journals such as Translation and Interpreting Studies and Babel.

ORCID

Jeffrey Killman http://orcid.org/0000-0002-5517-4118

Notes

1 According to NIJC (2018),

[t]here is no benefit to providing a lengthy response to these questions rather than in the affidavit, and it is typically better for the client’s case if the entire story is provided in the client’s affidavit, rather than in piecemeal fashion in the I-589. (p. 31)

2 Whispering (simultaneous) interpreting may at times also be necessary if more than one attorney is present or if an attorney is accompanied by an assistant and these individuals speak to each other as they go about collecting data. In such circumstances this mode of interpreting allows the asylum seeker to be fully or ‘linguistically present’ (de Jongh, 2008) at the encounter.

3 The American Bar Association (2011) tells lawyers to

[b]ecome more “client aware”. This means taking a proactive approach to understanding your clients, including their characteristics, their backgrounds and the environments in which they work and live […] this information can be very useful in relating to them, structuring the feedback that you give to them, and addressing issues from their points of view. (n.p.)

4 In the case of an interview in affirmative asylum, language interpreters are not provided by USCIS, though USCIS does provide sign language interpreters. Affirmative seekers will have to bring their own interpreter and if they are being represented and have already been working with an interpreter, it is likely they will bring that same interpreter, which is all the more reason the seeker and the interpreter need to practice together. In the case of defensive asylum, EOIR does provide a language interpreter, which may be a full-time federal employee or subcontracted by a private company with which EOIR has a contract (EOIR, n.d., p. 3).

5 In theory, testimony that will be interpreted in defensive cases could be scrutinized to the extent of attempting to engineer its delivery in a way it might closely back-translate to the particular phrasing of the information that it draws on in the application as yet another means to ensure consistency before the eyes of the immigration judge or DHS attorney. Nevertheless, different interpreters will likely have different renditions. In affirmative cases where it will be the same interpreter who has been interpreting for the attorney and client, the interpreter could phrase renditions as closely as possible to the wording used in application materials in an attempt to avoid scrutiny from the asylum officer.

6 Ayuda’s Guide for Attorneys Working with Interpreters Outside of the Courtroom (n.d.) advises attorneys to ‘speak slowly in short, simple sentences’ and to ‘[e]ncourage the interpreter to interrupt if one party speaks too long, to encourage accuracy’ (n.p.). It also adds that they should ‘[a]void jargon and slang where possible. Keep everything clear and to the point. Explain legal terms in simple language. Ask one question at a time; if two questions are asked the first is often ignored’. While these recommendations are very considerate of the interpreter, they could be taken as overbearing if an interpreter were to communicate them to the parties for whom he or she is interpreting and could come off as interpreter-centered. Moreover, constricting the parties’ talking speed, sentence length, and vocabulary use could negatively affect their abilities to fully express themselves and potentially impair fluid and open communication, which is important to developing the case and especially so attorneys may ‘[b]ecome more “client aware”’ (ABA, 2011, n.p.).

7 Bancroft et al. (2013) point out that ‘[w]ith no one to control the situation and direct the interpreter’s acts, confusion has often arisen about what the legal interpreter is permitted to do’ when ‘the lawyer, legal services provider, or legal official […] requests that the interpreter do more than just interpret’ (p. 98). This statement insinuates that interpreters under such circumstances are in need of authoritative guidance that they might otherwise receive in more formal legal settings, such as the courts, where they are in ‘the presence of a neutral third-party arbiter in the person of the judge or hearing officer’ (ibid., p. 97). While being in such a presence may motivate certain interpreters to interpret accurately and completely, it overlooks the ethical stance of the interpreter that interpreting in an unbiased and equally accurate way for all parties is in the service of and out of respect for equality before the law.