In July, immigrant rights groups filed a lawsuit against US Customs and Border Protection

for barring asylum seekers from entry unless they scheduled an appointment via mobile app.[1] Alongside barriers like Internet access, the lawsuit has drawn attention to disparities in translation and interpretation services because the app is only available in 3 languages. These disparities not only constitute discrimination by country of origin, but prevent asylum seekers from exercising their rights to health and equality before the law.

Nearly 80 years ago, the Universal Declaration of Human Rights asserted that everyone has the right to seek and enjoy “asylum from persecution” in other countries.[2] The 1951 Refugee Convention reinforced this right by establishing specific protections and mandating that state parties uphold them.[3] As specified by Article 3, all refugees “shall enjoy protections of the Convention without discrimination as to race, religion, or country of origin.”[4] Asylum seekers are distinct from refugees, but this does not mean they have failed to qualify for refugee status, only that they have yet to receive it. Furthermore, although Article 3 does explain whether limiting language access amounts to country-based discrimination, the US Supreme Court has clearly stated that it does. In 1974, the Court ruled that federally-funded programs must provide access to people with limited English proficiency or be held liable for discrimination on the basis of national origin.[5] Federal agencies are also required to evaluate their language services and ensure that people can use them.[6] The ongoing lawsuit demonstrates that US Customs and Border Protection (CBP) has failed to meet these requirements and in doing so, discriminated against asylum seekers by country of origin.

The lawsuit began after asylum seekers were repeatedly turned away by immigration officials because they had not scheduled an appointment using “CBP One,” the agency’s mobile app.[7] As noted in Plaintiffs’ complaint, the app made the asylum process only accessible to the select few, namely those who could afford a functioning smartphone and internet access.[8] In addition, asylum seekers could only use the app if they knew how to read and write in English, Spanish, or Haitian Creole.[9] This limited selection of languages created an additional barrier for asylum seekers from Brazil and those belonging to indigenous communities. Over the past five years, the number of asylum seekers from Central America has increased significantly and with it, the percentage of applicants who primarily speak indigenous languages.[10] Since 2018, K’iche’ and Mam have become two of the most commonly spoken languages during immigration proceedings.[11] Despite this shift in demographics, the federal government has yet to provide sufficient translation and interpreting services, resulting in violations of asylum seekers’ right to health and equality before the law.

The right to health is enshrined Article 12 of in the International Covenant on Economic, Social, and Cultural Rights.[12]  When asylum seekers cannot access an interpreter or translator, they are more likely to be given inadequate medical care or be denied assistance altogether due to communication barriers. Within the same month, two Guatemalan children died from medical complications while they were into the custody of US Border Patrol.[13] Authorities claimed that the children’s parents provided inconsistent information, while failing to mention that both families spoke indigenous languages.[14] Language access not only impacts the quality of care that asylum seekers receive, but the status of their petition. Asylum seekers have been forced to wait over a year for their court hearing because no interpreters were available.[15] In other cases, the interpreters had little training or worked over the phone, leading to gaps in understanding between asylum seekers and the judges evaluating their requests for refugee status.[16] These discrepancies put indigenous asylum seekers at a disadvantage in comparison to others, violating their right to be equal before law, which is protected by the International Covenant on Civil and Political Rights. Article 14 not only states that “all personals shall be equal before the courts,” but asserts that everyone has the right “to be tried without undue delay” and “to have the free assistance of an interpreter.”[17] The court system often fails to uphold these protections when asylum seekers speak an indigenous language, putting them at risk of deportation for ‘illegally’ crossing the border.

Language access is critical to ensuring that all asylum seekers have the opportunity to receive refugee status, regardless of their race, religion, or country of origin. Under international law, asylum seekers also have the right to receive adequate medical care and petition the court with the help of an interpreter. In turn, US Customs and Border Protection has an obligation to expand and enhance its language services. The agency can make concrete steps towards this goal by hiring more interpreters, translating important materials into indigenous languages, providing audio versions, and partnering with grassroots organizations like Respond Crisis Translation.

Hannah Pell holds a bachelor's degree from the School of International Service at American University. Her research interests include cultural rights, reproductive justice, and Spanish linguistics. She recently published an editorial in the Oxford Human Rights Hub, which discussed how Russia's attack on Ukrainian heritage highlights the importance of protecting cultural rights.

Bibliography

American Immigration Council. “Challenging CBP One Turnback Policy AOL et. al v. Mayorkas, Case No. 3:23-Cv-01367-AGS-BLM (S.D. Cal.),” July 2023. https://www.americanimmigrationcouncil.org/litigation/ challenging-cbp-one-turnback-policy?emci=4427ad8d-4e31-ee11-b8f0-00224832eb73&emdi=4bed51d0-5331-ee11-b8f0-00224832eb73&ceid=11143192.

Bolter, Jeanne Batalova, Jessica Bolter Allison O’Connor, Jeanne Batalova, and Jessica. “Central American Immigrants in the United States.” migrationpolicy.org, August 12, 2019. https://www.migrationpolicy.org/article/central-american-immigrants-united-states-2017.

“Class Action Complaint For Vacatur, Declaratory Judgement, And Injunctive Relief.” United States District Court (Southern District of California), pages 3 & 21, July 27, 2023. https://www.americanimmigrationcouncil.org/sites/default/files/litigation_documents/ challenging_cbp_one_turnback_policy_complaint_0.pdf.

“Convention Relating to the Status of Refugees.” United Nations, July 28, 1951. https://www.ohchr.org/en/instruments-mechanisms/instruments/ convention-relating-status-refugees.

“Executive Order 13166 - Civil Rights Division.” U.S. Department of Justice - Civil Rights Division, August 11, 2000. https://www.justice.gov/crt/executive-order-13166.

“International Covenant on Civil and Political Rights.” Office of the United Nations High Commissioner for Human Rights, December 16, 1966. https://www.ohchr.org/en/instruments-mechanisms/instruments/ international-covenant-civil-and-political-rights.

“International Covenant on Economic, Social and Cultural Rights.” Office of the United Nations High Commissioner for Human Rights, December 16, 1966. https://www.ohchr.org/en/instruments-mechanisms/instruments/ international-covenant-economic-social-and-cultural-rights.

Medina, Jennifer. “Anyone Speak K’iche’ or Mam? Immigration Courts Overwhelmed by Indigenous Languages.” The New York Times, March 19, 2019. https://www.nytimes.com/2019/03/19/us/translators-border-wall-immigration.html.

Obinna, Denise. “Alone in a Crowd: Indigenous Migrants and Language Barriers in American Immigration.” Race and Justice 13, no. 4 (March 31, 2021): 488–505.

“Universal Declaration of Human Rights.” United Nations, December 10, 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights.

U.S. Department of Education. “Developing Programs for English Language Learners: Lau v. Nichols,” n.d. https://www2.ed.gov/about/offices/list/ocr/ell/lau.html.

Valencia, Nick, and Eric Levenson. “The Final Days of Felipe Alonzo-Gomez, the 8-Year-Old Migrant Who Died in US Custody.” CNN, December 26, 2018. https://www.cnn.com/2018/12/26/us/cbp-timeline-guatemala-boy-dies/index.html.

[1] “Challenging CBP One Turnback Policy AOL et. al v. Mayorkas, Case No. 3:23-Cv-01367-AGS-BLM (S.D. Cal.),” American Immigration Council, July 2023, https://www.americanimmigrationcouncil.org/litigation/ challenging-cbp-one-turnback-policy?emci=4427ad8d-4e31-ee11-b8f0-00224832eb73&emdi=4bed51d0-5331-ee11-b8f0-00224832eb73&ceid=11143192.

[2] “Universal Declaration of Human Rights” (United Nations, December 10, 1948), https://www.un.org/en/about-us/universal-declaration-of-human-rights.

[3] “Convention Relating to the Status of Refugees” (United Nations, July 28, 1951), https://www.ohchr.org/en/instruments-mechanisms/instruments/ convention-relating-status-refugees.

[4] “Convention Relating to the Status of Refugees.”

[5] “Developing Programs for English Language Learners: Lau v. Nichols,” U.S. Department of Education, n.d., https://www2.ed.gov/about/offices/list/ocr/ell/lau.html.

[6] “Executive Order 13166 - Civil Rights Division” (U.S. Department of Justice - Civil Rights Division, August 11, 2000), https://www.justice.gov/crt/executive-order-13166.

[7] “Challenging CBP One Turnback Policy AOL et. al v. Mayorkas, Case No. 3:23-Cv-01367-AGS-BLM (S.D. Cal.).”

[8] “Class Action Complaint For Vacatur, Declaratory Judgement, And Injunctive Relief” (United States District Court (Southern District of California), July 27, 2023), pages 3 & 21 https://www.americanimmigrationcouncil.org/sites/default/files/litigation_documents/ challenging_cbp_one_turnback_policy_complaint_0.pdf.

[9] “Class Action Complaint For Vacatur, Declaratory Judgement, And Injunctive Relief.”

[10] Jeanne Batalova Bolter Jessica Bolter Allison O’Connor, Jeanne Batalova, and Jessica, “Central American Immigrants in the United States,” Migration Policy Institute, August 12, 2019, https://www.migrationpolicy.org/article/ central-american-immigrants-united-states-2017.

[11] Denise Obinna, “Alone in a Crowd: Indigenous Migrants and Language Barriers in American Immigration,” Race and Justice 13, no. 4 (March 31, 2021): 491.

[12] “International Covenant on Economic, Social and Cultural Rights” (Office of the United Nations High Commissioner for Human Rights, December 16, 1966), https://www.ohchr.org/en/instruments-mechanisms/instruments/ international-covenant-economic-social-and-cultural-rights.

[13] Nick Valencia and Eric Levenson, “The Final Days of Felipe Alonzo-Gomez, the 8-Year-Old Migrant Who Died in US Custody,” CNN, December 26, 2018, https://www.cnn.com/2018/12/26/us/cbp-timeline-guatemala-boy-dies/index.html.

[14] Obinna, “Alone in a Crowd: Indigenous Migrants and Language Barriers in American Immigration,” 489.

[15] Jennifer Medina, “Anyone Speak K’iche’ or Mam? Immigration Courts Overwhelmed by Indigenous Languages,” The New York Times, March 19, 2019, https://www.nytimes.com/2019/03/19/us/translators-border-wall-immigration.html.

[16] Medina.

[17] “International Covenant on Civil and Political Rights” (Office of the United Nations High Commissioner for Human Rights, December 16, 1966), https://www.ohchr.org/en/instruments-mechanisms/instruments/ international-covenant-civil-and-political-rights.