Speakers of English dialects have right to interpreter - 3rd Circ.

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  • Court revived asylum bid by "Pidgin" English speaker from Cameroon
  • Much of his testimony at hearing was "indiscernible"

Immigration judges must determine whether individuals facing deportation who speak dialects of English also understand American English or need interpreters, a U.S. appeals court ruled on Wednesday in a case involving a citizen of Cameroon who speaks "Pidgin" English.

A unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals said it was unfair for an immigration judge to deny asylum to B.C. after it became clear that he lacked a grasp on standard English, evidenced by 36 separate times that a court reporter recorded his testimony as "indiscernible."

The judge's failure to seek out an interpreter for B.C. deprived him of the opportunity to make arguments on his behalf, the 3rd Circuit said, and led the judge to conclude unreasonably that B.C.'s testimony was inconsistent.

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Sozi Tulante of Dechert, who argued the appeal for B.C., said in a statement that the facts of the case are not unique, and he hoped the ruling would result in greater due process in immigration proceedings.

"These failures resulted in a fundamentally unfair proceeding in which (B.C.) could not fully participate or advocate for himself in Pidgin English, his best language," Tulante said.

The petitioner is also represented by the Pennsylvania Immigration Resource Center and nonprofit Justice at Work.

B.C. was backed in the appeal by a coalition of advocacy groups that said in a 2020 amicus brief that the case was an example of the widespread lack of language access in immigrant detention facilities that raises serious due process concerns.

According to the decision, speakers of Pidgin English like B.C. are considered "Anglophones" in Cameroon, a predominantly French-speaking country, and are ostracized and persecuted. Pidgin is derived from standard English but has evolved into a distinct language.

B.C. was detained after fleeing to the U.S. in 2018 and applied for asylum and withholding of removal. He claimed that as a politically active Pidgin speaker, he would face persecution if he were deported.

At his first appearance before an immigration judge, B.C.'s records erroneously showed him as a citizen of Guatemala and the only available interpreter spoke Spanish, according to the decision.

When he told the judge he was from Cameroon, the judge asked only whether he needed a French interpreter or was "okay with English." B.C., who did not have a lawyer, said he was comfortable proceeding in English, according to the 3rd Circuit.

At a hearing on the merits of B.C.'s application, the judge proceeded without asking if he required an interpreter and rejected B.C.'s claim that he was not a fluent English speaker, at one point asking, "why would you have to practice English if that’s your native language?"

The judge ultimately found that B.C.'s testimony was inconsistent and ordered his deportation, and the Board of Immigration Appeals in 2019 affirmed.

On appeal, B.C.'s lawyers claimed the judge had violated his right to due process by neglecting to ascertain the languages he speaks proficiently or provide an interpreter.

The 3rd Circuit on Wednesday agreed, and said judges cannot assume that individuals who speak variations on standard English do not need interpreters.

"Failing to provide an interpreter when needed makes meaningless a noncitizen’s right to due process," Circuit Judge Thomas Ambro wrote. "And not making a threshold inquiry into whether an interpreter is needed, in turn, renders the right to an interpreter meaningless."

The court remanded the case for a new hearing.

The panel included Circuit Judges Cheryl Krause and Peter Phipps.

The case is B.C. v. Attorney General of the United States, 3rd U.S. Circuit Court of Appeals, No. 19-1408.

For the petitioner: Sozi Tulante of Dechert

For the government: Tim Ramnitz of the U.S. Department of Justice

(Note: This article has been updated to add a statement from Sozi Tulante.)

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.