Under Zero Tolerance, Court Struggles to Accommodate Non-Spanish Speakers

Spanish-speakers aren’t the only people crossing the U.S.-Mexico border. And now that the government is prosecuting everyone who enters the country between official ports of entry, defendants who don’t speak Spanish face unique issues as they go through the federal criminal justice system.

A lack of translators for defendants who speak indigenous languages from Mexico and Guatemala, and for a rising number of African and Asian migrants arriving at the U.S.-Mexico border, has been causing numerous issues.

Defendants can’t relay health concerns and other issues to employees in detention facilities where they are being held, have trouble communicating with their defense attorneys – meaning they may end up spending more time in custody than Spanish-speakers with whom attorneys can explain things like plea deals more easily – and their court hearings are awkward, frustrating and drag on longer than those for Spanish-speakers because of interpretation issues.

Jaspreet and Harmeet Singh, Punjabi speakers from India, were unable to tell employees in the detention facility where they are in custody that they are vegetarian for several days.

“For about five days they were hardly able to eat anything because they were not given their special diet,” their attorney Michelle Betancourt told Magistrate Judge Karen Crawford during a hearing in late June. “They are both vegetarians, and there was no one at the facility who was able to communicate with them.”

California gets the vast majority of Indian nationals crossing the border between ports of entry. In fiscal year 2017, about 95 percent of the 2,943 Indians apprehended by Border Patrol on the southwestern border were taken into custody in the El Centro or San Diego sectors.

The majority of apprehended individuals from Nepal, Pakistan, Somalia, Vietnam, Romania and Haiti have also come through California’s border.

Border Patrol statistics before fiscal year 2017 only appear to break down nationality by designating people Mexican and “Other Than Mexican,” and the citizenship statistics for fiscal year 2018 are not yet available. The “Other Than Mexican” numbers in the San Diego sector have been steadily growing from 1,273 in fiscal year 2013 to 7,060 in fiscal year 2017. So far in fiscal year 2018, 7,004 migrants from somewhere other than Mexico have been apprehended. Most of these involve Central Americans, but as of 2017, more than 2,300 – about a third – were not from a Spanish-speaking country.

In another case, Tomas Gustavo Cruz-Bautista spoke a dialect of Zapoteco from Sierra Norte in Oaxaca. The only interpreter the court could find was in Oaxaca and didn’t speak English.

That meant that Cruz-Bautista’s hearings involved a delicate game of telephone known as relay-interpreting – English to Spanish to the Zapoteco dialect, and vice-versa. Everyone involved in the hearing needed to speak in short sentences and wait while the multi-phased translation took place, dragging out the whole process.

Cruz-Bautista’s case was dismissed by the government two days later, though the U.S. attorney’s office did not explain why on the record in court.

Another attorney tried to argue charges against her two Ghanaian clients should be dismissed because of her inability to communicate with them.

Of the 15 Ghanaian nationals apprehended by Border Patrol in fiscal year 2017, 10 were apprehended in the San Diego sector.

For languages where there isn’t an in-person interpreter available in San Diego, the federal courts often use interpreters located elsewhere who call in by phone. Border Patrol also uses a commercial translation service via phone if there is no agent available who speaks a given language.

The two Ghanaian men speak Ashanti Twi. During one of their hearings, the phone interpreter’s call was disconnected and after multiple attempts to call him back, the court repeatedly was sent to the interpreter’s voicemail.

Their hearing had to be continued to a later date.

On Friday, their attorney, Sara Peloquin argued the language issues denied her clients their constitutional right to effective legal counsel. Her office’s chief interpreter had been searching for a Twi interpreter throughout Southern California, she said, and had reached out to community groups like the African Alliance of San Diego and to universities, to no avail.

“I have received exactly zero responses in the past two weeks,” Peloquin told Magistrate Judge Clinton Averitte. “I’m afraid we just don’t have the resources in San Diego for me to be able to communicate with these two individuals.”

This time there was an interpreter connected by phone the entire time. Averitte made sure everyone spoke slowly and in short sentences to better accommodate the phone translation.

“I’m spoiled, as I’m sure we all are, by our Spanish interpreters,” he said.

Last week’s hearing was the first time, Peloquin said, that she even realized the name of the language was pronounced “chi” rather than “twi.”

Peloquin said that both of the men spoke limited English and that she was able to understand their accents because her father is West African, but the men couldn’t understand her accent when she was speaking English at all.

She argued that though the court was using a phone interpreter, she still can’t speak with them when they’re not in court.

Many detention facilities don’t allow people to bring phones inside, and most forbid attorneys and others from using a phone when they’re with detainees.

There is a room in one of the local detention facilities with speaker phones that attorneys can reserve to meet with their clients where they could use a translation service, but Peloquin argued that that wasn’t sufficient for several reasons.

First, she said the room was booked up until next week.

That could mean an extra week of her clients, both asylum-seekers, unnecessarily sitting in criminal custody an extra week before she could even explain to them the plea bargain the government had offered.

She also said that defense attorneys often need to use diagrams and visuals while communicating with clients. For example, reviewing videos or other visuals – including ones that help explain the complex American judicial system to foreign nationals – wouldn’t work with a phone interpreter, she said.

Peloquin pointed out that even the Twi phone interpreter was using words like “trial” and “misdemeanor” in English, meaning there wasn’t a direct translation of those concepts in the men’s native language and they would require a more in-depth discussion to ensure they fully understood what was happening or what it meant to be charged with a misdemeanor in the United States.

“I think we take for granted sometimes what we know institutionally about our courts,” she said.

Special Assistant U.S. Attorney Thomas Endicott, who was prosecuting the case, argued that dismissal would be premature, because Peloquin hadn’t yet tried using the room with speaker phones at the detention facility.

Averitte agreed, and said Peloquin should try using the room with speakerphones first and could return to the court if that doesn’t work.

“This is an issue that I don’t think is going to be a one-time issue,” Averitte said.

Peloquin then asked the judge to read some forms that her clients needed to sign out loud to the court interpreter while she was still on the phone, so they could be translated.