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Imagine that you are a 65-year-old man from Zimbabwe seeking refuge in the United States. You speak only Shona, a language that is widely spoken in Zimbabwe but one that is also known for its many regional dialects and changes caused by decades of colonial influence. Also imagine that you have the equivalent of a third-grade education and last attended school in the early 1950s. Imagine that you are a member of the main opposition political party in Zimbabwe, the Movement for Democratic Change (MDC). As an MDC member, you delivered campaign fliers and other party literature in and around your home village, even though you didn’t know what the documents actually said because you cannot read or write. Imagine that you suffered severe beatings, imprisonment, and death threats in your home village and in Harare, the capital of Zimbabwe, because of your MDC membership. Your memories of the fists that punched you, the boots that kicked you, the machine-gun stocks that smashed your bones, and the ruling-party supporters who warned you that “there will be no �next time’ if you continue your MDC activities because we will kill you” are seared indelibly into your heart — but you have difficulty verbalizing those memories because you suffer from post-traumatic stress disorder. Now imagine that you learn you are scheduled to appear in immigration court removal proceedings in the near future and that a court-appointed Shona translator will present your testimony to the court in English. Lastly, imagine that, just before your hearing is set to start, the immigration judge instructs you to converse with the translator to “warm up” for the hearing. You are having some difficulty understanding each other, although you do gather that the translator’s family is from a different part of Zimbabwe. The gravity of the situation has you nervous to begin with, and now your shared struggle with the translator to fully understand each other has caused you to panic. UPHILL BATTLE Most people would readily agree that the subject of this hypothetical story must overcome several obstacles to effectively make a successful asylum claim. This is true even before anyone walks into the hearing room and meets the court-appointed translator for the first time. As an attorney representing such a client (pro bono or otherwise), if you don’t consider how the use of a court-appointed interpreter affects how you present evidence in support of your client’s asylum claim to the immigration judge, then you are facing an uphill battle. More important, your client may be facing the growing prospect of a compelled return home to more persecution and perhaps even death. Simply put, every word matters in an arena where the asylum applicant’s credibility is what often determines whether the court will grant asylum. Words are easily lost in translation, and many words, expressions, or other cultural mannerisms simply do not translate into English or can be easily misconstrued or misunderstood by court-appointed translators. This risk of faulty or unreliable translation is particularly acute when the client speaks a rare language with many dialects. In practical terms, this risk remains high even though courts have held that “a competent translation is fundamental to a full and fair [asylum] hearing. If an alien does not speak English, deportation proceedings must be translated into a language the alien understands” — He v. Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003). Indeed, courts have affirmed that due process requires nothing less. Asylum seekers also may appeal based on a claim of incompetent translation, but that type of appeal has the difficult job of demonstrating that “a better translation would have made a difference in the outcome of the hearing” — Singh v. Ashcroft, 367 F.3d 1139, 1144 (9th Cir. 2004). In recent months, Paul, Hastings, Janofsky & Walker attorneys have successfully represented pro bono asylum clients at the federal immigration courts in Baltimore and Arlington, Va. While the facts and circumstances of each case were obviously quite different, both teams of attorneys devoted significant amounts of preparation time to an identical issue: how best to present their clients’ respective cases through the use of a court-appointed translator. We’ve learned that attorneys can take several steps to reduce the risk that a client’s testimony will be lost in translation (and be better prepared to effectively respond to cases of faulty or incomplete translation if they occur). BEFORE THE HEARING • Build trust. No matter how much time you have to prepare for the merits hearing, you must devote significant time to building and cultivating trust with your client. Almost everything about the process and the setting will be unfamiliar to him, including the language in which his testimony will be introduced into the record. Take the time to explain the process and to answer any questions your client may have. Trust breeds confidence. • Practice. You should conduct several “mock” direct- and cross-examinations of your asylum client. Use this practice time to refine your questions and to discard any phraseology that simply does not “translate well.” You won’t have to look hard for words or phrases that are problematic. If possible, have a colleague conduct the crossexamination so that your client gains the invaluable experience of facing tough lines of questioning from a different, unknown person. Likewise, attempt to secure the use of professional translation services for at least one of the mock examinations. (Indeed, many of the larger companies maintain pro bono accounts for existing clients). In the event that you cannot obtain the services of a professional translation company, use a family member or friend of your client so long as you instruct them to provide you with verbatim translations and not to change or supplement your client’s words in any way. AT THE HEARING • Start slowly. Start your client’s direct examination slowly, and give yourself and the translator a chance to develop a smooth cadence so that your questions and the client’s answers flow most effectively into the record. If you encounter problems with straightforward questions about your client’s personal background, your radar should be going off. • Listen. If the English translations of your client’s responses to direct-examination questions somehow suggest the words are being interpreted improperly (such as a glaring lack of detail about the timing of events or other key evidence), seek clarification or repetition to ensure accuracy. Don’t let your record become one where, as the 9th Circuit said in one case, “portions of the transcript read like �Who’s on First.’ “ • Build a full record. Be sure to build a record of your efforts to seek clarification or repetition of faulty translation, particularly when your attempts to ensure accuracy fail to resolve the issues. Take the time to repeat a question or seek the court’s indulgence to phrase a question differently in the event of a nonresponsive answer by your client. Also make sure any “off-mike” clarifications between your client and the translator or the judge are fully reflected in the record. The watchword here is that you should protect the right of your client to fully and accurately present his case. Some cases may even warrant seeking a continuance of the proceeding by the immigration judge until better translation services are found.
Barbara Johnson is a partner in the Washington office of Paul, Hastings, Janofsky & Walker‘s employment law department and chairs the pro bono/community involvement committee. Patrick Togni is an associate in the firm’s litigation department and sits on the pro bono/community involvement committee.

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