Indigenous Asylum Seekers Face Language Barriers and a Legacy of Oppression at the Border

When Norma finally reached the United States after more than a month-and-a-half of journeying from Guatemala with her 5-year-old son, the very same fear that had compelled her to flee home in the first place ended up happening anyway: Her child was taken from her — not by the Guatemalan men who had threatened just that, but by US border agents.

After an already arduous journey north, it was still only the beginning of a long nightmare for Norma, who, unlike the vast majority of migrants seeking asylum at the US border from Central America, is Indigenous and primarily speaks the Mayan dialect of K’iche’ and only a limited amount of broken Spanish. Like other people of her descent seeking a safe haven in the US, her Indigeneity plays a significant role in her ongoing asylum claim.

Norma’s husband, Daniel,* who speaks both K’iche’ and fluent Spanish, helped interpret her ordeal during an extensive interview, telling Truthout that Norma was attacked in Guatemala by a group of men just after she went to withdraw the money that he had sent her. Daniel has lived and worked in New York for the past five years and regularly sent money back to support his family.

The men followed her and held her up just as she was leaving the bank, telling her that if she didn’t give them her money and her personal belongings, including her cellphone, they would take her child. Her attackers continued to pursue her and her son with threats, but when she went to the police to get help, they were unresponsive, the couple believes because of Norma’s limited ability to explain what happened in Spanish.

After that, she felt she could no longer leave her home without risking her son’s safety — or even his or her own life. Like thousands of other Guatemalan families facing similar violence, she decided to leave, setting off with her son in April.

Shortly after crossing the US border in May, she was detained with her son by US Customs and Border Patrol (CBP) agents and moved to a processing jail with him. She explained that they suffered terrible conditions, including being put together into a freezing “ice box” room without blankets before being moved into separate cells the next day, where she could hear him crying before authorities told her he would be sent to a separate detention shelter for children.

On top of this traumatizing blow, Norma was then funneled through two more detention and/or processing jails, at times going without showers or new clothes for as long as a week, sleeping on cell floors, receiving little food and unable to call her husband or even speak with an officer, she recalled, before finally landing at the T. Don Hutto detention jail in Taylor, Texas.

There, she said, she was finally able to call Daniel, but remained in the dark about the whereabouts of her son. She would continue to be dazed and confused for over a month about exactly what was happening to her and her son, and especially the complexities of her own legal asylum process.

As Daniel explained, Norma tried to communicate with both CBP and Immigration and Customs Enforcement (ICE) agents throughout this time in Spanish, but “the problem is she speaks very basic Spanish, and she speaks very slowly, thinking about every word. She doesn’t speak Spanish very well,” he said.

Language Barriers in Immigrant Detention

As someone with little Spanish proficiency, Norma said she had difficulties because of her language barriers. While she was eventually able to proceed with the first legal step in her asylum process by having what’s known as a “credible fear” interview with the assistance of an interpreter, she couldn’t understand the jail’s basic procedures and rules. “Nobody talked to her about anything. She was just in the room,” Daniel said. This isolation and lack of clarity only amplified her anxiety: She was terrified that she’d be deported back to Guatemala without her son, where, as Daniel says, she “didn’t know what would happen to her.”

An ICE spokesperson told Truthout the agency manages telephone-based translation services known as “language lines,” and pointed to the agency’s June 2015 Language Access Plan, saying the agency’s Office of Diversity and Civil Rights leads a required language-access working group to address language-related issues in detention.

But the difficulties Norma described are something that civil rights and refugee advocates like Margo Schlanger, the former head of the Department of Homeland Security’s (DHS) Office for Civil Rights and Civil Liberties, have pushed ICE to improve for years, including during the Obama administration.

When Schlanger headed the civil rights office from 2010 to 2012, she was in charge of the department’s language-access obligations under an executive order signed by President Clinton in 2000. After she left DHS, she chaired a working group of the Advisory Committee on Family Residential Centers, a nongovernmental committee tasked with making recommendations to the DHS secretary concerning language-access issues for people with limited English and Spanish proficiency that was narrowly focused on family detention jails.

In October 2016, the committee published a report outlining a set of recommendations to improve language access, finding that DHS’s language-access policy “is neither appropriately implemented nor appropriately communicated to families detained in ICE’s [family jails].” Among the first recommendations is avoiding the use of family detention for limited proficiency speakers entirely:

When DHS encounters an individual who speaks a rare language that poses severe language access difficulties – such as a Central American indigenous language – such a person should not be detained, but should rather be released with a Notice to Appear, on their own recognizance or with the support of a case management support program. In the rare event that this approach is inappropriate or impossible, such persons should be provided with appointed counsel who can facilitate both effective language access and fair immigration proceedings.”

Beyond that, the report recommends ICE track languages spoken and provide translations of all crucial documents, including the detainee handbook and orientation materials, for any language spoken by 0.5 percent or more detainees, or 50 detainees in the course of a year, whichever is lower. The report also recommends the agency provide non-text strategies to assist in understanding for people with low literacy levels, as well as “explore various ways to provide live interpretation or bilingual staff.”

“We did not think that ICE was capable of running a safe and appropriate detention setting for people who didn’t have either English or Spanish,” Schlanger told Truthout. “I didn’t see any follow-through [on the report]. The committee was never formally disbanded, but after the [2016 US] election, any idea that it was ever going to meet again was gone. … As far as I know, no one in the new administration has even read [the report].”

Moreover, the committee’s report makes note of a May 2016 court filing by the San Antonio-based Refugee and Immigrant Center for Education and Legal Services (RAICES). The filing was made on behalf of plaintiffs in the 33-year-long battle over conditions for migrant children held in family detention jails in Flores v. Reno, and reviewed the situations of 250 families with limited English and Spanish. It found that detention guards and staffers “systematically fail to communicate with non-Spanish speakers in their languages,” and claims the following anecdote is typical:

When Elana and her two-year-old son first arrived at the Dilley[, Texas,] detention center after being detained on August 26, 2015, she informed officials that she spoke Mam, an indigenous Mayan language spoken by half a million Guatemalans, and that her religion was Mam. But during the three weeks that she and her two-year-old son spent in detention, neither ICE nor Corrections Corporations of America (CCA) (the private prison contractor operating the Dilley detention center) staff communicated with her in Mam. ICE never found a Mam interpreter for Elana or gave her any documents written in Mam.

The report also detailed problems with the language lines the agency uses for translation. Even though the committee was unable to fully assess how prevalent language line use is since ICE would not provide the committee with the available data from those services, the report cited one ICE compliance review of the family detention jail in Dilley that ICE included in its own court filing in the Flores case. The review described “both a documentation problem and an underuse of interpretation,” according to the committee’s report.

Kate Lincoln-Goldfinch, an immigration attorney who represented Norma while she was detained in Texas, told Truthout that she used the language lines to speak with Norma about her legal proceedings, but had some difficulty with them. “Because it’s such a rare language, the first time we went through the language line, the interpreter wasn’t available,” she said.

Her legal team was ultimately able to arrange an in-person interpreter for Norma, but the interpreter’s services were limited to Norma’s legal process. Norma gave no indication that she used the language lines for any other purpose and Lincoln-Goldfinch confirmed as much, telling Truthout that the guards at the Hutto detention jail spoke to her in Spanish for all other matters.

Schlanger described the problems further, saying the lines are not useful when it comes to the languages that have many “micro” dialects, and that the lines typically aren’t used for group communication, including orientation. “Even if [the language lines] are being used, which I’m not convinced of … they’re only being used one-on-one, and so the result is that they’re only being used for a certain narrow swath of communications that take place,” she said.

The language problems aren’t limited to Indigenous peoples. ICE’s Language Access Plan makes clear the agency encounters many other languages, but Indigenous peoples speaking Mayan dialects are likely the largest non-English or non-Spanish speaking population arriving from Central America to seek asylum and subsequently detained in jails in the border region.

Indigenous and in Need of Asylum

According to ICE’s 2015 Language Access Plan, the agency encounters a number of Mayan dialects spoken in Guatemala and southern Mexico, including K’iche’ (Quiche), Mam, Achi, Ixil, Awakatek, Jakaltek (Popti) and Qanjobal (K’anjob’al). A CBP spokesperson confirmed to Truthout, however, that the agency “does not track the language spoken by an individual arrestee” at the border. Neither, a spokesperson confirmed, does ICE “break down its detention population by language.”

While there remain no hard statistics available on Indigenous populations crossing the border, Manoj Govindaiah, who directs family detention services at RAICES, told Truthout that the organization works with hundreds of Indigenous people every day. In fact, this year alone, the organization has encountered 442 families speaking Indigenous languages in their work at the family detention jail in Karnes City, Texas. They saw between 60 and 70 Indigenous families per month, with 33 by mid-July. The numbers, however, open only a tiny window on this population.

Govindaiah explained some of the challenges RAICES faces when representing and providing legal services for Indigenous-language speaking families in immigration proceedings. The asylum process is remarkably complex even for clients who are fluent in English and Spanish, he says, and explaining the legal process and requirements for asylum-seekers once they are released proves challenging. “The entire concept of this sort of system is so completely foreign, and then adding the language barrier on top of that makes it nearly impossible to effectively prepare them for what happens,” he said.

Still, the organization is working with a group of Indigenous interpreters who have offered to provide in-person services, and Govindaiah said RAICES staffers do have access to language lines at the family detention jails where they work most prominently.

In Govindaiah’s experience, Indigenous-speaking families are sometimes issued what’s known as a “Rare Language Notice to Appear” allowing them to bypass the credible fear interview process and be released with a court date. While “this is great in a way,” Govindaiah says, it is also problematic because “that family really does not receive information from the asylum office on their rights and their obligations.”

Lincoln-Goldfinch echoed some of the difficulties faced by lawyers and legal organizations when trying their best to provide Indigenous-language speakers with adequate due process. In addition to the problems she encountered with the language lines at Hutto, her team encountered several logistical hurdles, including scheduling difficulties with the interpreter they finally arranged. ICE officers didn’t make things easier: They initially wouldn’t clear the interpreter, who was flown in to be at the Hutto jail in person, for entry.

Norma’s case is still pending, and she’s scheduled for a hearing next month in Texas. Lincoln-Goldfinch, however, is working with a law firm in New York to transfer her case there, as well as reunify her and her son’s cases, which became legally severed after her son was rendered “unaccompanied” by border officials when he was separated from her.

Furthermore, Norma’s Indigeneity plays a significant role in her asylum claim. As Daniel explained, gangs in Guatemala often specifically target people who are Indigenous because they know that they “can’t do anything” and “can’t give a detailed account of what happened to the police.” In Norma’s case, Daniel said, the police “didn’t even do the paperwork or give her a record of her claim.” He underscored that it’s not simply about a language barrier, saying her treatment was also about “our difference in ways and customs.”

Govindaiah confirmed that he sees similar experiences of persecution in his work with detained families, saying many Indigenous-language speaking families have expressed that they can’t communicate with the police, and that women who have non-Indigenous partners often report verbal domestic abuse referencing their ethnicity. Additionally, Central American women have also reported being discriminated against in employment or in educational opportunities because of their Indigenous clothing or language.

The persecution faced by Indigenous Central Americans, both in their country of origin and in terms of the US’s specific state-sponsored violence of detention and family separation at the border, is part of a legacy of cultural oppression and erasure of Indigenous people spanning hundreds of years.

From Boarding Schools to Border Separations

The US in particular has a long history of stripping Indigenous parents of their children for the purpose of assimilating them, and that legacy continues to this day.

As Truthout has detailed, Native children in the US were systematically taken from their parents and placed in boarding schools under Article VII of the Fort Laramie Treaty of 1868 for more than a century, until the Indian Child Welfare Act (ICWA) was passed in 1978.

Despite the fact that the law established requirements for child welfare agencies and state courts in their work with Native children, the US’s system of cultural oppression simply morphed again, this time in the form of the child welfare system. Repeated violations of the ICWA led the Bureau of Indian Affairs to draft new guidelines to strengthen the law in 2015, for instance.

The separation of Indigenous children from their parents at the border only adds to and accelerates the state’s cultural erasure of Native populations, as children taken into custody by the Department of Health and Human Services’ (HHS) Office of Refugee Resettlement (ORR) have been sent to often white, potentially abusive foster homes hundreds of miles from their parents.

The ORR did not respond to Truthout’s request for information about the office’s language-access protocols and procedures. It remains unclear if the office tracks the number of Indigenous-language speaking children taken into custody, to what extent the office uses similar language lines to communicate, or whether the office has any special procedures for Indigenous children. While the HHS maintains a Language Access Plan, Truthout was unable to find such a plan specifically for HHS’s ORR component.

Separations of Indigenous children happened routinely even before the Trump administration enacted its “zero-tolerance” policy, potentially because Indigenous-language speaking mothers can’t effectively counter the US government’s claims that they may be “unfit.” Govindaiah told Truthout that at the Karnes family jail alone, 24 Indigenous-language speaking families reported separation from their children since January.

More than 900 children still remain separated from their parents even as today marks a court-ordered deadline for the US government to reunify families separated at the border. According to CBS, as many as 200 of those cases involve parents who declined to be reunited, because, attorneys say, they are feeling pressured to sign away their rights to do so and that some “don’t understand what they’re agreeing to; whether the result of a language barrier, or documents that are too complex.”

Of the mothers torn from their children since the onset of the administration’s zero-tolerance policy, Norma is one of the lucky ones. Daniel explained that his son was moved to a detention shelter in New York after being separated, and Daniel was eventually able to prove his paternity and reunite with him. Norma joined them both once she was released on bond from the Hutto jail this month.

Still, her ordeal is why international treaties and declarations, such as the United Nations Declaration on the Rights of Indigenous People, endorsed by the US in 2010, specifically prohibit state-sponsored separations. The Declaration codifies Indigenous people’s right to “retain shared responsibility for the upbringing, training, education and well-being of their children,” as well as enshrining their rights as a collective status.

Trump’s executive order regarding family separations at the border — as well as existing immigration law regarding family detention and conditions for children — make no special provisions for Indigenous people, who face unique challenges and a history of oppression at the US border.

“Poor Norma, stuck in a detention center with people who don’t speak her language, and her son has been taken away. Thank God she has a little bit of Spanish so she wasn’t completely disoriented,” Lincoln-Goldfinch said. “To be going through such a traumatic experience and not even having the language to understand what’s going on around you is … unfathomable.”

*Both Norma and Daniel’s full names have been withheld to protect their identities as their family moves forward with their legal asylum claim.

Truthout’s marketing manager, Sophie Moon, translated Daniel’s statements for this article.