By: Kayla He
Since 2016 when President Trump was elected, immigration has become a popular and polarizing topic in America.[1] President Trump supported a hardline immigration policy of preventing migrants from entering the country by actively arresting and detaining migrants. Many human rights experts expressed concerns over the human rights violations at the United States-Mexico border as well as in detention centers.[2] For instance, the American Civil Liberties Union (ACLU) published a report describing the lack of medical access and supplies for basic needs at detention centers.[3] The report indicated that oftentimes, migrants were detained without knowing when they would be released, and they often did not have access to legal representation.[4] Furthermore, the detention facilities lacked medical equipment, and they were extremely unprepared for any medical emergency.[5]
Some reports, however, have made efforts to recognize the impact of one common experience of the detained individuals: the lack of language interpretation resources and the impact of language barriers.[6] Without the ability to communicate in English, detained individuals face tremendous challenges fighting for their rights. Indeed, many individuals could not understand how long they would be held at the detention facility and when they would be released.[7] For instance, DHS Office for Civil Rights and Civil Liberties (CRCL) received complaints regularly that detained individuals with limited English proficiency (LEP) were denied language interpretation services when they were trying to seek asylum.[8] In addition, when detained people need to seek medical help, they also are not able to express their medical needs due to the language barriers.[9]
The leading guideline the detention centers need to follow for their treatment of detained individuals are the “National Detention Standards” published by United States Immigration and Customs Enforcement (ICE).[10] According to the most recent National Detention Standards (NDS) published in 2019, the detention facilities are required to “identify detainees with limited English proficiency (LEP).”[11] Furthermore, the facilities are required to “provide LEP detainees with meaningful access to their programs and activities through language interpretation and translation services.”[12] The translation services “extend to all aspects of detention” and should include and are not limited to “intake, disciplinary proceedings, placement in segregation, sexual abuse and assault prevention and intervention, staff-detainee communication, mental health, and medical care.”[13] In addition, for all the written materials given to the detainees, they are required to be “translated into Spanish and other frequently encountered languages.”[14] In the case where the translated versions of the written materials are not able to be produced, “oral interpretation or other language assistance must be provided.”[15]
Even though the detention standards aim to provide resources for the detained individuals to safeguard their human rights, the reality is the law is far from enough to be able to protect the rights of people in the detention centers, as indicated earlier. As a result, a discussion of the role of international human rights law is warranted.
Commonly known as an “international bill of rights,” the International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty, and the states who have signed and ratified it are legally required to follow its provisions. The United States signed to be a party to the ICCPR in 1977, and it ratified the treaty in 1992.[16] Consequently, the United States is legally bound to follow it.
Depriving detained individuals of language interpretation violates the ICCPR. According to the ICCPR, the party states recognize the “inherent dignity and of the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world.”[17] Article 7 of the ICCPR indicates that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”[18]
The United States introduced several reservations.[19] Specifically, regarding Article 7, it “considers itself bound by Article 7 to the extent that ‘cruel, inhuman or degrading treatment or punishment’ means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States.”[20] The lack of language access resources in the detention centers violates the Fourteenth Amendment. Precedents demonstrate that detained individuals have procedural due process rights to counsel.[21] The lack of language interpretation service directly impacts detained individuals’ rights to counsel. When individuals are put in detention without any language assistance and they do not understand their rights and cannot communicate their needs, they will not be able to work with an attorney.[22] Indeed, many attorneys agree that “immigration detention facilities lack foreign language interpreters, making communication impossible.”[23] As a result, without enough language interpretation services, detained individuals’ due process rights under the Fifth Amendment are violated, and the due process violation is also a violation of the United States’ legal obligations under ICCPR.
Kayla He is a Staff Editor at CICLR.
[1] Chantal Da Silva, Immigration Makes It into Election Debate for First Time —Here Is Where Trump and Biden Stand, Forbes (Oct. 23, 2020), https://www.forbes.com/sites/chantaldasilva/2020/10/23/immigration-makes-it-into-election-debate-for-first-time--here-is-where-trump-and-biden-stand/?sh=328ac0af330d [https://perma.cc/W52K-LGWD].
[2] See generally U.N. Off. of the Comm’r for Hum. Rts., Human Rights in Transit and at International Borders, OHCHR and Migration, https://www.ohchr.org/en/migration/human-rights-transit-and-international-borders (last visited Jan. 18, 2024).
[3] US: New Report Shines Spotlight on Abuses and Growth in Immigrant Detention Under Trump, Hum. Rts. Watch (Apr. 30, 2020), https://www.hrw.org/news/2020/04/30/us-new-report-shines-spotlight-abuses-and-growth-immigrant-detention-under-trump [https://perma.cc/649Y-BJJY].
[4] Id.
[5] Id.
[6] Zefitret Abera Molla, Improving Language Access in the U.S. Asylum System, Ctr. for Am. Progress Action Fund (May 25, 2023), https://www.americanprogress.org/article/improving-language-access-in-the-u-s-asylum-system/ [https://perma.cc/LU7N-WNLC].
[7] See generally ACLU, Hum. Rts. Watch & Nat’l Immigrant Just. Ctr., Justice-Free Zones: U.S. Immigration Detention Under the Trump Administration (2020), https://www.hrw.org/sites/default/files/supporting_resources/justice_free_zones_immigrant_detention.pdf [https://perma.cc/7F6H-NSTZ].
[8] Molla, supra note 6.
[9] Id.
[10] U.S. Immigr. & Customs Enf't, National Detention Standards for Non-Dedicated Facilities (2019).
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] United Nations Treaty Collection, 4. International Covenant on Civil and Political Rights, https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-4.en.pdf (last visited Jan. 19, 2024).
[17] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, S. Exec. Doc. E 95-2 (1978).
[18] Id. art 7.
[19] Kristina Ash, U.S. Reservations to the International Covenant on Civil and Political Rights: Credibility Maximization and Global Influence, 3 Nw. J. Int’l Hum. Rts. 36 (2005).
[20] U.S. Reservations, Declarations, and Understandings, International Covenant on Civil and Political Rights, 138 Cong. Rec. S4781-01 (daily ed., Apr. 2, 1992), U. Minn. Hum. Rts. Libr., http://hrlibrary.umn.edu/usdocs/civilres.html [https://perma.cc/F5P9-AJNX].
[21] See Rachel Roberts, Immigration Detention Facilities: Do Limitations on Access to Counsel Within Immigration Detention Facilities Violate Procedural Due Process Rights Guaranteed by the Fifth Amendment to the U.S. Constitution Comments, 9 J. Marshall L.J. 90, 92 (2015-2016).
[22] Id. at 105.
[23] Id.