“Stop Silencing Stories”: SABA Panel Explores English Proficiency and Access to Justice

Approximately 10% of San Diego County’s three million residents speak English less than “very well,” according to a recent census. Despite this factual landscape, interpreters are not customarily provided by the courts, even for proceedings with consequential outcomes. 

On February 28, the South Asian Bar Association of San Diego (“SABA-SD”) hosted a panel discussion shedding light on the unique challenges persons with limited English proficiency face in our judicial system. Panelists Ayuja Dixit, Pooja Dadhania, Hon. William S. Dato, and Joann Lee explored various issues including the loss of meaning through inaccurate or insufficient translators, the denial of procedural due process by failure to provide interpreters in asylum interviews, the improper use of English proficiency as a factor in custody disputes, and how the COVID-19 pandemic exacerbated language access issues.

Ayuja Dixit, a marriage and family therapist for refugees at domestic violence non-profit License to Freedom, has experience working with human trafficking victims. She has seen first-hand how a client’s story is often lost in translation when English is the client’s second, third, or even fourth spoken language, resulting in injustice. Credibility is often a factor in family court proceedings; she recalls a client’s testimony was once labeled a “changing experience” when told through multiple untrained interpreters who lacked the expertise to convey the client’s statements accurately.

It is no secret that legal jargon is difficult to understand, let alone translate and interpret without formal training to do so. Yet, Dixit, who is not a trained interpreter, has been asked by the court at various times to help interpret for her clients when no interpreter was available. Inability for the court and client to understand one another can certainly prove frustrating for both sides. Concerningly, Dixit’s clients are often left wondering if their limited ability to speak English will result in the court discounting their story and trauma. She commented, “There have been instances where the judge asked the translator to stop translating or the person to stop speaking. And, that’s a version of silencing their story.”

“Without language access, any rights and process people are supposed to be given are meaningless. It really is silencing people.” Echoing Dixit, Dadhania discussed challenges with language access in the immigration context. Dadhania, an associate professor at California Western School of Law, focuses her academic research on the issues she witnessed during her time as a nonprofit immigration attorney working on asylum cases. Language access refers to the ability of persons with limited English proficiency to meaningfully access government services and programs. In the immigration context, Dadhania argued, language access should include interpreters provided by the government in asylum proceedings. Persons who are arrested by Immigration and Customs Enforcement (“ICE”) are provided an opportunity to explain they should not be deported based on asylum eligibility in an asylum interview, which is conducted entirely in English.

While it may seem self-evident that interpreters are needed when government agencies interact with limited English proficiency migrants, the government does not provide them in asylum proceedings, raising serious procedural due process concerns. The government claims a lack of financial resources in failing to providing interpreters. However, in response to the COVID-19 pandemic, the government has provided phone interpreters at asylum interviews, proving fiscal concerns untrue. “There is money to provide interpreters when there is a will to do it,” Dadhania said.

Next, the Honorable William S. Dato of the Court of Appeal, Fourth Appellate District spoke from his experience on the bench to address how judges might approach language access issues. Ensuring those before the court have the opportunity to communicate and be understood at court proceedings is a real procedural concern. Regarding substantive due process, Justice Dato shared two recent cases that addressed language access concerns. In S.Y. v. Superior Court (2018) 29 Cal.App.5th 324, the Court of Appeal determined the family law court erred in relying on the father’s greater English fluency as a positive factor in a custody dispute. The Court analogized English proficiency to race, disability, sexual orientation, grater economic wealth, and single working parent status — factors that are irrelevant to a child’s best interest in custody disputes. Similarly, In re J.P. (2017) 15 Cal.App.5th 789 involved a father who emigrated from Burma and only spoke Burmese. Due to the father’s alcohol addiction issues, Child Protective Services detained his children and the father was ordered to participate in an alcohol and drug rehabilitation program. However, because no programs were offered in Burmese, the Court of Appeal reversed the trial court’s order that the father participate in the program. These cases demonstrate courts do recognize the inherent disadvantages associated with low English proficiency.

Finally, Joann Lee rounded out the panel with a discussion on how the COVID-19 pandemic exacerbated language access concerns. Lee is special counsel of language justice at the Legal Aid Foundation of Los Angeles. Certainly the pandemic changed many aspects of daily life. Like with other industries, courts were closed to the public and forced to implement remote services and provide virtual accommodations. “We know that individuals with limited English proficiency are disproportionately likely to have lower education, access to the internet, or even own a computer,” Lee stated. 

While going remote was a welcome change for those who could navigate the technological shift, many individuals with limited English proficiency were excluded because of language access issues. Though there certainly are flaws in our judicial system regarding language access, Lee highlighted some of the government agencies that made strides during the pandemic to address those issues. Oregon, which has a relatively small population of limited English proficiency residents, provided information on the state’s website in 15 languages. New York implemented a city mandate that required ten languages on their website. The state of Washington implemented a COVID-19 response language access plan that required translation in 37 languages, as well as real-time interpreting over the phone in all languages.

Overall, the SABA panel was an informative and impactful event that brought awareness to unique ways in which language access issues hinder justice — a significant step towards bringing meaningful change.

SABA-SD is a nonprofit for legal professionals of South Asian-American descent as well as those interested in the issues affecting South Asian-Americans. SABA-SD is also the host of the Equal Pay Transparency Initiative, which anonymously collects lawyers’ salary information in an effort to create the transparency necessary to close the gender and minority wage gaps. For more information about SABA-SD, you can visit our website.