Interim Decision #3032
MATTER OF TOMAS
In Deportation Proceedings
A-24344066
A-24345525
A-24345526
A-24345527
A-24345528
A-24345529
Decided by Board August 6, 1987
(1) The respondents, who have the burden of showing a well-founded fear of persecution to qualify for asylum or withholding of deportation, must be given a reasonable opportunity to present evidence on their own behalf, including their testimony-
(2) Where the respondents cannot speak English fluently, the presence of a competent interpreter is essential for their meaningful participation in certain phases of
the hearing and to insure the fundamental fairness of the proceedings.
(3) A remand is ordered by the Board of Immigration Appeals for the purpose of
conducting a new hearing and obtaining the services of a professional interpreter
fluent in the Kanjobal language of Guatemala where the respondents, who spoke
no English and little or no Spanish, could not adequately present their case
through a Spanish interpreter.
CHARGE:
Order: Act of 1952—Sec. 241(aX2) [8 U.S.C. § 1251(aX2)]—Entered without inspection (all respondents)
ON BEHALF OF RESPONDENTS: ON BEHALF OF SERVICE:
Susan Giersbach Rascon, Esquire J. Bert Vargas
Central American Refugee Program General Attorney
6802 South 24th Street
Phoenix, Arizona 85040
BY: Milhollan, Chairman; Dunne, Morris, Vaeca, and Heilman, Board Members
The respondents appeal from a decision of an immigration judge
dated August 16, 1984, finding them deportable under section
241(a)(2) of the Immigration and Nationality Act,
8 U.S.C.
§ 1251(a)(2) (1982). The immigration judge denied the respondents'
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Interim Decision *3032
applications for asylum and for withholding of deportation under
sections 208 and 243(h) of the Act, 8 U.S.C. §§ 1158 and 1253(h)
(1982). The Immigration and Naturalization Service requested that
the appeal be summarily dismissed. The record will be remanded.
The respondents are a 39-year-old male native and citizen of
Guatemala, his wife, and his children, all natives and citizens of
Guatemala. Hearings were held. May 2, and June 10, 1983, and
August 16, 1984. At the first hearing the respondents were given a
continuance to obtain an attorney. Subsequently, the immigration
judge denied. the request for a Kanjobal interpreter and found the
respondents deportable and denied their applications for withholding of deportation and for asylum, because the immigration judge
found they had failed to show that they would be in danger of
harm in Guatemala.
During the hearing the respondents stated repeatedly that they
were unable to communicate fully with the interpreter who spoke
Spanish. The respondents are native speakers of Kanjobal. The immigration judge determined that the respondents could sufficiently
present their case in Spanish with the help of the 15-year-old
daughter who spoke Kanjobal and Spanish.
Because the respondents have the burden of showing a well-founded fear of persecution to qualify for asylum or -withholding of
deportation, they must be given a reasonable opportunity to
present evidence on their own behalf, including their testimony.
Matter of Dunar,
14 I&N Dec. 310 (BIA 1973); see also Fleurinor v.
INS,
585 F.2d 129 (5th Cir. 1978); Matter of Exilus,
18 I&N Dec. 276
(BIA 1982).
We find that it is necessary to remand the case for another hearing to be conducted with the help of a Kanjobal interpreter. Although all of the hearing need not be translated for the hearing to
be fair, the respondents must be able to participate meaningfully
in certain phases of their own hearing. See Matter of Exilus, supra.
The presence of a competent interpreter is important to the fundamental fairness of a hearing if the alien cannot speak English fluently. See Tejeda-Mata v. INS,
626 F.2d 721, 726 (9th Cir. 1980)
(dictum), cert. denied,
456 U.S. 994 (1982); Niarchos v. INS,
393 F.2d
509 (7th Cir. 1968) (dictum); Gonzales v. Zurbrick,
45 F.2d 934 (6th
Cir. 1930). The application for asylum was based in large part on
the respondents' own testimony. The male respondent stated to the
immigration judge that he could speak only a little Spanish. The
task set for the daughter of the fnmny was one which would tax
the skill of a professional interpreter. There is a great difference
between understanding a language and being able to fully translate thoughts from one language to another. Moreover, the daughASS
Interim De cision #3032
ter disclaim,ed an ability to perform in this role. There was no basis
for the determination that the respondents could present their case
adequately under these conditions.
There was no reason given why an interpreter in Kanjobal could
not be found. A desire to avoid excessive continuances is not sufficient reason to allow a hearing to proceed where the right of a respondent to present testimony may be abridged. Accordingly, the
record will be remanded. The request for oral argument before the
Board is denied as moot.
ORDER: The record is remanded to the immigration judge for
further proceedings consistent with the foregoing opinion and the
entry of a new decision.
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