B. C. v. Attorney General United States ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
Nos. 19-1408, 20-2078
________________
B.C.,1
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
________________
On Petition for Review of a Final Order
of the Board of Immigration Appeals
(Agency No. A216-285-558)
Immigration Judge: John P. Ellington
________________
Argued on January 12, 2021
Before: AMBRO, KRAUSE, and PHIPPS, Circuit Judges
(Opinion filed: September 1, 2021)
1
We have authorized the petitioner to proceed
pseudonymously.
Benjamin J. Hooper
Pennsylvania Immigration Resource Center
294 Pleasant Acres Road, Suite 202
York, PA 17402
Arthur N. Read
Justice at Work
990 Spring Garden Street, Suite 300
Philadelphia, PA 19123
Sozi P. Tulante (Argued)
Dechert
2929 Arch Street, 18th Floor, Cira Centre
Philadelphia, PA 19104
Counsel for Petitioner
Merrick Garland
Carmel A. Morgan
Lisa Morinelli
Tim Ramnitz (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent
2
Matthew J. Lamberti
Community Justice Project
100 Fifth Avenue, Suite 900
Pittsburgh, PA 15222
Counsel for Amici American Immigration
Council, American Immigration Lawyers
Association, Casa San Jose, Florence Immigrant
and Refugee Rights Project, National Immigrant
Justice Center, Northwest Immigrant Rights
Project, and Unitarian Universalist
Congregation of York
Michael Broadbent
Cozen O’Connor
1650 Market Street
One Liberty Place, Suite 2800
Philadelphia, PA 19103
Counsel for Amici Guatemalan-Maya Center,
Legal Aid Foundation of Los Angeles, Kids in
Need of Defense, and Southern Poverty Law
Center
Mary Beth Lyon
Cornell Law School Clinical Program
133 Hughes Hall
Ithaca, NY 14853
Counsel for Amici Black Alliance for Just
Immigration, Public Justice Center, Capital
Area Immigrants’ Rights Coalition, and Dolores
Street Community Services
3
Edward J. Sholinsky
Schnader Harrison Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, PA 19103
Counsel for Amici HIAS Pennsylvania,
Esperanza Immigration Legal Services, Chris
Rabb, AFRICOM, and VietLead
Sarah H. Paoletti
University of Pennsylvania School of Law Transnational
Legal Clinic
3501 Sansom Street
Philadelphia, PA 19104
Counsel for Amici Zeid Al Hussein, Fernando
Chang-Muy, Juan Mendez, Jennifer Moore,
Anne C. Richard, David Robinson, Michel
Gabaudan, Ian Matthew Kysel, Jaya Ramji-
Nogales, and Eric Schwartz
4
________________
OPINION OF THE COURT
________________
AMBRO, Circuit Judge
The stakes in removal proceedings—whether a
noncitizen2 will be deported—could hardly be higher. But
despite the high stakes, the outcomes of these proceedings
sometimes turn on minutiae. Small inconsistencies in a
noncitizen’s testimony can doom even those cases that might
otherwise warrant relief. To ensure testimony is not unfairly
characterized as inconsistent, a noncitizen must be able to
communicate effectively with the officials deciding his case.
Because language barriers can make effective communication
impossible, our Court has long recognized the importance of a
competent interpreter to ensure the fairness of proceedings to
individuals who do not speak English. But what happens if an
immigration official does not make a meaningful effort to
determine whether a noncitizen has limited proficiency in
English?
Our case exemplifies this problem. Petitioner B.C., a
native of Cameroon, primarily speaks “Pidgin” English, and
reports that he has only limited abilities in the “Standard”
English in which we write this opinion. He fled from
Cameroon to the United States after allegedly facing
2
We use the term “noncitizen” as equivalent to the statutory
term “alien.” See Barton v. Barr, 140 S. Ct. 1442, 1446 n.2
(2020) (citing 8 U.S.C. § 1101(a)(3)).
5
persecution at the hands of his government. Soon after his
arrival, the United States Department of Homeland Security
began removal proceedings against B.C., and he applied for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In a series of interviews
and hearings, immigration officials either presumed he spoke
“Standard” English or gave him an unhelpful, binary choice
between “English or Spanish” or “English or French.” And
despite persistent clues that he was less than fluent in
“Standard” English, he was left to fend for himself in that
language without an interpreter. The record shows this
resulted in confusion and misunderstanding. Relying on
purported “inconsistencies” in the statements B.C. made
without the help of an interpreter, the Immigration Judge (“IJ”)
denied his applications on the ground that he was not credible,
and the Board of Immigration Appeals (“BIA”) affirmed.
When presented with additional country conditions evidence,
expert reports on the linguistic differences between “Standard”
and “Pidgin” English, and B.C.’s card showing membership in
an allegedly persecuted group, the BIA denied his motion to
reopen.
We hold that B.C. was denied due process because the
IJ did not conduct an adequate initial evaluation of whether an
interpreter was needed and took no action even after the
language barrier became apparent. Those failures resulted in a
muddled record and appear to have impermissibly colored the
agency’s adverse credibility determination. We therefore
vacate the BIA’s decisions and remand for a new hearing on
the merits of B.C.’s claims. On remand, the agency must also
remedy other errors B.C. has identified, which include dealing
with the corroborative evidence he submitted.
6
I. Background
A. “Standard” English vs. “Pidgin” English
Because the question of law in this appeal ultimately
turns on B.C.’s particular English language abilities, we begin
by examining the differences between “Standard” and “Pidgin”
English. These observations are drawn from the reports of two
linguistic experts submitted as exhibits to B.C.’s motion to
reopen.
It is undisputed that the primary language spoken in
B.C.’s childhood home was “Cameroonian Pidgin English,”3
which is derived from “Standard” English4 but has evolved into
a “distinctly separate language . . . with its own grammatical
and linguistic structure.” A.R. at 102. Take, for example, the
following sentence in “Standard” English: “[I]f it were me,” “I
would not let him come and visit the children.” A.R. at 89.
Translated into “Pidgin” English, this sentence would read, “If
na mi, a no go gri meik I kam visit dat pikin dem.” Id. Setting
aside the various ways in which the “Pidgin” English sentence
might be unintelligible to the “Standard” English speaker (and
vice versa), a listener is likely to misunderstand key phrases
without proper translation. Translated into “Pidgin” English,
“if it were me” becomes “if na mi,” which a “Standard” English
speaker could take to mean “if not me.” Id. (emphasis added).
3
In addition to “Pidgin” English, B.C. speaks the Akum
language. He also received some instruction in French during
secondary school, though it is not clear how fluent he is in that
language.
4
We use the parties’ terminology to refer to these two
languages.
7
Although “Pidgin” English speakers “may understand
their language to be ‘a version’ of [‘Standard’] English,” a
person who is proficient in “Pidgin” English is not
automatically proficient in “Standard” English. A.R. at 90.
Instead, a “Pidgin” English speaker who wishes to
communicate in “Standard” English must learn it as a second
language. Id. B.C. did not have the benefit of a full education
in “Standard” English; he learned some “Standard” English in
his village primary school but was given no further “Standard”
English instruction thereafter and asserts he was not proficient
in that language when he entered the United States.
B. B.C.’s Alleged Persecution in Cameroon
Speakers of “Pidgin” English, like B.C., are considered
“Anglophones” in Cameroon. He reports that Francophones,
including the predominantly Francophone Cameroonian
government, “do not accept Anglophones in the community
and treat them as second-class citizens.” A.R. at 238, 348, 440.
B.C. claims he was subjected to particularly egregious
mistreatment because he was a supporter of an opposition party
called the Social Democratic Front (“SDF”) and a member of
the Southern Cameroon National Council (“SCNC”), a non-
violent political group that advocates for independence from
Francophones. B.C. reports that the Cameroonian government
arrested and detained him twice as a result of his support for
these groups. More gravely, he claims military officers shot
and killed his brother at an SCNC demonstration. With the
help of family friends, B.C. managed to escape the country,
and he entered the United States in January 2018.
8
C. Initial Interactions with Immigration Officials
Upon entry, officers of the United States Customs and
Border Protection (“Customs”) interviewed B.C. and seized his
documents. Among those documents was a card listing him as
a member of the SCNC. As a result of the interview, Customs
determined he was subject to removal and placed him in
detention. No interpreter was provided during this interview,
and, as B.C. reported, he therefore “did [his] best with [his]
limited [‘Standard’] English.” A.R. at 123. When he
expressed a fear of returning to Cameroon, the Customs officer
referred him for a credible fear interview, which is a threshold
proceeding conducted by an asylum officer from the United
States Citizenship and Immigration Services (“USCIS”) to
determine whether a case should be referred to an IJ for a full
hearing.
About three weeks later, B.C. attended his credible fear
interview. Again, no interpreter was provided. B.C. reports
that, “[a]lthough [he] did not always understand everything
[he] was asked,” he “did [his] best to use . . . [‘]Standard[’]
English” during the interview. Id. The asylum officer
determined B.C. had established the requisite credible fear and
referred his case to an IJ. Throughout this period and in
preparation for his appearance before the IJ, B.C. asked the
Government to return his SCNC membership card numerous
times, but the Government failed to do so and he was unable to
get the card back for more than a year.
D. Appearances before the IJ
B.C. subsequently made multiple appearances before
the IJ. Because the IJ’s approach to the language issue varied
9
by hearing, we describe the events of each hearing in detail.
Notably, over the course of these proceedings, B.C. (who was
appearing pro se) was not once asked to identify in his own
words the languages he speaks or offered a “Pidgin” English
interpreter.
1. First Appearance
B.C. first appeared before the IJ in March 2018. The
scene was passing strange: Due to a “scrivener’s error,” B.C.’s
Notice to Appear erroneously stated that he was a citizen of
Guatemala. A.R. at 438. He therefore found himself at a
preliminary group hearing with noncitizens who primarily
spoke Spanish and where the only available interpreter was a
Spanish speaker. When the IJ turned to B.C., he did not ask
what languages B.C. spoke, but instead gave him a simple
choice between two languages: “Spanish or English?” A.R. at
460. Having no other option, B.C. chose English. Id. In
“Standard” English and with a Spanish interpreter, the IJ then
explained the removal process to the group.
2. Second Appearance
A few days later, B.C. appeared before the IJ again for
an individual hearing. The IJ opened the hearing by
introducing a Spanish interpreter without asking whether B.C.
spoke that language. Because B.C. is not a Spanish speaker,
he interjected with one word: “English.” Id. The IJ did not
inquire about what type of English B.C. spoke, instead asking
him preliminary questions in “Standard” English and clarifying
that he was not in fact a citizen of Guatemala. In the middle of
the proceeding, the IJ asked B.C., “Do you need a French
interpreter or are you okay with the English?” A.R. at 480.
10
B.C. responded that he was “okay in English.” Id. The IJ later
asked if B.C. “read and underst[ood] French and English,” to
which B.C. responded, “I read and understand English and
French, a little bit.” A.R. at 484–85.
In response to the IJ’s substantive questions, B.C.
admitted that he entered the United States without the
appropriate documentation. The IJ therefore sustained the
removability charge. B.C. then filed applications for asylum,
withholding of removal, and protection under the CAT, which
he later supplemented with various supporting documents,
including his brother’s Cameroonian death certificate,
evidence of country conditions in Cameroon, and statements
from friends corroborating the circumstances of his brother’s
death.
3. Merits Hearing
For months after these preliminary hearings, B.C.
remained in detention and attempted to improve his “Standard”
English. In July 2018, the IJ convened a merits hearing. B.C.
again appeared pro se. The IJ asked him a series of questions
without first inquiring whether he needed an interpreter and
instead asking only whether he was an “English speaker” or an
“Anglophone.” A.R. at 526, 531, 543. The hearing transcript
suggests there was a language barrier between B.C. and the IJ.
For example, at least 36 separate times the transcript records
B.C.’s testimony as “indiscernible,” meaning the court reporter
was unable to decipher what he was saying. And the IJ
frequently interrupted B.C. to criticize him for sounding
“memorized” and “stilted.” See AR at 539–41, 549, 554–55,
588.
11
After the questioning concluded, the IJ and B.C. had a
lengthy discussion demonstrating the IJ’s failure to appreciate
the distinction between “Standard” and “Pidgin” English. We
reproduce portions of the conversation below to illustrate the
depth of the misunderstanding between the two:
[Judge:] When we first started off, I have to tell you
something, you were running like a train out of the
station. Almost like you memorized something and I
couldn’t . . . understand what was going on because it
was very stilted. And I’m trying to be as understanding
as possible but there are some inconsistencies from
what the Asylum Officer said . . . .
[B.C.:] Your Honor, maybe it was the language because
--
[Judge:] You speak English. I speak English.
[B.C.:] Yes, my English wasn’t fluent [during the
interview with the asylum officer]. I speak, it wasn’t
really coming out. But now I practice a lot . . . .
[Judge:] . . . . [W]hy would you have to practice English
if your mom and your family spoke English at home?
[B.C.:] I started English just in primary school. Going
to secondary school, we have just French.
[Judge:] But what did your parents speak?
[B.C.:] Huh.
[Judge:] What did your mom and dad speak?
[B.C.:] They speak our local language.
[Judge:] What is it?
[B.C.:] That’s Pidgin.
[Judge:] Pidgin English.
[B.C.:] Pidgin English, yes.
12
[Judge:] Well, I know Pidgin English5 . . . . Why did you
have to practice English?
[B.C.:] Huh?
[Judge:] Why would you have to practice English if
that’s your native language?
[B.C.:] Your Honor, when I went to secondary school
....
[Judge:] . . . . But when did you start secondary school?
How old were you?
[B.C.:] . . . . I was already 13 years old.
[Judge:] Right. So you had spent 13 years of your life
speaking English, right?
[B.C.:] Yes.
[Judge:] So you wouldn’t need to relearn it at your age
....
[B.C.:] I go to school and come back home, it’s just
Pidgin only used in the house.
[Judge:] I don’t know about that. I don’t know if you
need to learn English.
A.R. at 588–91.
5
Although the IJ asserted that he “kn[ew] [‘]Pidgin[’]
English,” the record belies this contention. There is no
indication from the transcript that the IJ made an effort to speak
to B.C. in any language other than “Standard” English. The
IJ’s suggestion that he spoke “Pidgin” English therefore seems
to underscore the extent of his misunderstanding about what
“Pidgin” English is.
13
4. The IJ’s Decision
The IJ subsequently denied all relief and ordered B.C
removed. His decision rested solely on the conclusion that
B.C. did not testify credibly and thus the IJ did not reach the
merits of B.C.’s claims. The IJ was primarily concerned with
“inconsistencies” between B.C.’s representations to the asylum
officer and testimony at the merits hearing, and with his
demeanor at the merits hearing. Again failing to acknowledge
the distinction between “Standard” and “Pidgin” English, the
IJ found B.C.’s “explanations regarding any language issues
with the asylum officer inadequate and unconvincing, given his
claim that he is an English speaker and the questions were
simple and asked multiple times.” A.R. at 446. Finally,
although the IJ had previously acknowledged that members of
the SCNC and SDF may face persecution in Cameroon, he
suggested it was troubling that B.C. “did not submit evidence
of his membership” in either organization. A.R. at 444.
Notably, the IJ did not mention that the reason B.C. lacked this
evidence was because the Government had confiscated his
SCNC membership card and failed to give it back in time for
the hearing. Nor did the IJ substantively discuss or credit any
of the other documents that B.C. provided in support of his
application.
5. Proceedings before the BIA
B.C. appealed to the BIA, arguing that the IJ violated
his right to due process by neglecting to ascertain the languages
he speaks proficiently or provide an interpreter, made an
unsupported adverse credibility determination, and failed to
consider his documentary evidence. The BIA dismissed the
appeal because it was “unpersuaded . . . that [B.C.’s] English
14
was limited enough to trigger” the need for language
assistance. A.R. at 342. The BIA also concluded the IJ’s
adverse credibility finding was not clearly erroneous because
it was supported by numerous inconsistencies in the record. Id.Although the IJ failed to discuss specifically the documentary
evidence supporting B.C.’s application, the BIA decided this
was not an error because the IJ made a blanket statement that
“all evidence not mentioned was fully considered.” A.R. at
343.
After the BIA’s decision, and with the assistance of
counsel, B.C. was finally able to get his SCNC membership
card back from the Government. Based in part on this
evidence, B.C. moved for reconsideration and reopening of his
case, which the BIA denied. B.C. petitioned us for review of
the BIA’s initial decision and its denial of the motion for
reconsideration. We consolidated the petitions and granted a
stay of removal.
II. Jurisdiction and Standard of Review
The BIA’s jurisdiction arose under 8 C.F.R.
§§ 1003.1(b)(3) and 1003.2. We have jurisdiction under 8
U.S.C. § 1252 to review the BIA’s decision, and we review the
IJ’s decision to the extent the BIA “substantially relied on that
opinion.” Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir.
2009), as amended (Nov. 4, 2009). We review legal questions
anew, Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 213 (3d
Cir. 2017), factual determinations and findings of credibility
for substantial evidence, Abulashvili v. Att’y Gen., 663 F.3d
197, 202 (3d Cir. 2011), and the denial of a motion to
reconsider or reopen for abuse of discretion, Serrano-Alberto,
859 F.3d at 213.
15
III. Discussion
The BIA did not evaluate, and we have no occasion to
review, the merits of B.C.’s claims for asylum, withholding of
removal, and relief under the CAT. Instead, we are primarily
asked to determine whether the proceedings were “conducted
in a fair enough fashion for one to determine that the BIA’s
decision was based on reasonable, substantial, and probative
evidence.” Cham v. Att’y Gen., 445 F.3d 683, 693 (3d Cir.
2006) (citation omitted). We conclude they were not.
A. Due Process
The Fifth Amendment’s Due Process Clause applies to
noncitizens in the United States. Zadvydas v. Davis, 533 U.S.
678, 693 (2001). “[A]s a matter of due process,” B.C. deserves
“a full and fair hearing on his application[s]” for asylum,
withholding of removal, and relief under the CAT. Cham, 445
F.3d at 691. There are three pillars of a fair hearing: (1) the IJ
engages in fact-finding based on the record made at a hearing
and disclosed to the noncitizen; (2) the noncitizen has the
opportunity to make arguments and present evidence on his/her
own behalf; and (3) the IJ makes an individualized
determination of the noncitizen’s claims. Chong v. Dist. Dir.,
I.N.S., 264 F.3d 378, 386 (3d Cir. 2001).
For two reasons, we hold the second pillar was not
satisfied here. First, at the beginning of the removal process,
the IJ did not take adequate steps to evaluate whether B.C.
needed an interpreter. And second, as the merits hearing
proceeded, the IJ failed to identify that an interpreter might be
needed, even though there was ample evidence that B.C. might
not be sufficiently proficient in “Standard” English. This had
16
the potential to, and likely did, affect the outcome of the
proceeding. We therefore remand for the IJ to conduct a new
hearing.
1. Failure to conduct an adequate threshold
inquiry into the need for an interpreter
It is well established that the provision of an interpreter
is a “minimum” requirement of a fair hearing for asylum
applicants who have limited English proficiency; otherwise, an
applicant’s “procedural rights would be meaningless in cases
where the judge and . . . applicant cannot understand each
other.” Marincas v. Lewis, 92 F.3d 195, 204 (3d Cir. 1996)6;
see also, e.g., Perez-Lastor v. I.N.S., 208 F.3d 773, 778 (9th
Cir. 2000) (“It is long-settled that a competent translation is
fundamental to a full and fair hearing. If a[] [noncitizen] does
not speak English, deportation proceedings must be translated
into a language the [noncitizen] understands.”); Augustin v.
Sava, 735 F.2d 32, 37 (2d Cir. 1984) (“A hearing is of no value
when the [noncitizen] and the judge are not understood. . . .
The very essence of due process is a ‘meaningful opportunity
to be heard.’”) (citation omitted); Matter of Tomas, 19 I. & N.
Dec. 464, 465 (BIA 1987) (“The presence of a competent
6
Marincas involved the requirements for a fair hearing under
the Refugee Act of 1980, Pub. L. No. 96-212 (1980), not the
Due Process Clause of the Fifth Amendment. However, we
made clear that those requirements are overlapping, because
“fairness mandate[s] that the asylum procedure promulgated
by the Attorney General [under the Refugee Act] provide the
most basic of due process.” 92 F.3d at 203. And “the most
basic of due process,” in turn, requires the provision of an
interpreter to a noncitizen who has limited English proficiency.
17
interpreter is important to the fundamental fairness of a
hearing, if the [noncitizen] cannot speak English fluently.”).
The Government does not dispute this requirement. See
Gov. Br. at 48–49 n.6 (“There is . . . no dispute that, of course,
the agency has a duty to provide translation services in the
absence of standard English proficiency.”); Oral Arg. Tr. at
43:10–15 (Q: “I take it the government doesn’t dispute the
notion that those who [have limited English proficiency], that
due process requires that those types of aliens be provided an
interpreter.” A: “Do not dispute that. Due process does require
someone [who has limited English proficiency] to have an
interpreter.”). Nor does the Government dispute that as a
practical matter, before an interpreter can be provided, there
must “be some determination at the outset of a hearing whether
an interpreter is required or not.” Oral Arg. Tr. at 44:11–13.
Instead, the parties disagree about what that determination
must include to satisfy due process. The Government argues
that the procedures the IJ followed here—which included
giving B.C. a binary choice between two languages and asking
him if he was an “English speaker”—are sufficient. B.C.
contends that due process requires a more robust inquiry. For
the reasons discussed below, we agree with B.C. and hold that
due process requires IJs to determine whether a noncitizen has
a sufficient level of proficiency in “Standard” English to
proceed without an interpreter. This may begin by giving
noncitizens a meaningful chance to express, on their own terms
at the outset of a hearing, the languages in which they are
sufficiently proficient.
In analyzing due process claims, we turn to the three
factors described decades ago in Mathews v. Eldridge, 424
U.S. 319, 335 (1976): (1) the interest at stake for the individual
18
noncitizen; (2) “the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards”; and (3)
“the Government’s interest, including the function involved
and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” Id. All three
factors support B.C.’s claim that he was denied due process.
The interests at stake for B.C. were considerable.
“Though deportation is not technically a criminal proceeding,
it visits a great hardship on the individual and deprives him of
the right to stay and live and work in this land of freedom. . . .
Meticulous care must be exercised lest the procedure by which
he is deprived of that liberty not meet the essential standards of
fairness.” 7 Bridges v. Wixon, 326 U.S. 135, 154 (1945).
With respect to the second factor, there is an
unacceptably high risk of erroneously depriving a noncitizen
7
In the analogous criminal context, several of our sister circuits
have held that judges have an affirmative duty to evaluate the
need for an interpreter for an individual who has limited
English proficiency. See, e.g., Ramos-Martínez v. United
States, 638 F.3d 315, 325 (1st Cir. 2011) (“Once the court is
on notice that a defendant’s understanding of the proceedings
may be inhibited by his limited proficiency in English, it has a
duty to inquire whether he needs an interpreter.”); United
States v. Edouard, 485 F.3d 1324, 1337 (11th Cir. 2007)
(“[T]he [Court Interpreters] Act places on the trial court a
mandatory duty to inquire as to the need for an
interpreter when a defendant has difficulty with English.”)
(internal quotation marks and citation omitted) (emphasis
omitted).
19
of his liberty when an IJ does not properly assess whether he
needs an interpreter. “Immigration law is a field in which fair,
accurate factfinding is of critical importance.” Calderon-
Rosas v. Att’y Gen., 957 F.3d 378, 381 (3d Cir. 2020). When
a noncitizen and an IJ cannot fully understand each other due
to a language barrier, there is a significant risk that an IJ will
make inaccurate factual or credibility findings that may cause
the noncitizen to be deported unfairly. Cf. Haitian Refugee
Ctr., Inc. v. Nelson, 872 F.2d 1555, 1562 (11th Cir. 1989)
(“The ability of the adjudicator . . . to make a reasonable
assessment of the applicant’s credibility is obviously hampered
by his inability to understand the applicant’s statements.”).
The IJ’s approach to evaluating B.C.’s need for an
interpreter enhanced the risk that he and B.C. would have
difficulty understanding each other. As we have previously
explained, giving a noncitizen an “either-or” choice between
two languages, based on the unfounded assumption that he
must be proficient in at least one, is not an accurate method of
determining which language(s) the noncitizen speaks
proficiently. See Senathirajah v. I.N.S., 157 F.3d 210, 218 (3d
Cir. 1998). Similarly, asking a noncitizen if he is an “English
speaker” or an “Anglophone” is not a particularly helpful
inquiry, as he might answer “yes” even if he understands
“Standard” English only at a rudimentary level or speaks a
variation of English that is not mutually intelligible to a
“Standard” English speaker. Given the “various degrees of
proficiency one may have with a foreign language,” and the
“difficulty someone from [another country] may have in
understanding ‘American English,’ particularly under the
stressful circumstances of entry into a new country,” “[i]t
seems no stretch . . . to assume that [a noncitizen] might . . .
20
need[] an interpreter even if he technically ‘sp[eaks] the same
language’ as the” immigration official. Id. at 218 and n.10.
It is also ineffective to presume that, because a
noncitizen is able to respond to certain basic questions in
“Standard” English, and even submitted written materials in
that language, he must necessarily be a fluent “Standard”
English speaker who does not need an interpreter. A person
who has limited “Standard” English proficiency “may be
competent in certain types of [‘Standard’ English]
communication . . . but still [have limited proficiency in
‘Standard’ English] for other purposes.” A.R. at 272–73. With
unlimited time and access to a bilingual dictionary, for
example, a noncitizen who lacks proficiency in “Standard”
English might be able to compose a reasonably coherent
written statement in that language. But that same individual
might have trouble responding orally to rapid-fire questions in
“Standard” English during a high-pressure hearing.
There are other methods by which the IJ could have
evaluated whether B.C.’s “Standard” English was deficient
enough to warrant an interpreter. The IJ could have begun by
asking which languages he spoke and understood best or in
which languages he was comfortable proceeding.
Alternatively, the IJ could have asked an interpreter or a
multilingual staff member to verify the languages in which
B.C. was proficient. The IJ could also have used a visual aid,
like a card or poster showing the (translated) names of a variety
of possible languages and asked B.C. to point to the relevant
languages. If B.C. had been accompanied by a relative or
friend who spoke English well, the IJ could have asked that
person about his language needs. This list of possible
approaches is non-exhaustive, and we do not prescribe any
21
script or checklist that must be followed in every case, nor do
we suggest that any particular answer to these inquiries is
dispositive of the need for an interpreter. See Morrissey v.
Brewer, 408 U.S. 471, 481 (1972) (“[D]ue process is flexible
and calls for such procedural protections as the particular
situation demands.”). But these methods share a common
theme: giving the noncitizen the opportunity to communicate
his language proficiency on his own terms. And the IJ’s
approach here did not give B.C. that opportunity.
Additional safeguards would have significantly reduced
the risk of erroneously depriving B.C. of his liberty. If the IJ
had simply asked him at the outset what languages he felt
comfortable proceeding in, he might have responded that he
was proficient in “Pidgin” English but not “Standard” English.
This inquiry may have led the IJ to secure the relevant
interpreter, which could have eliminated the possibility that
B.C.’s testimony, and the IJ’s reaction to it, were colored by
the language barrier.
On the third factor, we do not underestimate the
Government’s interest in the orderly administration of removal
proceedings. But conducting a meaningful threshold
assessment of the need for an interpreter would facilitate, not
threaten, that interest. By engaging in a brief initial colloquy
along the lines outlined above, the IJ in this case could have
saved himself time and trouble. For example, he could have
forgone the lengthy, confusing discussion with B.C. at the
conclusion of the hearing about why the latter struggled to
express himself in “Standard” English. See A.R. at 588–91.
Failing to provide an interpreter when needed makes
meaningless a noncitizen’s right to due process. And not
22
making a threshold inquiry into whether an interpreter is
needed, in turn, renders the right to an interpreter meaningless.
Because the IJ did not make the proper inquiry here, the
proceeding did not comply with due process.
2. Failure to realize an interpreter was needed as
the merits hearing continued
A noncitizen’s due process rights do not end once his
merits hearing has begun; rather, they continue “[t]hroughout
all phases of [the] deportation proceeding[].” Serrano-Alberto,
859 F.3d at 213. An IJ therefore has an ongoing obligation to
offer an interpreter if it becomes readily apparent during a
merits hearing that a noncitizen is having trouble speaking or
understanding “Standard” English. The Mathews factors
discussed above apply with equal force in this context. The
Government argues the IJ complied with this requirement
because “B.C. and the [IJ] had no trouble understanding each
other.” Gov. Suppl. Br. at 6.
Substantial evidence does not support this conclusion.
The hearing transcript reflects 36 separate instances in which
B.C.’s testimony was “indiscernible.” See, e.g., A.R. at 563
(“[Government lawyer to B.C.]: Q. Sir, your mother is still
alive. Is that right? Or is she deceased? A. My mother is still
alive. Q. Okay. And how about your father? A. He’s
[indiscernible]. Q. I’m sorry. A. [Indiscernible]. [Judge to
B.C.]: Q. He’s what? A. [Indiscernible].”). On several
occasions, B.C. initially gave non sequitur answers to
questions that suggested he lacked a full understanding of what
he was being asked. See, e.g., A.R. at 544 (“Q. During that
time period, did you go to the bathroom? A. During that time,
took everything out of my pockets.”); A.R. at 557 (“Q. How
23
did you get on the airplane? A. Cameroon. Q. How did you get
on the airplane? A. I had [indiscernible].”). He often
responded to questions in fragments that make it difficult to
ascertain what he was saying. See, e.g., A.R. at 532 (“A. . . . .
So there’s been an Anglophone did not accept Anglophones in
Cameroon because they said the only way . . . .”); A.R. at 545
(“Q. Was it just a coincidence that you were placed there? A.
It’s not a coincidence. All the people, all the military people
who [indiscernible] Anglophone. We don’t have
Anglophone.”).
These issues should have led the IJ to realize that,
despite his assumptions to the contrary, B.C. might have
limited “Standard” English proficiency. See Abulashvili, 663
F.3d at 206 (“[T]he IJ should have realized that [the
noncitizen’s] purported comprehension of English was not
consistent with the difficulty he had in communicating, and
that observation would have required neither familiarity with
his language nor any particular expertise in communication
theory.”). Yet, instead of acknowledging the potential problem
and seeking to remedy it, the IJ doubled down. When B.C.
appeared to be having trouble expressing himself, the IJ did not
ask whether he needed an interpreter, but instead attributed the
issue to B.C.’s “accent” and instructed him to “go slowly.”
A.R. at 532. And when B.C. eventually pointed out that his
first language was “Pidgin” English, the IJ failed to understand
the distinction between that language and “Standard” English,
asking B.C. no less than three times why he would need to
“practice” English if he grew up speaking it. A.R. at 588–591.
The IJ then asserted, with no apparent basis, that he himself
“kn[ew] Pidgin English.” A.R. at 589. Because he ignored
repeated signs that an interpreter might be needed, including
B.C.’s own explanation of the difference between “Standard”
24
and “Pidgin” English, we cannot conclude that the IJ’s
handling of the hearing comported with due process.
To be clear, a few limited instances of communication
difficulties are not enough, standing alone, to violate the
process one is due. Nor is the mere fact that a transcript
contains certain “indiscernible” testimony sufficient on its own
to establish a language barrier. It is the unusually large amount
of “indiscernible” testimony, coupled with other readily
apparent indicia of misunderstandings, that convince us there
was a language barrier here.
3. Prejudice
In some cases, a due process issue may not warrant a
remand to the agency where it is clear the noncitizen suffered
no prejudice from the agency’s errors. See Cham, 445 F.3d at
694 (noting that, to establish a due process violation, a
noncitizen must show “that the violation of a procedural
protection . . . had the potential for affecting the outcome of
[the] deportation proceedings”) (internal quotation marks and
citation omitted) (emphasis and alteration in original). This is
not such a case. The IJ’s errors had the potential to affect the
outcome of the proceedings in two ways. First, as discussed
above, the failure to evaluate B.C.’s need for an interpreter
resulted in confusion and misunderstanding during the merits
hearing. And second, the IJ’s failure to recognize the language
barrier may well have impermissibly colored his ultimate
adverse credibility determination.
The IJ found B.C. was not credible in part because he
“appeared to have memorized his testimony,” which “seemed
stilted, robotic, and unnatural,” and he became “flustered when
25
asked questions that caused him to deviate from his prepared
statements.” A.R. at 445. The IJ was also troubled by what he
believed to be “inconsistencies” between B.C.’s statements at
various points in the proceedings, even though those
statements were made without the benefit of an interpreter.
“[T]he linguistic and cultural difficulties endemic in
immigration hearings may frequently result in statements that
appear to be inconsistent” or unnatural, “but in reality arise
from a lack of proficiency in English or cultural differences
rather than attempts to deceive.” Abulashvili, 663 F.3d at 206.
This is especially true when a pro se noncitizen with limited
proficiency in “Standard” English is forced to proceed without
an interpreter. It is easy to imagine that a person in that
position might attempt to rehearse or memorize certain
portions of his testimony to compensate for his lack of comfort
speaking off-the-cuff in “Standard” English and might seem
“flustered” if asked to speak extemporaneously. A noncitizen
might appear especially uncomfortable where, as here, the IJ
frequently interrupts him and admonishes that he sounds “bad”
and “not . . . very natural.” See, e.g., A.R. at 541, 549, 550,
593. A language barrier might also cause a noncitizen to testify
less precisely and consistently than he otherwise would. Cf.
Balasubramanrim v. I.N.S., 143 F.3d 157, 163–64 (3d Cir.
1998) (rejecting adverse credibility determination based on
purported inconsistencies between statements made during an
asylum interview and a merits hearing because the noncitizen
did not have the benefit of an interpreter during the interview).
We sometimes remand immigration cases even absent a
due process challenge when there are serious concerns that an
unskilled interpreter has prejudiced a noncitizen. See, e.g.,
Issiaka v. Att’y Gen., 569 F.3d 135, 143 (3d Cir. 2009); Kaita
26
v. Att’y Gen., 522 F.3d 288, 299–300 (3d Cir. 2008). But the
violation here is even more pronounced: we cannot assess the
effect that any interpreter’s errors may have had on the
outcome of the case because no interpreter was provided at any
stage in the proceeding. And instead of reaching the merits of
B.C.’s arguments, the IJ rejected his claims solely on
credibility grounds, which are uniquely susceptible to being
influenced by a language barrier.8 Accordingly, we cannot
avoid the conclusion that the IJ’s decision was shaped in part
by the language issue.9 Hence we conclude a remand is
appropriate and that B.C. “must be given a second, and a real,
chance to create a record in a deportation hearing that comports
8
B.C. represented during the hearing that he struggled to speak
in “Standard” English during the asylum interview, but he tried
to practice that language while in detention. Even if B.C.’s
“Standard” English had improved enough by the merits
hearing that an interpreter was unnecessary, a remand would
still be appropriate because the IJ failed to appreciate that
“Standard” and “Pidgin” English are different languages, and
proficiency in one does not necessarily confer proficiency in
the other. Due to this misunderstanding, the IJ relied on B.C.’s
earlier testimony during the asylum interview as though it had
been delivered by a native “Standard” English speaker when in
fact it had not. This may have colored the adverse credibility
determination.
9
B.C. argues that, under our precedent in Leslie v. Attorney
General, 611 F.3d 171, 180 (3d Cir. 2010), he is entitled to an
automatic remand due to the agency’s failure to comply with
the Executive Office for Immigration Review’s language
access plan. Because B.C.’s petition succeeds on the ground
outlined above, we need not reach this issue.
27
with the requirements of due process.” Cham, 445 F.3d at 694(internal quotation marks and citation omitted).10
B. Other Errors
Because we conclude a remand for a new hearing is
appropriate due to the language issue, we could stop there
without further scrutinizing the IJ and BIA’s decisions.
However, we briefly note other aspects of their approach that
we find troubling and should be addressed on remand.
1. Reliance on potentially unsupported
“inconsistencies”
As noted above, we cannot fully evaluate the IJ’s
adverse credibility finding because it inextricably links to the
language barrier. But even if there were no language issue, at
least some of the purported “inconsistencies” in B.C.’s
testimony seem to lack record support for other reasons. To be
sure, “an adverse credibility determination can be based on
inconsistencies, inaccuracies, and other factors, irrespective of
10
B.C. also briefly asserts that the language issue violated his
right to equal protection. Because his discussion of the issue
is so cursory, it is most likely forfeited. Cf. Laborers’ Int’l
Union of N. Am. v. Foster Wheeler Energy Corp., 26 F.3d 375,
398 (3d Cir. 1994) (“An issue is waived unless a party raises it
in its opening brief, and for those purposes a passing reference
to an issue . . . will not suffice to bring that issue before this
court.”) (internal quotation marks and citation omitted). But
even if we can consider this argument, it is unpersuasive
because B.C. does not claim any disparity in the availability of
translators is due to discriminatory intent.
28
whether they go to the heart of an applicant’s claim,”
Abulashvili, 663 F.3d at 202 n.7 (citing 8 U.S.C.
§ 1158(b)(1)(B)(iii)), and our review of that determination is
deferential, id. at 205. But this standard does not “permit a
judge to cherry pick facts or inconsistencies to support an
adverse credibility finding that is unsupported by the record as
a whole.” Ilunga v. Holder, 777 F.3d 199, 207 (4th Cir. 2015)
(internal quotation marks omitted).
Several of the cited “inconsistent” statements may not
in fact be inconsistent. For example, the IJ faulted B.C. for
giving the asylum officer at the credible fear interview one
reason why he believed the government in Cameroon wanted
to harm him but then giving another reason at his merits
hearing. In drawing this conclusion, the IJ treated the asylum
officer’s typo-ridden notes as a complete and fully accurate
representation of the credible fear interview, even though those
notes state they “are not a verbatim transcript of this interview”
and may exclude certain “areas of the individual’s claim.”
A.R. at 833. Even if the asylum officer’s notes accurately
captured the nuance of B.C.’s answers, that B.C. gave a partial
explanation of his experiences before the asylum officer, and
then supplemented that explanation during the merits hearing,
is not necessarily a sign of inconsistency. Instead, it could
reflect the different contexts of the credible fear interview and
merits hearing: one is a brief, threshold undertaking, and the
other is a lengthy proceeding in which a noncitizen is asked to
respond to a series of highly specific questions. On remand,
the IJ should account for the context in which B.C. testified
before jumping to the conclusion that his testimony was
“inconsistent.”
29
2. Ignoring corroborative evidence
The IJ did not address documentary evidence that might
have corroborated some of B.C.’s claims. Specifically, B.C.
submitted his brother’s Cameroonian death certificate, two
letters from friends describing his brother’s death, and
background information on country conditions in Cameroon.
Although the IJ had previously acknowledged that the
circumstances surrounding B.C.’s brother’s death were highly
relevant to his claim, see A.R. at 499 (“[T]his [case] is likely
going to rise or fall on credibility . . . [a]nd the death
certificate.”), he inexplicably failed to discuss the substance of
the death certificate at all in his opinion. He similarly
neglected to discuss the evidence of country conditions or
letters corroborating the story of B.C.’s brother’s death beyond
criticizing the letters for failing to include specific details about
B.C.’s own activism in Cameroon. The BIA was untroubled
by these exclusions, stating in conclusory fashion that “all
evidence not mentioned [by the IJ] was fully considered” and
that, in any event, “the death certificate is insufficient to
overcome . . . [the] adverse credibility finding.” A.R. at 343.
“Although the BIA does not need to discuss every piece
of evidence in the record, it may not ignore or misconstrue
evidence in the asylum applicant’s favor.” Tilija v. Att’y Gen.,
930 F.3d 165, 172 (3d Cir. 2019) (internal quotation marks and
citation omitted). The death certificate could have
corroborated B.C.’s testimony about the circumstances of his
brother’s death, which the IJ conceded was important. Even if
the IJ and BIA found that document unpersuasive, they should
at least have explained their reasoning. And if the IJ intended
to fault B.C. for failing to obtain letters corroborating his
political activism in Cameroon, he should have given B.C.
30
“notice [and] an opportunity to provide [that] evidence or
explain its unavailability.” Saravia v. Att’y Gen., 905 F.3d
729, 738 (3d Cir. 2018).
3. Faulting B.C. for not presenting a document
withheld by the Government
Finally, the IJ criticized B.C. for failing to “submit
evidence of his membership” in two Cameroonian
organizations—the SCNC and SDF. A.R. at 444. But the IJ
never acknowledged that the reason B.C. lacked an SCNC
membership card was because the Government confiscated it
when he entered the United States and, despite multiple
requests, did not return it until after his merits hearing had
concluded. To date, the Government has not provided an
explanation for why the card was withheld. Oral Arg. Tr. at
45:18–20 (Government counsel: “I do not [know] why it took
so long for them to produce the document . . .[,] just simply, it
takes a while.”). And the card was highly relevant to B.C.’s
claims. The IJ repeatedly acknowledged that members of the
SCNC are persecuted in Cameroon and that a “true SCNC
supporter[]” would be entitled to relief. A.R. at 499, 595. He
doubted, however, that B.C. was a “true SCNC supporter[].”
Id. at 595. The card could have bolstered B.C.’s credibility on
that issue. On remand, the IJ should consider the card along
with the other relevant evidence put in the record.11
11
B.C. argues the BIA erred in denying his motion for
reopening or reconsideration based in part on the submission
of his SCNC membership card. Because we remand to the IJ
for a new hearing as outlined above, we need not separately
reach this issue. We note, however, that given the introduction
31
* * * * *
Due process requires that an interpreter be provided
during removal proceedings to noncitizens who have limited
proficiency in English. Implicit in that requirement is a
preliminary step: an IJ must meaningfully evaluate whether an
interpreter is needed. And because the right to an interpreter
extends throughout the entire proceeding, an IJ has a
continuing obligation to offer an interpreter if it appears a
noncitizen is having significant trouble speaking or
understanding “Standard” English. The failure to take these
steps, or to appreciate that a noncitizen has limited proficiency
in “Standard” English, can impermissibly affect an IJ’s adverse
credibility determination. Because the IJ failed to satisfy these
requirements in this case, which prejudiced B.C., we vacate the
BIA’s decisions and remand for a new hearing.
through the motion of the expert reports regarding “Pidgin”
English and its speakers, coupled with B.C.’s own linguistic
difficulties, it is surprising the BIA failed to recognize the
extent to which “Standard” and “Pidgin” English differ.
32