TOMAS

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 persecu-

tion to qualify for asylum or withholding of deportation, must be given a reasona-

ble opportunity to present evidence on their own behalf, including their testimo-

ny-

(2) Where the respondents cannot speak English fluently, the presence of a compe-

tent 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 inspec-

tion (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'

464

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 withhold-

ing 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 im-

migration 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 hear-

ing to be conducted with the help of a Kanjobal interpreter. Al-

though 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 funda-

mental fairness of a hearing if the alien cannot speak English flu-

ently. 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 trans-

late thoughts from one language to another. Moreover, the daugh-

ASS

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 suffi-

cient reason to allow a hearing to proceed where the right of a re-

spondent 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.

466