Day Two Plenary III New Orleans, LA. National Immigrant Women's Advocacy Project at the American University Washington College of Law 1

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1 Language Access: Compliance Requirements and Complying with Title VI of the Civil Rights Act of 1964 Day Two Plenary III New Orleans, LA 1

2 Introductions Cannon Han and Wendy Lau Asian Pacific Islander Institute on Domestic Violence Officer Michael LaRiviere Officer, Investigator, Salem, MA Police Department Session 1: Honorable Lora Livingston, Travis County Courts, Austin, Texas Session 2: Judge Ramona Gonzalez, La Crosse County Circuit Courts, La Crosse, Wisconsin 2

3 Learning Objectives By the end of this plenary, you will be better able to: Understand the language access compliance requirements of Title VI of the Civil Rights Act of 1964 Enhance the effective administration of justice the implementation of language access strategies in the justice system Improve victim, officer, and court staff safety 3

4 Title VI of the Civil Rights Act 1964 No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. Civil Rights Act of 1964, Title VI, 42 U.S.C. 2000d 5

5 Title VI of the Civil Rights Act 1964 Meaning: Government & government funded programs must provide meaningful access to programs & benefits to persons with limited English proficiency (LEP) 6

6 Policy Guidance Four Factors 67 Fed. Ref Number or proportion of LEP individuals served or encountered in the eligible service population 2. Frequency of contacts 3. The nature and importance of the program, activity or services 4. Resources available 7

7 We Can t Afford Language Access Financial limitations do not provide an exemption from language access requirements: 1. Demonstrated previous success 2. Whether other essential services are being restricted or defunded 3. Whether additional revenues secured or technology used 4. Whether the grantee has an implementation plan 5. Nature and impact on LEP persons 8

8 Americans with Disabilities Act and Section 504 of the Rehabilitation Act Public accommodations and state entities are required to provide ASL interpreters, and other auxiliary aids, to ensure effective communication with deaf and hard of hearing individuals. Deference must be given to the deaf or hard of hearing individual s choice C.F.R. S28 C.F.R. S (b)(2) (NAD Law Center, 2002) 9

9 Who s covered? 1. Federally conducted programs 2. State/local government grantees 3. Non-governmental organization grantees 10

10 When Are Programs Who are Not Federal Grantees Covered By Language Access Requirements? 10

11 Large Group Discussion How does lack of language access impact: Victim safety Offender accountability 11

12 The LEP Experience 13

13 Immigrant Victims in the Justice System - Raquel 14

14 Detained Safety planning learns about VAWA, T or U Not Detained Collect documents Relief Granted Gets Attorney Relief Denied Put into immigration proceedings No Relief Available Remain undocumented, gets victim services Relief denied Relief granted Appeals exhausted Removed from US IMMIGRATION MAP

15 Victim trusts law enforcement Squads Investigate Immigrant victim fearful to seek help because of fear of deportation Victim arrested Screen for victim s immigration status Do they investigate all? Police U Visa Certification Arrest Arrest Report Jail Pre-trial No Arrest Non-Arrest Report Immigration Detainer Sentencing 911 Call by neighbor DHS/ICE Removal of abuser or Victim s 911 Call Prosecutor U visa certification Trial Judge U visa certification DOMESTIC VIOLENCE/ ARREST INCIDENT

16 FAMILY COURT Reunified Files for Divorce Temporary Custody Custody Evaluation DHS shows up in court Family Court Hearing Interviews by Evaluator Abuser introduced evidence about immigration status Abuser raises immigration status as a factor in custody. Custody Hearing, including issues of parental kidnapping Reunification case plan Child Protective System Case Custody Awarded Final Divorce Hearing Termination of parental rights Home evaluation/ cultural competency issues Supervised Exchange/Visitation, money required Child Support Established Immigration considerations detention? Abuser Removed Abuser undocumented, court imputes income but difficult to get a wage withholding

17 BENEFITS MAP Seeks NGO Assistance Denied Immigrant victim tries to access benefit Receives Benefit No Benefit Reported to DHS Children taken away

18 PROTECTION ORDER CIVIL COURT PROCESS DHS shows up at court Civil Court hearing including creative orders for immigrants Abuser introduces immigration status to prevent protection order CPO Denied CPO Granted U Visa certification signed Sheriff Serves Respondent Files CPO Must get notice in native language (LEP) Temporary/Pe rmanent

19 Victim trusts law enforcement Immigrant victim fearful to seek help because of fear of deportation Safety planning learns about VAWA, T or U Relief Granted Gets Attorney No Relief Available Screen for victim s immigration status Do they investigate all? Police U Visa Certification Receives Benefit Files for Divorce Temporary Custody Custody Evaluation Prosecutor U visa certification Squads Investigate Seeks NGO Assistance No Benefit Reported to DHS Children taken away DHS shows up in court Family Court Hearing Interviews by Evaluator Arrest Arrest Report Jail Pre-trial Trial No Arrest Non-Arrest Report Immigration Detainer Sentencing Denied Abuser introduced evidence about immigration status Abuser raises immigration status as a factor in custody. Custody Hearing, including issues of parental kidnapping Judge U visa certification 911 Call by neighbor DHS/ICE Removal of abuser Immigrant victim tries to access benefit Reunification case plan Child Protective System Case Custody Awarded Final Divorce Hearing Victim arrested or Victim s 911 Call Reunified Termination of parental rights Home evaluation/ cultural competency issues Detained Relief denied Appeals exhausted Removed from US Supervised Exchange/Visitation, money required Child Support Established Immigration considerations detention? Abuser Removed Collect documents Civil Court hearing including creative orders for immigrants Not Detained Relief granted Sheriff Serves Respondent Abuser undocumented, court imputes income but difficult to get a wage withholding Relief Denied Put into immigration proceedings DHS shows up at court Abuser introduces immigration status to prevent protection order CPO Denied CPO Granted U Visa certification signed Must get notice in native language (LEP) Files CPO Remain undocumented, gets victim services Temporary/ Permanent

20 Compliance Role of language access plans for Victim and legal services agencies Law enforcement and prosecutors offices The courts 20

21 Signs You Need a Policy and Plan 1. Relying on relatives, children, or friends to interpret for clients 2. Only bilingual staff are used as interpreters, in addition to the other staff job responsibilities 3. No formal arrangements are in place to hire competent interpreters 4. Staff does know how to contract for interpretation services 5. Staff are turning away LEP individuals 6. No translated materials 22

22 Developing an Effective Language Access Plan Description of timeframes, objectives and benchmarks Identification of persons who will implement the plan Identification of funding and procurement strategies Staff training on policies and procedures Collaboration with LEP communities and other stakeholders Outreach to notify survivors of language assistance services Identification and assessment of LEP communities Language Access Plan Monitoring and updating of policies, plan and procedures 22

23 Language Access: Successful Criminal Investigations and Prosecutions 23

24 Challenges for Law Enforcement Responding When Victims are LEP Witnesses are LEP 24

25 What Happens When These Challenges Are Not Addressed? 25

26 How Does Access to Qualified Interpreters Benefit Law Enforcement and Prosecutors? 27

27 Benefits More convictions Convictions not overturned Cases not dismissed Perpetrator not prosecuted on a lesser charge Prosecutor more likely to prosecute Improves integrity and quality of the investigation Reduces impeachment evidence at trial Better police reports Less inconsistent statements More information from victims More victim safety 28

28 Benefits to Officer Safety Correctly identify victim and perpetrator Primary aggressor determination LEP persons with interpreters are better able to follow law enforcement directions 29

29 The Difference Between -- Securing the Scene Interviewing victims and witnesses 29

30 DOJ and Exigent Circumstances Use the most reliable temporary interpreter available to address exigent circumstances Fleeing suspect Weapons Life threatening to the officer /victim/or public 30

31 DOJ Requirements for Investigations & Interrogations A qualified interpreter shall be used for any interrogation or taking of a formal statement where the suspect or witness legal rights could be adversely impacted Criminal interrogations Crime witness interviews Vital written materials translated into primary language Miranda warnings 32

32 How Can Law Enforcement and the Community Work Together to Address Language Access Correctly? 32

33 Promising Practices Face to face interpretation: Qualified interpreter training for law enforcement, advocates and services providers Training on how to interpret Competency exam Collaboration with university with language interpretation programs for student interpreters 33

34 Promising Practices Over the telephone interpretation Securing contracts for language access by telephone Sharing contracts that one agency has with another On scene access 34

35 Language Access At the Court House For Limited English Proficient Survivors 35

36 Language for Limited English Proficient Persons Can Be a Barrier To: Access to justice, benefits or services Exercising legal rights Filing for a protection order, custody, divorce, child support Participating in court proceedings Understanding information and instructions provided Complying with court orders 37

37 DOJ LEP Directive to State Courts on Federal Civil Rights Requirements (8/20/2010) - Interpreters LEP individuals are to be provided qualified interpreters For all parties, defendants and witnesses and all persons whose presence is necessary or appropriate (e.g., parents of minor crime victims) In ALL court room proceedings whether civil, criminal, administrative or other LEP individuals should not incur any fees for these services 38

38 DOJ LEP Directive to State Courts on Federal Civil Rights Requirements (8/20/2010) - Interpreters LEP individuals are to be provided qualified interpreters Not restricted to court rooms, also other court functions including: oclerks offices, records room oalternative dispute resolution opro se clinics oall interactions with court appointed personnel such as guardians ad litem or court psychologists 39

39 DOJ LEP Directive to State Courts on Federal Civil Rights Requirements (8/20/2010) Translation Requirements for Documents Translated petitions, court orders, and materials explaining rights and obligations Post signs and public service announcements in foreign languages advertising free qualified interpreters Language cards to accurately identify individual language needs 39

40 DOJ LEP Directive to State Courts on Federal Civil Rights Requirements (8/20/2010) Translation Requirements for Documents All languages spoken by the lesser of 5% of population or 1000 individuals When fewer than 50 persons = 5% written notice in that language of right to receive oral interpretation 40

41 Raise your hand if all of the courts in your jurisdiction provide qualified interpreters to victims in -- Protection order cases Custody cases Child support cases Divorce proceedings Criminal cases 41

42 Are you seeing differences at the stage of the proceeding? Temporary orders Motions Final orders Trials Hearings 42

43 How many of you are in jurisdictions where qualified interpreters are provided by the courts -- For filing protection orders and family court cases in the clerks office Meetings with custody evaluators or for social studies Mediation Communication with guardians ad litem 43

44 Judges Perspective How do you encourage a judge to provide a qualified interpreter for an immigrant victim s case? 44

45 Promising Practices For Victim s Court Cases: Requesting interpreters Working with interpreters in the court room Approaching the court regarding Errors in interpretation Quality of interpretation Interpreters giving legal advice 45

46 Technical Assistance and Materials Power Point presentations and materials for this conference at NIWAP Technical Assistance: Call (202) Web Library: 47

47 Questions 48

48 Evaluations 48

49 Thank you! THIS PROJECT WAS SUPPORTED BY GRANT NO TA-AX-K043 AWARDED BY THE OFFICE ON VIOLENCE AGAINST WOMEN, U.S. DEPARTMENT OF JUSTICE. THE OPINIONS, FINDINGS, CONCLUSIONS AND RECOMMENDATIONS EXPRESSED IN THIS PUBLICATION/PROGRAM/EXHIBITION ARE THOSE OF THE AUTHOR(S) AND DO NOT NECESSARILY REFLECT THE VIEWS OF THE DEPARTMENT OF JUSTICE, OFFICE ON VIOLENCE AGAINST WOMEN. 49