B.C. v. Attorney Gen. U.S.

• Decision Date: 01 September 2021
• Docket Number: Nos. 19-1408,20-2078,s. 19-1408
• Citation: 12 F.4th 306
• Parties: B.C., Petitioner v. ATTORNEY GENERAL UNITED STATES of America
• Court: U.S. Court of Appeals — Third Circuit

12 F.4th 306

B.C.,¹ Petitioner

v.ATTORNEY GENERAL UNITED STATES of America

Nos. 19-1408

20-2078

United States Court of Appeals, Third Circuit.

Argued on January 12, 2021

Opinion filed: September 1, 2021

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

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

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

Before: AMBRO, KRAUSE, and PHIPPS, Circuit Judges

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 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.

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).

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 nonviolent 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.

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 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 ...