“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
What’s at stake in this case?
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An immigrant appealed a decision denying her relief, contending that she did not have adequate translation services.
What happened in this case?
Maria Tercero-Bautista came with her children from Guatemala, where she said she had been beaten and threatened with murder. She speaks little or no English and her primary language is Konjobal.
In 2009, she paid an attorney $5500 to file an application for relief from deportation and to represent her. He took her money and filed a bare-bones application, but then absconded and took her file with him. The attorney was later suspended from the practice of law and disbarred for his mistreatment of Tercero-Bautista and other clients. She never got her money back, could not hire or find another lawyer, and had to appear at a merits hearing before an Immigration Judge (IJ) without counsel in 2020.
The IJ ruled against Tercero-Bautista and the Board of Immigration Appeals (BIA) affirmed. She appealed to the Ninth Circuit, and Trump judge Patrick Bumatay and George W Bush judge Consuelo Callahan issued an unsigned 2-1 opinion against her in June in Tercero-Bautista v Blanche. Clinton judge Richard Paez dissented. A key issue was whether Tercero-Bautista had been denied due process because of inadequate translation services.
What was the rationale of Trump judge Bumatay and Bush judge Callahan?
Although they conceded that someone who does not speak English must receive “competent” translation services to comply with due process, Bumatay and Callahan maintained that Tercero-Bautista had failed to “identify specific instances of misunderstanding” or to “explain how any asserted issue with the translation affected her testimony or the outcome of the hearing.” According to the majority, her failure was “fatal” to the due process claim and they rejected it.
Why did Judge Paez dissent?
Judge Paez strongly dissented. Both “case law and common sense,” he wrote, contradict the majority’s insistence that Tercero-Bautista had to prove specifically how the translation problem created harm to her. Instead, he explained, it was sufficient to show that “clearly deficient” translation “potentially affected” the outcome, which was clearly shown here. As Paez pointed out, even an English version of the transcript shows serious translation problems, such as when the IJ pressed her on why he had to repeat a question six times and she responded that she did not “understand” or have “any idea what that means.” Where such “deficient” translation services are “evident from the face of the transcript,” particularly when the case involves a “pro se applicant” as in this case, Paez concluded that the applicant clearly “suffered prejudice.”
Why is the ruling harmful?
The decision made possible by Trump judge Bumatay clearly harms Maria Tercero-Bautista and her effort to prevent deportation and harm to her if deported. The ruling also sets a bad precedent relating to adequate translation services at deportation hearings, particularly in the Ninth Circuit, which includes California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. It also illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.