Immigration Article of the Day: Linguistic Refoulement by Katherine M. Becker

Abstract

Speakers of Indigenous languages represent between ten and forty-five percent of new arrivals to the U.S.-Mexico border and over four percent of all cases pending before U.S. immigration courts. The government deports many of them without ever providing interpreters who speak their languages.

This Article considers the relationship between language and access to asylum, employing as a case study Indigenous-language speakers seeking protection in the United States. It makes two principal contributions to the study of international human rights law—one theoretical and one empirical.

First, it introduces linguistic refoulement as a theoretical tool for understanding the intersection of language and refugee law. The principle of non-refoulement undergirds international and U.S. refugee law, mandating that governments refrain from returning people to situations where they will face particular harms. When a government expels an asylum seeker on account of the language they speak, the expelling country commits linguistic refoulement. This Article argues that governments contravene critical protections for asylum seekers when they fail to recognize and mitigate the multiple ways in which language functions as a nexus of refoulement. The Article identifies five mechanisms of linguistic refoulement that lead to the disproportionate return of Indigenous-language speakers: neglect, erasure, impatience, subordination, and isolation.

Second, this Article applies the linguistic-refoulement framework to offer empirical evidence that the U.S. immigration system undermines non-refoulement for speakers of Indigenous languages. Analyzing the results of a mixed-method study, the Article demonstrates that the U.S. neglects the language needs of asylum seekers who speak K’iche’, Mam, Mixteco, and the hundreds of other Indigenous languages spoken in the Western Hemisphere. As a result, the U.S. disproportionately returns Indigenous-language speakers to situat ions of persecution and torture.

Only by understanding the varied manifestations of linguistic refoulement can governments and advocates meaningfully protect asylum seekers from it. The Article concludes by proposing policy changes that the United States government should enact to deter linguistic refoulement, including creating a special immigrant visa for interpreters and abolishing immigration detention for linguistically vulnerable populations.

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