Ninth Circuit Reiterates Authentication Requirement

The Ninth Circuit has reiterated the requirement that official documents be authenticated in removal proceedings. It suggested that the procedures for authentication of domestic records in 8 C.F.R. 287.6 may be mandatory, but did not ultimately conclude what procedures are required because the petitioner failed to object to the documents on authenticity grounds before the immigration judge.

The full text of Smith v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/06/03/22-954.pdf

BIA Finds 8 C.F.R. § 1240.17 does not Apply to Applicant Whose Negative CFI was Overturned by IJ

The Board of Immigration Appeals has determined that the regulation contained at 8 C.F.R. § 1240.17 does not apply to an asylum applicant who initially received a negative credible fear determination which was overturned by an Immigration Judge. The Board noted that the regulation only applies to those applicants initially placed in expedited removal proceedings and whose asylum applicant was initially adjudicated by the asylum officer. “The respondent is not included in the category of individuals covered by the regulation at 8 C.F.R. § 1240.17 because he was not initially placed in expedited removal proceedings and USCIS did not adjudicate his asylum application.”

Although USCIS did not adjudicate this individual’s asylum application in the first instance, the Board’s finding that he was not initially placed in expedited removal proceedings is curious, as the agency has long considered a person going through the credible fear process to be subject to an expedited removal order until a positive credible fear determination is made.

The full text of Matter of F-C-S- can be found here:

https://www.justice.gov/d9/2024-03/4074.pdf

The Board of Immigration Appeals has issued an amended opinion recognizing that F-C-S- was placed in expedited removal proceedings, but reaffirming that the regulation at issue only applies to asylum applications initially adjudicated by USCIS:

https://www.justice.gov/d9/2024-04/4074_amended.pdf

The Board of Immigration Appeals issued another amended opinion clarifying the procedural history of the case:

https://www.justice.gov/d9/2024-04/4074_amended_2.pdf

Ninth Circuit Permits Reliance on I-213 in PSC Determination

The Ninth Circuit has reaffirmed the presumed validity of a Form I-213, even when it is used to determine that an individual was convicted of a particularly serious crime. In so doing, the court distinguished its decision in Alcaraz-Enriquez by noting that the petitioner did not challenge the accuracy of the Form I-213.

The full text of Hernandez v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/31/20-72138.pdf

First Circuit Criticizes Reliance on Boston Gang Database

Sitting en banc, the First Circuit has criticized the agency’s reliance on reports from a gang database used by the Boston Police Department, finding insufficient evidence that the documents used to label the petitioner as a gang member were actually probative of gang membership. The court noted that the reports from the database “show no more than a teenager engaged in quintessential teenage behavior -- hanging out with friends and classmates. These social encounters occurred in unremarkable neighborhood locations for this peer group: at a park, at school, in front of one teenager's home, on the benches in an empty stadium. The record lacks any evidence as to why assigning points for those interactions was a reliable means of determining gang membership. Certainly, the fact that the young men were all Hispanic does not permit an inference that any, or all, of them were gang members.”

The full text of Diaz Ortiz v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/19-1620P2-01A.pdf

My post about the original 3-judge panel decision in this case (which permitted reliance on the gang database documents) can be found here:

https://www.sabrinadamast.com/journal/2020/5/25/first-circuit-permits-reliance-on-gang-database

First Circuit Permits Reliance on Gang Database

The First Circuit has found no due process violation in an Immigration Judge’s reliance on reports from the Boston Regional Intelligence Center’s gang databased in order to find an asylum applicant not credible and unworthy of an exercise of discretion.

The full text of Diaz Ortiz v. Barr can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/19-1620P-01A.pdf

Eighth Circuit finds that Court Erred by Admitting Incriminating Statement from Ex-Spouse

The Eighth Circuit has held that the agency erred in admitting an incriminating statement made by the petitioner's ex-spouse and a USCIS report regarding the ex-spouse's alleged engagement in fraudulent marriages without providing the petitioner with the opportunity to cross-examine her ex-spouse.

The full text of Patel v. Sessions can be found here:

http://media.ca8.uscourts.gov/opndir/17/08/163619P.pdf

Ninth Circuit Holds that Unauthenticated Immigration Applicants do not Establish Alienage

The Department of Homeland Security (DHS) sought to introduce evidence of Felipe De Jesus Flores' alienage through a Form I-485 and Form G-325A that he had allegedly submitting to the former Immigration and Naturalization Service.  In an attempt to authenticate these documents, the DHS presented a letter from Supervisory Deportation Officer Barr that stated that the documents were copies of documents found in De Jesus Flores' A file.   The letter also stated that Barr’s “official duties and responsibilities include creation and maintenance of official DHS records, pursuant to the delegated authority from the Secretary of Homeland Security, legal custodian under Section 103 of the Immigration and Nationality Act, as amended.” It further states that Barr is an “authorized certifying designee 4 of the Secretary of Homeland Security.” 

The court noted that the governing regulation, 8 C.F.R. § 287.6(a), states that any official record should be certified by “the official having legal custody of the record or by an authorized deputy.” Under 8 U.S.C. § 1103(a)(2), the Secretary of DHS (“Secretary”) is clearly designated as the legal custodian of all immigration records, and further, under 8 U.S.C. § 1103(a)(6), the Secretary has the authority to confer his “powers, privileges, or duties” onto his employees. Finally, 8 C.F.R. § 2.1 states that the Secretary may accomplish such conferral through “regulation, directive, memorandum, or other means as deemed appropriate.”

The court held that no evidence, aside from Barr’s own statements, however, that the Secretary conferred Barr with the duty to certify documents on his behalf. Under 8 C.F.R. § 2.1, the Secretary has four methods of delegating his authority, and the government had failed to provide evidence of any of them. 

The full text of de Jesus Flores v. Sessions can be found here:

https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/03/20/14-71561.pdf

Seventh Circuit Affirms Marriage Fraud Finding

The Seventh Circuit has affirmed a finding of marriage fraud by an Immigration Judge in which the Department of Homeland Security presented hearsay evidence that the petitioner's ex-spouses confessed to the fraudulent nature of their marriage.  Although the ex-spouse did not testify in court, the Immigration Judge did issue a subpoena to compel her testimony.  The Seventh Circuit faulted the petitioner for not requesting that the Immigration Judge request enforcement of the subpoena through the local AUSA's office.  Thus, the hearsay evidence was fair and probative.

The full text of Vidinski v. Lynch can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D11-01/C:13-2478:J:Hamilton:aut:T:fnOp:N:1855990:S:0

Eighth Circuit Addresses the Reliability of Government-Created Documents

Francisco Rodriguez-Quiroz applied for adjustment of status.  He asserted that he had entered the United States using a border crossing card in 2004 and had never left.  A government-produced document, called a TECS-II printout, confirmed this entry, but showed a subsequent departure in 2005, with no admission thereafter.  Another government-document, a Form I-213, alleged that Rodriguez-Quiroz had admitted to an immigration official that he entered the United States in 2005 without inspection.  Rodriguez-Quiroz disputed the accuracy of both of these documents, asking that the Government provide information on how the TECS-II database compiled information on departures, and that the Government produce the officers who created the Form I-213 for cross-examination.  He also presented copious documentary evidence placing him in the United States on the days just before and just after the alleged date of departure in 2005.  The Government did not present the requested evidence on the TECS-II database or the officers who drafted the Form I-213, and the Immigration Judge determined that Rodriguez-Quiroz had not met his burden to prove the time and manner of his last entry into the United States.  The Board of Immigration Appeals affirmed.

The Eighth Circuit reversed.  "While the record supports the assertion that a public official printed the TECSII document from a government computer system,5 it does not necessarily support an assertion that the departure information derived from a public official or from government records. As set forth above, DHS provided no foundation for the TECSII document, despite the IJ’s request for an explanation of how the departure information came to be recorded in the TECS system and the IJ’s comment that she would not be able to assess the reliability of the departure information without such an explanation. Moreover, Rodriguez had asserted that the information may have originated from the air carrier and not from any public official. Rodriguez’s concern seems to be well founded in light of entries in the Federal Register indicating that air carriers report itinerary information of certain passengers to Customs and Border Protection (CBP), which then maintains that information in the TECS system."  "Because the departure information set forth in the TECS-II document may not have been “produced by public officials during the ordinary course of their duties,” and because DHS refused to explain how that information came to be recorded in the TECS system, we question whether the January 21, 2005, departure information set forth in the TECS-II document is entitled to a presumption of reliability. "  The court then noted that even if the document was presumptively reliable, it could not imagine, in light of the documentary and testimonial evidence submitted by Rodriguez-Quiroz, what else he could have done to rebut that presumption.  The court remanded to allow Rodriguez-Quiroz to present evidence challenging the reliability of the Form I-213.

The full text of Rodriguez-Quiroz v. Lynch can be found here:

http://media.ca8.uscourts.gov/opndir/16/08/152621P.pdf

Board of Immigration Appeals Addresses Lay Testimony and Abusive Immigration Judges

The Board of Immigration Appeals (Board) has determined that a non-citizen may give lay testimony about the psychological impact of his past experiences.  The non-citizen does not need to be qualified as an expert witness to give this testimony.  The Board also determined that when conduct by an Immigration Judge can be perceived as bullying or hostile, remand to a different Immigration Judge may be proper.

The full text of Matter of Y-S-L-C- can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/11/23/3853.pdf

Sixth Circuit Grants Petition for Review of a Denied Motion to Reopen; Finds that Unsworn Emails have Evidentiary Value

In a short but sweet disposition, the Sixth Circuit disagreed with the Board of Immigration Appeals' denial of a motion to reopen based on changed country conditions.  Uwineza, a citizen of Rwanda, submitted several emails from friends in Rwanda that indicated that government officials were looking for her because they believed she supported an opposition political figure.  The Board discredited the emails because they were unsworn and came from interested witnesses who were not subject to cross-examination.  The Sixth Circuit rejected this decision, deeming the Board's decision to be devoid of rational explanation.  "The new evidence appears to satisfy the requirements of not having been previously available and indicating a change in conditions in Rwanda material to Uwineza’s claim. The BIA rejected the evidence on the ground that the letters were unsworn and appeared to have been written in support of her case, which we have found invalid. The BIA also noted that the letters were from interested witnesses, but interested witnesses would normally be expected to have information relevant to a petitioner’s claim, and that the witnesses were not subject to cross-examination, which will also normally be the case in a motion to reopen."

The full text of Uwineza v. Holder can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0053p-06.pdf