Matter of AVETISYAN, 25 I&N Dec. 688 (BIA 2012)
(1) Pursuant to the authority delegated by the Attorney General and the responsibility to exercise that authority with independent judgment and discretion, the Immigration Judges and the Board may administratively close removal proceedings, even if a party opposes, if it is otherwise appropriate under the circumstances. Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996), overruled.
(2) In determining whether administrative closure of proceedings is appropriate, an Immigration Judge or the Board should weigh all relevant factors, including but not limited to: (1) the reason administrative closure is sought; (2) the basis for any
opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the Immigration Judge or the appeal is reinstated before the Board.
Volume 25 (ID 3740)
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Matter of J. R. VELASQUEZ, 25 I&N Dec. 680 (BIA 2012): BIA Holds that Unauthenticated Document Cannot Be Used as Evidence of Criminal Conviction
(1) The documents listed in section 240(c)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(3)(B) (2006), and 8 C.F.R. § 1003.41(a) (2011) are admissible as evidence of a criminal conviction in immigration proceedings, but pursuant to 8 C.F.R.§ 1003.41(d), other probative evidence may also be admitted to prove a conviction in the discretion of the Immigration Judge.
(2) Conviction records that were submitted by electronic means are conclusively admissible as evidence of a criminal conviction in immigration proceedings if they are authenticated in the manner specified by section 240(c)(3)(C) of the Act and 8 C.F.R. § 1003.41(c), but those methods of authentication, which operate as “safe harbors,” are not mandatory or exclusive, and documents that are authenticated in other ways may be admitted if they are found to be reliable.
(3) A document that requires authentication but that is not authenticated is not admissible as “other evidence that reasonably indicates the existence of a criminal conviction” within the meaning of 8 C.F.R. § 1003.41(d).
(ID 3739)
In Matter of Velasquez, 25 I. & N. Dec. 680 (B.I.A. Jan. 24, 2012), the Board of Immigration Appeals (BIA or Board) held that an electronically submitted copy of a “disposition notice” (abstract of judgment) proffered by the Department of Homeland Security (DHS) as proof of the respondent’s 2009 Virginia conviction for sexual battery was not admissible into evidence because it was not authenticated. Accordingly, the Board sustained the respondent’s appeal in part and vacated the immigration judge’s (IJ’s) order of removal, which was based on the respondent’s conviction of two crimes involving moral turpitude (a 2008 conviction for receiving stolen property and the 2009 conviction).
The BIA, in an opinion written by Board Member Roger Pauley and joined by Board Members Anne J. Greer and Garry D. Malphrus, explained:
• The documents listed in INA § 240(c)(3)(B) [8 USCA § 1229a(c)(3)(B)] (2006) and 8 CFR § 1003.41(a) (2011) are admissible as evidence of a criminal conviction in immigration proceedings, but pursuant to 8 C.F.R. § 1003.41(d), other probative evidence may also be admitted to prove a conviction, in the discretion of the IJ.
• Conviction records that were submitted by electronic means are conclusively admissible as evidence of a criminal conviction in immigration proceedings if they are authenticated in the manner specified by INA § 240(c)(3)(C) [8 USCA § 1229a(c)(3)(C)] and 8 CFR § 1003.41(c), but those methods of authentication, which operate as “safe harbors,” are not mandatory or exclusive, and documents that are authenticated in other ways may be admitted if they are found to be reliable. However, if a party to removal proceedings proffers a conviction record using methods of authentication less rigorous than those contemplated by the safe harbors, that party bears the risk that the IJ may exclude the document as unreliable.
• A document that requires authentication but is not authenticated is not admissible as “other *258 evidence that reasonably indicates the existence of a criminal conviction” within the meaning of the “catch-all” provision, 8 CFR § 1003.41(d). Where the document bears no authentication of any kind, the mere fact that it was proffered by the government is not sufficient to establish its admissibility.
The respondent is a native and citizen of El Salvador and a lawful permanent resident of the U.S. In December 2009, DHS initiated removal proceedings by filing a notice to appear charging the respondent with deportability as an alien convicted of multiple crimes involving moral turpitude under INA § 237(a)(2)(A)(ii) [8 USCA § 1227(a)(2)(A)(ii)]. The respondent denied DHS’ allegations of the 2008 and 2009 convictions as well as the charge of deportability, and so pursuant to INA § 240(c)(3)(A) [8 USCA § 1229a(c)(3)(A)] (2006), DHS was required to adduce “clear and convincing evidence” of the convictions.
To prove the 2008 conviction, DHS proffered a certified copy of a document designated Form DC-314, which was issued by the General District Court for Prince William County, Virginia, and included a judgment, signed by a judge of the General District Court, reflecting that the respondent pled guilty to receiving stolen property, was found guilty of that offense, was fined $300 with $200 suspended, and received a sentence to 30 days in jail, which was suspended. The BIA said that this copy of an official document is conclusively admissible as valid evidence of a criminal conviction in removal proceedings because it is of a type approved by Congress in INA § 240(c)(3)(B)(i) and because it bears a stamp signed by the deputy clerk of the Prince William County General District Court certifying that it is a true copy of the original in compliance with 8 CFR §§ 287.6(a) and 1003.41(a)(1) and (b) (2011).
To prove the 2009 conviction, DHS initially proffered an electronically submitted copy of a document designated Form DC-356, which was issued by the Juvenile and Domestic Relations District Court for Prince William County, Virginia. This document, which bears the title “Disposition Notice,” is in the nature of an abstract of judgment, a type of document that is ordinarily admissible to prove a conviction in removal proceedings pursuant to INA § 240(c)(3)(B)(v) and 8 CFR § 1003.41(a)(5). On the first page of the document is a notation reflecting that the respondent was convicted of misdemeanor sexual battery, fined $456, and sentenced to 11 months in jail with 10 months suspended. However, the document bears no certification stamp from the court clerk, and no immigration officer attested to its authenticity in writing. The IJ acknowledged that some of the conviction documents proffered by DHS were not certified under 8 CFR § 1003.41(c)(1) or (2) but nevertheless found them admissible under 8 CFR § 1003.41(d), the catch-all provision, because there was no indication in the record of proceedings that the documents in question are not authentic and accurate.
The Board observed that, in general, the test for admission of evidence in immigration proceedings is simply whether the evidence is probative and its admission is fundamentally fair. Neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure are binding in such proceedings. Accordingly, when the BIA is called upon to review an IJ’s decision admitting a conviction record into evidence, the only relevant question is ordinarily “whether the respondent has had due process; or to be specific, whether the criminal records correctly reflect the facts.”
INA § 240(c)(3)(B) enumerates some types of conviction documents that are categorically admissible in removal proceedings and provides that a certified copy of such records is also admissible. 8 CFR § 1003.41(b) provides for the admissibility of copies that are authenticated either through 8 CFR § 287.6(a), which calls for the submission of “a copy attested by the official having legal custody of the [original] record or by an authorized deputy” or through the submission of a written attestation by an immigration officer that the proffered document is a true and correct copy of the original. Records submitted to DHS by electronic means, such as by fax or email, are also conclusively admissible as evidence of a criminal conviction in removal proceedings if they are authenticated in the manner contemplated by INA § 240(c)(3)(C). Under that statute, if the authenticity of an electronically transmitted document is certified in writing by both the official with custody of the original and a qualified DHS official, then that document “shall be admissible” in removal proceedings.
The Board said that, while some form of authentication is required, the precise methods of authentication described in INA § 240(c)(3)(C) and 8 CFR § 1003.41 are not mandatory or exclusive. Rather, those provisions were intended to operate as safe harbors, setting forth the conditions under which conviction documents, including those transmitted by electronic means, must be admitted. However, IJs may admit documents that are authenticated in other ways if they are found to be reliable. So long as an alien’s due process right to a fair hearing is protected, any authentication procedure that comports with common-law rules of evidence constitutes an acceptable level of proof. The guiding principle is that proper authentication requires some sort of proof that the document “is what it purports to be.”
The Board said: Turning to the present facts, we conclude that the “Disposition Notice” proffered by the DHS as proof of the respondent’s 2009 sexual battery conviction is not admissible into evidence because it is not authenticated at all. This is not a case where the DHS merely used a method of authentication less rigorous than that contemplated by section 240(c)(3)(C) and 8 C.F.R. § 1003.41(b) or (c). Had the DHS used any recognized method of authentication, such as a written attestation of a DHS official who made the copy or received it electronically from the court clerk, the Immigration Judge would then determine to either admit or exclude the document based on whether it bore sufficient indicia of probativeness and reliability to satisfy due process.
[T]he regulatory history of 8 C.F.R. § 1003.41(d) reflects that it was promulgated to clarify that the list of documents set forth in 8 C.F.R. § 1003.41(a) is not exhaustive, and “that other evidence may be used to demonstrate a criminal conviction, if in the discretion of the Immigration Judge, it is deemed probative and relevant.” … In keeping with that understanding of the rule, which we now formally adopt, the Federal courts of appeals have affirmed numerous decisions in which we deemed unlisted documents to be admissible as evidence of a conviction in immigration proceedings. … We also note that other documents such as an appellate court decision affirming or otherwise referencing a conviction would appear to fall within the catch-all regulatory provision.
In conclusion, the evidence relied upon by the Immigration Judge as proof of the respondent’s 2008 conviction for receipt of stolen property was admissible for that purpose, but the evidence he deemed conclusive of the respondent’s 2009 sexual battery conviction was inadmissible because it lacked any method of authentication. The respondent’s deportability under section 237(a)(2)(A)(ii) of the Act depends upon sufficient proof of both convictions, and thus the charge cannot be sustained on the basis of the evidence cited by the Immigration Judge.
The Board noted, however, that eight months prior to the IJ’s decision, DHS proffered a number of additional conviction records in an effort to prove the respondent’s 2009 conviction but “for unknown reasons” they were neither marked for identification nor admitted into the record, and there was no indication that the IJ ever ruled on the objection by the respondent’s attorney to the admission of some but not all of the documents or otherwise took any action to exclude or admit the evidence. Accordingly, the Board remanded the record for supplemental fact finding and the entry of a new decision.
