Felipe Flores v. Jefferson Sessions
684 F. App'x 603
| 9th Cir. | 2017Background
- Flores, who denied the factual allegations in his Notice to Appear, was ordered removed by an IJ after the government admitted two documents (I-485 and G-325A) said to come from his A-file.
- Flores objected that the documents were unauthenticated and moved to terminate the proceedings.
- DHS resubmitted the two forms accompanied by an unsworn certification letter signed by ICE officer Jose Guillermo Barr asserting he was an "authorized certifying designee" and that the copies were true and correct.
- The IJ admitted the forms, found Flores removable, and the BIA affirmed, concluding the documents were properly authenticated under applicable regulations.
- The Ninth Circuit reviewed Flores’s due process challenge de novo, focusing on whether the government met its burden to prove alienage by clear, unequivocal, and convincing evidence and whether the documents were properly authenticated.
- The court concluded the certification was deficient (no evidence of delegation by the Secretary, unsworn, no DHS letterhead/seal, no statement of custody) and that admitting the documents violated Flores’s due process rights because DHS offered no other evidence of alienage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DHS properly authenticated I-485 and G-325A from Flores’s A-file | Barr’s unsworn letter was insufficient and there is no evidence the Secretary delegated certification authority to Barr | The Barr letter sufficed under regulations and recognized procedures; prior cases allow officer testimony or certifications | Authentication was inadequate; government failed to show delegation or otherwise provide acceptable authentication |
| Whether admitting unauthenticated documents violated due process | Admission of unauthenticated documents prejudiced Flores because DHS had no other proof of alienage | Admission was permissible and consistent with prior practice | Admission violated due process; Flores was prejudiced because no other evidence proved alienage |
| Whether DHS met its burden to prove alienage by clear, unequivocal, convincing evidence | Without the forms, DHS offered no other evidence of alienage | The authenticated forms established alienage | DHS failed to meet its burden; removal order cannot stand |
| Appropriate remedy for due process violation | Termination of proceedings (motion to terminate) | Uphold removal order | Grant petition for review and remand with instructions to grant Flores’s motion to terminate |
Key Cases Cited
- Woodby v. INS, 385 U.S. 276 (establishes burden of proof in deportation proceedings)
- Iran v. INS, 656 F.2d 469 (9th Cir.) (documents in government possession must be properly authenticated; admission error requires setting aside removal)
- Espinoza v. INS, 45 F.3d 308 (9th Cir.) (authentication may follow recognized procedures including regulations or federal rules)
- Cruz Rendon v. Holder, 603 F.3d 1104 (9th Cir.) (prejudice standard for due process violations in removal proceedings)
- United States v. Lopez, 762 F.3d 852 (9th Cir.) (approving officer testimony in court to authenticate government records)
- United States v. Estrada-Eliverio, 583 F.3d 669 (9th Cir.) (same as to in-court officer testimony for authentication)