Verification of Removal Forms As Non-Testimonial Public Records

As noted last month, there is an emerging circuit consensus that a warrant of deportation is non-testimonial evidence under the Confrontation Clause. What about a verification of removal form (used to confirm an individual was removed from the country)? In addressing this open issue, the Ninth Circuit concluded the verification of removal is also non-testimonial for many of the same reasons that a warrant is not testimonial, in United States v. Lopez, _ F.3d _ (9th Cir. April 2, 2014) (No. 12-50464)

In the landmark Confrontation Clause ruling in Crawford, the Supreme Court held that "[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 68 (2004). The Court left “for another day any effort to spell out" the bounds of its determination of the application of the Confrontation Clause, explicitly recognizing that “our refusal to articulate a comprehensive definition in this case" of testimonial evidence "will cause interim uncertainty." Crawford, 541 U.S. at 68 n.10. One area concerning the application of the "testimonial" standard involves immigration documents. A recent Ninth Circuit case confronted an open issue concerning whether a form memorializing the removal of an alien from the country, an I-280 Form, was testimonial evidence.

Trial Proceedings

In the case, defendant Lopez was tried being an alien found in the United States after deportation, violating 8 U.S.C. § 1326. At trial, the prosecution introduced a "Notice to Alien Ordered Removed/Departure Verification (Form I–296)." This form had come from the defendant's Alien–File (or "A-File"). It would play an important part of the government's case against the defendant. As described by the Ninth Circuit, the form consisted of two sections. The first was a "Notice" to the alien that if he or she reentered the US after being deported, he or she could be prosecuted for a felony; the notice was signed by an Agent Harris, who had "served this warning" on the defendant at the time the of the initial removal from the country.

More important for the defendant's case was the evidence the government proffered to prove an element of the charged offense. 8 U.S.C. § 1326 required that the government show that the defendant was removed or deported from the United States. To show that the defendant had suffered removal previous to being found again in the country, the government proffered a "Notice to Alien Ordered Removed/Departure Verification (Form I–296)" that had been in the defendant's A-File.

Proving Removal Or Deportation

In order to obtain a conviction of the defendant as a deported alien found in the United States, the government had to show either that (1) "the defendant was removed" or deported, or absent this, that (2) that the defendant had "departed" the country while an order of removal or deportation "was outstanding." Lopez, _ F.3d _ (citing 9th Cir. Model Jury Instr. 9.8 (2010)). In either case, the defendant must have left the country at some point and if it was not physically compelled, then they did so under the cloud of an outstanding removal or deportation warrant.

In Lopez, the government took the first route of showing the defendant's had been removed or deported. It used the removal verification form to show this. There was no need to also show an "outstanding" warrant. The issue was that the defendant had been removed from the country and therefore could be sanctioned if it was proved he had reentered without permission. The defendant had a point that there was some Ninth Circuit authority suggesting that an "order of removal or deportation was outstanding" had to be shown when a defendant had not left the country, such as when a defendant battled removal or deportation through the courts. But this did not apply to "the legal requirement that actual physical removal from the United States" had been met. The circuit found that the removal verification was sufficient for showing that actual physical removal had been achieved. Lopez, __ F.3d at __ (citing United States v. Bahena-Cardenas, 411 F.3d 1067, 1074-75 (9th Cir. 2005)).

Status Of Form I-860

The circuit noted that the lower portion of the Form I-860, its departure-verification part, was completed by an officer when using an expedited procedure for returning a defendant to his own country. The form was signed by the officer who witnessed the defendant’s removal. The officer noted on the form such details as the defendant's departure date, the port of departure, the manner of departure and the defendant’s photograph, signature, and fingerprint that had been secured at the time of removal (as well as signature of the officer who took the fingerprint). This was a ministerial document -- a form completed by immigration officers when they had completed the enforcement of a judges’ removal orders. Previously the court had found that documents of this sort were not created in “anticipation of litigation.” They were merely a “routine, objective, cataloging of an unambiguous factual matter.” Its purpose was to “record the movements of aliens,” not to effect their removal. Lopez, __ F.3d at __.

Was the Verification Testimonial?

The Ninth Circuit assessed the admissibility of the verification form and concluded that it satisfied both the Confrontation Clause as well as the rule against hearsay. This was an issue that had "not yet" been addressed in the circuit. But it could readily be answered by assessing the the circuit's assessment of other documents in an A-file,such as the warrant of removal.
p>The circuit identified three factors that confired its view that the verification of removal was nontestimonial:

  1. Not Prepared For Litigation: "[T]here is no evidence that a verification of removal is completed in anticipation of litigation."
  2. Ministerial Purpose: "[A] verification of removal is 'simply a routine, objective, cataloging of an unambiguous factual matter.' A verification of removal records the fact that an individual alien was removed from the United States. The alien's name, photograph, fingerprint, and signature all appear on the form, as do the departure date, the port of departure, and the manner of departure. It is signed by a “verifying officer” and requires that officer to indicate his title as well. That it is the removed alien's fingerprint on the form is evidenced by the signature of the officer who took the fingerprint. Thus, a verification of removal catalogs the unambiguous factual matter—whether an alien has been removed—just as a warrant of removal/deportation does. Verifications of removal are also routine. They are completed for all aliens removed pursuant to expedited removal procedures." (citation omitted)
  3. Reliability: "[A] verification of removal has the same 'inherent reliability [as a warrant of removal] because of the Government's need to keep accurate records of the movement of aliens' as a warrant of removal/deportation."
  4. Necessity: Importance of government "to record which aliens have been removed under expedited removal procedures as it is to record which aliens have been removed in other circumstances. Both documents are placed in the alien's A–File. There is no daylight between the function of these two documents that would suggest one should be deemed nontestimonial while the other is deemed testimonial."


In addition to extending the list of document types deemed to be "testimonial" for Confrontation Clause purposes, the Lopez case demonstrates an approach to the analysis of testimonial evidence. Many of the same factors used in Lopez --Whether the document was prepared for litigation, Whether it has a ministerial function, whether it is a reliable means for achieving its objective and whether the information serves an important government function -- these same factors were used in a case that the circuit released only a few days after Lopezfollowed Lopez in United States v. Albino-Loe, __ F.3d __ (9th Cir. April 7, 2013).


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