Circuit Consensus: Do Warrants Of Deportation Violate The Confrontation Clause?

Second Circuit notes but does not decide whether a warrant of deportation is admissible under the Confrontation Clause; however, the circuit observes that despite the Supreme Court’s decision in Crawford, "numerous courts have held that warrants of deportation are nontestimonial and therefore admissible in United States v. Harvey, _ F.3d _ (2d Cir. March 26, 2014) (Per Curiam) (No. 12–1490–cr)

The Second Circuit recently noted but did not have occasion to decide whether a warrant of deportation from 1992 was admissible under the Confrontation Clause.

Trial Court Proceedings: Proof Of Prior Deportation

In the case, defendant Harvey was ordered deported in in 1991 following his aggravated felony conviction. In May 2011, he was found and charged with illegal re-entry after deportation for an aggravated felony. The sole issue at his trial was "whether he was physically deported," which was a required element of the offense.

To prove his prior deportation, the government admitted "a Form I-205 warrant of deportation dated March 7, 1992 and executed by Supervisory Detention Enforcement Officer David R. Thompson of the (former) Immigration and Naturalization Service" which noted that "Officer Thompson witnessed Harvey leave the country that morning on American Airlines flight 1193, which was bound for Kingston, Jamaica." At trial, the defendant stipulated "that the deportation warrant bore his signature and fingerprints." Officer Thompson had passed away prior to the trial and was unable to testify.

The government offered the testimony of a special agent who testified about the deportation procedures that applied in 1992. According to this testimony,

when a person was deported from the United States via airplane, the immigration officer executing the deportation escorted the deportee to his seat on the aircraft, ensured that the interior of the aircraft was secure, returned to the jetway, and then remained at the aircraft door until the aircraft pulled away. The immigration official then watched the aircraft until it was out of sight, at which point the official signed the deportation warrant. Special Agent Sansone could not recall whether he had participated in Harvey’s deportation, and the government did not introduce any other direct evidence of Harvey’s departure from the country.

Harvey, _ F.3d at _. The trial court denied the defense motion for judgment of acquittal, concluding that there was “no particular reason to doubt the regularity of the procedures” for deportation. The jury convicted the defendant. On appeal he challenged the sufficiency of the evidence.

Second Circuit Review: Sufficiency Of The Evidence

The Second Circuit affirmed the conviction. The circuit disagreed with the defense that the government failed to establish the defendant's prior deportation. The circuit held "along with every other court to have considered the issue, that a properly executed warrant of deportation, coupled with testimony regarding the deportation procedures followed at that time, is sufficient proof that a defendant was, in fact, physically deported from the United States." In support, the circuit cited the following cases:

Confrontation Clause Issue Noted

The circuit noted that the defendant did not challenged the admission of the warrant of deportation under the Confrontation Clause under Crawford v. Washington, 541 U.S. 36 (2004). The circuit therefore did not address the issue. However, the circuit noted "that numerous courts have held that warrants of deportation are nontestimonial and therefore admissible despite the Supreme Court’s decision in Crawford, citing to the following cases:

  • First Circuit: United States v. García, 452 F.3d 36, 41-42 (1st Cir. 2006) (holding that admission of warrant of deportation was not in error because document did not constitute testimonial hearsay under Crawford)
  • Fifth Circuit: United States v. Valdez-Maltos, 443 F.3d 910, 911 (5th Cir. 2006) (warrants of deportation were not testimonial under Crawford)
  • Ninth Circuit: United States v. Bahena-Cardenas, 411 F.3d 1067, 1074–75 (9th Cir. 2005) (concluding a “warrant of deportation is nontestimonial because it was not made in anticipation of litigation, and because it is simply a routine, objective, cataloging of an unambiguous factual matter”; concluding a notation on the warrant concerning the removal of the alien was not testimonial)
  • Eleventh Circuit: United States v. Cantellano, 430 F.3d 1142, 1145 (11th Cir. 2005) (warrant of deportation not testimonial because it was "recorded routinely and not in preparation for a criminal trial") (citation and internal quotation marks omitted)


While the court in Harvey breaks no new ground, it does provide a convenient review of the scope and approach of some of the most recent case law on the issue of the testimonial status of a warrant of deportation.


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