A published decision from the BIA yesterday addresses the question of how conviction records are to be authenticated when they are used as the basis for finding an individual removable. Matter of Velasquez, 25 I&N Dec. 680 (BIA 2012). Two sections of the law, INA 240(c)(3)(C) and 8 C.F.R. § 1003.41(c) discuss proving convictions in removal proceedings and the process for authenticating these records.
The BIA’s decision doesn’t break much new ground. Authentication of conviction documents is required, but the BIA did carve out a bit of leeway for the DHS to authenticate documents by alternative means, following several circuit decisions that had said the same. This means, when a conviction record is submitted to prove removability, the DHS has to either authenticate it using the methods 8 C.F.R. § 1003.41(c), or authenticate it in some other way. This would have been a good opportunity for the BIA to offer clarity on what other types of authentication would be permissible. Instead, while allowing alternative means of authentication, the Board said when a party uses
“methods of authentication less rigorous than those contemplated by the specified ‘safe harbors,’ that party bears the risk that the Immigration Judge may exclude the document as unreliable.”
The Board’s final point is likely the most important. It said the “catch-all” provision at 8 C.F.R. § 1003.41(d) did not permit the abandonment of authentication altogether. A string of unpublished decisions had indicated the Board was open to using the catch-all to get rid of the authentication requirement. For now, that does not seem to be the case. As the Board says “the mere fact that it was proffered by the Government is not sufficient to establish its admissibility.”
This is a welcome clarification, especially in the wake of the BIA’s prior decision in Matter of Gutnick, which left some ambiguity about acceptable proof of conviction. Matter of Velasquez reinforces that while flexibility is allowed, due process still requires a baseline showing of reliability for evidence that can carry such severe consequences.
Bottom line: If DHS wants to use a conviction to deport someone, it must come to court prepared to prove the document is real.