The BIA held that electronically submitted copies of criminal records are admissible as evidence of a conviction so long as they are authenticated. Matter of Velasquez, 25 I&N Dec. 680 (BIA 2012) (Pauley, Greer, and Malphrus, Board members). Authentication, the Board added, ensures that the documents reliably are what they claim to be. Board member Pauley wrote the panel’s decision.
This case involved an LPR who was charged as removable for having been convicted of multiple crimes involving moral turpitude, INA § 237(a)(2)(A)(ii). DHS introduced a conviction document for a 2008 receipt of stolen property offense that was certified by the issuing state court, thus there was no question that this was sufficient for INA purposes. Matter of Velasquez, 25 I&N Dec. at 681.
In contrast, the proof that DHS submitted as evidence of a 2009 sexual battery conviction was much more problematic. DHS “electronically submitted a copy of…an abstract of judgment….” Matter of Velasquez, 25 I&N Dec. at 681. Though abstracts are “ordinarily admissible” under INA § 240(c)(3)(B)(v), this document lacked a certification stamp from the state court and “no immigration officer had attested to its authenticity in writing.” Matter of Velasquez, 25 I&N Dec. at 681, 682.
The IJ nonetheless admitted the 2009 records as proof of a conviction under 8 C.F.R. § 1003.41(d), a provision that the BIA characterizes as a “‘catch-all’” that states “[a]ny other evidence that reasonably indicates the existence of a criminal conviction may be admissible as evidence thereof.” Matter of Velasquez, 25 I&N Dec. at 682.
The BIA began its analysis by explaining that evidence is admissible in removal proceedings if it “‘is probative and its admission is fundamentally fair.’” Matter of Velasquez, 25 I&N Dec. at 683 (quoting Matter of D-R-, 25 I&N Dec. 445, 458 (BIA 2011)). On review, the BIA asks whether records admitted to prove a conviction “‘correctly reflect the facts.’” Matter of Velasquez, 25 I&N Dec. at 683 (quoting Matter of Gutnick, 13 I&N Dec. 412, 416 (BIA 1969)).
Nothing more is required unless the INA or a regulation imposes an additional criterion. INA § 240(c)(3)(C) does just that regarding electronic records. Specifically, § 240(c)(3)(C) requires authentication of electronically submitted records of conviction, including abstracts.
It states, in part, that “any record of conviction or abstract that has been submitted by electronic means to the Service from a State or court shall be admissible as evidence to prove a criminal conviction if it is (i) certified by a…court official from the court in which the conviction was entered as an official record…, and (ii) certified in writing by a Service official as having been received electronically from the…court’s record repository.” INA § 240(c)(3)(C)
“Under that statute,” the BIA explained referencing this authentication requirement, “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.” Matter of Velasquez, 25 I&N Dec. at 684.
Importantly, the Board added that the dual authentication stated in § 240(c)(3)(C) is not the sole type of authentication permitted. Rather, “Immigration Judges may admit documents that are authenticated in other ways if they are found to be reliable.” Matter of Velasquez, 25 I&N Dec. at 684.
This is quite the creative interpretation of the statutory text given that the text clearly uses the conjunctive “and” to join the two authentication methods. To the BIA, however, the statutory language means only that any electronic record that meets both authentication requirements must be admitted. It does not, however, mean that these are “mandatory or exclusive” authentication requirements. Matter of Velasquez, 25 I&N Dec. at 684.
Because the 2009 record was not authenticated in any way it was not admissible. Matter of Velasquez, 25 I&N Dec. at 684.