United States v. Fernando Noria ( 2019 )

Case: 19-20286 Document: 00515241776 Page: 1 Date Filed: 12/18/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 19-20286
Fifth Circuit
FILED
December 18, 2019
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
FERNANDO RAMIREZ NORIA,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, STEWART, and ENGELHARDT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
A jury convicted Appellant Fernando Ramirez Noria of illegally
reentering the United States following removal. Noria challenges the district
court’s admission of five partial Form I-213s that documented immigration
agents’ prior encounters with him. He argues that the admission of the forms
violated his Sixth Amendment right to confront the witnesses against him. He
also contends the forms were inadmissible hearsay. We conclude that the
admitted portions of Noria’s Form I-213s do not offend the Confrontation
Clause and that they are admissible under Federal Rule of Evidence 803(8)’s
hearsay exception for public records. Noria’s conviction and sentence are
affirmed.
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I.
In October 2018, a federal grand jury indicted Noria on one count of
unlawfully reentering the United States following removal. 1 Noria pleaded not
guilty and proceeded to trial. Among other exhibits, the Government sought to
introduce five Form I-213s through the testimony of United States Citizenship
and Immigration Service (“USCIS”) section chief Christine Pool.
An “I–213 is an official record routinely prepared by an [immigration]
agent as a summary of information obtained at the time of the initial
processing of an individual suspected of being an alien unlawfully present in
the United States.” 2 Put more simply, it “is a record of an immigration
inspector’s conversation with an alien who will probably be subject to
removal.” 3 Typically, an I-213 “includes, inter alia, the individual’s name,
address, immigration status, the circumstances of the individual’s
apprehension, and any substantive comments the individual may have made.” 4
Each of Noria’s five I-213s documented a different encounter with immigration
authorities between 2014 and 2018. Four of the forms corresponded to four of
the five times Noria had previously been removed from the United States,
while the most recent I-213 documented the 2018 immigration encounter that
led to Noria’s illegal-reentry prosecution.
Noria moved to exclude the I-213s “unless the agent who questioned
[him] is available to testify at trial and the document is redacted to exclude
any prior criminal history information.” He argued “[i]t would be unreliable
hearsay” and a violation of the Confrontation Clause to permit anyone other
1 See 8 U.S.C. § 1326(a).
2 Bauge v. I.N.S., 7 F.3d 1540, 1543 n.2 (10th Cir. 1993).
3 3A C.J.S. Aliens § 1355, Westlaw (database updated Dec. 2019); see also Zuniga-
Perez v. Sessions, 897 F.3d 114, 119 n.1 (5th Cir. 2018) (“A Form I-213 is an ‘official record’
prepared by immigration officials when initially processing a person suspected of being in the
United States without lawful permission.”).
4 Gonzalez-Reyes v. Holder, 313 F. App’x 690, 692 (5th Cir. 2009) (unpublished) (citing
Bauge, 7 F.3d at 1543 n.2).
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than the agent who created the document to testify to its contents. Both the
court and the Government appeared to agree with defense counsel that because
the I-213s contained narrative information about agents’ interviews with
Noria, they could not be admitted in full unless each of the interviewing officers
testified. So, the Government offered only the first page of each I-213, which
showed Noria’s “routine biographical information,” including his name and
birthplace. Christine Pool, the USCIS witness, would then be able to testify
that each of the I-213s belonged to the same person with the same alien
number.
Conceding that the information was hearsay, the prosecutor argued that
it was admissible under Federal Rule of Evidence 803(8)’s exception for public
records. The court agreed and permitted the Government to introduce the
redacted first page of each of the five I-213s. Pool testified that each form was
created by an immigration agent shortly “after an encounter with Mr. Noria”
and “kept in the regular course of . . . business of the activities of the
Department of Homeland Security and USCIS.” Each contained, among other
information, Noria’s name, basic biometric data, aliases, country of citizenship
(Mexico), birthdate, birthplace (Tamaulipas, Mexico), and A-file number. 5 All
but the most recent also contained Noria’s photograph and fingerprints. Pool
testified that taken together, the biographical information in the I-213s
“show[ed] Noria as being a . . . citizen of Mexico,” not of the United States. Pool
also certified that Noria had not applied for permission to reenter the United
5 The Government creates an A-file, short for Alien File, “for every non-citizen who
comes into contact with a U.S. immigration agency. A-files contain documents relating to any
and all interactions which the non-citizen has had with” immigration agencies. IMMIGRATION
PLEADING & PRACTICE MANUAL § 2:12, Westlaw (database updated Jan. 2019). Those
documents include “all the individual’s official record material such as naturalization
certificates; various forms (and attachments, e.g., photographs), applications and petitions
for benefits under the immigration and nationality laws, reports of investigations;
statements; reports; correspondence; and memoranda.” Id. (quoting Dent v. Holder, 627 F.3d
365, 372 (9th Cir. 2010)).
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States. On cross examination, Pool testified that she had not personally
prepared any of Noria’s I-213s or spoken to the agents who prepared them, but
that she had experience creating I-213s in the past.
The jury also heard the testimony of George Cortes, a supervisory
deportation officer for the Department of Homeland Security (“DHS”), who
explained how Noria had been located and selected for prosecution. Cortes had
met with Noria in person approximately six months before trial, and he was
able to identify Noria in the courtroom. Finally, DHS fingerprint examiner
Raymond Miller testified that the fingerprints on Noria’s prior warrants of
removal and the fingerprints on the I-213s were made by the same person. In
addition to witness testimony, a Certificate of Nonexistence of Record, two
immigration detainers, and the IJ’s initial removal order all identified Noria
as a citizen of Mexico. The jury found Noria guilty, and the district court
imposed the statutory maximum sentence of 24 months. 6 This appeal followed.
II.
A.
The Confrontation Clause of the Sixth Amendment provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” 7 In Crawford v. Washington, the Supreme
Court held that a defendant’s confrontation right is violated when the
prosecution introduces “testimonial statements of a witness who did not
appear at trial,” unless that witness “was unavailable to testify, and the
defendant had a prior opportunity for cross-examination.” 8 Importantly, only
testimonial statements “cause the declarant to be a ‘witness’ within the
6 See 8 U.S.C. § 1326(a). The statutory maximum was well below Noria’s Guidelines
range of 41 to 51 months.
7 U.S. CONST. amend. VI.
8 Crawford v. Washington, 541 U.S. 36, 53–54 (2004).
4
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meaning of the Confrontation Clause.” 9 Without articulating a comprehensive
definition, the Crawford Court described “testimony” as “typically a solemn
declaration or affirmation made for the purpose of establishing or proving some
fact.” 10 This includes, “at a minimum[,] prior testimony at a preliminary
hearing, before a grand jury, or at a former trial,” as well as “police
interrogations.” 11
Following Crawford, the Supreme Court has explained that “the basic
objective of the Confrontation Clause . . . is to prevent the accused from being
deprived of the opportunity to cross-examine the declarant about statements
taken for use at trial.” 12 Thus, the high Court has adopted the “primary
purpose” test for determining whether a statement is testimonial in nature.13
To qualify as “testimonial” under this standard, “a statement must have a
primary purpose of establishing or proving past events potentially relevant to
later criminal prosecution.” 14 Thus, business and public records are generally
not testimonial because they are “created for the administration of an entity’s
affairs and not for the purpose of establishing or proving some fact at trial.” 15
However, if a public record is “prepared specifically for use at . . . trial,” then it
is testimonial and therefore inadmissible absent its creator’s testimony. 16
9 Davis v. Washington, 547 U.S. 813, 821 (2006); see id. (“It is the testimonial character
of the statement that separates it from other hearsay that, while subject to traditional
limitations upon hearsay evidence, is not subject to the Confrontation Clause.”).
10 Crawford, 541 U.S. at 51 (internal alterations omitted).
11 Id. at 68.
12 Michigan v. Bryant, 562 U.S. 344, 358 (2011).
13 See Ohio v. Clark, 135 S. Ct. 2173, 2180 (2016).
14 Bullcoming v. New Mexico, 564 U.S. 647, 659 n.6 (2011) (internal alterations and
quotation marks omitted) (quoting Davis, 547 U.S. at 822).
15 Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009).
16 Id.; see United States v. Duron-Caldera, 737 F.3d 988, 994 (5th Cir. 2013)
(“[D]ocuments prepared by immigration officers on immigration forms can be testimonial if
created for use at a later criminal trial.”).
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B.
In general, the rule against hearsay bars the admission of any
“statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” 17
However, the general rule is littered with exceptions, including one for public
records. Federal Rule of Evidence 803(8) provides that public records “are not
excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness.” A “record or statement of a public office” qualifies
under this exception if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but
not including, in a criminal case, a matter observed by law-
enforcement personnel; or
(iii) in a civil case or against the government in a criminal
case, factual findings from a legally authorized
investigation; and
(B) the opponent does not show that the source of information or
other circumstances indicate a lack of trustworthiness.
The public-records exception “is designed to permit the admission into
evidence of public records prepared for purposes independent of specific
litigation.” 18 It is based on the assumption that public documents “recording
routine, objective observations” are free of “the factors likely to cloud the
perception of an official engaged in . . . observation and investigation of
crime.” 19 Instead, “[d]ue to the lack of any motivation on the part of the
17 United States v. Webster, 750 F.2d 307, 330 (5th Cir. 1984) (quoting a version of
FED. R. EVID. 801(c) that has since been slightly but not substantively amended); see FED R.
EVID. 802 (“Hearsay is not admissible except as provided by these rules or by other rules
prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.”).
18 United States v. Quezada, 754 F.2d 1190, 1194 (5th Cir. 1985) (citing United States
v. Stone, 604 F.2d 922, 925 (5th Cir. 1979)).
19 Id.
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recording official to do other than mechanically register an unambiguous
factual matter . . . such records are [considered] inherently reliable.” 20
Rule 803(8)(A)(ii)’s prohibition against public records of “matter[s]
observed by law-enforcement personnel” in criminal cases does not prevent the
admission of all reports prepared by law enforcement officers. Instead, the
Court distinguishes “between law enforcement reports prepared in a routine,
non-adversarial setting, and those resulting from the arguably more subjective
endeavor of investigating a crime and evaluating the results of that
investigation.” 21 The former are admissible, while the latter are not. 22
C.
Noria preserved his confrontation and hearsay claims by objecting to the
admission of each I-213 at trial. We “review [an] alleged violation of the
Confrontation Clause de novo, subject to a harmless error analysis.” 23 We
review the district court’s hearsay ruling for abuse of discretion, also subject to
a harmless error analysis. 24
III.
Although “hearsay rules and the Confrontation Clause are generally
designed to protect similar values,” 25 they “are not wholly congruent.” 26 Even
if “evidence [is] sufficiently reliable to qualify for admission under a recognized
exception to the hearsay rule,” it cannot be admitted if it “offend[s]
confrontation values.” 27 In other words, if Noria’s I-213s are testimonial, they
20 Id.
21 Id.
22 United States v. Wiley, 979 F.2d 365, 369 (5th Cir. 1992).
23 United States v. Kizzee, 877 F.3d 650, 656 (5th Cir. 2017) (internal alterations
omitted) (quoting United States v. Polidore, 690 F.3d 705, 710 (5th Cir. 2012)).
24 United States v. Lockhart, 844 F.3d 501, 512 (5th Cir. 2016).
25 California v. Green, 399 U.S. 149, 155 (1970).
26 United States v. Sarmiento-Perez, 633 F.2d 1092, 1099 (5th Cir. Unit A Jan. 1981);
see United States v. Bernard S., 795 F.2d 749, 753 (9th Cir. 1986) (citing Dutton v. Evans,
400 U.S. 74, 86 (1970)).
27 Sarmiento-Perez, 633 F.2d at 1099; see Idaho v. Wright, 497 U.S. 805, 814 (1990).
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are inadmissible regardless of Rule 803(8)’s hearsay exception. We therefore
address Noria’s confrontation argument before turning to his hearsay
challenge.
A.
Noria contends that the admission of I-213s prepared by non-testifying
agents “violated [his] Sixth Amendment right to confrontation.” He
characterizes the reports as testimonial statements made by immigration
agents “in preparation for litigation in immigration or criminal court.” The
Government counters that the admitted portions of the I-213s are not
testimonial because they were prepared primarily for internal administrative
purposes, not in anticipation of a criminal prosecution. The Government points
out that the forms “contain[] only biographical information” supplied by Noria
himself, along with routine “immigration tracking information,” including the
“date, location, and manner” of the interviews. In the Government’s view, these
are merely administrative data points, not evidence recorded for any
subsequent trial.
1.
Although this issue was not raised by the parties in their briefing or at
oral argument, we hesitate to proceed to the Sixth Amendment analysis
without identifying the declarant of the I-213s. After all, the Confrontation
Clause becomes relevant only when a nonparty’s statements are admitted
against a defendant. Here, it is at least arguable that Noria himself was the
declarant of the challenged portions of the I-213s.
We can safely assume Noria did not dictate the administrative codes on
the forms or the notations indicating the subsequent dispositions of his
encounters with immigration authorities. However, those are not the data
Noria takes issue with. The thrust of his argument concerns only two lines
from each I-213: the ones listing his birthplace and his country of citizenship
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as Mexico. As he admits, all biographical information on the forms came from
Noria himself, either “from what [he] told the agent” or from “documents he
had with him.” In fact, because Noria’s A-file contained no documents
indicating his citizenship or birthplace, Noria concedes that the interviewing
agents obtained all information from Noria’s own oral responses to their
questions. These facts indicate that Noria is the sole declarant of the I-213 data
he challenges.
Case law further supports this conclusion. In two cases discussed at
greater length below, the Ninth and Eleventh Circuits both assumed that an
alien is the declarant of all biographical information recorded on his I-213. 28 In
fact, in the Eleventh Circuit case, the immigration agent who prepared the
contested I-213s did testify, but the defense argued that the agent’s testimony
was insufficient to satisfy the Confrontation Clause because he was not the
declarant, only the transcriber of the information supplied to him by the
alien. 29 The Eleventh Circuit rejected this argument by concluding that I-213s
are not testimonial, but it did not dispute the defendant’s characterization of
the aliens as the only relevant declarants. 30
This Court’s own persuasive authority lends further support to the alien-
as-declarant theory. In United States v. Montalvo-Rangel, an unpublished
2011 decision, we rejected the defendant’s Confrontation Clause challenge to
the admission of a Form I-215B. 31 An I-215B, formally titled a Record of Sworn
Statement in Affidavit Form, is a report memorializing an alien’s statements
to an immigration agent made under oath and with the benefit of Miranda
28 See United States v. Torralba-Mendia, 784 F.3d 652, 658 (9th Cir. 2015) (describing
I-213s as containing both “the agent’s narrative [and] statements made by the detainee”);
United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir. 2010) (accepting the defendant’s
premise that “the declarants [were] the eleven aliens” discovered on the defendant’s boat).
29 See Caraballo, 595 F.3d at 1226.
30 See id. at 1227–29.
31 437 F. App’x 316, 318–19 (5th Cir. 2011) (unpublished).
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warnings. 32 The I-215B was signed by Montalvo-Rangel and contained an
affirmation that its contents were accurate and honest. 33 The Court explained:
Montalvo-Rangel argues that because the agent who filled out the
2008 Form I-215B did not testify, Montalvo-Rangel was denied his
constitutional right to “confront” a witness. The “form” in question,
however, is actually an affidavit executed by Montalvo-Rangel.
Although it was typed by an immigration officer, it was signed and
attested to by Montalvo-Rangel. In that respect, it is no different
from a person’s dictating an affidavit to an assistant before signing
it—the “witness” in such a situation is the individual dictating and
signing the affidavit, not the one who transcribed it. . . . The form
is nothing more than a statement by Montalvo-Rangel;
accordingly, the only witness he has the right to confront is
himself. 34
Noria’s I-213s are distinguishable from Montalvo-Rangel’s I-215Bs in several
respects: Noria was not Mirandized, 35 he did not sign the I-213s, and they
contain processing codes and disposition information that must have been
supplied by the interviewing officer, not Noria. However, the key information
Noria contests—his country of citizenship—was supplied by Noria. At least as
to that data, the logic of Montalvo-Rangel would situate Noria as the “witness”
and the interviewing officer as a mere transcriber.
Given these precedents, it is quite possible the Confrontation Clause is
not implicated in this case. However, because the issue was not briefed or
argued, we will proceed to the merits of the Confrontation Clause issue by
assuming, without deciding, that the immigration agents who prepared Noria’s
I-213s were the declarants of the statements contained therein.
32 See Rodriguez-Casillas v. Lynch, 618 F. App’x 448, 456–57 (10th Cir. 2015)
(unpublished).
33 Montalvo-Rangel, 437 F. App’x at 317–18.
34 Id. at 318.
35 The I-213s admitted in this case reflect that Noria was “advised of [his]
communication privileges,” but that advisory does not appear to be coextensive with Miranda
warnings.
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2.
The Sixth Amendment status of Form I-213s is a question of first
impression in this Circuit. However, two of our sister circuits have addressed
the question, and we agree with them that I-213s are not testimonial. Their
reasoning is instructive. In United States v. Caraballo, the defendant was
convicted of alien smuggling after a marine patrol officer discovered eleven
undocumented immigrants on board his fishing boat. 36 Immigration agents
interviewed the aliens and recorded their “routine biographical information”
on I-213s. 37 At trial, the district court admitted the first page of each I-213 over
Caraballo’s objection “to demonstrate that the aliens found on Caraballo’s boat
were deportable and inadmissible.” 38
The Eleventh Circuit rejected Caraballo’s Confrontation Clause
challenge. The court reasoned that the forms were not testimonial because they
contained only “basic biographical information,” such as name, birthplace and
birthdate, and citizenship, “gathered . . . from the aliens in the normal course
of administrative processing.” 39 The Eleventh Circuit concluded that “[t]he I–
213 form is primarily used as a record . . . for the purpose of tracking the entry
of aliens,” and it emphasized that “[t]he Supreme Court has instructed us to
look only at the primary purpose of . . . questioning in determining whether
the information elicited is testimonial.” 40 Thus, although an I-213 might
eventually be used in a criminal prosecution, that “incidental or secondary use”
of the form “is of little moment” in the constitutional analysis. 41
36 595 F.3d 1214, 1218–20 (11th Cir. 2010).
37 Id. at 1218.
38 Id. at 1226.
39 Id. at 1228.
40 Id. at 1229 (citing Davis v. Washington, 547 U.S. 813, 828, 830 (2006)).
41 Id.
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The Eleventh Circuit has repeatedly affirmed Caraballo’s Sixth
Amendment holding, 42 and the Ninth Circuit reached the same conclusion
several years later in United States v. Torralba-Mendia. 43 Like Caraballo,
Torralba-Mendia was convicted of alien smuggling after a trial at which the
Government introduced the I-213s of migrants who had been detained during
the investigation. 44 The forms “contained the migrants’ photos, fingerprints,
physical characteristics,” and information about the subsequent disposition of
their cases, but “[t]he government redacted the agent’s narrative detailing how
[they] were apprehended, and all other statements made by the detainee.” 45
The Ninth Circuit concluded that I-213s are nontestimonial because they
are “routinely completed by Customs and Border Patrol agents in the course of
their non-adversarial duties,” not “in anticipation of litigation.” 46 After all,
“[a]gents complete I–213 forms” for all aliens suspected of being present
without authorization, “regardless of whether the government decides to
prosecute [them] criminally.” 47 “As with other evidence in an alien’s A-file,” the
Ninth Circuit concluded, I-213s are nontestimonial because they “are prepared
for administrative purposes, not as evidence in a later trial.” 48
In addition, although this Court has not addressed I-213s, we have
decided Confrontation Clause challenges to several other A-file documents,
and those cases provide useful points of comparison. In United States v. Valdez-
Maltos, we held that warrants of removal (officially titled Form I-205s) are
42 See, e.g., United States v. Chkuaseli, 732 F. App’x 747, 757 (11th Cir. 2018)
(unpublished) (per curiam); United States v. Watson, 611 F. App’x 647, 658 (11th Cir. 2015)
(unpublished); United States v. Rivera-Soto, 451 F. App’x 806, 808 (11th Cir. 2011)
(unpublished) (per curiam).
43 784 F.3d 652 (9th Cir. 2015).
44 Id. at 658.
45 Id.
46 Id. at 666.
47 Id.
48 Id.
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nontestimonial 49—a holding we reaffirmed in 2018. 50 Warrants of removal
contain an alien’s name, photograph, and thumbprints and are “filled out by
the deporting officer” who also “sign[s] the warrant as having witnessed the
departure” of the alien. 51 We reasoned that warrants are “reliable and
admissible because the official preparing the warrant had no motivation to do
anything other than ‘mechanically register an unambiguous factual matter’”—
namely, that the alien in question was successfully deported. 52 Moreover,
warrants of removal “must be issued” in all “cases resulting in a final order of
removal . . . to memorialize an alien’s departure—not specifically or primarily
to prove facts in a hypothetical future criminal prosecution.” 53 We have
likewise held that DHS computer printouts showing the date and time of
aliens’ prior deportations are nontestimonial, 54 as are removal orders issued by
an immigration judge. 55
The reasoning of these cases supports the Government’s contention that
I-213s are nontestimonial. Warrants of removal, removal orders, and records
of prior deportations contain much of the same biographical information as
I-213s, and, like I-213s, they provide compelling evidence of alienage. By
contrast, this Court has adjudged only one type of A-file document to be
testimonial: Certificates of Nonexistence of Record (“CNR”). 56 In an illegal-
reentry case, a CNR is prepared by a DHS official who has searched agency
49 443 F.3d 910, 911 (5th Cir. 2006) (per curiam).
50 United States v. Garcia, 887 F.3d 205, 213 (5th Cir. 2018).
51 United States v. Quezada, 754 F.2d 1190, 1191 (5th Cir. 1985).
52 Valdez-Maltos, 443 F.3d at 911 (quoting Quezada, 754 F.2d at 1194).
53 Garcia, 887 F.3d at 213.
54 United States v. Lopez-Moreno, 420 F.3d 420, 436 (5th Cir. 2005).
55 United States v. Becerra-Valadez, 448 F. App’x 457, 462 (5th Cir. 2011)
(unpublished).
56 Additionally, in United States v. Duron-Caldera, we remanded for a new trial where
the Government failed to carry its burden of showing that a relative’s affidavit included in
the defendant’s A-file was nontestimonial, and the evidence available to the Court was
“inconclusive.” 737 F.3d 988, 993 (5th Cir. 2013). Contrary to Noria’s assertion, we did not
hold that the affidavit was in fact testimonial. Id. at 994.
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records as proof that the alien-defendant has not applied for or received
permission to reenter the United States. 57 In United States v. Martinez-Rios,
we held that admitting a CNR without making the preparer of the certificate
available for cross-examination is a violation of the defendant’s confrontation
right. 58 Relying on the Supreme Court’s then-recent opinion in Melendez-
Diaz, 59 we reasoned that CNRs are testimonial because they “are not routinely
produced in the course of government business but instead are exclusively
generated for use at trial.” 60
Here, it is uncontested that Form I-213s are routinely produced by DHS
and are not generated solely for use at trial. Moreover, there is no indication
that the specific Form I-213s introduced at Noria’s trial are untrustworthy or
unusually litigation-focused; by all accounts, they are standard I-213s created
contemporaneously with each of Noria’s interviews by immigration agents. 61
No doubt, the biographical portion of an I-213 can be helpful to the Government
in a later criminal prosecution. However, we agree with the Ninth and
Eleventh Circuits that the forms’ primary purpose is administrative, not
57 See United States v. Luna-Bolanos, 369 F. App’x 947, 948–49 (10th Cir. 2010)
(unpublished) (describing the process of generating a CNR). It is undisputed that the CNR
admitted in Noria’s case was properly introduced through the testimony of USCIS witness
Christine Pool.
58 595 F.3d 581, 586 (5th Cir. 2010).
59 See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 323 (2009) (reasoning that where
the prosecution seeks “to admit into evidence a clerk’s certificate attesting to the fact that
the clerk had searched for a particular relevant record and failed to find it,” the certificate
must be testimonial because it “would serve as substantive evidence against the defendant
whose guilt depended on the nonexistence of the record for which the clerk searched”).
60 Martinez-Rios, 595 F.3d at 586.
61 See, e.g., United States v. Hernandez-Hernandez, No. 2:15-cr-59-FtM-38MRM, 2016
WL 836687, at *2 (M.D. Fla. Mar. 4, 2016) (unpublished) (departing from Caraballo and
excluding I-213s from an alien-smuggling trial because they “were created only weeks prior
to trial and well after the underlying facts,” leading the district court to conclude “that these
forms were prepared for litigation and not as part of the ‘routine’ procedures accompanying
the aliens’ apprehension”); see also Dong-Chen v. Mukasey, 278 F. App’x 49, 51 (2d Cir. 2008)
(unpublished) (per curiam) (noting that an I-213 is particularly dependable where the alien
“does not argue that [it] is less reliable than I-213s are as a general matter”).
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investigative or prosecutorial. After all, immigration agents prepare an I-213
every time they encounter an alien suspected of being removable, regardless of
whether that alien is ever criminally prosecuted or civilly removed. 62 The forms
are then stored in the regular course of DHS business. As the Government
explained at oral argument, I-213s serve primarily as administrative records
used to track undocumented entries, not as evidence in criminal trials. We
therefore join the so-far-unanimous judgment of our sister circuits that the
portions of the Form I-213s admitted in this case were nontestimonial. We
have no occasion to consider the Sixth Amendment status of the forms’
remaining pages, which were not admitted at trial.
B.
Noria argues that even if his I-213s do not offend the Confrontation
Clause, they are inadmissible hearsay. He contends that the I-213s do not fall
within Federal Rule of Evidence 803(8)’s public-records exception “for the same
reasons [they] should be considered testimonial under the Sixth
Amendment”—namely, that they are not routine administrative records but
investigative reports made in furtherance of a criminal prosecution. In fact,
Noria argues, the I-213s are expressly barred by Rule 803(8)(A)(ii) as records
of “matter[s] observed by law-enforcement personnel” in a criminal case. The
Government’s opposition also echoes its Sixth Amendment argument. The
62 See Caraballo, 595 F.3d at 1228. Noria accuses the Government of mistakenly
relying on Caraballo for the proposition that all foreign entrants must complete Form I-213s.
That would of course be inaccurate; I-213s are created only for aliens suspected of being
removable. See Bauge v. I.N.S., 7 F.3d 1540, 1543 n.2 (10th Cir. 1993). However, that is not
the proposition the Government makes. It asserts only, and correctly, that I-213s
“memoralize[] routine biographical information required of every foreign entrant.” This is
consistent with Caraballo’s observation that “the basic biographical information recorded on
the I-213 form is routinely requested from every alien entering the United States, and the
form itself is filled out for anyone entering the United States without proper immigration
papers.” 595 F.3d at 1228 (emphasis added). In other words, the information recorded on an
I-213 is requested from all entrants, but not necessarily in the form of an I-213; for example,
the same basic biographical questions might instead appear on a visa application.
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Government contends that I-213s are generated “for administrative purposes,
as opposed to anticipation of trial,” and so are not subject to Rule 803(8)(A)(ii)’s
limited bar against law enforcement reports.
Rule 803(8)(A)(ii) authorizes the admission of public records of “a matter
observed while under a legal duty to report, but not including, in a criminal
case, a matter observed by law-enforcement personnel.” This exception to the
exception is based “on the presumed unreliability of observations made by law
enforcement officials at the scene of a crime, or in the course of investigating a
crime.” 63 As the Rule’s legislative history explains, such observations “are not
as reliable as observations by public officials in other cases because of the
adversarial nature of the confrontation between the police and the defendant
in criminal cases.” 64
It is undisputed that the immigration agents who interviewed Noria
were law-enforcement officers within the meaning of Rule 803(8), and that they
created the I-213s while under a legal duty to report their observations. “Thus,
a literal application of the rule would exclude this evidence.” 65 However,
“courts have not inflexibly applied this proscription to exclude all law
enforcement records in criminal cases.” 66 We have long recognized “a
distinction . . . between law enforcement reports prepared in a routine, non-
adversarial setting, and those resulting from the arguably more subjective
endeavor of investigating a crime and evaluating the results of that
investigation.” 67 For three reasons, Noria’s I-213s fall within the former,
admissible category.
63 United States v. Quezada, 754 F.2d 1190, 1193 (5th Cir. 1985)
64 S. REP. NO. 93-1277, at 7064 (1974).
65 United States v. Puente, 826 F.2d 1415, 1417 (5th Cir. 1987).
66 Id.
67 Quezada, 754 F.2d at 1194.
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First, although this Court has not decided whether Form I-213s are
admissible under Rule 803(8) in criminal prosecutions, we have long accepted
that they are admissible in civil removal proceedings. Of course, the Federal
Rules of Evidence do not apply in immigration court. 68 Even so, panels
considering immigration cases often reason by analogy to the Federal Rules,
and their discussions contain persuasive analysis. 69 We have repeatedly relied
on Rule 803(8)’s public-records exception to affirm the admission of Form I-
213s. Last year, for example, we reasoned that I-213s were properly admitted
in immigration court because a “Form I-213 is a public record made by public
officials in the ordinary course of their duties”—not in the antagonistic setting
of a criminal investigation—“and accordingly evidences strong indicia of
reliability.” 70 In an earlier case, we expressly noted that I-213s “come within
the public records exception to the hearsay rule, not that the hearsay rules
apply to deportation proceedings in the first place.” 71
Second, the other two circuits to consider the question have held I-213s
admissible under Rule 803(8). As Noria notes, his hearsay challenge is
governed largely by the same considerations as his Confrontation Clause
challenge. Thus, both parties rely heavily on the same two out-of-circuit cases
described above in the Confrontation Clause discussion: United States v.
Caraballo 72 from the Eleventh Circuit and United States v. Torralba-Mendia 73
from the Ninth. Both those courts held that I-213s do not implicate the
68 Bustos-Torres v. I.N.S., 898 F.2d 1053, 1055 (5th Cir. 1990). Instead, “[t]he test for
admissibility of evidence in a deportation proceeding is whether the evidence is probative and
whether its use is fundamentally fair so as not to deprive the alien of due process of law.” Id.;
see Olabanji v. I.N.S., 973 F.2d 1232, 1234 (5th Cir. 1992).
69 See Bouchikhi v. Holder, 676 F.3d 173, 180 (5th Cir. 2012).
70 Zuniga-Perez v. Sessions, 897 F.3d 114, 119 n.1 (5th Cir. 2018) (internal alterations
and quotation marks omitted) (quoting Felzcerek v. I.N.S., 75 F.3d 112, 116 (2d Cir. 1996)).
71 Renteria-Gonzalez v. I.N.S., 322 F.3d 804, 817 n.16 (5th Cir. 2002).
72 595 F.3d 1214 (11th Cir. 2010).
73 784 F.3d 652 (9th Cir. 2015).
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concerns motivating Rule 803(8)(A)(ii) because they are “routinely completed
by Customs and Border Patrol agents in the course of their non-adversarial
duties, not in the course of preparing for a criminal prosecution.” 74 As the Ninth
Circuit put it, I-213s contain only “ministerial, objective observation[s].” 75
Finally, I-213s are alike in material respects to other immigration
documents that are routinely admitted under Rule 803(8). Immigration
detainers, for example, contain the same identifying information—including
country of citizenship—that Noria challenges here, and they are prepared as
part of federal immigration authorities’ law-enforcement efforts after an alien
has been identified as removable. Much the same can be said of warrants of
removal, removal orders, and reinstatements of removal orders. In particular,
executed warrants of removal directly attest to an event “observed” by a law-
enforcement officer—namely, the alien’s removal—and yet we have long
recognized that they are not subject to Rule 803(8)(A)(ii)’s law-enforcement
exclusion. 76
The fact that an I-213 may be used to support a later criminal
prosecution does not change the essentially ministerial circumstances of its
creation; after all, many aliens for whom I-213s are created are never
prosecuted or placed in removal proceedings. Moreover, many types of
immigration documents, including detainers and warrants, are generated by
law-enforcement officers after an alien has been suspected or convicted of
committing a crime. To some extent, all these documents could be
characterized as investigative for purposes of Rule 803(8)(A)(ii)—and yet they
74 Caraballo, 595 F.3d at 1226; see also Torralba-Mendia, 784 F.3d at 665 (“[T]he
record of a deportable alien . . . is part of an alien’s A–File, filled out and kept by the
Department of Homeland Security in its regular course of business.”).
75 Torralba-Mendia, 784 F.3d at 665.
76 See United States v. Garcia, 887 F.3d 205, 212 (5th Cir. 2018) (“Under consistent
circuit precedent, the warrant of removal was properly admitted under Federal Rule of
Evidence 803(8)—the public records exception.”).
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are not. For these reasons, the admitted portions of Noria’s I-213s were
admissible under Rule 803(8)’s public-records exception to the rule against
hearsay. Again, we emphasize that our holding is confined to the initial
redacted page of the form, which records only biographical and administrative-
processing data.
IV.
For the foregoing reasons, we hold that the admitted portions of Noria’s
Form I-213s offended neither the Confrontation Clause nor the Federal Rules
of Evidence. Noria’s conviction and sentence are affirmed.
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