Immigration Law: Admission of False Statements Made on an Immigration Form Does Not Violate Confrontation Rights

Admission of USCIS Form N-445 does not violate a defendant’s Confrontation Clause rights. United States v. Lang, 2012 WL 502698 (1st Cir. 2012).

Summary: The First Circuit Court of Appeals held that admission of Form N-445, Notice of Naturalization Oath Ceremony, employed by the United States Citizenship and Immigration Services did not implicate Confrontation concerns. Seeking to obtain U.S. Citizenship, the Defendant made false statements to conceal his prior criminal activities in his Form N-440, Application for Naturalization, and subsequently his Form N-445. As a result, the Defendant was charged with 1) making false statements to the Department of Homeland Security and 2) unlawfully obtaining naturalization and certificate of naturalization. Defendant was found guilty on both counts and the Court denied his challenge of admission of his N-440 and N-445 forms. The First Circuit held that admission of the N-445 did not violate the Defendant’s Sixth Amendment Confrontation Clause rights and that admission of N-445 under FRE 803(8) Public Records Exception to Hearsay was not in error.

Discussion: Under the Sixth Amendment Confrontation Clause, it is unconstitutional to admit a testimonial hearsay against a defendant in a criminal case unless the declarant of the statement is unavailable and the Defendant has had an adequate opportunity to cross-examine the declarant. Ever since Crawford v. Washington, 541 U.S. 36 (2004), lower courts continue to wrestle with the definition of testimonial hearsay within the meaning of the Confrontation Clause. The First Circuit adopted the approach of inquiring “whether ‘an objectively reasonable person in the declarant’s shoes would understand that the statement would be used in prosecuting the defendant at trial.’” (quoting United States v. Earle, 488 F.3d 537, 542 (1st Cir.2007)). With regard to N-440 and N-445, the USCIS practices a standard protocol of verbally verifying the applicant’s answers and adding a red check mark next to each question indicating compliance with the protocol. Court rejected the Defendant’s argument that these check marks were testimonial hearsay and that N-445 was intended primarily to be used in court proceedings. Instead, the Court held that an objectively reasonable person in the CIS officer’s position would not understand the form to be used at trial and that the N-445, “like all others similarly generated, was a non-testimonial public record produced as a matter of administrative routine, for the primary purpose of determining [Defendant’s] eligibility for naturalization.” In reference to the Supreme Court’s statement in Crawford that business records clearly fall outside of the realm of testimonial hearsay, the First Circuit agreed with the lower courts that a public record such as N-445 were not at all different from business records and therefore was not testimonial hearsay.

As for form N-440, the Court held that its admission too was not a violation of the Defendant’s Confrontation Clause rights. The CIS officer who interviewed the Defendant testified regarding the CIS verification procedures and the Defendant’s answers on the N-440 was party opponent statement admissible under FRE 801(d)(2)(A).

Practice Pointer: The First Circuit previously rejected the argument that immigration papers constituted testimonial hearsay when it held that a warrant of deportation was not testimonial under Crawford. United States v. García, 452 F.3d 36, 41–42 (1st Cir.2006). Along with García, Lang may stand for the trend of validating the admission of hearsay immigration papers against a defendant in a criminal case.

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