Marlon Alonzo Smith, a native and citizen of Guyana, was found removable by the Board of Immigration Appeals after being convicted of possession with intent to distribute methamphetamine. The Department of Homeland Security sought to prove Smith's alienage and aggravated felony conviction using four documents: a USCIS database printout, an FBI rap sheet, a criminal judgment from PACER, and a Form I-213. Smith's counsel objected to the admission of these documents, arguing they were unauthenticated and unreliable, but the Immigration Judge admitted them. Smith subsequently applied for asylum and Convention Against Torture relief, which were denied. The BIA affirmed the Immigration Judge's decision, and Smith petitioned for review in the Ninth Circuit.
The panel addressed two primary issues: the admissibility of the evidence proving removability and the denial of CAT relief. Regarding removability, the court confirmed that authentication is required in immigration proceedings but declined to decide whether the 1985 amendment to 8 C.F.R. § 287.6(a) changed the standard from permissive to mandatory. Instead, the court focused on preservation. Smith challenged the authenticity of the criminal judgment, the Form I-213, and the rap sheet on appeal, but the court found he failed to preserve these challenges. He did not object to the judgment's authenticity before the Immigration Judge. While he objected to the I-213 and rap sheet, he argued they were unreliable or inaccurate, not that they were unauthenticated. The court construed these objections as due process challenges to reliability rather than authentication challenges. Because Smith did not specifically challenge the authenticity of these documents at the agency level, the court found the arguments forfeited. The court also rejected Smith's due process claims, noting the documents were probative and their admission was fundamentally fair. On the CAT claim, the court found substantial evidence supported the denial. The Immigration Judge considered evidence regarding mental healthcare and policing in Guyana, correctly evaluated the risk of torture from various sources, and properly applied the 'chain rule' requiring Smith to prove each link in a hypothetical series of events. The record showed the Guyanese government is attempting to combat violence in psychiatric institutions, negating a finding of government acquiescence.
The petition for review is denied, and the BIA's order denying relief remains enforceable. The decision leaves open the question of whether the 1985 amendment to 8 C.F.R. § 287.6(a) makes authentication mandatory for domestic official records, a question the court noted will likely need to be addressed in future cases with full briefing. The ruling reinforces that immigration petitioners must specifically challenge the authenticity of government documents at the agency level to preserve the issue for appellate review.
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