The Department of Homeland Security (DHS) sought to introduce evidence of Felipe De Jesus Flores' alienage through a Form I-485 and Form G-325A that he had allegedly submitting to the former Immigration and Naturalization Service. In an attempt to authenticate these documents, the DHS presented a letter from Supervisory Deportation Officer Barr that stated that the documents were copies of documents found in De Jesus Flores' A file. The letter also stated that Barr’s “official duties and responsibilities include creation and maintenance of official DHS records, pursuant to the delegated authority from the Secretary of Homeland Security, legal custodian under Section 103 of the Immigration and Nationality Act, as amended.” It further states that Barr is an “authorized certifying designee 4 of the Secretary of Homeland Security.”
The court noted that the governing regulation, 8 C.F.R. § 287.6(a), states that any official record should be certified by “the official having legal custody of the record or by an authorized deputy.” Under 8 U.S.C. § 1103(a)(2), the Secretary of DHS (“Secretary”) is clearly designated as the legal custodian of all immigration records, and further, under 8 U.S.C. § 1103(a)(6), the Secretary has the authority to confer his “powers, privileges, or duties” onto his employees. Finally, 8 C.F.R. § 2.1 states that the Secretary may accomplish such conferral through “regulation, directive, memorandum, or other means as deemed appropriate.”
The court held that no evidence, aside from Barr’s own statements, however, that the Secretary conferred Barr with the duty to certify documents on his behalf. Under 8 C.F.R. § 2.1, the Secretary has four methods of delegating his authority, and the government had failed to provide evidence of any of them.
The full text of de Jesus Flores v. Sessions can be found here:
https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/03/20/14-71561.pdf