The case of the day is Smith v. Garland (9th Cir. 2024). Smith was a citizen of Guyana. He had immigrated legally as a child in 1982, but in 2018, he was convicted of possession of methamphetamines with intent to distribute and was sentenced to a long prison term, which he is still serving. The government served him with papers indicating its intent to remove him (i.e., send him to Guyana) after his term in prison ends. He challenged removability. In the immigration court, the government offered three documents: a Form I-213,¹ a “rap sheet,” and the criminal judgment. The immigration judge, and then the Board of Immigration Appeals, held that Smith was subject to removal because of his criminal conviction. Smith appealed to the Ninth Circuit.

The point of interest is Smith’s argument that the three documents were not authenticated and thus that it was error for the immigration authorities to rely on them. Smith pointed to 8 C.F.R. § 287.6, which reads:

In any proceeding under this chapter, an official record or entry therein, when admissible for any purpose, shall be evidenced by an official publication thereof, or by a copy attested by the official having legal custody of the record or by an authorized deputy.

Prior to 1985, the regulation had “may” instead of “shall.” Smith’s argument was that the only permissible method of authenticating the official records at issue here was by “a copy attested by the official having legal custody of the record or by an authorized deputy.”

The court noted that there is a real question about what “shall” means in the regulation, but it declined to reach the question on the grounds that Smith had not preserved the point on appeal.

Why am I writing about this? The decision has an interesting and, I think, misguided footnote:

It appears that the impetus for these amendments was the need to comply with an international treaty, the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, Oct. 5, 1961, T.I.A.S. No. 10072, 527 U.N.T.S. 189 (Hague Apostille Convention). 50 Fed. Reg. 37834 (Sept. 18, 1985) (“This final rule revises the provisions for authentication of official records in order to conform existing requirements to the exceptions noted for signatories of the [Hague Apostille Convention].”). The agency summarized the changes as “relating to the admissibility of official records of foreign public documents” and invoked an exemption to the public notice and comment requirements applicable to changes “relate[d] to foreign affairs functions of the United States.” Id.

What’s wrong with this footnote? For starters, the Apostille Convention has to do with the legalization of documents emanating from one state that have to be used in another state. So, for example, if the government want to offer a Guyanese public document in support of its case, then the Apostille Convention provides a method by which it could get a certification from an authority in Guyana, called an apostille, that the United States and all its courts (including, I think, immigration courts), are required to treat as sufficient to authenticate the document. The Convention says nothing about how to authenticate an American public document for use in an American court. So it’s really hard to see how § 287.6, which relates to authentication of domestic public documents for use in domestic immigration proceedings, could have been motivated by the then-newly ratified Apostille Convention.

Second, even when an apostille would be sufficient to authenticate a foreign public document for use in the United States, the apostille is not the only permissible method of authentication for purposes of the law of evidence.² For example, suppose I were born in Guyana and I had to prove my birthplace. Of course, I could simply testify to my birthplace without any documents. If you really wanted to push it and ask how I know where I was born, I could testify that my family told me so, and that testimony would be admissible under the hearsay exception for

A reputation among a person’s family by blood, adoption, or marriage—or among a person’s associates or in the community—concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.³

Of course, the fact could also be proved by my birth certificate, “A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty,” to quote another exception to the hearsay rule. So how could I authenticate the birth certificate? Well, I could say, “I went to the town hall and asked for a copy of my birth certificate, and this is what they gave me.” That seems to me to be 100% sufficient to prove that the document is what it purports to be. Of course, that testimony can be rebutted. But the authenticity of a document bearing an apostille can also be rebutted. The apostille is not some kind of magic paper that conclusively proves the authenticity of the document to which it’s attached.⁴ If the apostille is conclusive about anything, it’s conclusive about the authenticity of the signature and seal of the foreign official (for example, the notary) that the apostille is meant to authenticate, and even then I am not sure the apostille is conclusive in all circumstances.

One judge dissented from the decision, arguing that the panel was wrong to conclude that the issue of authentication hadn’t been preserved and noting (apparently without dispute) that the government had not sought to authenticate the documents it offered using any method.

The Ninth Circuit’s footnote is a pure dictum and doesn’t make much sense. I think folks should disregard it.

One final note: I’d be remiss if I didn’t congratulate Safwan Siddiqi and Janelle Barbier, two law students from Santa Clara University School of Law, who argued the appeal. What a great opportunity for students!

1. The Form I-213 memorialized Smith’s interview with an immigration officer and proved that he was an alien and that he had been criminally convicted.
2. To be clear, the Convention, when it applies, does abolish an older method of authentication called legalization, which involved a chain of certifications; I’ve described that process elsewhere.
3. I should note that this discussion is not really specific to proceedings in the immigration court. As I understand it, the rules of evidence do not, strictly speaking, apply in immigration proceedings, and evidentiary standards are relaxed.
4. See paragraph 25 of the Practical Handbook on the operation of the Convention.