                                                                              FILED
                            NOT FOR PUBLICATION
                                                                              MAR 20 2017
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


FELIPE DE JESUS FLORES, AKA Jaime                No.   14-71561
Daniel Martinez,
                                                 Agency No. A077-991-561
              Petitioner,

 v.                                              MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted March 8, 2017
                              Pasadena, California

Before: PREGERSON, PAEZ, and CHRISTEN, Circuit Judges.

      Felipe de Jesus Flores (“Flores”) petitions for review of a final order of

removal. In May 2014, the Board of Immigration Appeals (“BIA”) dismissed

Flores’s appeal from the Immigration Judge’s (“IJ”) decision ordering him




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
removed. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the

petition for review.

      Flores argues that his due process rights were violated when the IJ admitted

evidence presented by the government that was not properly authenticated, and,

that without such evidence, the government failed to meet its burden of proving

alienage by “clear, unequivocal, and convincing evidence.” Woodby v. INS, 385

U.S. 276, 277 (1966). We review de novo claims of due process violations in

removal proceedings, see, e.g., Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th

Cir. 2010), and we agree.

      As Flores denied all of the factual allegations contained in the Notice to

Appear, and contested removability, the Department of Homeland Security

(“DHS”) was required to present evidence to meet its burden of establishing

alienage. See Woodby, 385 U.S. at 277. Initially, DHS submitted several

documents that were allegedly taken from Flores’s Alien file (“A-file”). Flores

objected to the admission of these documents as unauthenticated, and moved to

terminate the removal proceeding. In response, DHS resubmitted an I-485

(Application to Register Permanent Residence or Adjust Status) that Flores had




                                         2
allegedly previously submitted to the Immigration and Naturalization Service1, as

well as an accompanying G-325A (Biographic Information). Both documents

were accompanied by a purported written certification signed by Jose Guillermo

Barr (“Barr”), an Immigration and Customs Enforcement (“ICE”) Supervisory

Detention and Deportation Officer. Flores renewed his objections and motion to

terminate. In response, the IJ found that the resubmitted I-485 and G-325A were

properly authenticated, admitted them, and, as a result, found Flores was

removable as charged. Next, the IJ denied Flores’s motion to terminate, found him

statutorily ineligible for relief, and ordered him removed to Mexico. Flores timely

appealed to the BIA, which dismissed the appeal finding that the I-485 and G-

325A had been properly authenticated in accordance with governing regulations.

      Authentication of documents in the government’s possession is required in

deportation proceedings in order to satisfy due process. Iran v. INS, 656 F.2d 469,

472 (9th Cir. 1981). Documents in the government’s possession, such as the forms

I-485 and G-325A, may be authenticated “through some recognized procedure,

such as those required by [] regulations or by the Federal Rules of Civil



      1
        On March 1, 2003, the United States Immigration and Naturalization
Service ceased to exist as an agency within the Department of Justice and its
functions were transferred to DHS. See Homeland Security Act of 2002, Pub L.
No. 107-296, 110 Stat. 21235 (Nov. 25, 2002).
                                          3
Procedure.” Espinoza v. INS, 45 F.3d 308, 309-10 (9th Cir. 1995). “To

authenticate the form, there must be proof that the form is what it purports to

be . . . .” Iran, 656 F.2d at 473.

      The BIA held that the two documents were properly authenticated under

governing regulations, but this was in error. 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.”

      Here, in an attempt to authenticate documents, the government simply

submitted an unsworn letter, signed by Barr. The letter states 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.” Finally, the letter states that the I-485 and

G325A were found in the A-file associated with Flores and that they are “true and

correct” copies of the original DHS record.

      There is 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 has failed to provide evidence of any of them. We do not doubt that

the Secretary has broad discretion to delegate certification authority to DHS

employees, but we do not assume he has done so, absent such evidence. The BIA

erred in finding otherwise.2

      In the alternative, the government argues that it properly authenticated the

disputed documents via other means that have previously been upheld by this

court. Although the government is correct that we permit DHS to authenticate

evidence through any “recognized procedure,” not limited to that described in the



      2
         It is worth noting that in addition to failing to provide support that Barr is
a certifying designee of the Secretary, this purported certification suffers from
multiple defects that belie its trustworthiness: (1) the document is not on official
ICE/DHS letterhead, (2) it bears no seal or stamp of DHS, (3) it contains no
language that Barr’s statements were given under penalty of perjury or that he, at a
minimum, swore to its contents, and (4) it contains no statement that he is the legal
custodian—temporary or otherwise—of A-files, or Flores’s A-file in particular.


                                           5
governing regulations, see Espinoza, 45 F.3d at 310, the government’s form of

authentication failed under any measure. The two cases on which the government

relies involve an ICE or Customs and Border Protection officer appearing in court

to testify under oath. See United States v. Lopez, 762 F. 3d 852, 862-63 (9th Cir.

2014); United States v. Estrada-Eliverio, 583 F.3d 669, 671 (9th Cir. 2009).

Because the ICE/CBP officers in those cases testified in court, there were no due

process concerns—i.e., the testimony was under oath, a court was able to evaluate

the witnesses’ credibility, and the defendants were able to cross-examine the

officers. Here, by contrast, none of those due process protections were present as

Barr did not testify.

      In sum, the I-485 and G-325A were not properly authenticated, and Flores’s

due process rights were violated. Generally, when alleging a due process violation,

the petitioner must demonstrate prejudice, “which means that the outcome of the

proceeding may have been affected by the alleged violation.” Cruz Rendon, 603

F.3d at 1109 (citation omitted). Here, the government offered no other evidence

proving Flores’s alienage, so Flores was prejudiced by the improper admission of

these documents. Therefore, as in Iran, where “the evidence submitted by the

[DHS] was not properly admitted,” and, as a result, the DHS “did not meet its

burden of establishing [removability] by clear, unequivocal, and convincing


                                         6
evidence,” the removal order must be “set aside.” Iran, 656 F.2d at 473 (internal

quotation marks omitted).

      For the foregoing reasons, we grant the petition for review and remand to the

agency with instructions to grant Flores’s motion to terminate. See Iran, 656 F.2d

at 473. In light of our disposition, we need not reach, and express no views, on the

merits of the other issues raised in Flores’s petition for review.


PETITION GRANTED.




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