Born in East L.A.?: Are Field 826s Testimonial? Are They Hearsay?

Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for

A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

But what if a public record contains hearsay statements from civilians? Let's take a look at the recent opinion of the Ninth Circuit in United States v. Morales, 2013 WL 3306395 (9th Cir. 2013).

In Morales, Kaleena Leah Morales appealed her convictions for one count of conspiracy to transport aliens who unlawfully came to or entered the United States, and three counts of transporting such aliens, in each case for private financial gain. After she was convicted, Morales appealed, claiming, inter alia, that the district court erred by allowing the prosecution to admit field 826s. By field 826s, she meant Form I-826.

When the USBP apprehends an alien attempting to enter the country illegally, the alien is processed in the field, which includes filling out the alien’s name, date of birth, place of birth, and country of citizenship and reading them their administrative rights on Form I-826. Form I-826 gives the arrested alien the choice of requesting a hearing before an immigration judge, seeking asylum because they have a credible fear of being harmed if they are returned to their home country, or admitting to being in the United States illegally and requesting a voluntary departure. 

First, the Ninth Circuit found that there was no Confrontation Clause problem with the admission of the field 826s because they were nontestimonial. The court found that

[T]he Field 826s are nontestimonial because they were "created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial."...As is evident from the form itself, as well as Agent Wycoff's testimony about its use, a Border Patrol agent uses the form in the field to document basic information, to notify the aliens of their administrative rights, and to give the aliens a chance to request their preferred disposition. The Field 826s are completed whether or not the government decides to prosecute the aliens or anyone else criminally....The nature and use of the Field 826 makes clear that its primary purpose is administrative, not for use as evidence at a future criminal trial. Even though statements within the form "may become 'relevant to later criminal prosecution,'" this potential future use “does not automatically place [the statements] within the ambit of 'testimonial.'"

The court then moved to the hearsay issue posed by admission of the field 826s, with the Ninth Circuit noting that the documents were improperly admitted as business records when they should have been admitted as public records under Federal Rule of Evidence 803(8). The court then found a problem with admissibility under Rule 803(8), concluding that

The government relied on two types of statements in the Field 826s to prove that the individuals in Morales's car were in the country illegally: the aliens' statements to the agents about their names and places of birth, and the aliens' signed admissions that they were in the United States illegally. We must consider whether these statements independently qualify for an exception to the rule against hearsay....In general, statements by third parties who are not government employees (or otherwise under a legal duty to report) may not be admitted pursuant to the public records exception but must satisfy some other exception in order to be admitted....We have applied this analysis to statements made by aliens and reported by government officials....  

Here, the aliens' statements that they were in the United States illegally do not qualify as public records under Rule 803(8), because they do not describe "activities" of the government, and the government does not argue that aliens are under a “duty to report” their immigration status....Had the aliens been unavailable, their statements might have been admissible under a separate exception, such as a "statement against interest" under Rule 804(b)(3) or a "statement of personal or family history" under Rule 804(b)(4)....But because the district court concluded that the government had failed to establish that the aliens were unavailable for purposes of Rule 804, their statements are not admissible under these exceptions....Nor has the government identified any other hearsay exception under which the statements might be admitted. Accordingly, neither the biographical statements by aliens recorded by the Border Patrol agents, nor the aliens' own admissions, qualify under an exception to the rule against hearsay. The district court abused its discretion in admitting both statements.

-CM