Smith v. Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARLON ALONZO SMITH, No. 22-954

Agency No.

Petitioner,

A036-706-804

v. OPINION

MERRICK B. GARLAND, Attorney

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted October 17, 2023

San Francisco, California

Filed June 3, 2024

Before: Carlos T. Bea, Morgan Christen, and Anthony D.

Johnstone, Circuit Judges.

Opinion by Judge Christen;

Dissent by Judge Johnstone

2 SMITH V. GARLAND

SUMMARY *

Immigration

Denying Marlon Alonzo Smith’s petition for review of a

decision of the Board of Immigration Appeals, the panel

exercised its discretion to consider an argument that the

Government raised for the first time during oral argument;

concluded that Smith failed to preserve his challenge to the

authenticity of the three documents that the agency relied on

in finding him removable; rejected Smith’s due process

arguments; and concluded that substantial evidence

supported the denial of relief under the Convention Against

Torture (CAT).

Smith was found removable as an alien convicted of an

aggravated felony. Before this court, Smith challenged the

authenticity and reliability of the three documents the agency

relied upon for its removability ruling: 1) a Form I-213,

Record of Deportable Alien; 2) an FBI rap sheet; and 3) a

criminal judgment.

The panel wrote that authentication is required in

immigration proceedings but observed that these documents

were not authenticated by any method. Smith argued that an

amendment to 8 C.F.R. § 287.6(a) made mandatory a

requirement that domestic official records be authenticated

“by an official publication thereof or by a copy attested by

the official having legal custody of the record . . .” The panel

concluded that it need not resolve this issue because Smith

had not preserved his challenge to the authenticity of three

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

SMITH V. GARLAND 3

of the Government’s exhibits, and they sufficed to establish

his removability.

With respect to the judgment of conviction—which the

Government offered to prove that Smith had a prior

aggravated felony—the panel concluded that Smith had

failed to exhaust his challenge to the authenticity of this

document, where he did not object to its admission before

the IJ, and did not contest before the BIA that the document

established the conviction.

With respect to the Form I-213 and the rap sheet—which

the BIA found to have satisfied the Government’s burden to

prove alienage—the panel concluded that Smith had also

failed to preserve his challenge to the authenticity of these

documents. Exercising its discretion to consider the

Government’s exhaustion argument, raised for the first time

at oral argument, the panel explained that although Smith

argued before the agency that the documents contained

errors or were unreliable, he did not challenge their

authenticity. Construing Smith’s objection to these

documents as due process challenges to their reliability, the

panel concluded that the BIA did not err.

Finally, the panel concluded that substantial evidence

supported the denial of CAT protection. The panel

explained that: 1) there was no indication that the IJ ignored

highly probative or potentially dipositive evidence about

mental healthcare and related policing issues in Guyana;

2) the IJ correctly evaluated Smith’s risk of torture from each

source he raised (mental health problems, race, and status as

a deportee with prior convictions); and 3) the record

included evidence that the Guyanese government is

attempting to combat violence in psychiatric institutions,

which does not support a finding that Guyanese officials will

4 SMITH V. GARLAND

acquiesce to violence by psychiatric inmates even if those

measures have been unsuccessful to date.

Dissenting, Judge Johnstone wrote that the Department

of Homeland Security failed to prove Smith’s removability

by clear and convincing evidence. The Department did not

authenticate the only evidence that established Smith’s

alienage, Smith objected to the admission of that evidence,

and the Government forfeited any challenge to the

sufficiency of Smith’s objection. Judge Johnstone would

grant the petition to hold the Government to its burden of

proof.

COUNSEL

Evangeline G. Abriel (argued), Supervising Counsel;

Safwan Siddiqi and Janelle Barbier (argued), Student

Counsel; Santa Clara University School of Law, Santa Clara,

California; for Petitioner.

Robert P. Coleman, III, (argued), Trial Attorney; Jennifer

Levings, Assistant Director; Brian M. Boynton, Principal

Deputy Assistant Attorney General; United States

Department of Justice, Civil Division, Office of Immigration

Litigation, Washington, D.C.; for Respondent.

SMITH V. GARLAND 5

OPINION

CHRISTEN, Circuit Judge:

Marlon Alonzo Smith, a native and citizen of Guyana,

petitions for review of the Board of Immigration Appeals’

(BIA) order finding him removable and denying his

application for protection under the Convention Against

Torture (CAT). Smith argues that the BIA erred by

affirming the Immigration Judge’s (IJ) decision to admit

unauthenticated and unreliable documents the Government

proffered to prove his removability, but he failed to preserve

most of his authentication challenges and the record supports

the BIA’s ruling that the documents were reliable.

Substantial evidence also supports the decision to deny

Smith’s CAT claim. We have jurisdiction pursuant to 8

U.S.C. § 1252, and we deny the petition.

I. BACKGROUND

Smith entered the United States as a lawful permanent

resident in 1982 when he was a child. In 2018, Smith was

convicted of possession with intent to distribute

methamphetamine in violation of 21 U.S.C. § 841(a)(1) and

sentenced to 180 months imprisonment. Smith is scheduled

to be released from prison in 2028. The Department of

Homeland Security served Smith with a Notice to Appear in

2021 charging him with being removable as an alien

convicted of an aggravated felony. At the first immigration

hearing after he obtained counsel, Smith denied removability

and held the Government to its burden to prove that he was

removable. The IJ granted a continuance to allow the

Government time to obtain supporting documentation.

6 SMITH V. GARLAND

At the continued hearing, the Government proffered four

documents to prove Smith’s removability: (1) a search result

printout from a U.S. Citizenship and Immigration Services

(USCIS) database to prove alienage; (2) an FBI rap sheet to

prove alienage and Smith’s prior felony conviction 1; (3) a

judgment downloaded from PACER to establish Smith’s

2018 conviction 2 ; and (4) a Form I-213, Record of a

Deportable Alien, memorializing an immigration officer’s

interview of Smith, proffered to prove Smith’s alienage and

prior conviction. 3 The Government compiled these four

documents into two exhibits. We refer to each document as

a separate exhibit for clarity. The Government did not

present live witness testimony to introduce the exhibits and

did not attempt to authenticate the rap sheet or the Form I-

213 by any method.

Smith’s counsel objected to the admission of the USCIS

printout because it did not comply with 8 C.F.R. § 287.6; she

objected to the rap sheet as “unreliable” to prove alienage

because one part of it stated that Smith was born in

Wisconsin and another part stated that his place of birth was

Guyana; and she objected to the Form I-213 because it “did

1

The rap sheet collated records of Smith’s arrests and prosecutions from

the FBI’s internal database and from California and Utah.

2

The downloaded file was accompanied by a declaration signed by an

immigration officer declaring that the exhibit was “a true and correct

copy of the original records contained in PACER (Public Access to Court

Electronic Records), the federal court’s electronic records repository.”

3

A Form I-213 is “a recorded recollection of a[n INS agent’s]

conversation with the alien” which “border agents routinely complete

after interviewing aliens.” Espinoza v. INS, 45 F.3d 308, 310 & n.1 (9th

Cir. 1995) (alteration in original) (quoting Bustos-Torres v. INS, 898

F.2d 1053, 1056 (5th Cir. 1990)).

SMITH V. GARLAND 7

not state a reliable source” for its contents. The Government

responded to Smith’s reliability argument about the I-213’s

contents by contending that the form was “inherently trust-

worthy” and did not “contain information which isn’t correct

or was obtained by coercion.” After hearing the

Government’s response that the documents were “kept in the

ordinary course of business” and were inherently

trustworthy, the IJ admitted the exhibits. The IJ did not

address Smith’s specific objections, but ruled on record that

the exhibits met the Government’s burden to prove that

Smith was removable.

With removability established, Smith applied for

asylum, 4 withholding of removal, 5 and protection under

CAT, 6 and another merits hearing was held to consider those

applications. The second hearing was held before a different

IJ. As part of those applications and in his sworn testimony

in support of them, Smith represented under penalty of

perjury that he had been born in Guyana and was a citizen of

Guyana. Smith also submitted sworn declarations from his

mother and brother stating that Smith was born in Guyana.

Smith’s counsel renewed her objection “to the contents

of the 213” due to “some inaccuracies” and because Smith

“stated that he had never encountered an ICE [agent] during

the interview.” Counsel also objected to the rap sheet

because it was internally inconsistent regarding Smith’s

birthplace and therefore, counsel argued, it failed to support

the Government’s burden to show that Smith was an alien.

The IJ again overruled Smith’s objections without revisiting

4

8 U.S.C. § 1158(b)(1).

5

8 U.S.C. § 1231(b)(3).

6

8 C.F.R. §§ 1208.16–1208.18.

8 SMITH V. GARLAND

the previous IJ’s removability ruling, but told Smith that if

he felt the removability ruling was in error, he could “file a

written brief on it.” Smith did not take up this offer.

The IJ went on to find Smith credible, concluded that he

was ineligible for asylum and withholding of removal due to

his aggravated felony conviction, and also concluded that he

had not met his burden to show he was entitled to CAT relief.

The IJ’s written decision noted that the Government’s

exhibits were admitted because they were “probative and

their admission [was] fundamentally fair.” Smith appealed

to the BIA. The BIA adopted and affirmed the IJ’s decision

by citing Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA

1994), and also added its own reasoning. The BIA ruled that

the Form I-213 and the rap sheet were admissible and

satisfied the Government’s burden to prove alienage and

noted that Smith did not deny that the criminal judgment

adequately established his prior conviction for an aggravated

felony. Smith timely petitioned for review.

II. STANDARD OF REVIEW

While we generally lack jurisdiction to review a final

order of removal premised on an aggravated felony

conviction, 8 U.S.C. § 1242(a)(2)(C), we retain jurisdiction

over “constitutional claims or questions of law,” id.

§ 1242(a)(2)(D). “Where, as here, the BIA cites Burbano

and also provides its own review of the evidence and law,

we review both the IJ’s and the BIA’s decisions.” Ali v.

Holder, 637 F.3d 1025, 1028 (9th Cir. 2011). We review

legal conclusions de novo and factual findings for substantial

evidence. Ruiz-Colmenares v. Garland, 25 F.4th 742, 748

(9th Cir. 2022).

SMITH V. GARLAND 9

III. DISCUSSION

Smith argues the BIA erred by affirming the IJ’s decision

to admit the evidence the Government proffered to establish

his removability because the exhibits were unauthenticated.

He also argues the exhibits were unreliable and that their

admission violated his right to due process. Separately,

Smith argues that the agency erred in denying his CAT

claim. We address each issue in turn.

A. Proof of removability

The Government bears the burden of establishing

removability by “clear, unequivocal, and convincing

evidence.” Mondaca-Vega v. Lynch, 808 F.3d 413, 419 (9th

Cir. 2015) (en banc) (quoting Chau v. INS, 247 F.3d 1026,

1029 n.5 (9th Cir. 2001)). Here, the Government was

required to prove that Smith was an alien and that he had a

conviction that qualifies as an aggravated felony. See 8

U.S.C. § 1229a(c)(3); 8 U.S.C. § 1227(a)(2)(A)(iii). There

is no question that authentication of documents is required

in immigration proceedings, Iran v. INS, 656 F.2d 469, 472

(9th Cir. 1981), but three of the four exhibits that the

Government proffered to prove Smith’s removability were

not authenticated by any method. The Government

proffered the USCIS search result printout, the Form I-213,

and Smith’s rap sheet to prove that he was an alien. It

proffered Smith’s criminal judgment, the rap sheet, and the

Form I-213 to prove his qualifying conviction. The IJ

admitted all four of the challenged exhibits over Smith’s

objections. The BIA affirmed the IJ’s rulings admitting the

Form I-213, the rap sheet, and the criminal judgment.

In his petition for review to our court, Smith challenges

the authenticity and reliability of the three exhibits that the

agency relied on for its removability ruling: the Form I-213,

10 SMITH V. GARLAND

the rap sheet, and the criminal judgment. The Government

first responds that authentication is not required in

immigration proceedings and that “the sole test . . . is

whether the evidence is probative and its admission is

fundamentally fair.” This is incorrect. As we have held for

over four decades, the “contention that authentication is not

required in a deportation hearing is erroneous. . . . [T]here is

no question that authentication is necessary.” Id. at 472.

That said, “we have not attempted to set forth all of the

approved methods for authenticating writings in deportation

hearings,” id., and we have “require[d] only that

immigration forms be authenticated through some

recognized procedure,” Espinoza, 45 F.3d at 309.

Smith argues that, contrary to the permissive standard we

have articulated, the agency must authenticate domestic

official records as specified in 8 C.F.R. § 287.6(a). 7 Section

287.6 consists of four subsections: subsection (a) addresses

authentication of domestic official records, while

subsections (b)–(d) address authentication of foreign official

records. When it was originally promulgated in 1965,

§ 287.6 provided that domestic official records “may be

evidenced by an official publication thereof or by a copy

attested by the official having legal custody of the record or

by his deputy.” 30 Fed. Reg. 12248 (Sept. 24, 1965)

(emphasis added). But as Smith correctly argues, § 287.6

was amended in 1985 and the operative text of § 287.6(a),

the subsection governing domestic official records, was

7

8 C.F.R. § 287.6 is identical to 8 C.F.R. § 1287.6, which applies to

proceedings before the BIA. For simplicity, we refer to § 287.6 but our

analysis applies equally to proceedings before the BIA.

SMITH V. GARLAND 11

changed from “may” to “shall” at that time. 8 50 Fed. Reg.

37834 (Sept. 18, 1985). Thus, when Smith appeared before

the IJ, § 287.6(a) provided that a domestic “official record or

entry . . . 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.” Id.

(emphasis added).

Before the 1985 amendment, we held in two published

opinions involving domestic official documents that § 287.6

is not binding. The first was Hoonsilapa v. INS, where we

held that § 287.6 “creates only a permissive authentication

procedure.” 575 F.2d 735, 738 (9th Cir. 1978). Later, in

Iran v. INS, we held that Ҥ 287.6 provides one, but not the

exclusive, method for establishing a sufficient basis for

admission of a writing in a deportation proceeding.” 656

F.2d at 472 n.8 (citing Hoonsilapa, 575 F.2d at 738). After

the 1985 amendment, we have continued to hold that § 287.6

is not the exclusive means of authenticating official records,

but we have done so by citing our pre-1985 cases and we

have not expressly acknowledged the change in § 287.6(a)

8

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.

12 SMITH V. GARLAND

from “may” to “shall.” See Espinoza, 45 F.3d at 309–10

(citing Iran, 656 F.2d at 472). 9

The Government’s position on § 287.6’s seemingly

mandatory language has been inconsistent. In 2000, the

Government asserted in the brief it filed in Khan that the

word “shall” is binding: “§ 287.6 clearly states that a foreign

public record ‘shall be evidenced by an official publication

thereof, or by a copy attested by an officer so

authorized.’ . . . [T]here is no room for ‘interpretation’ of

this regulation.” Respondent’s Br. at *21 n.3, Khan, No. 99–

71062, 2000 WL 33980913 (Jan. 11, 2000). The

Government’s brief in this appeal cites Espinoza in support

of its contention that the only standard for admission is that

the document be probative and fundamentally fair, and that

Smith has the burden of demonstrating that an official record

contains errors. Espinoza does not aid the Government’s

cause because there, a Form I-213 was certified according to

the procedure in § 287.6(a), so neither the litigants nor the

court had occasion to consider whether compliance with

either of § 287.6(a)’s authentication procedures is

mandatory. Espinoza merely held that “information on an

authenticated immigration form is presumed to be reliable

in the absence of evidence to the contrary presented by the

9

We have repeated this pattern of citing our pre-amendment caselaw in

appeals involving foreign documents, disregarding the regulation’s

mandatory language and instead noting fairness concerns: “[r]equiring

an asylum petitioner to obtain a certification from the very government

he claims has persecuted him or has failed to protect him from

persecution would in some cases create an insuperable barrier to

admission of authentic documents.” Vatyan v. Mukasey, 508 F.3d 1179,

1183 (9th Cir. 2007); see also Khan v. INS, 237 F.3d 1143, 1144 (9th

Cir. 2001) (per curiam) (quoting Iran, 656 F.2d at 472 n.8) (holding that

§ 287.6(b) is not mandatory for foreign official records).

SMITH V. GARLAND 13

alien.” Espinoza, 45 F.3d at 310 (emphasis added). At oral

argument before our court, the Government responded to

Smith’s authentication challenge by suggesting that the

change in § 287.6(a) from “may” to “shall” might have been

a mistake or that the amendment might not have signaled that

the regulation is mandatory, particularly because the focus

of the amendments seemed to be on the subsections

addressing foreign documents. 10 In short, the Government

urges us to continue to interpret “shall” to mean “may,” as

we did prior to the regulatory amendment.

We have not addressed the amendment to § 287.6(a) in a

published opinion, but given the volume of immigration

proceedings in this circuit and the Government’s frequent

use of domestic official records to prove removability, it will

surely become necessary at some point to address

definitively what effect the 1985 regulatory change had on

the standard for authenticating domestic documents. We

leave that analysis for another day, when we will hopefully

have full briefing and the benefit of a robust adversarial

debate. To review the BIA’s decision, we need not resolve

the issue because Smith did not preserve his challenge to the

authentication of three of the Government’s exhibits, and

they sufficed to establish Smith’s removability.

10

Others have suggested that the change to the domestic records

subsection of the regulation was an oversight. See Virgil Wiebe, Maybe

You Should, Yes You Must, No You Can’t: Shifting Standards and

Practices for Assuring Document Reliability in Asylum and Withholding

of Removal Cases, 06-11 Immigr. Briefings 1, at *19 (Nov. 2006)

(“[T]he INS revision making apparently mandatory (as opposed to

arguably permissive) the authentication rules for domestic official

records . . . by changing the operative ‘may’ to ‘shall’ is inexplicable in

light of other similar rules in the federal system.”).

14 SMITH V. GARLAND

1. Authentication challenge

Smith did not object to the authenticity of the judgment

of conviction, which the Government offered to prove that

Smith has a prior aggravated felony. He did not object to its

admission before the IJ and the BIA observed that Smith

“does not contest that the record of conviction submitted by

DHS establishes” his prior conviction for possession of

methamphetamine with intent to distribute. The

Government argues in its brief that Smith’s challenge to the

authenticity of the criminal judgment is unexhausted. We

agree. See Umana-Escobar v. Garland, 69 F.4th 544, 550

(9th Cir. 2023) (citing Santos-Zacaria v. Garland, 598 U.S.

411, 419 (2023)).

Smith did object to the authenticity of the USCIS

printout before the IJ. The IJ admitted that document in error

because the Government failed to follow any “recognized

procedure” for authenticating it. Espinoza, 45 F.3d at 309

(citing Iran, 656 F.2d at 472). But the IJ did not rely solely

on the printout to find Smith removable, and the BIA did not

rely on the USCIS printout at all.

The BIA affirmed the IJ’s reliance on the Form I-213 to

establish Smith’s alienage and ruled that the IJ correctly

considered the rap sheet for Smith’s alienage and to establish

his aggravated felony conviction. Before our court, the

Government argued that Smith failed to preserve his

challenge to the authenticity of these exhibits for the first

time at oral argument. 11 We have discretion to consider the

Government’s argument. See Alonso-Juarez v. Garland, 80

11

The Government first argued that Smith had never made an

authentication objection to the Form I-213 five minutes into its oral

argument and repeated this position seven more times.

SMITH V. GARLAND 15

F.4th 1039, 1046 (9th Cir. 2023) (reaching an argument

raised after the appeal was argued); cf. United States v.

Salman, 792 F.3d 1087, 1090 (9th Cir. 2015) (recognizing

good cause and lack of prejudice to the opposing party as

exceptions permitting consideration of late-raised

arguments, and noting lack of prejudice “where opponent

had an opportunity to address the issue at oral argument”

(citing Ibarra–Flores v. Gonzales, 439 F.3d 614, 619 n.4

(9th Cir. 2006))). The dissent cites United States v. Dreyer,

804 F.3d 1266 (9th Cir. 2015) (en banc), but Dreyer supports

the result we reach here. In Dreyer, the government did not

raise the exclusionary rule until its petition for rehearing en

banc. Id. at 1277. We exercised our discretion to consider

the government’s argument, noting compelling reasons to do

so and that the opposing party was not prejudiced because it

had the opportunity to address the argument on appeal. Id.

at 1277 & n.5.

Here, we exercise our discretion because the merits of

the Government’s forfeiture argument turn on the fixed

transcript before us; the question of forfeiture is a narrow one

involving settled law; Smith’s opening brief on appeal

argued that he had exhausted his authentication challenges

to both documents; and both parties addressed forfeiture at

oral argument. 12 We also consider that Smith did not

challenge the authenticity of these documents to the IJ or the

BIA; that the IJ gave Smith a second chance to contest

removability in a written brief, where he could have

expressly challenged the authenticity of the Form I-213 and

rap sheet if that had been his intention; that Smith has never

contested his Guyanese citizenship; and that Smith would be

12

Cf. United States v. Sineneng-Smith, 590 U.S. 371, 375–76 (2020)

(explaining party presentation principle).

16 SMITH V. GARLAND

bound in any future proceeding by his subsequent sworn

testimony that he was born in Guyana. 13

We begin the forfeiture analysis with Smith’s challenge

to the Form I-213. At the hearing before the first IJ, Smith’s

counsel challenged the USCIS printout because “it does not

comply with Regulation 8 C.F.R. 287.6.” This squarely

raised a challenge to the printout’s authenticity. But Smith’s

counsel raised a different challenge to the Form I-213. She

argued that it “did not state a reliable source of how [the

asylum officer] obtained the evidence of respondent’s

deportability.” Smith did not argue before the IJ that the

Form I-213 failed to comply with § 287.6 or that it was

otherwise unauthenticated. Smith similarly did not raise an

authentication challenge to the Form I-213 before the BIA.

We have sometimes discussed “indicia of reliability” in

the course of addressing authentication, see Padilla-

Martinez v. Holder, 770 F.3d 825, 833 (9th Cir. 2014), but

the need to authenticate challenged documents performs a

distinct function. See Espinoza, 45 F.3d at 310 (separately

analyzing authentication of a document and the reliability of

a document’s contents). “Authentication serves to establish

a chain of custody for government records,” Id. at 309, by

showing that “the [evidence] is what i[t] purports to be,”

Iran, 656 F.2d at 473. Here, by arguing that the Form I-213

did not state a reliable source for its information, Smith

contested the content of the Form I-213, not its authenticity.

In other words, Smith did not question that the proffered

exhibit was indeed the record of the asylum officer’s

interview and investigation. Rather, he questioned the

weight that should be afforded to the exhibit because the

13

Smith also introduced declarations from his mother and brother

attesting that he was born in Guyana.

SMITH V. GARLAND 17

officer had not recorded the sources consulted to complete

the form. The limited nature of Smith’s objection was

confirmed in the second IJ hearing, in which Smith

contended for the first time that he had not spoken to an

Immigration and Customs Enforcement agent, asserted that

the Form I-213 had “some inaccuracies,” and stated “[s]o we

object to the contents of the 213.” The IJ offered Smith an

opportunity to file a written brief to revisit the removability

finding, but he did not do so. In the brief he filed with the

BIA, Smith devoted a paragraph to the argument that the

USCIS printout was not authenticated, but his only mention

of the Form I-213 came immediately after discussing the

USCIS printout and it was limited to arguing that “[t]he form

I-213 that the Department has developed relies on this

information and should be excluded as well.” Smith did not

suggest that the Form I-213 was not what it purported to be;

he argued it was inaccurate.

Smith similarly waived any challenge to the authenticity

of the rap sheet. He argued to the IJ that it “fails to establish

deportability because . . . there is indication that the

respondent’s birthplace is the state of Wisconsin,” but he did

not contest that the exhibit was the FBI’s record of his

criminal history. Smith repeated his objection to the rap

sheet’s reliability in the second IJ hearing, and he argued

before the BIA that admission of the rap sheet was erroneous

because it had conflicting information about his birthplace.

Only on appeal, tucked into a footnote, did Smith mention

the authentication of the rap sheet. “[A] cursory mention of

an issue in a footnote” is insufficient for appellate

consideration. Momox-Caselis v. Donohue, 987 F.3d 835,

842 (9th Cir. 2021). Even if we credit the footnote as

sufficient to raise authentication of the rap sheet on appeal,

Smith did not present this argument to the agency. He

18 SMITH V. GARLAND

therefore failed to preserve a challenge to the authenticity of

the rap sheet.

2. Due process challenges

Throughout the briefing and argument, both parties

imprecisely differentiated between the authenticity of the

Government’s exhibits and the reliability of the

Government’s exhibits. We construe the objections Smith

did make, to the contents of the rap sheet and the Form I-

213, as due process challenges because Smith argued before

the IJ and the BIA that the Government’s exhibits were

unreliable.

In immigration proceedings, once a document is

authenticated, “[t]he sole test for admission of evidence is

whether the evidence is probative and its admission is

fundamentally fair.” Espinoza, 45 F.3d at 310 (citing Trias–

Hernandez v. INS, 528 F.2d 366, 369 (9th Cir. 1975)). To

prevail on a due process challenge, a petitioner must show

constitutional “error and substantial prejudice.” Grigoryan

v. Barr, 959 F.3d 1233, 1240 (9th Cir. 2020) (quoting Lata

v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)). Here, the IJ

cited Espinoza and admitted the Form I-213 over Smith’s

“objection that its contents may have been inaccurate” and

the rap sheet over his “objection that it lacked reliability due

to an error” because the IJ concluded that the exhibits were

probative and it was fundamentally fair to admit them. The

BIA also cited Espinoza and noted that Smith had not

presented evidence suggesting that the Form I-213 was

incorrect or that the IJ was not permitted to choose between

permissible readings of the rap sheet. The BIA’s decision

on appeal also observed that Smith later testified that he was

born in Guyana. We see no error in the BIA’s reliability

ruling. See Hernandez v. Garland, 52 F.4th 757, 768 (9th

SMITH V. GARLAND 19

Cir. 2022) (“Hernandez failed to offer any reason to doubt

the accuracy of the information in the form . . . . The agency

therefore permissibly relied on the information in the Form

I-213.”); Rojas-Garcia v. Ashcroft, 339 F.3d 814, 824 (9th

Cir. 2003) (“Rojas-Garcia does not cast doubt on the

probative value or fairness of the evidence presented; he

does not present any contrary evidence . . . .”). We therefore

deny Smith’s due process challenge.

B. CAT relief

Finally, Smith argues that the agency erred by denying

him CAT relief because it: (1) failed to consider evidence

about mental healthcare and related policing issues in

Guyana; (2) failed to aggregate Smith’s theories of future

torture; and (3) misapplied the standard for government

acquiescence.

Smith is correct that the agency must consider “all

evidence relevant to the possibility of future torture” when

adjudicating CAT claims. Parada v. Sessions, 902 F.3d 901,

914–15 (9th Cir. 2018) (quoting Cole v. Holder, 659 F.3d

762, 770 (9th Cir. 2011)). But the agency’s decision to credit

some parts of the record over others does not mean it ignored

relevant evidence. The IJ specifically cited parts of the

record that supported Smith’s case, including deficiencies in

Guyana’s mental health system, violence at psychiatric

institutions, dangerous prison conditions, and the

criminalization of suicide. The IJ and BIA were not required

to discuss each of the approximately 1300 pages of evidence

that Smith submitted. See Cole, 659 F.3d at 771. There is

no indication that the IJ ignored “highly probative or

potentially dispositive evidence.” Id. at 772.

The IJ correctly evaluated Smith’s risk of torture from

each source he raised (mental health problems, race, and

20 SMITH V. GARLAND

status as a deportee with prior convictions), and evaluated

the aggregate risk. The IJ correctly applied the chain rule

from Matter of J-F-F-, 23 I. & N. Dec. 912, 917–18 (A.G.

2006), which required Smith to prove that each link in a

hypothetical series of events leading to torture was more

likely than not to occur. See Velasquez-Samayoa v. Garland,

49 F.4th 1149, 1155 (9th Cir. 2022). The IJ correctly

concluded that this standard had not been met for one of

Smith’s theories of future torture: being denied access to

psychiatric medication, becoming suicidal, calling a

government suicide hotline, getting arrested, and being

tortured in prison. The IJ separately analyzed Smith’s other

risks of torture before aggregating the risks from all sources.

Substantial evidence supports the IJ’s conclusion that the

aggregate risk of torture did not surpass the more likely than

not threshold.

The BIA did not err when it affirmed the IJ’s ruling that

Smith failed to show that Guyanese officials will acquiesce

to violence by psychiatric inmates. The record included

evidence that the Guyanese government is attempting to

combat violence in psychiatric institutions, which does not

support a finding of acquiescence even if those measures

have been unsuccessful to date. See Garcia-Milian v.

Holder, 755 F.3d 1026, 1035 (9th Cir. 2014). We therefore

conclude that substantial evidence supports the agency’s

determination that Smith does not qualify for CAT relief.

The motion for a stay of removal and the supplemental

motion for a stay of removal are denied. The temporary stay

of removal shall remain in place until the mandate issues.

PETITION DENIED.

SMITH V. GARLAND 21

JOHNSTONE, Circuit Judge, dissenting:

The Department of Homeland Security failed to prove

Smith’s removability by clear and convincing evidence. As

the majority opinion explains, our cases and the

Department’s regulations require some form of

authentication in immigration proceedings. 1 In this case, the

Department did not authenticate the only evidence that

established Smith’s alienage, Smith objected to the

admission of that evidence, and the Government forfeited

any challenge to the sufficiency of Smith’s objection. I

disagree with the majority opinion’s holding that Smith’s

objection to the authenticity of the alienage evidence was

inadequate. And anyway, I would not excuse the

1

The majority opinion’s careful analysis of the relevant regulations

serves as a helpful prologue for a future case. I add only that the

“confusion . . . concerning [our] authentication requirement,” Iran v.

INS, 656 F.2d 469, 472 (9th Cir. 1981), originates in our caselaw before

the regulations in question. In Chung Young Chew v. Boyd, 309 F.2d 857

(9th Cir. 1962), we first required authentication of evidence in

immigration proceedings, relying on the permissive authentication

standard of Federal Rule of Civil Procedure 44. See Chung Young Chew,

309 F.2d at 867 (explaining that Rule 44 allowed “proof of official

records by any method authorized by any applicable statute [or] by the

rules of evidence at common law”). The original 1965 regulations also

allowed authentication under a permissive standard. See 30 Fed. Reg.

12248 (Sept. 24, 1965) (providing certain methods by which domestic

official records “may be evidenced” in immigration proceedings).

Arguably, the 1985 amendments do not. See 50 Fed. Reg. 37834 (Sept.

18, 1985) (amending the operative verb from “may” to “shall”). Yet our

cases have continued to follow the permissive approach first established

in Chung Young Chew. See, e.g., Espinoza v. INS, 45 F.3d 308, 309–10

(9th Cir. 1995) (“The Ninth Circuit requires only that immigration forms

be authenticated through some recognized procedure, such as those

required by INS regulations or by the Federal Rules of Civil

Procedure.”).

22 SMITH V. GARLAND

Government’s inarguable failure to challenge Smith’s

arguable objection to evidence that was, after all, inarguably

inadmissible. Because I would grant the petition to hold the

Government to its burden of proof, I respectfully dissent.

Smith contested the evidence against him from the start.

He denied removability. So the Department got a

continuance to produce admissible documents establishing

Smith’s alienage and deportability. At his hearing, Smith

objected to the Department’s evidence of alienage on

authenticity grounds, citing its regulation on authentication,

8 C.F.R. § 287.6. Smith confusingly combined his

authenticity and reliability objections, reflecting the

Government’s own conflation of the two throughout these

proceedings. But Smith’s authenticity objection to the

alienage evidence is apparent from the context of the

discussion among Smith, the Department, and the IJ at the

hearing. Cf. Fed. R. Evid. 103(a)(1)(B) (the specific grounds

for an objection are preserved if “apparent from the

context”). The Department not only had notice of his

authenticity objection but responded to it on those same

grounds. Its counsel vouched for the fact that the challenged

documents were official records obtained through a proper

custodial chain—in other words, that they were authentic.

Counsel claimed that the USCIS printout was from “an

official DHS database,” the criminal-history record (or “rap

sheet”) was “an official FBI record,” and the Form I-213 was

“an official DHS record.” These representations could not,

without more, authenticate the documents. See Iran, 656

F.2d at 473. But they establish that Smith’s objection at the

hearing was sufficient “to alert [the judge] to the proper

course of action and enable opposing counsel to take

corrective measures.” United States v. Gomez-Norena, 908

SMITH V. GARLAND 23

F.2d 497, 500 (9th Cir. 1990) (quoting Fed. R. Evid. 103

advisory committee’s note to subdivision (a)).

Smith then exhausted his authenticity objection through

his appeal to the BIA. His brief challenged the admission of

the alienage evidence, stated the authentication requirements

of Iran and 8 C.F.R. § 287.6, then argued that “the

documents included in the Department’s Supplemental

Filings,” which include the documents at issue, “are not

authenticated nor reliable.” Smith’s arguments were enough

to put the BIA, too, on notice of his objection. See Umana-

Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023) (citing

Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020)). Smith did

everything we typically expect in exhausting his challenge

to the authenticity of the alienage evidence. Cf. Baliza v. INS,

709 F.2d 1231, 1233–34 (9th Cir. 1983) (explaining that

even where a petitioner “did not clearly direct his challenge

to the lack of authentication,” reviewing the petitioner’s

challenge to the admission of the document on other grounds

“necessarily encompasses some consideration of the

affidavit’s authenticity”).

The majority opinion takes an unduly strict view of

Smith’s objection; it is not so strict with the Government’s

argument. It denies Smith’s petition on grounds the

Government first raised at oral argument. Until then, the

Government distinguished between documents it conceded

that Smith “specifically challenged,” including the

unauthenticated I-213 that the BIA relied on, and the

judgment of conviction, which it argued Smith did not

challenge before the IJ or BIA. “Generally, an appellee

waives any argument it fails to raise in its answering brief.”

United States v. Dreyer, 804 F.3d 1266, 1277 (9th Cir. 2015)

(en banc). Sometimes “we can ‘make an exception to waiver

. . . in the exceptional case in which review is necessary to

24 SMITH V. GARLAND

prevent a miscarriage of justice or to preserve the integrity

of the judicial process.’” Id. (alteration in original) (quoting

Ruiz v. Affinity Logistics Corp., 667 F.3d 1318, 1322 (9th

Cir. 2012)). But this is not an exceptional case.

To reach the Government’s last-minute argument, the

majority opinion relies on Alonso-Juarez v. Garland, 80

F.4th 1039 (9th Cir. 2023), where the issue was “fully

briefed, our court [had] expended significant time and

resources on it, and resolving the issue [was] of great public

importance to the many petitioners similarly situated.” Id. at

1046. The majority opinion also cites United States v.

Salman, 792 F.3d 1087 (9th Cir. 2015), another case in

which the issue was fully briefed by both parties, this time

“before oral argument.” Id. at 1090. But here the

Government never briefed the sufficiency of Smith’s

authenticity objection. Smith could not respond until his

rebuttal at oral argument, just minutes after hearing the

Government’s argument for the first time. And the

sufficiency of Smith’s objection is a record-bound dispute.

If this case presents any “important issue[]” likely to

“reoccur until [it is] addressed by the court,” Dreyer, 804

F.3d at 1278, that issue is the Government’s fully briefed

failure to authenticate its alienage evidence.

The majority opinion supports its decision to forgive the

Government’s omissions with two additional pieces of

evidence: Smith’s criminal-history record and his asylum

application. But neither the BIA on its review nor the

Government before us relied on this evidence to establish

Smith’s alienage, and for good reasons. First, the

Government’s briefing disclaimed reliance on Smith’s

unauthenticated criminal-history record for evidence of his

alienage—in contrast to its reliance on that record for

evidence of his conviction—presumably because the

SMITH V. GARLAND 25

document states, unreliably, that Smith was born in both

Guyana and Wisconsin. Even after the Government newly

contested the sufficiency of Smith’s authenticity objection at

oral argument, it still stopped short of the majority opinion’s

endorsement of this inconsistent criminal-history record as

proof of Smith’s alienage. Like the Government, the BIA

also relied exclusively on the I-213 to affirm the IJ’s finding

of alienage; it only mentioned the criminal-history record to

reject Smith’s argument that the self-contradicting document

undercut its reliance on the I-213. Second, neither the BIA

nor the Government relied on, or could have relied on,

alienage information that Smith later provided in support of

his asylum application, which the majority opinion cites to

support its decision. See 8 C.F.R. § 1240.11(e) (“An

application under this section . . . shall not be held to

constitute a concession of alienage or deportability in any

case in which the respondent does not admit his or her

alienage or deportability.”). Rather than exercise discretion

to relieve the Government of its burden of proof, I would

exercise restraint in taking the Government’s arguments as

presented.

Authentication is a foundational, if technical, rule of

evidence. “Men must turn square corners when they deal

with the Government,” Justice Holmes once wrote for the

Supreme Court. Rock Island, A. & L. R. Co. v. United States,

254 U.S. 141, 143 (1920). “But it is also true,” the Court

recently observed in addressing immigration law,

“particularly when so much is at stake, that ‘the Government

should turn square corners in dealing with the people.’”

Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591

U.S. ___, 140 S. Ct. 1891, 1909 (2020) (quoting St. Regis

Paper Co. v. United States, 368 U.S. 208, 229 (1961) (Black,

J., dissenting)). Our cases have, at times, allowed parties to

26 SMITH V. GARLAND

round these square corners when authenticating evidence in

immigration hearings—including documents used to prove

a person removable from the country “by clear, unequivocal,

and convincing evidence.” Woodby v. INS, 385 U.S. 276,

277 (1966). But in this case, whether by its standards or our

own, the Government cut a corner completely by failing to

authenticate its proof of Smith’s alienage. I respectfully

dissent.