[JURIST] Judges for the US Court of Appeals for the Seventh Circuit [official website] on Friday ruled [opinion, PDF] that the use of specific documents from an illegal immigrant's alien-registration file during the immigrant's criminal trial is constitutional. The issue came before the court when the defendant, Franklin Burgos, appealed his conviction on one count of illegal reentry into the US [8 USC 1326(b)(2) text] subsequent to a conviction for commission of an aggravated felony, arguing that the US government's use of his deportation warrant and certificate of nonexistence of record (CNR) violated the Sixth Amendment's Confrontation Clause [LII backgrounder; amendment text]. In holding that there was no violation of the Confrontation Clause because the records did not constitute testimony against the defendant, the court wrote:
These documents have many attributes in common with business records. A warrant of deportation records the movement of a deported alien; the signing witness attests to the aliens departure from the country. The warrants primary purpose is to memorialize the deportation, not to prove facts in a potential future criminal prosecution. ...The court also found that even if the trial judge denied Burgos' request for new counsel, judges have wide discretion in granting changes of counsel, and a denial in this case would not have constituted abuse of discretion.
[B]ecause the database underlying the CNR is not maintained for the primary purpose of proving facts in criminal prosecutions, the CNR itself, attesting to the absence of a record within that database, is a nontestimonial business record.
US immigration prosecutions have continued to increase [JURIST report] this year, jumping nearly 50 percent from February to March and nearly 75 percent from the previous year, according to a report [text; press release] released in June by the Transactional Records Access Clearinghouse (TRAC) [official website] at Syracuse University. Federal immigration prosecutions have risen since February [JURIST report], when such prosecutions hit a record high. TRAC attributed the increase to Operation Streamline [Washington Post backgrounder], a joint federal program under which federal prosecutors levy minor charges against illegal immigrants crossing the US-Mexico border. "Reentry of a deported alien" is by far the most common criminal charge in immigration prosecutions.