Who is Nelson Acosta-Roque? (Part I)

According to the Department of Homeland Security, he is Victor Antonio Pecheca-Aromboles, an old cocaine dealer born in the Dominican Republic who served time in Pennsylvania in the early 1990s, was deported, and came back to the U.S. under an alias (via Puerto Rico, where he lived illegally for a few years), ending up in Anchorage as a waiter in a brew pub for the last ten years. [1] On the basis of a comparison of copies of fingerprint cards from Pennsylvania (for Pecheca-Aramboles) and New Jersey, Puerto Rico and Alaska (for Acosta-Roque), the government convinced the immigration judge and the Board of Immigration Appeals that the Anchorage waiter is the former Pennsylvania cocaine dealer.
The removal order is before the Ninth Circuit Court of Appeals. According to law professor Caleb Mason, who represents Acosta-Roque, the “the only question is the weight of an alleged 8-point match: is that enough, standing on its own, to warrant a finding of identity by clear and convincing evidence?” [1] To address this question, Professor Mason enlisted the aid of 39 “Scientists and Scholars of Fingerprint Identification as Amici Curiae” to file a brief in support of his client. The brief, which was written by Simon Cole of the University of California at Irvine, describes the expert’s testimony as problematic, unjustified, inadequately supported, vague, and groundless. [2]
My reading of the transcript, however, suggests that the issue on appeal is not really whether “an alleged 8-point match” is enough. The four ten-print cards were compared by Susan R. Blei, the supervisor of Alaska’s Criminal Records and Identification Bureau. Ms. Blei’s qualifications consisted of about seven weeks of training courses over the years, many “educational conferences” on AFIS (the Automated Fingerprint Identification System) organized by NEC, and many years of on-the-job experience. She never testified that there was a match at exactly eight points of comparison. She testified that she likes to have at least eight points before signing off on an identification, but she did not give the number of features on which she relied to form her “100% certain” opinion that all the ten-print cards came from one and the same individual. In essence, she said, “I compared, I counted, I concluded (and so did my unnamed verifying examiner).” She provided this ipse dixit with the encouragement of the government’s counsel. Thus, the issue should be whether the opinion of a fingerprint examiner, presented in this conclusory, “trust-me” fashion, can amount to clear and convincing evidence—the standard the government has to meet to establish that Acosta-Roque obtained his permanent resident status fraudulently, having been deported under a different name.
Is a fingerprint analyst’s assertion of identity clear and convincing proof when it lacks any meaningful description of the process, when it contains no statements that would show that the examiner followed accepted protocols (beyond the fact that the examiner took some short courses and has years of experience), and does not indicate the examiner’s performance on rigorous tests of her proficiency? There is at least a decent argument that it does not.
Related questions are whether the “trust me” testimony in this case met professional and ethical standards and whether existing scientific research warrants the claim of 100% certainty. I shall comment on some aspects of these questions, and on the positions of the “scientists and scholars of fingerprint identification,” in later postings.
References
1. Caleb Mason, Scientific Validity of Fingerprint Comparison: New Case and Amicus Brief (Mar. 5, 2012), http://prawfsblawg.blogs.com/prawfsblawg/2012/03/scientific-validity-of-fingerprint-comparison-new-case-and-amicus-brief.html.
2. Brief of Scientists and Scholars of Fingerprint Identification as Amici Curiae in Support of Petitioner and in Favor of Reversal, Acosta-Roque v. Holder, No. 11-70705 (9th Cir., Mar. 8, 2012).