Thursday, November 1, 2012

Who Is Nelson Acosta-Roque? (Part IV)

Despite a brief from 39 “Scientists and Scholars of Fingerprint Identification as Amici Curiae” questioning the telephonic testimony of a fingerprint analyst, the U.S. Court for the Ninth Circuit recently allowed a deportation order based on that testimony to stand. The unpublished per curiam opinion frames the issue as "whether substantial evidence supported the BIA's [Board of Immigration Appeals'] finding 'by clear and convincing evidence' that Mr. Acosta-Roque and Mr. Pecheca-Aromboles [who was convicted in 1991 of delivery of a controlled substance in Pennsylvania] are the same person." The brief opinion concludes that "Mr. Acosta-Roque has not shown that 'no reasonable factfinder' would find that the government proved by clear and convincing evidence that he was a criminal alien under [8 U.S.C.] § 1182(a)(2)."

The reasoning sandwiched between these statements is brief:
[S]cientists and courts have regarded such evidence as reliable for upwards of a century. See United States v. Calderon-Segura, 512 F.3d 1104, 1108-09 (9th Cir. 2008). When, as here, the fingerprints “were exemplars taken under controlled circumstances and were complete, not fragmented,” fingerprint evidence is in fact highly reliable. Id. at 1109. Although the fingerprint examiner in this case may have been less than cautious in her testimony, the immigration judge and the BIA did not err in relying upon it, given the examiner’s experience and the fact that another technician corroborated the findings.
The examiner in the case was unclear about how complete her identification was. How can the court conclude that an examination "is in fact highly reliable" just because an examiner says that the prints match? In effect, the court applied a presumption of reliability to the testimony--or at least enough of a presumption to make a cursorily presented but unquestioned opinion "substantial."


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