FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-50287
Plaintiff-Appellee,
v. D.C. No.
CR-04-01071-TJW
ELOY BALLESTEROS-SELINGER,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted
June 6, 2006—Pasadena, California
Filed July 19, 2006
Before: Sidney R. Thomas and Ronald M. Gould,
Circuit Judges, and William W Schwarzer,*
Senior District Judge.
Opinion by Judge Gould
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
7993
UNITED STATES v. BALLESTEROS-SELINGER 7995
COUNSEL
Jodi D. Thorp and Steven F. Hubachek, Federal Defenders of
San Diego, Inc., San Diego, California, for the defendant-
appellant.
Valerie H. Chu, Assistant United States Attorney, San Diego,
California, for the plaintiff-appellee.
OPINION
GOULD, Circuit Judge:
Upon a trial by jury, Eloy Ballesteros-Selinger (“Bal-
lesteros”) was convicted of illegal re-entry following deporta-
tion in violation of 8 U.S.C. § 1326. Ballesteros contends that
the district court erred in admitting a memorandum of oral
decision into evidence urging the theory that its admission
violated the Confrontation Clause.1 We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.2
1
We address the other issues Ballesteros raised on appeal in a
separately-filed memorandum disposition and address in this published
opinion only the issue of whether admission of the memorandum of oral
decision violated Ballesteros’s Confrontation Clause rights.
2
We review de novo alleged violations of the Confrontation Clause. See
United States v. Nielsen, 371 F.3d 574, 581 (9th Cir. 2004).
7996 UNITED STATES v. BALLESTEROS-SELINGER
I
Ballesteros was born in, and is a citizen of, Nicaragua. On
September 30, 2003, federal immigration agents arrested Bal-
lesteros for being a deported alien found in the United States
in violation of 8 U.S.C. § 1326.
During the jury trial that followed, the district court over-
ruled Ballesteros’s objection to the admission into evidence of
the memorandum of oral decision from his August 18, 1986,
deportation hearing. The memorandum, on letterhead of and
signed by an Immigration Judge (“IJ”), states: “This is a sum-
mary of the oral decision entered on August 18, 1986. This
memorandum is solely for the convenience of the parties. If
the proceedings should be reopened, the oral decision will be
transcribed and will become the official decision in these pro-
ceedings.” The memorandum then specifies that Ballesteros
was ordered deported to Mexico or alternatively to Nicaragua,
that he was denied asylum and withholding of removal, and
that Ballesteros and the Immigration and Naturalization Ser-
vice waived any appeal.
Ballesteros was convicted and received a 57-month term of
imprisonment. This appeal followed.
II
[1] In Crawford v. Washington, 541 U.S. 36 (2004), the
Supreme Court held that testimonial, out-of-court statements
by witnesses are barred under the Confrontation Clause unless
the witnesses are unavailable and the defendant had a prior
opportunity to cross-examine them.3 Id. at 53-54; see also
3
Although the Court in Crawford did not completely define what consti-
tutes “testimonial evidence,” the Court stated: “Whatever else the term
covers, it applies at a minimum to prior testimony at a preliminary hear-
ing, before a grand jury, or at a former trial; and to police interrogations.
These are the modern practices with closest kinship to the abuses at which
the Confrontation Clause was directed.” Crawford, 541 U.S. at 68.
UNITED STATES v. BALLESTEROS-SELINGER 7997
Davis v. Washington, 126 S. Ct. 2266, 2273, ___ U.S. ___
(2006). We have held that a document that “was not made in
anticipation of litigation and . . . is simply a routine, objective,
cataloging of an unambiguous factual matter” is nontesti-
monial. United States v. Bahena-Cardenas, 411 F.3d 1067,
1075 (9th Cir. 2005) (holding that a warrant of deportation is
nontestimonial). The memorandum of oral decision was not
made in anticipation of future litigation; rather, it was made
to record the IJ’s decision regarding Ballesteros’s deportation.
The memorandum is a standardized form that gives a record
of the parties and decision at the deportation hearing. More-
over, the memorandum of oral decision is part of Ballesteros’s
alien file (“A-file”) and, as such, it is a public record. See
United States v. Hernandez-Herrera, 273 F.3d 1213, 1218-19
(9th Cir. 2001). Under our precedent, “public records . . . are
not themselves testimonial in nature and . . . these records do
not fall within the prohibition established by the Supreme
Court in Crawford.” United States v. Weiland, 420 F.3d 1062,
1077 (9th Cir. 2005).
[2] We hold that the memorandum of oral decision issued
by the IJ is nontestimonial, and therefore its admission into
evidence did not violate the Confrontation Clause.
AFFIRMED.