dissenting:
I.
To understand what’s involved in this case, a full account of the facts is necessary. On July 2, 1992, the Orange County Sheriffs Department arrested 150 striking drywall workers in Mission Viejo, California, and brought them to the Orange County Jail. After the striking workers were brought to the jail, INS agents performed a “routine jailhouse screening” and “identified 86 of the [strikers] arrested in Mission Viejo as probably being in the country illegally. Of those, 74 had been released from jail in Orange County and right into INS custody....” Michael Flagg, INS to Query Employers Who Hired Drywall Crews Labor, L.A. TIMES, July 14, 1992, at Bl. Of these seventy-four, the INS eventually identified fifty-two workers as undocumented. Jeordan Le-gón, Drywall Strike: Sheriffs Official Denies Department Helping INS, ORANGE COUNTY REGISTER, July 18, 1992, at B8 (describing how the INS identified the undocumented workers through “routine record checks” at the Orange County Jail).
Petitioner Jaime Lopez-Chavez was one of the striking drywall workers who was arrested and brought to the Orange County Jail. Epifano Miera was one of the INS agents who was called in to help screen the arrestees to determine whether they were illegally in the country. During Lopez-Chavez’s deportation hearing, the INS called Miera to testify about the circumstances under which he allegedly prepared the WR-424 Form that was used during Lopez-Chavez’s deportation proceedings to prove his alienage. I use the word “allegedly” because unlike the 1-213 Form, the WR-424 Form does not include a space for the preparer of the form to indicate his or her name. Also unlike the 1-213, the WR-424 does not require its preparer to sign the form. The INS apparently assumed that Miera prepared the WR-424 because his name was in the “Apprehending Officer” space, even though Miera later testified that he did not, in fact, arrest Lopez-Chavez.
Miera began his testimony by stating that he did not recognize Lopez-Chavez, and that he had no specific recollection of his interview in the Orange County Jail with Lopez-Chavez.1 Miera testified that on July 2, 1997, he interviewed ten of the arrested drywall workers for about five minutes each. Miera explained that the WR-424 is a “general purpose type of form” that is used for “many, many purposes,” including interviewing aliens who are arrested “out in the field,” as well as interviewing aliens who are already in jail. Miera later testified on cross-examination that “we don’t have a form that we would use at the county jail,” and that the WR-424 form was used as a default. Miera stated that he had testified in about eighty other deportation proceedings, and that he could not recall ever testifying about preparing a WR-424 Form. In contrast, Miera stated that he had previously testified about preparing 1-213 Forms.
Miera left several spaces on Lopez-Chavez’s WR-424 blank, including the time and place that Lopez-Chavez was arrest*1183ed, and the time that Miera conducted the interview with Lopez-Chavez. Miera conceded on the stand that he “erroneously”omitted that information. Miera also testified that he filled in the date of the interview in the space on the form for recording the time and place of Lopez-Chavez’s arrest. Miera testified that he had “no idea” when or where Lopez-Chavez was arrested.
Miera also admitted that he was not, in fact, the “Apprehending Officer,” and that he put his name in that space on the WR-424 pursuant to “the guidance that we get from our agency that that’s the way we’re going to fill them out.” Miera stated that he did not know who actually arrested Lopez-Chavez. As stated above, Miera did not sign the WR-424, nor does the form indicate the name of the person who prepared it. The WR-424 also does not indicate the source of the information contained on the form, i.e., whether it came from an interview with the alleged alien or from some other source. This omission is significant in this case because Miera testified that the Orange County Sheriffs Department provided him with a computer printout for each individual he interviewed on July 2, 1992, but that he couldn’t recall what information was on the printout. Mi-era further testified that he couldn’t recall whether any of the information on the printout made its way onto his WR-424 Form. Therefore, it is possible that some of the information on Lopez-Chavez’s WR-424 came from the Orange County Sheriffs Department computer printout.2
Lopez-Chavez’s attorney, Niels Fren-zen, showed Miera the WR^24, and pointed out where it stated that Lopez-Chavez’s status at entry was “EWI,” which stands for “entered without inspection.” Frenzen asked Miera, “Did the respondent in this case tell you he entered EWI?” Miera responded, “No.” Miera explained that Lopez-Chavez probably told Miera that he came in through the mountains or the beach, but that Miera could not recall exactly what Lopez-Chavez had told him.
Aside from omitting facts about Miera’s testimony,1 the majority also glosses over how the INS came to use a WR-424 instead of the more detailed and complete I-213 to prove Lopez-Chavez’s alienage. Lopez-Chavez’s first hearing was set for *1184September 15, 1992. During that hearing, the INS sought to introduce an 1-213 to prove Lopez-Chavez’s alienage. Through counsel, Lopez-Chavez objected to the introduction of the 1-213 on several bases, including: (1) the source of the information was not identified in the 1-213; (2) the information on the 1-213 was self-contradictory; and (3) the information on the I-213 was obtained through coercion. Lopez-Chavez indicated that he would move to suppress the 1-213, and that a hearing had already been scheduled to question the INS officials who had interrogated the drywall workers in the Orange County Jail. Lopez-Chavez’s case was then continued until November 19,1992.
At the November 19 hearing, the INS did not again seek to introduce the 1-213, but rather introduced the WR-424 to prove Lopez-Chavez’s alienage. The-record does not reflect why the INS abandoned the 1-213, but we can infer that the 1-213 was too unreliable to prove Lopez-Chavez’s alienage by clear and convincing evidence. As the majority points out, Lopez-Chavez objected to the introduction of the WR^424 on several different bases. The majority fails to single out the two of the most important objections made by Lopez-Chavez: that the source of the information contained on the WR-424 was not identified on the form itself, and that neither the BIA nor any court of appeals has recognized the WR-424 as sufficient for the INS to meet its burden of proving alienage by clear and convincing evidence.
Having presented a full account of the facts, I will now explain why I think the majority got this one wrong.
II.
The “sole test” governing the admission of evidence in deportation proceedings is “whether the evidence is probative and its admission is fundamentally fair.” Espinoza v. INS, 45 F.3d 308, 309 (9th Cir.1995) (citing Trias-Hernandez v. INS, 528 F.2d 366, 369 (9th Cir.1975)). In Espinoza, we held that an 1-213 Form is probative on the issue of entry, and that its admission is fair unless the alleged alien can demonstrate that the 1-213 is untrustworthy. Id. at 309-11. This rule “closely tracks” the Federal Rules of Evidence, which “exempt public records containing factual findings from an official investigation from the prohibition on hearsay 'unless the sources of information or other circumstances indicate lack of trustworthiness.’ ” Id. at 310-11 (quoting Fed.R.Evid. 803(8)(c)). We decided that the 1-213 in Espinoza was trustworthy — and therefore admissible— because it was “prepared in accordance with normal recordkeeping requirements, and [was] signed and dated by the officer who completed it.” Id. at 310.
Espinoza qualified the general rule that an 1-213 is admissible to prove alienage with the caveat that “[a] petitioner who produce[s] probative evidence that contradicts anything material on the 1-213 would cast doubt upon its reliability. In that case, the factfinder would be hard put to find the 1-213 clear and convincing evidence of alien status without the government’s producing evidence to show the reliability of the information on the 1-213.” Id.
In seeking to extend Espinoza’s rule to WR-424 Forms, the majority takes two missteps. First, the majority doesn’t need to reach the general question whether a WR-424 Form, standing alone, can be used by the INS to prove alienage because the WR^124 at issue in this case was generated under circumstances indicating its untrustworthiness. The WR-424 was therefore inadmissible under Espinoza. Second, even if the WR-424 in this case were trustworthy and therefore admissible, the INS should not be permitted to use a WR-424, standing alone, to meet its *1185burden of proving alienage by clear and convincing evidence. I explain each of these objections in turn.
Several circumstances establish the un-trustworthiness of the WR-424 bearing Lopez-Chavez’s name. As recounted above, the alleged preparer of the WR-424, Epifano Miera, had no recollection of the interview with Lopez-Chavez during which Miera prepared the form. Miera was unable to identify Lopez-Chavez during the deportation hearing, and could only establish that he filled out the form because it was in his handwriting. The WR-424 was not signed, and did not reflect who prepared it. Miera was also unable to recall whether he filled out the form based on answers given to him by Lopez-Chavéz, or whether he used a computer printout provided to him by the Orange County Sheriffs Department. The majority is thus incorrect when it asserts that “[t]here was no evidence that the information on the form was obtained ... from anyone other than Lopez-Chavez himself.” Maj. Op. at 1181.
Miera interviewed ten people for five minutes each on the day he interviewed Lopez-Chavez. The WR-424 is not intended to be used when individuals are arrested by the police on non-immigration related charges. Its purpose is to obtain preliminary information when an individual is arrested by the INS “in the field” because he or she is a suspected alien. This is why Miera filled out so much of Lopez-Chavez’s WR-424 incorrectly: he left out the time and place that Lopez-Chavez was arrested, and also the time that he conducted Lopez-Chavez’s interview. Miera also incorrectly indicated that he was the “Apprehending Officer.” Miera admitted that Lopez-Chavez never' stated that he entered without inspection, and that he could not recall the basis for the “EWI” notation in the “Status at Entry” space on the WR-424.
All of these circumstances, taken together, establish the untrustworthiness of the WR-424 in this case. The majority’s conclusion that the WR-424 here “was probably admissible” under Federal Rule of Evidence is incorrect. Maj. Op. at 1181. While the majority is correct that immigration judges are not “bound by the strict rules of evidence at a deportation hearing,” Maj. Op. at 1181, we held in Espinoza that when a petitioner casts doubt on the reliability of an 1-213, the government must introduce evidence to show the document’s reliability. ■ Espinoza, 45 F.3d at 311. The government did not do that here. The IJ therefore should not have admitted the WR-424 into evidence.
Even if the WR-424 in this case had been prepared under the best of circumstances, and were therefore admissible, I would still hold that a WR-424, standing alone, is insufficient to establish alienage in a “clear and convincing” manner. See Woodby v. INS, 385 U.S. 276, 286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (holding that INS must prove each ground of deportability by “clear, convincing, and unequivocal evidence”). Unlike an 1-213, which is entitled, “Record of Deportable Alien,” the WR-424 is not an “official” INS form. The WR-424 apparently is used only on a local, rather than on a national basis. The WR-424 is the size of an index card, and does not have spaces for an INS agent to explain, for example, whether an individual is a legal permanent resident, even if he or she entered without inspection. Also unlike an 1-213, the WR-424 does not require a signature from its preparer attesting to its veracity and accuracy.
Moreover, as explained above, the WR-424 is not intended to be used when individuals are arrested by the police on non-immigration related charges. Even though the WR-424 is ill suited for any purpose other than interviewing suspected *1186aliens who are arrested “in the field,” the INS instructs its agents to use the WR-424 for “many, many purposes,” and not simply — as in the case of the 1-213 — to create a record of a deportable alien. Given the manner in which the INS employs the WR-424, it cannot be said that the form fits into a scheme of “normal record-keeping requirements.” Cf. Espinoza, at 310 (holding that admission of 1-213 is “fundamentally fair” when it is completed in accordance with “normal recordkeeping requirements”).
A final point is worth making. Our court has held that an 1-213 can be used by the INS to meet its burden of proving alienage by clear and convincing evidence. Espinoza, 45 F.3d at 311. Given this rule, it seems like the INS will only be forced to resort to the WR-424 when, as in this case, the 1-213 does not, for whatever reason, establish alienage by clear and convincing evidence. If the INS cannot use the 1-213 to establish alienage, then it is hard to imagine in what circumstances the WR^424 — which provides much less information and does not require a signature — could be more reliable than the I-213.
Accordingly, I dissent.
. On cross-examination, Lopez-Chavez's attorney's first question to Officer Miera was: "What is the respondent’s name?" Officer Miera responded, "Jaime — I don't recall. It’s there on the form." Lopez-Chavez's attorney asked Miera whether he had any recollection of Lopez-Chavez, and Miera responded that he did not. Miera testified that he interviewed about ten people on July 2 at the Orange County Jail, and that he could not remember any of their names. Lopez-Chavez's attorney then asked: "So, for all you know, this individual who’s sitting here in court might not be the respondent?” Miera replied, "That’s correct. It may not be.”
. The majority asserts that "[t]he only fair reading of Officer Miera’s testimony in context is that the information reflected on the WR-424 form came from Lopez-Chavez himself and that Officer Miera did not recall resorting to any other source.” Maj. Op. at 1180 n. 3. It is undisputed, however, that Miera could not recall any details of his encounter with Lopez-Chavez. Miera testified that he: (1) did not recognize Lopez-Chavez; (2) could not recall Lopez-Chavez’s name; and (3) could not recall whether he took information from the computer printout. Moreover, the following colloquy ensued after Miera was asked why he indicated on the WR-424 that Lopez-Chavez entered without inspection (“EWI”):
A. [Lopez-Chavez] told me he entered the country illegally.
Q. And on what do you base that?
A. Based on my interview with him at the time at the county jail.
Q. So, are you now remembering your, interview with him at the county jail?
A. Well, I'm remembering it based on the information on the 424.
Q. So, what you’re remembering right now is simply that your handwriting is written right on this form EWI.
A. That's correct.
Q. That’s all you remember, isn't that true?
A. Well, sure, that’s correct.
Given that Miera could not remember any details of his encounter with Lopez-Chavez, but instead was providing testimony based on what was written on the WR-424, the only “fair reading” of Miera’s testimony is that it is impossible to know whether the information on the WR-424 came from Lopez-Chavez or from some other source. Miera's testimony certainly does not amount to clear and convincing evidence that Lopez-Chavez provided all of the information on the WR-424.