Brief in Support of Appeal From an Order of Removal (2009-10-27)

In her Oral Decision the Immigration Judge relies upon "a sworn declaration from a deportation officer with Canadian Border Services Agency". Supposedly this deportation officer, one Steve Jacob, verified the biographical information of the Respondent: "specifically, that the respondent was born on November 24, 1973, in Sudbury, Canada..." (OD page 3).

The Immigration Judge also relied upon this declaration to authenticate the passport submitted by the Department as exhibit 9.

The Respondent argues, however, that the declaration of Steve Jacob, submitted as an exhibit/attachment to exhibit 13 by the Department is inadmissable because the officer, Mr. Jacob, is not available for, and the Respondent has not been provided the opportunity to, cross-examine Mr. Jacob. See Murphy v. INS, 54 F.3d 605, 611 (9th Cir. 1995) (without the officer's testimony on cross-examination, the statement is subject to speculation and hardly worthy of full evidentiary weight), also, quoting Martin-Mendoza v. INS (approving the hearing officer's determination that the "weight [of a sworn statement] is necessarily impaired by the fact that the affiant could not be presented for cross-examination").

In addition, the declaration was obtained specifically in support of the removal proceeding against the Respondent and, therefore, the Immigration Judge should have known that Mr. Jacob would have to be available for cross-examination if the declaration is to be afforded any evidentiary weight, see Murphy v. INS, Id at 611 (Because Wills prepared the statement specifically "in support of [the] deportation proceeding against Travis Murphy", the lack of a date and the failure to verify and/or notarize the statement is especially worrisome and casts significant doubt on its trustiworthiness.)

The Respondent had raised these arguments in his "Brief in Opposition to Department's Brief Dated 2008-05-19", admitted as exhibit 22, however, the Immigration Judge failed to rule on, respond to, address, or acknowledge the arguments presented therein.

Finally, the use of the statements against the Respondent, by parties without the opportunity for the Respondent to confront or cross-examine such parties unquestionably deprives the Respondent of due process under the Fifth Amendment.

For the reasons presented the Respondent asserts that the Immigration Judge erred in considering the declaration of Steve Jacob and in using it, in part, as a basis for her final decision.

In her oral decision the Immigration Judge relies upon an I-213 (Ex. 18) which has been disputed and has not been authenticated. Before proceeding, it is important to note that the Immigration Judge incorrectly refers to the I-213 as the I-261 on page 3 of her Oral Decision (OD).

On 2008-05-20 the Respondent moved to suppress the I-213, and the information contained therein, however, the Immigration Judge failed to rule on that motion prior to issuing her oral decision.

The Respondent asserts that the information on the I-213 used by the Immigration Judge was not provided by him and was not verified or authenticated.

The information on the I-213 was provided by IEA Jason Martin following the Respondent's arrest by ICE. Agent Martin obtained the information from a Maricopa County Seriff's booking form which was filled out by Maricopa County Sheriff's Deputy Ryan Paschke, supposedly at the time the Respondent was being booked into the Maricopa County Jail on 2007-07-25 (ER page 38, lines 11-24). Neither IEA Martin nor Deputy Paschke were available for cross-examination or to provide testimony as to where or how they obtained the information that is provided on the I-213.

Turning again to Murphy v. INS, the Court states: (the unauthenticated I-213 merits little (if any) weight, as acknowledged by the BIA. Murphy disputed the significant information, such as place of birth, names of parents, and use of the aliases "Trevor" and "Robert Williams".) Id at 610. Also (Most prejudicial to Murphy, there was no testifying witness subject to cross-examination to verify the source of the information) Id at 611.

As in Murphy, the Respondent's I-213 was unauthenticated and the maker(s) were specifically not available for cross-examination. Therefore, the use of that I-213 in the instant matter clearly violates due process, and the right to confrontation.

It is for this reason that the Respondent declares that the Immigration Judge erred in relying upon the I-213 in preparing her oral decision.

On 2008-04-28 the Department submitted, as a proposed exhibit, a document purported to be the Respondent's foreign passport (Ex. 9). The passport bears a name similar to the Respondent's and the picture of a person only vaguely resembling the Respondent.

On 2008-05-05, before Immigration Judge Steven Ruhle, in open court, the Respondent denied knowledge of the foreign passport and asserted that he was not the person depicted in the photograph. Judge Ruhle then ordered the Department as follows:

What I need from the Government, if you intend to prove this case...is a document comparing the Respondent's fingerprints...with the individual depicted on the passport...

(ER page 31, lines 19-22)

At that same hearing the Department attempted to link the Respondent to the passport by falsely stating:

We obtained the passport from the Phoenix Police Department, and they obtained it from the vehicle that Mr. Riess was driving when he was arrested by the Phoenix Police Department.

(ER page 30, lines 4-7)

At that hearing the Respondent corrected the Department's misstatement by informing the Court that the passport was, in fact, seized from a third party, who is not affiliated or associated directly with the Respondent, during the commission of a crime involving the use of the passport. This is supported by the Phoenix Police Reports relating to that particular arrest and investigation. A copy of this police report was provided to the Court as an exhibit/attachment to the Respondent's Reply to Department's Opposition to Termination, dated 2009-08-13, and admitted as exhibit 47 in this matter. Contrary to the Department's statement the passport was seized by the Phoenix Police on 2007-04-04, whereas the Respondent was arrested on 2007-07-24. This is significant because the Respondent denies any knowledge or ownership of the passport. If, in fact, the passport was found in the Respondent's possession it would be reasonable to presume it was his. However, since it was, in fact, found in the possession of another person, who fits the Respondent's general description, and who was using it in the commission of a crime it is then much more reasonable to deduce that it is not, in fact, the Respondent's passport.

In point of fact, the Department has failed to connect the Respondent to the passport entered as exhibit 9. Further, they have failed to obtain fingerprints from Canada which match the Respondent's fingerprints. However, they claim, to this day, the Respondent was arrested in Canada. If this were true then the Canadian authorities would most certainly have the Respondent's fingerprints on file and the Department would have been able to match his fingerprints with those.

The Respondent submitted his objection to the Department's submission of the passport as evidence (Ex. 10) on 2008-05-07, as well as a motion to suppress the passport (Ex. 21) on 2008-05-26. However, the Immigration Judge failed to respond to, or address, either of these documents prior to issuing her decision.

Other than the passport, which the Department has failed to link to the Respondent, the Department has failed to provide any evidence of the Respondent's alienage.

Finally, seeing that Judge Ruhle would not accept the Department's unfounded allegations without supporting evidence and realizing that such evidence simply does not exist the Respondent's Deportation Officers cooked up a scheme to bring criminal charges of Perjury (18 USC §1621) and False Personation, US Citizen (18 USC §911) against the Respondent. In this way they could release him from DHS custody and transfer him to the custody of the USMS before the Immigration Judge has a chance to rule on the matter. Also, these specific charges could serve to discredit the Respondent and create a false impression of alienage.

Upon being returned to DHS custody, ten months later, the Respondent's case was reassigned to Immigration Judge Linda Spencer-Walters who proceeded without addressing or ruling on the Respondent's Motion to Suppress the passport admitted by the Department.

In support of their allegation that the passport submitted as exhibit 9 is the Respondent's the Department submitted a supposed declaration from a Steve Jacob, a Canadian Immigration Officer (attached to Ex. 13) attesting to the authenticity of the passport. This declaration, however, does not attempt, nor could it, to authenticate the Respondent as the person pictured and named on the passport. Furthermore, the Respondent was not afforded the means, nor the opportunity to cross-examine Mr. Jacob. The Respondent raised an objection to the Department's submission of this supposed declaration of Mr. Jacob in his "Brief in Opposition to Department's Brief Dated 2008-05-19" which was dated 2008-05-30 and was admitted as exhibit 22 (see Ex, 22, pages 3-8). However, the Immigration Judge erred in failing to rule on the Respondent's objection prior to issuing her decision and considering Mr. Jacob's declaration without providing the Respondent a means of cross-examining Mr. Jacob. Therefore, Mr. Jacob's declaration must be considered unauthenticated hearsay and must be suppressed.

It is the Respondent's opinion that, even with the admission of the passport submitted by the Department, they have failed to meet the burden of establishing the alienage of the Respondent because they have failed to establish that the Respondent is the person named and pictured on the passport. Presumably, the Department can submit a foriegn passport containing a picture of a male with brown hair and brown eyes and claim it is the Respondent.

In her oral decision the Immigration Judge stated:

The burden now shifts to the respondent to prove by clear and convincing evidence that he is lawfully present in the United States pursuant to a prior admission.

(OD page 4)

However, as the Respondent provided, previously, in his "Motion to Terminate Removal Proceedings", dated 2009-07-16 (Ex. 32):

The State Department advises that a Canadian who enters the United States following inspection by an immigration officer but who receives neither a visa nor an I-94 is treated as a duration of status case. Therefore, such a non-citizen may begin to accrue unlawful presence only when an immigration judge or the immigration agency makes a finding of violation of status.

- State Department Cable, no file number (Nov. 7, 1998), reprinted in 4 Bender's Immigr. Bull. 1103 (Nov. 15, 1999), 76 Interpreter Releases 1552 (Oct. 25, 1999).

In her "Findings and Analysis" the Immigration Judge makes no reference to this published special handling of Canadians who have not been issued visas or entry documents, even though the issue was raised by the Respondent as a basis for terminating the removal proceedings.

It is the Respondent's assertion that the Immigration Judge erred in neglecting this very pertinent declaration by the State Department because it relates directly to the Department's allegations against the Respondent. Namely that he is a Canadian within the United States who is not in possession of a visa, I-94 or other entry document.

Based on the State Department's statement a Canadian citizen who lacks an entry document is to be treated as though he is a duration of status case, in other words, as though he had an I-94 with no expiration date.

Again, the Department alleges the Respondent is a Canadian citizen and national and that he lacks an entry document (which is implied from the alleagation of unlawful entry). And the Court finds that the Department has sufficiently established this. However, this is not sufficient basis to find the Respondent removable or inadmissable - based on the State Department's statement. The Immigration Judge must have had to have found the Respondent to be in violation of status first. Only then could unlawful presence begin to accrue.

Based on her oral decision the Immigration Judge did not take these factors into account and for this reason the Respondent asserts that the Immigration Judge erred in sustaining the charge of removability/inadmissability.

In addition to the declaration by the State Department, which was raised previously by the Respondent, there is the matter of the Department's exemption of Canadians from I-94 or visa issuance. This issue was also raised by the Respondent in his "Motion to Terminate", dated 2009-07-16 (Ex. 32), and likewise, was not addressed or responded to by the Immigration Judge.

Specifically, the INS Inspector's Field Manual, section 15.1(b), provides:

(4)

Exemptions to Form I-94 Requirements. A Form I-94 is not required for the following classes of non-immigrants:

(A)

A Canadian national or other non-immigrant described in 8 C.F.R. §212.1(a) or 22 C.F.R. §41.33 admitted as a visitor for pleasure or business or in transit through the U.S.

Therefore, it is entirely reasonable that the Respondent, if he were a Canadian as the Department alleges, would lack an entry document or proof of lawful entry.

Furthermore, exactly two years had elapsed from the time of the Respondent's being taken into custody until the point of the Department and the Immigration Judge requesting proof of lawful entry. During that two years of detention the Respondent has lost every material possession, save for the clothes he was wearing at the time of arrest. Therefore, the Respondent believes it is entirely unreasonable for the Court to expect that he, somehow, could have saved a few pieces of paper, which relative to the magnitude of the other events occurring in his life at the time (unexpected, prolonged detention, complete loss of material assets, separation from his child, et cetera) would have seemed incredibly insignificant.

In addition, for many Canadians, taking a trip to the US is not such an uncommon occurrence as to warrant retention of receipts or proof of entry.

Given these factors it is very reasonable to believe, if the Respondent were a Canadian (and he by no means suggests that he is), the Respondent would not have access to documents which could possibly show time, place, and manner of entry.

Therefore, the Immigration Judge erred in basing her decision on the Respondent's lack of, or inability to produce, entry documents or evidence of lawful entry.

It is entirely possible, and reasonable, if the Respondent were a Canadian, that he may have entered the US within the six months immediately preceding his arrest and detention, as a visitor for pleasure, on a B-2 visa and, as provided by DHS policy at that time, not been issued an I-94 or other entry document upon admission. After all, the Respondent was lodging in a hotel and driving a rental car, at the time of his arrest and detention. Both the Department and the Court conceded that this a very reasonable possibility.

Finally, see Matter of - (28 Immig. Rptr. B2-91 AAO Designation : N/A : Matter of - :: Dec. 16, 2003), which provides:

...notwithstanding lack of I-94 documentation evidencing lawful entry into U.S. because Canadian citizens are exempt from issuance of I-94 for non-immigrant travel to and through the U.S. in accordance with INS Inspector's Field Manual...

The BIA, in Matter of -, also states:

The applicant, in this case, arrived in the United States from Canada as a visitor, with a Canadian passport and a U.S. visa. Based on section 15.1 of the Inspector's Field Manual, it is, therefore, reasonable to conclude that the applicant was not issued a Form I-94 upon her arrival in the United States.

Again, these matters were raised by the Respondent in his Motion to Terminate, however, the Immigration Judge erred in failing to consider them in making her decision.