Motion to Terminate Removal Proceedings (2008-01-23)
Synopsis
This was my first motion to terminate my removal proceedings in the US Immigration Court.
By this time, I had been in ICE custody a little over three months, and DHS/ICE and the judge had already acknowledged they didn't have any actual evidence that I was even an alien TR 2007-12-06 p15l8-23; p16l21-p22l3.
For those who aren't aware, that's extremely critical because ICE is required to establish a person is an alien BEFORE then can arrest and detain them, and definitely before they can start removal proceedings on them. If the person is not an alien, neither ICE nor the Immigration Court have any jurisdiction or authority over them.
So the main basis of this motion was that DHS has not established I am an alien and, therefore, these proceedings were unlawful.
PDFA88 664 582
ELYDC
1705 East Hanna Road
Eloy, Arizona 85231
The Respondent, Richard Steven Riess in pro se, respectfully moves the court to terminate proceedings in the above captioned matter. The Department of Homeland Security has shown no basis for it's allegation of non-U.S. citizenship. The Department of Homeland Security has had more than 90 days, and yet has failed to produce 'any', let alone by clear, unequivocal and convincing evidence of alienage as required under § 1240.8(c) of the Executive Office for Immigration Review, Subchapter A-General Provisions, as stated, "the Service must first establish the alienage of the respondent."
Further, as set by INS v. Lopez-Mendoza (1984) and Woodby v. INS, (1966), "...it therefore remains the government's burden to first establish the court's jurisdiction by proving that the person in court is an alien. It cannot be simply assumed that any person named on a Notice to Appear (NTA) is an alien. Accordingly, the government still is required to prove alienage by clear, unequivocal, and convincing evidence."
The government failed to produce 'any' evidence to support it's allegation that the respondent in the instant matter 'was admitted to the United States at any time'. Although the government has made repeated implications that the respondent is required to produce proof of United States citizenship, the INA and the Executive Office for Immigration Review Rules of Procedure clearly states that the only burden upon the alien is to show why, or that, he is entitled to remain in the United States.
For the foregoing reasons, the respondent respectfully requests that the court terminate removal proceedings in this matter.
RICHARD STEVEN RIESS
CERTIFICATE OF SERVICE
I, Richard Steven Riess hereby certify that a true and correct copy of the attached "Motion to Terminate Proceedings" was served upon the interested party addressed below by placing a copy in a sealed envelope and mailed either by U.S. Postal mail service or by the Institutional inter—house mail system.
U.S. Department of Homeland Security
Immigration and Customs Enforcement
1705 East Hanna Road
Eloy, Arizona 85231