Legal Battles - USA vs Patrick Fox
Contact
Patrick Fox
Torrance, CA     90503
fox@patrickfox.org

Transcript of Removal Proceedings (2008-02-06)

Synopsis

This was the third appearance in my removal proceedings. It had already been adjourned twice because DHS was unable to provide any evidence that I was an alien (born outside the US), which was something they were required to establish before even arresting me.

Between the previous appearance and this one, ICE had actually released me and closed the proceedings p19l20-21 but due to someone screwing something up at the Maricopa County jail, I was transferred back to ICE custody so DHS continued with the proceedings p19l21-22.

Prior to this hearing, I had filed a Motion to Terminate, based on the fact that it's been over four months and DHS has failed to establish my alienage, which they were required to do before arresting me and commencing these proceedings.

At this hearing, DHS was requesting another continuance. The DHS lawyer provided a declaration from my Deportation Officer wherein he falsely claimed, under oath, that he had searched the records of the Department of Vital Statistcs and was unable to find a birth record for me. The Deportation Officer also falsely claimed he had been in contact with the Canadian authorities and they had confirmed I was born in Canada p20l7-12.

When the judge asked me if I have any opposition to the continuance, I responded: Yes. I told him I still have no objection to being deported, I just want to get this over with p21l7-12. But again, the judge came back with the same bullshit that he can't order me removed if I'm not an alien p21l13-15.

One thing which is very significant in this hearing, is that the judge adknowledged DHS is required, FIRST, to establish I am an alien and that no burden shifts to me until AFTER DHS has established that. Then, and this part is critical, the DHS lawyer aknowledged that is also her understanding p21l21-p22l1. Why is this so critical? Because both the judge and DHS are admitting that DHS was required to establish I am an alien BEFORE arresting, detaining, and initiating removal proceedings on me - and yet, they're continuing to proceed! They're essentially saying "We're not allowed to do this, it's completely illegal; but we're doing it anyway."

At one point in this hearing, I asked if I could just "denounce" my US citizenship and be deported. The judge said no p24l10-15.

The judge expressed that this case is unusual in that typically there is no dispute about the person being born outside the US and therefore, being an alien; the dispute is whether they are entitled to any derived citizenship through their parents. Whereas in this case, the dispute is whether I was born in the US p24l6; p24l20-25 and am, therefore, not an alien.

Toward the end of the hearing, the judge urged me to continue trying to get my birth certificate because that would clear up any uncertainty. I responded that I am not, and never was, putting any effort into that p26l6-16. The judge seemed understandably surprised by this.

Ultimately, the proceedings were adjourned until 2008-04-25, but then was rescheduled to 2008-05-05 because Keenan was transferred out and the case was reassigned to Judge Stephen Ruhle.

PDF
U.S. Department of Justice
Executive Office for Immigration Review
United States Immigration Court
Matter of
File A 088 664 582
RICHARD STEVEN RIESS
Respondent
In REMOVAL Proceedings
Transcript of Hearing
Before SEAN H. KEENAN, Immigration Judge
Date: February 6, 2008
Place: Eloy, Arizona
Transcribed by FREE STATE REPORTING, INC., at Annapolis, Maryland
Official Interpreter:
Language:
Appearances:
For the Department of
Homeland Security:

Jennifer I. Gaz

For the Respondent:

Pro se
Judge:
This is the Immigration Court at Eloy, Arizona, February 6, 2008. Immigration Judge Sean H. Keenan presiding in a continued removal proceeding.
Good afternoon, sir. What is your name, please.
Riess:
Richard Steven Riess.
Judge:
A 88 664 582. The respondent is present in court detained by the Department of Homeland Security, appearing pro se. The Government is represented by Assistant Chief Counsel, Ms. Jennifer Gaz.
Do you have an attorney today?
Riess:
No, sir.
Judge:
Do you waive and give up your right to an attorney for today's hearing?
Riess:
Yes.
Judge:
All right, the Government's motion to administratively close your case is Exhibit 2. That was previous. And the Government's motion to withdraw that is Exhibit 3, and your motion to terminate, Exhibit 4. Now you had denied all the allegations and the case was postponed for the issues of removability and citizenship.
Gaz:
Your Honor, at, at this time, the Government requests a motion to continue. We realize that this is unusual to make a motion such as this at a contested removal hearing. However, as the declaration of the deportation officer states, there have been numerous efforts made in order to establish respondent's claims to U. S. birth. We -- the -- as it is stated in the declaration, the deportation officer has searched San Bernardino Vital Records for the birth certificate, which he was not able to find. Also, we have been in contact with the Canadian authorities, who have stated that respondent does have a -- was born in Canada and does have a Canadian passport. Now respondent refused to sign a document which we need in order to -- for the Canadian authorities to, to release his information to Immigration and Customs Enforcement and, therefore, it has taken longer than expected to get a copy of his birth certificate and his passport. There is just -- but, however, the deportation officer, who is not here because he's currently in the Philippines on another assignment, he has been in contact with the Canadian authorities and expects to get the documentation in a -- you know, forthcoming, hopefully soon.
Judge:
All right, prior to hearing from the respondent, the declaration of Mr. Cordero (phonetic sp.) will be Exhibit 5 for identification. Respondent will have an opportunity to review that and raise any objections and the I-213, Exhibit 6 for identification.
Do you have any documents you want to show me today, sir? You're not required to, but do you have any documents?
Riess:
No.
Judge:
All right. Well, you heard the Government's motion, and do you have any objections to a continuance?
Riess:
Yes, sir, I do. I mean, I certainly have no qualms about the Government ordering me removed. Every time I've come into court I've put up no resistance to the idea of being sent to Canada or Mexico or --
Judge:
Well, you've denied -- I can't order you removed, sir, if you're not subject to removal, if you're not an alien as termed by the law. You say you were born in Massachusetts or California. Excuse me.
Riess:
California.
Judge:
And your mother was born in Massachusetts.
Riess:
Yes.
Judge:
And the burden is on the Government to establish alienage, and until they do that, the burden does not shift to you.
Is that right, Ms. Gaz?
Gaz:
That's our understanding, Your Honor.
Judge:
And they say they have made good faith efforts and have been in contact with the Canadian authorities and they say orally that the Canadian authorities say you were born there, and they want your case postponed one brief time to, to get these documents. So it seems a reasonable request, that they are making good faith efforts and that they have a good faith basis to show that you are an alien notwithstanding, perhaps, your belief you were born in the United States. You understand?
Riess:
Yes, I do.
Judge:
All right, over your objection, noting that you're detained, you don't want to be detained, you've written a letter, I'm going to grant their continuance based on the, the things that they have related to the Court, the factors and the fact that they are making considerable effort, as they should be --
Riess:
Mm-hmm.
Judge:
All right. All right, the Court calendar is very booked up, but I have the date of April 25th at 9:00. We'll double-book because I understand you don't want your case postponed too far in advance, and that's -- the Court calendar is out to June, but I'll double-book and overbook so that your case will be heard as expeditiously as possible. Any questions?
Riess:
Yes.
Judge:
Go ahead.
Riess:
When we get to this next date now --
Judge:
Yes.
Riess:
-- because we're already at four months that I've been in custody on this --
Judge:
Yes.
Riess:
-- so when we get to this next date when they still don't have evidence of alienage, can we at that point then assume that it's not going to happen?
Judge:
Well, I won't -- I can't rule on future events that haven't occurred. I understand your point, and I'll take into consideration that this was postponed over your objection --
Riess:
Mm-hmm.
Judge:
-- and I'm not going to rule on a further continuance. I can't do that. I'm not going to say it will never be continued. You might want it continued; I don't know. Highly unlikely, but I will certainly consider the amount of time given to the Government, and I will weigh the evidence at that time. I will weigh whether Mr. Cordero is here for your cross- examination, whether the maker of the I-213 is present for cross-examination, the maker of the document, Mr. Martin.
Riess:
Mm-hmm.
Judge:
It could be envisioned that he'll have to be here to testify, and so that will be up to the Government to put forth their case.
Riess:
You see, it's, it's just that I recall the last time that I was in court here for the bond hearing back on January 11th. It was stated on your part that if I don't have further evidence of my U. S. citizenship by my next hearing that you would have to rule in favor of the Government.
Judge:
Well, yours is an unusual case, and the bond hearing is separate and apart by law, and whatever is said in bond is separate; it's not on the record. That's by regulation. Now ordinarily --
Riess:
Could I perhaps -- I'm sorry; I don't mean to interrupt, but --
Judge:
Go ahead.
Riess:
-- could I perhaps just maybe denounce my U.S. citizenship and let you deport me to Mexico or something?
Judge:
No. And you can't go to Mexico unless you have a legal basis to go there. You need some lawful permanent resident status.
Riess:
The same with Canada.
Judge:
Correct. Well, the Government says you have some status in Canada. Now, ordinarily, sometimes in these type of citizenship cases foreign birth is not contested. It's not an issue that the person was not born in a foreign country, they're trying to derive citizenship based on their parents. Here it's unusual to some extent that you claim birth in the United States. So the burdens are different.
Riess:
Mm-hmm.
Judge:
So you are not admitting, nor should you, that you were born outside the United States, so the Government has to establish alienage.
Riess:
Right.
Judge:
And I don't have to rule on that today because they are asking for one continuance, and I'm granting that. So they're asking that the case be postponed. They're not ready to go forward today to prove alienage, and case law has held that if they want the I-213 perhaps to establish country of citizenship Canada, it should be reasonable that they have the maker of the document here --
Riess:
Mm-hmm.
Judge:
-- to show where that maker of the document obtained country of citizenship Canada: Was it through an interview, was it through documents, was it through this, that, or the other thing, and also Mr. Cordero’s declaration. It could be presumed that he should be here to be examined by you to make it fair for you. So if the Government wants to introduce documents to show that you're an alien, then the case law is clear that the maker of the documents should be present so that you could question them, cross-examine them. All right. And so at this point removability has not been established, and if the Government was going to go forward today and their motion for a continuance is denied, then the ruling could be quite different. So at the next hearing if the Government does not have the makers of the documents present, then I will try to interpret the case law to the best of my ability and make the appropriate ruling. All right, sir?
Riess:
Yes.
Judge:
If you continue to try to get your birth certificate, that would clearly clarify the issue, if you can get it. I understand you're trying, but perhaps you can.
Riess:
I actually am putting no effort into it at all.
Judge:
Oh, I thought you were.
Riess:
I, I never have been. I, I told that to Mr. Cordero right from the beginning that I'm -- well, it's a matter of opinion, I guess, and so it doesn't really belong in court, but --
Judge:
All right. So I'll rule on the evidence I have before me. Any party that wants to submit further evidence, please do so in accordance with local rules at least five days before the hearing so I can read all the evidence.
Judge:
Anything further, Ms. Gaz?
Riess:
No.
Judge:
Sir?
Riess:
No.
Judge:
Case adjourned.
HEARING CONTINUED