Transcript of Removal Proceedings (2008-05-05)

Synopsis

This is now, what, the fourth hearing in my removal proceedings. And now, after three prior hearings, and me being in ICE custody for eight months, DHS has still not established I am an alien.

Judge Sean Keenan is gone and so the case has been reassigned to Judge Stephen Ruhle.

A Canadian Passport With My Photo

Finally, though, DHS has come up with some evidence I am an alien. They apparently obtained a Canadian passport in the name Ricky Steve Riess, with an old photo of me. But as I said to the judge when he asked if I had any objection to it, I had never seen it before.

Wait, how can that be? I must be full of shit, right? I must be lying. Well, according to documents I recently received from IRCC, they have now decided I am not the person associated with the UCI number that passport was issued to; and what's even more interesting is IRCC is now "suggesting" that UCI number is not assigned and any passports issued under it never existed.

So, DHS has a Canadian passport with the name Ricky Steve Riess and my photo; they're claiming CBSA confirmed it is a real and legitimately issued passport; but now, 15 years later, IRCC is claiming the passport was never issued to me.

So at this hearing, DHS presents the passport as proof of my alienage. The judge asks if I have any objection to it. I respond that I do because I've never seen it before p29l9-13. So the judge asks DHS what other evidence they have that I am the person actually named on the passport. DHS acts obtuse for a moment, claiming to not understand the question, so the judge asks whether they've compared my fingerprints to the fingerprints of the person named on the passport. To which, DHS claims they haven't had the opportunity yet p30l1-p31l4.

The judge expressed skepticism about my claim of not being the person named on the passport p31l15, but he was basing it solely on the photo. Nevertheless, he told DHS, if they want to rely on the passport as proof of alienage, they're going to have to get fingerprints or some other biometric evidence proving I am the person named on the passport p31l19-p32l12. Obviously, that should be a very easy thing to do since Ricky Riess's fingerprints are on file with the Toronto Police.

The Fingerprints From Toronto; ICE Charges Me With Perjury and False Claim of US Citizenship

Literally, immediately after this hearing, my Deportation Officers Robert Cordero and Keith Acosta, contacted the Toronto Police to try to obtain the mugshots and fingerprints from Ricky Riess's 1992 arrest. The Toronto Police promptly provided them Toronto Police Mugshot Form. They didn't match me.

But rather than dropping the case and letting me go, ICE decided to charge me with perjury and false claim of US citizenship. I was convicted and those convictions later became their "proof of alienage" upon which is was eventually deported.

So, before the next appearance in these removal proceedings could happen, I was transferred to US Marshal's custody where I was detained while I fought those criminal charges. After that, I was transferred back to ICE custody and the removal proceedings continued.

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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 STEVEN M. RUHLE, Immigration Judge

Date: May 5, 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. Wiles

For the Respondent:

Pro se

Audio recording of the entire hearing

(Tape 3)

Judge:

This is Immigration Judge Steve Ruhle at the Immigration Court at the Federal Detention Center in Eloy, Arizona, in a resumed individual hearing in the case of Richard Steven Riess, A 88 664 582. He's appearing pro se today. The hearing is in English. The Government is represented by its Assistant Chief Counsel, Ms. Jennifer Wiles.

Ms. Wiles, what are we doing today?

Wiles:

Your Honor, I believe the case has been set over for -- to prove the charges; specifically, the respondent's alienage.

Judge:

All right. Is that what a copy of his passport is purported to do?

Wiles:

Yes, Your Honor.

Judge:

All right.

Wiles:

He was --

Judge:

So --

Wiles:

He -- at a previous hearing, Mr. Riess had indicated to the Court that he was born in the United States and was thus a United States citizen.

Judge:

I read that.

Mr. Riess, have you received the Government's exhibit?

Riess:

I have.

Judge:

A copy of your passport. Do you have any objection to me considering that?

Riess:

I do.

Judge:

What is your objection to it?

Riess:

I have not seen that document before.

Judge:

Well, they have a certificate of service saying they gave it to you.

Riess:

Oh, no, no. I'm sorry. What I mean is I received the photocopy that you have there.

Judge:

You're saying that's not you?

Riess:

Right.

So where did the passport come from? DHS claims CBSA confirmed it is a real, legitimately issued passport, and it's got an old photo of me on it.

Am I really suggesting DHS or CBSA or IRCC actually made a fake/forged passport? I don't know about all that, but what I do know is IRCC had previously insisted I am the person born Ricky Steve Riess in Sudbury, Ontario, Canada; that the UCI number they assigned me was 6002-8504; and that a Canadian passport had been issued to me Declaration of Steve Jacob, CBSA, 2008-05-14; ; . However, now they're claiming I am NOT the person associated with UCI number 6002-8504; they're refusing to admit or deny the existence of that UCI number or any records related to that UCI number; they've assigned me a new UCI number (11-1170-2257); and that there is an Ontario birth certificate in the name Patrick Henry Fox.

Judge:

You're still denying to this point that you were born in Canada?

Riess:

Yes.

Judge:

Did you --

What other evidence do you have that this passport in fact relates to respondent?

Wiles:

Your Honor, I do have the original passport here. We obtained the passport from the Phoenix Police Department, and they had obtained it from the vehicle that Mr. Riess was driving when he was arrested by the Phoenix Police Department.

This is false. The Phoenix Police report regarding the search of my car and the seizure of the passport, shows that it was actually an acquaintance of mine who had the passport in his possession when he was arrested for attempting to cash a forged check Phoenix Police Report, 2007-04-05. The police seized the passport from him, not me.

In April 2007, I had loaned by car to an associate to "run some errands". Apparently, one of those errands was cashing some forged checks. He got caught and the police were called. When they arrested him, they searched my car and seized a bunch of stuff from it, including that passport and a bunch of forged checks.

There's actually no evidence that passport was ever actually in my possession.

I was arrested three months later, a few days after I filed a formal complaint against the Detective in charge of the case, for refusing to return the property which was seized from the car to me. I was arrested at my home, not while driving.

It's all in the police reports.

Judge:

Have you contacted the Canadian Consulate?

Wiles:

Yes, we have, Your Honor, and they have verified that he is in fact a United States -- or, excuse me, a Canadian citizen. We have also contacted the Royal Canadian Mounted Police, who verified that he was born in Canada and that his parents are both Canadians.

Judge:

How -- let me be more specific. How are they matching the individual that's sitting in that chair to the individual that's named and pictured in that passport?

Wiles:

I guess I don't understand what you're saying, Your Honor. I'm sorry.

Judge:

Have they -- have you compared his fingerprints to the fingerprints they have on file for that individual?

Wiles:

No, we have not at this point, Your Honor. We have not had a chance.

Judge:

All right.

Off the record to review the evidence for a minute.

(OFF THE RECORD)

(ON THE RECORD)

Judge:

Back on the record.

Okay, I've looked at the documentary evidence.

Sir, this passport looks exactly like you to me. However, because you have denied that it is you, I'm going to give the Government a continuance.

What I need from the Government, if you intend to prove this case, Ms. Wiles, is a document comparing the respondent's fingerprints or some other biometric information with the individual depicted on the passport of which you have the original copy of and, by the way, let me see the original copy, would you.

All right, the Court has examined the original passport. The copy that the Court has that's marked as Exhibit 7 for identification only appears to be an accurate representation of the -- that original. Again, the Court is not an identification expert, so you have an original passport, the Court has an accurate copy of it, the respondent has a copy of that. He's saying that's not him. So, again, what you need is some further evidence in order to convince the Court. The Court will not take -- even though this does appear to look exactly like the respondent, you need other evidence to match the two. Do you understand?

Wiles:

Not a problem, Your Honor.

Judge:

All right.

What do you want to say, sir?

Riess:

At, at this point nor at any point previous to this have I been averse to being ordered removed. In fact, I've requested it a number of times. Well, if the Government wants to send me to Canada, I have absolutely no problem with that. I mean if the Canadian Government will accept me --

Judge:

Well, it's not that, it's not that simple, sir. If you are saying you're not Canadian, why in the world would you think Canada would accept you?

Riess:

Well, that wasn't really an issue, but --

Judge:

You can designate Canada and I can order you removed to Canada. However, again, it's not, it's not as simple as we're deporting you to Canada. If you, if you're not a citizen or national of Canada and if you are in fact a citizen of the United States, as you've said in your past pleadings, I can't deport you anywhere; you'll be a citizen here and, and entitled to stay here.

Riess:

Right, but at the same time, if that means that I'm going to have to stay indefinitely in custody, I'd, I'd much rather leave America and go to a foreign country.

And once again, the judge - a different judge now, not Keenan - says: But if you're a US citizen then we can't deport you ... we can detain you indefinitely, but we can't deport you.

That is, of course, false. Neither the Immigration Court nor ICE has the authority or jurisdiction to detain a person who is not an alien.

Notice, I say "a person who is not an alien", I do not say "a person who is a US citizen". That's deliberate, because to say "a person who is a US citizen" means the requirement is to prove the person IS a US citizen; whereas saying "a person who is not an alien" means the requirement is to prove the person IS NOT an alien.

And notice that the judges keep phrasing it as my claim of being a US citizen; not, my claim of not being an alien. Curious.

Judge:

Well, again, sir, there, there, there is reason, based on the evidence I've seen, to believe you are not a citizen. However, you are saying you are. That means the burden shifts back to the Government. They have a little bit higher of a burden to show that you are, in fact, not a U. S. citizen. If they do show that or produce more evidence, then the burden will shift to you to show that you in fact are a U. S. citizen. I'm not going to make any conclusions as to whether or not that will happen. I don't what the Government if anything extra they'll produce, don't know what you've got in your file. At any time, of course, you are free to change your pleadings, and I'm not suggesting you do that.

Riess:

Mm-hmm.

Judge:

But realize the Government only has -- the Government in the form of the Department of Homeland Security, Immigration and Customs Enforcement; i.e., the Government who has placed you here in front of me, only has jurisdiction over people who are not U. S. citizens. However, they have enough evidence, based on what I've seen, to believe that you are not a U. S. citizen and to place you here. That doesn't mean automatically that I'm going to take their word for it. I do not work for them. This hearing -- they have a burden in this hearing; you may soon have a burden in this hearing depending on what, if anything, they produce next time. Again, at any time you're -- you, you can change your pleadings, but realize, if you're a citizen of the United States, they've got no business with you. That's --

Riess:

I, I realize that. I've realized that right from the beginning, and I was aware right from the beginning that being a citizen, they had no jurisdiction to even arrest me without proof of alienage, yet that didn't stop them. I mean, I've been here seven months now, and this passport that they have, they just came up with this a week or two ago. So for seven months I've been here with absolutely no proof of alienage, and I'm, I'm willing to, to change my plea at this point.

Judge:

Well, I mean, realize changing your plea means you will be swearing under oath that you were in fact not born in the United States. What that means is that under oath in a prior proceeding you've committed perjury.

Riess:

Right, I realize that, and that's obviously a problem.

Judge:

So, I mean, I'll leave it to you, sir. You, you, you tell me what you want to do today. I've told you I've looked at enough evidence to believe that the Government clearly has grounds to hold you here to try to compile more evidence, that they have clear grounds to believe you are not in fact a United States citizen, born here. Therefore, they get the chance to -- reasonable opportunity to convince me further by matching your biometrics, which is your fingerprints specifically, with the individual depicted on that passport who you just told me wasn't you.

Riess:

Right.

Judge:

If you want, you can change your pleadings, admit you're a native and citizen of Canada, request deportation. I'm not telling you to do that or not do that.

Riess:

Right.

Judge:

I'm just, I'm just telling you that is an, that is an option. You tell me what you want to do given what I've told you.

Riess:

Well, can I, can I ask, For how long does the Government have the right to detain a person --

Judge:

All right. Well --

Riess:

-- to establish that somebody’s an alien because they've taken my fingerprints before.

Judge:

There is no set time.

Riess:

Right.

Judge:

There is no set time. I mean, the, the, the determination is one of reasonableness. From the day you have a final order removing you somewhere, if that ever -- if that day ever happens, as a general rule they have 90 days in which to attempt your removal and generally 180 days to hold you trying to remove you. That's considered presumptively reasonable as held by the United States Supreme Court, but we're nowhere near that stage of your case yet. We are in the evidentiary gathering stage of your case. I don't know when my next available will be. I suspect it's going to be July, but I'm going to check that momentarily. The bottom line is, like I said, if they had no evidence, if they produced no evidence of anything and they showed up empty-handed today, it'd be a different result. They presented a passport that looks to a reasonable person like it's you; you said otherwise. So, therefore, I need to be convinced a little bit more than what they've, they've shown now. I'm not a, I'm not an expert at identification.

Riess:

Understandably. But they've, they've indicated that they haven't had the opportunity to compare the fingerprints, but they've taken my fingerprints. They've had my fingerprints for seven months. They claim that they've been in contact with the Canadian Government. They claim that they were waiting for, for, for confirmation from the Canadian Government on this passport. That was three months ago. I mean --

Judge:

Well, what they told me is the -- I don't want to, I don't want to mischaracterize what -- at least what Ms. Wiles represented. What Ms. Wiles represented is they've looked at your passport and they say it's you. Again, I don't have anything in writing from them, I don't have anything in writing from them saying that. So I'm not willing to take a representation that, okay, the Government said it's you, You know, I, I need something more than that. However, it's -- they -- the test really in my -- as far as continuances go is has the Government acted reasonably. In my opinion, they did act reasonably. They, they got more evidence. They, they reached out to, to the Canadian Government. They got answers from the Canadian Government. Unfortunately, it's not good enough for me because you have said no, that's not true. Therefore, I'm going to require more from them if they're going, if they're going to prove your case. That's the long and short of it.

I will -- I'm going to go off the record at this time. I'm going to give a reset date for this case and, again, either, either party at either time, if you get the requested evidence, there's no need -- the Government, there's no need to wait for the next hearing date. Similarly, sir, if you decide you want to change your pleadings, you don't have to wait till the next hearing date; you can send me something in writing. I would caution you, however, that I notice several things that you've sent to the Court do not have certificate of service on it. By regulation, the Government has to get served everything the Court has or the Court cannot accept it.

Riess:

Yes.

Wiles:

Your Honor, if --

Judge:

Off --

Wiles:

-- I may just put one thing on the record. At the initial interview with Mr. Riess -- and we're not using the submission as, as evidence, but I would like to note for the record that the initial interview, at the intake interview, Mr. Riess did tell the 287g officer that he was a Canadian citizen. However, the --

Judge:

I know that's what you say.

Wiles:

-- however, the Government -- yes. The Government is not using that admission as part of its evidence.

Judge:

And if you want to have that individual here to testify that he said that next time, that's fine.

Wiles:

Okay.

Judge:

He's denied that.

Wiles:

Yes, Your Honor.

Judge:

So, again, I read the piece of paper that says that's what he said, but that's not good enough.

Wiles:

Yes, I understand.

Judge:

He's saying, he's saying it's not. It's -- he didn't say that, so feel free. I'm not doing the Government's case for them. If you, you deem it appropriate to bring that -- produce that individual next time, that's fine, sworn affidavit, although, again, if he objects to the sworn affidavit and says it's not true, cross-examination. Your witness has got to be here.

Wiles:

Yes, Your Honor.

Judge:

I'm not telling you what evidence to present; all’s I'm saying is although it looks like it's him in the passport, that's not good enough.

Wiles:

Not a problem, Your Honor.

Judge:

Off the record momentarily.

(OFF THE RECORD)

(ON THE RECORD)

Judge:

Back on the record.

This case will be reset and, Ms. Wiles, I am going to conclude on my own without asking you that this is sufficiently reasonable time for you to either -- for you to get additional evidence matching Government Exhibit 7 for identification with the respondent. The hearing will be reset till Tuesday, July 15th, 2008, from ten o'clock in the morning till eleven o'clock in the morning for that purpose. Again, if either side wants to send me something before then, feel free. Sir?

Riess:

I did want to mention or clarify the statement previously that the Phoenix Police had taken that passport from my possession. In fact, it was taken from another person's car, and it was being used as evidence in a completely unrelated forgery case.

Judge:

All right. Well, you've already said it doesn't relate to you, so with that being the case, it really doesn't matter where they got it from. It's either you or it's not. If it's, if it's you, it's not going to matter where they got it. If it's not, likewise it's not going to matter where they got it.

Riess:

Okay. I just wanted to clarify that it was never in my possession.

Judge:

Okay.

Anything else from either side today before adjourn?

Wiles:

Nothing further, Your Honor.

Judge:

Sir? All right, hearing is closed till that day.

HEARING CONTINUED