Transcript of Removal Proceedings (2009-06-22)

Synopsis

This was the first removal proceeding hearing after I had been convicted of perjury and false claim of US citizenship. Because the US District Court had made a finding, in that case, that I am not a US citizen, the doctrine of res judicata now barred the Immigration Court from making a finding which would necessarily contradict that. In other words, even if I provided my US birth certificate and a US passport, proving I was born in the US and am a US citizen and national, the Immigration Court would be barred from considering that. I'm quite certain that was DHS's intention all along when they charged me with perjury and false claim of US citizenship.

But ... at the same time, that conviction is still on appeal so it can't be used against me at this point; it can't be used as a basis of removability until the appeals are completed.

Prior to this hearing I had sent DHS a letter pointing out that if I was a visa overstay, as they were alleging, then there must be a record of me being issued either a visa or an entry document, but no such record exists. I pointed out that they would have to be able to establish I was issued a visa or was admitted at some point more than six months prior to the date ICE took custody of me, but that they would be unable to do so. I was deliberately antagonizing them so they would change the allegation from being a visa overstay to being an entry without admission. My reasons for wanting them to do that are:

The lack of an I-94 or any other record of entry, would be normal and even expected under DHS and State Department documented policy. So, the fact that there is no record of my entry cannot be used to support an allegation of entry without inspection, as it normally would be. Basically, under DHS and State Department policy, a Canadian citizen encountered within the US with no record or evidence of admission, cannot be treated as an illegal entrant unless he actually ADMITS to being an illegal entrant.
State Department and DHS policy also require that an undocumented Canadian is to be treated as a "duration of status" case, which means unlawful presence cannot accrue until AFTER the Immigration Court makes a finding of inadmissability or removability. Which means unlawful presence could not be used as a basis of removability in this case.
Since there is no I-94 or record of my entry, DHS is required to treat the date ICE first encountered me, that is 2007-09-25, the date ICE took custody of me from the MCSO, as my date of entry. And since I've been in ICE custody since that time, I cannot be considered unlawfully present because I've been held in custody, by ICE, against my will. In other words, under DHS and State Department policy, there could not have been any period of unlawful presence.
Being a visa overstay would mean that I had applied for a visa. Only an alien would require, or apply for, or accept a visa. Since DHS knew I was a US citizen, they knew it was extremely unlikely I would have ever applied for a visa or any other immigration benefit.

So in this hearing, DHS did exactly what I had sought to manipulate them into doing. The DHS lawyers walked right into that trap.

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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 LINDA I. SPENCER-WALTERS, Immigration Judge

Date: June 22, 2009

Place: Eloy, Arizona

Transcribed by FREE STATE REPORTING, INC., at Annapolis, Maryland

Official Interpreter:

Language:

Appearances:

For the Department of
Homeland Security:

James M. McCarthy

For the Respondent:

Pro se

Audio recording of the entire hearing

(Tape 4)

Judge:

Tape number 4 in the case of Richard Steven Riess, A 088 664 582. Today's date is Monday, June 22nd, 2009, Eloy Immigration Court. Immigration Judge Linda I. Spencer-Walters presiding. Respondent is present. Appearing on behalf of the Department of Homeland Security today is Mr. James McCarthy. These proceedings are being conducted in the English language.

Good morning, sir. Please state your name.

Riess:

Richard Steven Riess.

Judge:

You speak and understand English, correct?

Riess:

Fluently.

Judge:

You have an attorney today?

Riess:

No, I don't.

Judge:

You need some time to get one?

Riess:

I don't need time to get an attorney. However, I do desire to request a continuance.

Judge:

Based on what, sir? On what basis?

Riess:

Well, I had submitted a motion for this a week and a half or two weeks ago.

Judge:

Yes, but I want you --

Riess:

And --

Judge:

-- to state it on the record.

Riess:

Oh, okay. There's actually two reasons: One is I'm awaiting the arrival of documents that I've --

Judge:

Okay.

Riess:

-- requested from various government organizations.

Judge:

Mm-hmm.

Riess:

And the other reason is because I have two other matters: one before the Appellate Court for the Ninth Circuit and one before the U. S. District Court wherein my citizenship or the facts of my citizenship are certainly relevant to those, and for that reason I think that it's inappropriate for me to make any comments about my citizenship until those matters are resolved.

Judge:

Well, I already know the issue as to your citizenship because everything is in the file, so it's not --

Riess:

Oh.

Judge:

-- that much of an issue.

Riess:

But --

Judge:

But, nevertheless, I can't grant you a continuance for the collateral issue as to you trying to await whatever outcome would happen in the Federal Court as to your citizenship issue, but I can grant you a continuance for you to obtain whatever documentation you're trying to obtain.

Mr. McCarthy, let me hear from you.

McCarthy:

Well, Your Honor, at this time we want to file a 261.

Judge:

Do you have documents today?

McCarthy:

I believe his only charge is an overstay; we're now charging him as an EWI. This will --

Judge:

He's an overstay and an EWI, Mr. McCarthy?

McCarthy:

It was during the overstay.

DHS changed their allegation here, from being a visa overstay to being an illegal entrant because I had pointed out to them that if I was a visa overstay then that would mean a visa, or at least an I-94 (entry document) must have been issued to me. However, there is no record of me ever being issued a visa or an I-94.

Being an illegal entrant is a more serious charge than being a visa overstay. And they probably realized if they proceed on the visa overstay allegation, the fact that there was no record of me ever being admitted might be a problem from them. My argument would be the reason there's no record is because I'm a US national, not an alien; and I've never left then returned to the country so, of course there's no record of me entering the country.

By changing the charge to being an illegal entrant, DHS put the burden on me to show when, where, and how I entered the country. Which, of course, I can't possibly do. So they probably assumed my bringing it to their attention was a stupid move on my part, and they jumped at the chance to fix their oversight.

So why would I antagonize them into changing the charge, since it's clearly seems to not to my benefit? See the explanation in the Synopsis, above.

I brought up both of these points in a brief I filed, but both DHS and Spencer-Walters completely ignored them.

Judge:

Okay. All right. So I was going to say you have to explain that one to me.

All right, the Government is filing an I-261 in your case. This is an additional charge of deportability. In your case, sir, they are withdrawing the overstay charge, and they're replacing it with this charge saying that you are now present without being admitted or paroled after inspection.

Riess:

Excellent.

Judge:

You have this document, correct, sir?

Riess:

I do.

Judge:

All right.

McCarthy:

Your Honor, have allegations 1 and 2 been sustained or --

Judge:

One second. Let me go back to the Notice to Appear. No. I see everything was denied in the Notice to Appear dated -- the Notice to Appear that I have is dated September 25th, 2007, marked as Exhibit 1. This I-261 will be marked as Exhibit No. 1A.

McCarthy:

If I could, Your Honor --

Judge:

Yes

McCarthy:

-- could I just -- I just want to know exactly what we've submitted

Judge:

One second. Let me mark this document. Well, as I said, their I-261 is Exhibit 1A. Yes, sir?

McCarthy:

I'm just trying to find out exactly so we don't go, you know, bothering the Court and submitting stuff again.

Judge:

All right.

McCarthy:

I just wanted to know, Have the 213s been submitted as --

Judge:

Let's, let's go through the documents --

McCarthy:

Thank you, Your Honor.

Judge:

-- because several documents have not been marked. Exhibit No. 1 previously marked by Judge Keenan was Exhibit 1. Exhibit 2 was the Department of Homeland Security's motion to administratively close proceedings. Exhibit 3 was a motion to withdraw the Department's motion to administratively close. Exhibit 4 was respondent's motion to terminate these removal proceedings. (Indiscernible), just one second. Okay, Exhibit 5 will be -- well, we'll mark this. this is -- you know what we need to do, we need to separate our documents from -- because everything is all jumbled up.

McCarthy:

I see that; yes, ma’am.

Judge:

This was a bond document, so I will mark this one. It should be marked separately. One second. All right. Exhibit 5 will be respondent's motion for relief from unlawful detention. Exhibit 6 will be respondent's motion to withdraw previous motion to terminate proceedings. Exhibit 7 will be a declaration of a deportation officer, Robert Cordero. Exhibit 8 is the I-213. Just give me a second. Exhibit 9 will be documents from the Government consisting of one attachment, and it's a Canadian passport bearing the name of Richard Riess, and that will be Exhibit 9. Then I received from the respondent respondent's objection to the Department's submission of evidence. Did the Government receive that? This was back in 2008. It's a handwritten documentation.

McCarthy:

I, I believe so, Your Honor. I'm not --

Judge:

All right, that will be 10. It didn't seem like it was ever marked. All right, notice of time for the Government to respond is 11. Motion to voluntarily depart, Exhibit 12, and then I received the Government's objection to the respondent's objection to the Department's submission of evidence and also to his request for voluntary departure. That will be 13. Respondent's submission of evidence that the Court received May 20th, 2008, will be 14. Respondent's objection to the Court's order which granted the Department's continuance on May 5th, 2008, will be 15. Respondent's motion to suppress declaration of Deportation Officer Robert Cordero will be 16. Government's brief in opposition to respondent's motion to suppress is 17. Respondent's motion to suppress evidence, 18. Respondent's motion to subpoena witnesses is 19. Immigration Judge's, Immigration Judge Steven Ruhle's order denying respondent's motion to subpoena witnesses and motion to suppress evidence is 20. Respondent's motion to suppress evidence -- and this, I guess, refers to the passport which was submitted by the Government on May 28, 2008, will be 21. Respondent's brief in opposition to Department's brief dated May 19th, 2008, is 22. Respondent's letter to the Court asking for clarification of its order is 23. Motion to administratively close these proceedings is 24. Court's order granting administrative closure, 25. Motion to recalendar, 26. Well, this is wrong. As to removal proceedings, those are all the documents I have in my file.

McCarthy:

Okay, did we -- do you not have the false citizenship --

Judge:

I'm sorry?

McCarthy:

You don't have the false citizenship conviction there?

Judge:

No, I have everything that I just --

McCarthy:

Thank you, Your Honor.

Judge:

-- stated.

McCarthy:

Okay.

Judge:

All right.

These I believe go all en banc. They just need to be placed appropriately. All right, let's see. Any opposition to the request for a continuance?

McCarthy:

Well, Your Honor, since we filed, we filed a 261 today, I believe he automatically gets a, he automatically gets a continuance. We would ask one thing, though, Your Honor: We've been receiving quite a few letters from the respondent. We don't -- has the Court been receiving copies of these? One’s marked hypotheticals.

Judge:

No.

McCarthy:

One marked final proposal. Another marked request for disclosure of discovery.

Judge:

No, he hasn't sent -- I haven't received any. All that I have in my file is what I just went through --

McCarthy:

Okay, so --

Judge:

-- from 1 through 25.

McCarthy:

Just on the record we would like to -- if, if he wants to send us anything, he should probably send the Court copies of it.

Judge:

Yes.

McCarthy:

Particularly regarding the hypotheticals or any kind of proposals he wants to make to the Department regarding this case.

Judge:

You understand, Mr. Riess?

Riess:

Absolutely.

Judge:

All right, July 23rd, 9:30. That's the date. I'm sorry, 8:30. That's the day you come back.

Riess:

Okay, and that's for the --

Judge:

Master Calendar, which is why we're here today.

Riess:

Right. Right. Is there any chance that you could indicate the status of the bond hearing as well. I had submitted a motion for a continuance on that as well.

Judge:

I think your bond hearing was reset.

Can you check the computer for me?

Because it was set for June -- it was set for this Friday, but you requested a continuance.

Riess:

Right.

Judge:

Oh, and the Government had no opposition to it.

Riess:

Right.

Judge:

So if you have not received the notice yet as to the new date, you'll get it in the mail, okay?

Riess:

Okay.

Judge:

Anything else from you?

Riess:

Yes. I would just like to clarify.

Judge:

Yes, I think it's been reset already to August 14th at 8:30, correct?

Clerk:

We've got August 14th --

Judge:

Yes.

Clerk:

-- but that's a, that's an individual --

Judge:

No.

Clerk:

-- at 8:30 to 11:00.

Judge:

Well, yes. Yes. It's, it's for his bond hearing. We'd set a long period of time because they were going to get witnesses and things.

Clerk:

Oh, okay.

Judge:

August 14th is your next bond hearing. What's the next question, sir?

Riess:

I just wanted to clarify for the record this security threat and me being in segregation.

Judge:

No, not -- I don't have anything to do with that.

Riess:

Oh, no, no, but I would like --

Judge:

Do you understand that?

Riess:

-- I would like it to be on the record, though --

Judge:

Okay, well, yes, sir.

Riess:

-- and I have documentation here to support it. The reason for it is because I refuse to wake up and make my bed by eight o'clock.

Judge:

All right, anything else?

Riess:

Oh. Let me clarify. So the original allegations that I'm an overstay are now withdrawn, right? And I'm -- if they're alleging that I entered illegally.

Judge:

That's what they're saying, sir.

Riess:

Excellent.

Judge:

Anything else?

Riess:

I don't think so.

Judge:

All right, follow the officer's instructions and we are off the record.

HEARING CONTINUED