Transcript of Removal Proceedings (2009-07-23)
Synopsis
This was the final hearing in my removal proceedings.
Because I had now been convicted of false claim of US citizenship, the Immigration Court would be precluded from considering any evidence which would necessarily contradict that conviction. That's the doctrin of res judicata. However, since that conviction was still on appeal at this point, it could not be used against me yet. So, DHS and the Immigration Court couldn't use it as a basis of removability.
The most significant thing about this hearing is that DHS is now accusing me of being an illegal entrant, rather than a visa overstay. They changed the allegation because I had pointed out that if I was a visa overstay then there must be some record of me entering the country, but there's not. See the Synopsis from the 2009-06-22 hearing for more details.
So, at this hearing I basically just said "I can't discusss that at this time", to any questions the judge asked. Obviously, that did not help my case.
But the problem with alleging I am a Canadian citizen who entered without being admitted is that the US State Department's and DHS's own official policy is that Canadians are generally not issued an I-94; so there is generally no record of when, where, or how they entered the country; so their policy requires that the date of entry for an undocumented Canadian is to be the date ICE encountered them, and a period of unlawful presence does not begin until an immigration judge makes a finding of inadmissibility. So, based on DHS's and the US State Department's policies, if I was a Canadian who entered without admission, as they are claiming, then I cannot be considered unlawfully present until the Immigration Judge enters a removal order. That is, DHS and the Immigration Court are legally required to treat my date of entry as the day ICE took custody of me from the MCSO, and I cannot be found to be in the country unlawfully until after the Immigration Judge enters a removal order.
After I got DHS to change their allegation to me being a Canadian citizen illegal entrant, I submitted a Motion to Terminate Removal Proceedings, based on their own policies precluding them and the Immigration Court from considering me an illegal entrant or unlawfully present. I suspect DHS and the Immigration Judge realized I had effectively tricked DHS into destroying their own case against me. They completely ignored my arguments, the case law, and the policies cited in my motion.
At this hearing, Spencer-Walters tried desparately to get me to make some admission about when I entered the country. Because, you see, if I admitted I entered on a date more than six months prior to ICE taking custody of me she could have claimed I was unlawfully present from the end of that six month period until the day ICE took custody of me. And that would have been a period of unlawful presence, which would have made me inadmissible/removable. So, I refused to answer any questions related to when I entered the US.
Of course, this is all for the sake of argument, assuming DHS's allegation of me being a Canadian citizen and national were true.
PDFU.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: July 23, 2009
Place: Eloy, Arizona
Transcribed by FREE STATE REPORTING, INC., at Annapolis, Maryland
Official Interpreter:
Language:
Appearances:
For the Department of
Homeland Security:
Alec J. Niziolek
Homeland Security:
Alec J. Niziolek
For the Respondent:
Pro se
Audio recording of the entire hearing
(DAR CD)
Judge:
On the record. Today is Thursday, July 23, 2009, Eloy Immigration Court. Immigration Judge Linda I. Spencer-Walters presiding in continued removal proceeding in the case of Richard Steven Riess, A 88 664 582. Respondent is present. Appearing on the Department of Homeland Security today is Mr. Alec Niziolek. These proceedings are being conducted in the English language.
Good afternoon -- I'm sorry -- good morning, sir. Please state your name.
Riess:
Richard Riess.
Judge:
You speak and understand English?
Riess:
Yes, I do.
Judge:
You have an attorney today?
Riess:
No.
Judge:
You need some time to get an attorney?
Riess:
No.
Judge:
Excuse me. Do you wish to speak for yourself?
Riess:
I do.
Judge:
Thank you.
We had marked up to, I believe, Exhibit No. 25 the last time we were here. Subsequent to that, the Court has received some additional documents which the Court will continue to mark at this time. Exhibit No. 26 will be the respondent's documentation that the Court received June 24th, 2009. Twenty- seven will -- let's see -- on June, June 30th the Government submitted to the Court some documents and they say they forwarded this package to you. I hold up my package for you to see.
Riess:
Yes.
Judge:
Did you receive that, sir?
Riess:
Yes, I did.
Judge:
The Government's documents dated June 30th, 2009, is Exhibit 27. Twenty-eight is the respondent's request for information. Twenty-nine is respondent's briefing opposition to the Department's proposed exhibits. Exhibit 30 will be the submission received from the respondent dated July 14th, 2009. Thirty-one are additional documents received from the respondent dated July 14th, 2009. Exhibit No. 32 is the respondent's motion to terminate removal proceedings, and Exhibit 33 are additional documents received from the respondent dated July 20th, 2009. On July 22nd, 2009, respondent submitted to the Court a motion for change of venue. Government receive that?
Niziolek:
We did, Your Honor.
Judge:
Thirty-four. And, lastly, the Court received additional documents from the respondent dated July 22nd, again 2009. This will be 35. All right, these are all the documents I have in my file at this time.
Do you have any new documents today?
Riess:
Not yet.
Judge:
Any additional documents from the Government?
Niziolek:
No additional documents from the Government, Your Honor.
Judge:
Mr. Niziolek, let me hear from you as to this case. There's a -- what is it -- a motion to, a motion to terminate, a motion for change of venue, and an opposition to the documentation submitted by the Government. As to the motion to terminate, has the Government had the opportunity to review and respond to it?
Niziolek:
Your Honor, we have reviewed the -- first off, Your Honor, the motion to terminate we want to take as a denial of the 261 because we filed a 261 that's marked as Exhibit 1A --
Judge:
Yes.
Niziolek:
And respondent, apparently in the motion to terminate, is contesting that because I don't believe we've actually taken pleadings on the 261.
Judge:
No, we have not, on Exhibit 1A, no, but I believe the respondent is denying the allegations. We'll address that shortly.
Niziolek:
Your Honor, on our end, as to allegations 1 and 2, we've done this to death, Your Honor. We've put in the passport, we've proved up the alienage,
Your Honor, and we can't determine when the respondent came in or if he came in legally. So, therefore, it's appropriate to charge that we don't know his entry date. Let him prove his lawful valid entry through any means possible -- passport stamps. He says he doesn't get issued an I-94. There's got to be some way for him to come up with when he entered, what he entered -- what he -- how he did this. We haven't been provided the evidence, and the burden is on him, Your Honor. The Act is quite clear about that.
Judge:
Okay. So that's one issue. The Government responded to -- I haven't seen it -- response to the change of venue?
Niziolek:
Your Honor, we just got that.
Judge:
I think this just came in, yes.
Niziolek:
I believe that's on -- that was dated --
Judge:
That just came in --
Niziolek:
-- the 22nd.
Judge:
-- yesterday, yes.
Niziolek:
However, Your Honor, I have, I have read respondent's argument. Congress has been very clear. He makes it based primarily on constitutional grounds. The Court is not in a position to review anything on constitutional grounds. It's really -- even the BIA is, is foreclosed from doing that. It's only the circuit courts, and his issues seem primarily with CCA. This is not a forum that can resolve those issues. Lastly, Your Honor, it's a COV essentially to -- if I read it correctly, anywhere but here. There's no specific place; it just says to be changed to some other facility. Your Honor, I'm not familiar with an open-ended COV. I think it needs to be specific and, furthermore, Matter of Rahman, the Government can house the person wherever it's convenient for the Government.
Judge:
Okay.
Let's go to the Notice to -- I-261 because I don't think we've taken pleadings as to that additional charge. I think I know where you're going with it, but I think I formally need to take pleadings to it. The Government has changed factual allegations 3 and 4, and now they say that you entered this country; they're not sure where you came in or when --
Riess:
Yes.
Judge:
-- and they say at that time you came in illegally. Those are the two new allegations brought against you, and then there's -- they've withdrawn the overstay charge, and the new charge is under Section 2l2(a)(6)(A)(i) stating that you're present in this country without being admitted or paroled.
That's what the -- that's the essence of the I-261. As to -- let’s go through the allegations, the new allegations 3 and 4. The Government says you entered the United States at an unknown place and on an unknown date. Admit or deny?
Riess:
Can I, can I ask for some clarification on that because from their perspective indeed it would be an unknown place or unknown time (indiscernible).
Judge:
They say they are not sure where you came in or when.
Riess:
Well, that's, that's correct in the sense that they're not sure, but --
Judge:
Did you come in legally or illegally? The Government is saying you were not then admitted or paroled after inspection by an Immigration officer. In other words, they're saying you came in illegally.
Riess:
That I do.
Judge:
You deny that one?
Riess:
I deny that
Judge:
All right, I'll put a denial to 3 and 4 and a denial to, of course, the charge because the charge goes directly to factual allegation no. 4. Now I've received all your documents. Now as to the -- pretty much the only charge, which is this 2l2(a)(6)(A) charge, which they're saying you're here illegally, what documentation do you have to show that you came in legally?
Riess:
At this point, none. Unfortunately, I have nothing at this point.
Judge:
Okay. Are --
Riess:
I've been in custody for almost two years.
Judge:
-- you working on getting some documentation to show how you came into this country?
Riess:
No.
Judge:
Okay. Now the burden of proof pretty much is on you --
Riess:
Mm-hmm.
Judge:
-- for you to show me how you came because the Government is saying you came in illegally, and you're saying no, you did not come in illegally. So if you have any way to show me that you did come in legally, I would appreciate it, and I would consider it to determine if the Government is wrong.
Riess:
Mm-hmm.
Judge:
You understand?
Riess:
I understand, yes.
Judge:
Okay. So what are you working on getting?
Riess:
I don't know how I could possibly go about getting the documentation to show that I entered the country legally since I have nothing anymore.
Judge:
Okay.
Riess:
I, I have no material possessions, I have no documentation, I have nothing. I've been in custody for almost two years.
Judge:
What, what family members do you have outside?
Riess:
None. Me and my son and my wife.
Judge:
Okay. Are you -- where is your, where is your wife and your son?
Riess:
In Los Angeles.
Judge:
Okay. Are you in contact with her?
Riess:
Yes.
Judge:
Can she get any documentation for you? Have you tried to Contact her to see if she can get you proof or documentation to establish that you came in legally?
Riess:
We haven't really discussed specifically that topic, no.
Judge:
Okay. Are you thinking of doing it?
Riess:
Documentation to show that I entered the country legally? No.
Judge:
So you're not -- you don't want to prove -- so how do you intend to establish it?
Riess:
I can't really comment on that at this point yet.
Judge:
Well, this is the time, this is the place. We're here now. Let's not waste any further time. How do you intend to do it?
Riess:
I don't intend to produce documentation to show that I entered the country.
Judge:
Okay.
Riess:
I don't believe it's possible for me to produce documentation to show that I've entered the country at any point.
Judge:
All right. So let me understand you correctly just so I write this down right. You say you do not intend to produce any documentation to show you entered legally, correct?
Riess:
No, no. I don't intend because I don't believe it's possible to produce any documentation to show that I've ever entered the country, whether legally or illegally.
Judge:
You need documentation to show that you ever entered.
Riess:
Right.
Judge:
That you're even here.
Riess:
No, I am here; there's no question about that.
Judge:
So there's no -- you don't want to show how you came?
Riess:
It's not that I don't want to show how I came. There is no documentation that exists that would demonstrate that I have entered the country.
Judge:
Okay.
Riess:
In other words, no, I can't -- yeah, that, that's all I can say at this point about that.
Judge:
All right, okay. I think I get a gist of what you're trying to say.
I think this case just needs to be set over for a decision. Mr. Niziolek, let me hear from you.
Niziolek:
I agree, Your Honor. I believe everything’s in evidence. I believe we've got the pleadings. Respondent has expressed his stance. I'm not going to characterize it in any way, shape or form because it's his own word that he's not going to try to obtain these documents. So I think we have everything here, Your Honor. We'd set it over for a decision. I would ask that the evidentiary portion be -- of this case be closed.
Judge:
Yes. At this point, I'm going to close the evidentiary portion of these proceedings. The Court's decision will be based on all documentation marked and admitted from Exhibit 1 to the very last exhibit that this Court just marked as Exhibit 35.
You don't have any new documents for me today, do you?
Riess:
Not yet, no.
Judge:
Are you intending to get any new documents?
Riess:
I was, but if they're not going to be relevant, then I'll (indiscernible).
Judge:
I'm not at this point saying what relevance there will be or not because I don't know. At this point, I intend to close the evidentiary portion and basically just make my decision on everything that's here. Are you intending to get new documents, though? That's what I want to know because I need to put a cutoff date. I just can't keep receiving documents up to the last time; I have to cut if off up to a certain point and make my decision based upon everything I have.
Riess:
No, that's fine.
Judge:
Okay. So you're stopping at this point as to the documentation?
Riess:
Yes, but I would like to reiterate just so that it's perfectly clear it's not that I don't intend or don't want to provide documentation to show that I've entered the country, it's that, as I've said, the documentation does not exist. There is no documentation to show that I've ever entered the United States.
Judge:
No documentation exists.
Riess:
As, as I had stated previously, if the allegation that I'm a Canadian citizen is true and I entered at the Canadian border, there was no I-94 issued, there was no record of me entering because it's very common when Canadians enter at the border that they're just waved through.
Judge:
Very well. Okay.
Betty, I need an hour.
I'll set this case over for a decision.
Riess:
Okay.
Judge:
And I said evidentiary -- the documentary evidence runs from Exhibit 1 through Exhibit No. 35. All right.
Clerk:
August 26th at one o'clock?
Judge:
August 26, 2009, at 1:00 p.m. for my decision as to the charge of inadmissibility at this point. Let's talk -- before we do that as to -- before we go off the record, if removal were to be or inadmissibility -- the charge of inadmissibility were to be sustained, what relief is the respondent eligible to seek? Have you talked about that or is that --
Niziolek:
We've examined it, Your Honor. It's a little up in the air. We did submit a conviction docket, but respondent has appealed that conviction, so it's not final for Immigration purposes.
Judge:
Okay. All right.
Niziolek:
So it, it depends on what happens with that, and I believe -- I checked PACER yesterday, Your Honor, and it said that --
Judge:
They haven't ruled on it.
Niziolek:
-- they just did a briefing -- they did a briefing extension to I don't know what date.
Judge:
Okay.
Niziolek:
So it's -- if that comes down, Your Honor, it's going to be a bar to most forms of relief.
Judge:
Okay.
So what year -- I don't even know if this question is appropriate seeing that you said there's no documentation to show that you ever entered. How many years have you been in this country? Is that even safe to even ask? And I'll tell you why I ask.
Riess:
Mm-hmm.
Judge:
In order for me to determine if you're eligible for the 10-year pardon, I need to know that you've been here for at least 10 years.
Riess:
Right.
Judge:
So can you answer that question?
Riess:
I can't answer that at this time, I'm sorry.
Judge:
Okay. All right. So I can't determine if you're eligible for any forms of relief at this time.
Riess:
(Indiscernible).
Judge:
Your wife -- you said you have a wife and a son, right?
Riess:
Yes, I do.
Judge:
Can you disclose what status, if any, she has?
Riess:
Oh, sure. They're both citizens.
Judge:
Okay. All right. So your wife is a USC. Can you disclose if she's ever filed any documentation for you?
Riess:
No, she has not.
Judge:
Okay. When did you get married? Can you disclose that?
Riess:
2000 and -- oh, 2000, August 2000.
Judge:
In 2000, okay.
Married in 2000. Okay. Respondent can't disclose if -- all right.
Judge:
Anything else from either side?
Riess:
Yes.
Judge:
Yes, sir?
Riess:
I would like to also reiterate that I don't oppose being deported at all. I'm not averse to it. I've never once fought to be able to stay in America in the last three years that I've been going through this whole proceeding. I have requested almost every time when I've come into the Immigration Court to either be granted voluntary departure or to be ordered removed.
Judge:
Okay. So we'll consider all of that also.
Has the Government thought of voluntary departure?
Niziolek:
We have considered voluntary departure, Your Honor --
Judge:
And?
Niziolek:
-- and we would be opposed.
Judge:
Okay.
So the Government is in opposition to you being granted voluntary departure. So my decision will consist of not only the ruling as to the charge of inadmissibility, but I'll also address if there's any possibility of you remaining in this country, and we'll talk about voluntary departure in the alternative. Your parents. Before we go off the record, can you disclose if either one of your parents are United States citizens?
Riess:
I cannot discuss that this time either.
Judge:
Okay. Very well. Anything else from you at this time?
Riess:
No.
Judge:
All right. Follow the officer's instructions. We're off the record.
Riess:
Thank you.
Judge:
You're welcome.