Reasons for Judgment, Deportation of Patrick Fox (2009-08-26)

Synopsis

This is the US Immigration Court's ruling, ordering me removed from the US.

One thing you should notice in here, is that the judge does not make a single reference to the fact that ICE arrested me without any evidence of alienage, and detained me illegally for eight months while they put minimal effort into finding any evidence of alienage.

You may also notice, ICE had the fingerprints of the person from Canada who they were accusing me of being and who I was being deported as, and yet those fingerprints were not used in either my false claim of US citizenship trial nor in my removal proceedings, to establish whether I am actually the person named on the passport DHS was using to establish my alienage. The reason is because those fingerprints, the fingerprints of Ricky Riess from Canada, didn't match mine. So even though DHS knew I wasn't the person they were claiming I was, they STILL proceeded with the deportation.

And you may also notice the only basis of removability they're using is that I entered the US without inspection. There's no mention of the false claim of US citizenship or perjury convictions. That may be because those convictions were still on appeal, though.

A major issue in the judge's ruling is that she completely ignored the fact that DHS and State Department policies require that a Canadian citizen found within the US without a visa or proof of lawful entry is required to be treated as though he were a "duration of status" case; that his date of admission is to be treated as the date the immigration authorities encountered him within the US; and that any period of unlawful presence does not accrue and AFTER the Immigration Court makes a finding of removability. The reason for that is because, again by DHS and State Department policies, Canadian citizens who enter the US by land or sea typically are not issued visas or entry documents so it would be impossible for either the Canadian or DHS to prove when and how the person entered the US, even though they DID present themselves for inspection.

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT

Eloy, Arizona

File No.: A 088 664 582

August 26, 2009

In the Matter of

RICHARD STEVEN RIESS

Respondent

IN REMOVAL PROCEEDINGS

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act - present without being admitted or paroled after inspection by an Immigration officer

APPLICATIONS:

Motion to terminate, motion for change of venue

ON BEHALF OF RESPONDENT:

Pro se

ON BEHALF OF DHS:

Alex J. Niziolek
Assistant Chief Counsel

Audio recording of the Immigration Judge's Oral Decision

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE

The United States Department of Homeland Security has brought these removal proceedings against the respondent under the authority of the Immigration and Nationality Act. Proceedings were commenced with the filing of a Notice to Appear with the Immigration Court. See 8 C.F.R. 1003.14(a) and also Exhibit No. 1.

On June 22, 2009, the Department of Homeland Security filed an additional charge of inadmissibility/deportability, I-261, against the respondent. See Exhibit 1A. In these documents, the Department of Homeland Security has alleged that respondent is not a citizen or national of the United States, but he is a native and citizen of Canada, who entered the United States at an unknown place on an unknown date, without being admitted or paroled after inspection by an Immigration officer. Respondent is charged as being inadmissible as referenced above.

Respondent has denied all of the allegations and the single charge of inadmissibility. He has also requested that venue be changed to an unspecified location. See Exhibit 34, and for the proceedings to be terminated. See Exhibit 32.

Respondent and the Government have submitted documentary evidence as it relates to the charge of removability, marked and admitted as evidence labeled from Exhibit 1 through Exhibit 49. At the last Master Calendar hearing, the Court also questioned the respondent.

STATEMENT OF THE LAW

The Department of Homeland Security must prove by clear and convincing evidence that the respondent is an alien. Once alienage has been established, the respondent must prove by clear and convincing evidence that he is lawfully present in the United States pursuant to a prior admission. See Section 240C(2)(B). See also 8 C.F.R. Section 1240.8(c).

To meet this requirement, the respondent must generally prove the time, place, date and manner of his entry into the United States.

Regarding the change of venue motion, the Board of Immigration Appeals has determined that in deciding a change of venue request, the Immigration Judge must change venue only for good cause after balancing the factors relevant to the venue issue. See Matter of Rahman, 20 I&N Dec. 480 (BIA 1992).

The factors include administrative convenience, expeditious treatment of the case, location of witnesses, cost of transporting witnesses or evidence to a new location, and pursuant to regulations, the provision of the address where the respondent could be reached. See Rahman at 482.

FINDINGS AND ANALYSIS

The Department of Homeland Security has submitted a Record of Deportable/Inadmissible Alien, I-261, as Exhibit No. 8, a copy of a Canadian passport bearing the name of Richard Riess, Exhibit 9,

Admittedly, this on it's own is definitely evidence of alienage.

But unfortunately, the one thing that neither DHS nor ICE nor CBSA nor IRCC has EVER done is made any attempt to verify whether I'm actually the person named on the passport. That is, am I actually the person who was born Ricky Riess in Sudbury, Canada, or did I fraudulently apply for a passport in his name?

This is particularly troubling since I've repeatedly openly admitted, even in various courts, that I fraudulently applied for and received that passport. I've said, in Canadian court, that if the government wants to prosecute me for passport fraud I'm fine with that but that I know they won't.

It's not that none of those agencies ever thought of doing that. On 2008-05-05, Immigration Judge Steven Ruhle told DHS if they wanted to proceed with their case against me they would have to provide some type of biometric evidence, such as fingerprints, establishing I am actually the person named on the passport. DHS did that, they got Ricky Riess's fingerprints from the Toronto Police, and those fingerprints didn't match mine.

So DHS has those fingerprints and they know I'm not Ricky Riess from Sudbury, Canada, but they make no mention of it.

Moreover, I have been demanding, for years, that CBSA, IRCC, ICE, or DHS do a DNA test of Ricky Riess's parents to determine whether I am related to them. They refuse to do so.

indicating that respondent was born in Sudbury, Canada, on November 24, 1973.

They have also submitted a sworn declaration from a deportation officer with Canada Border Services Agency, who verified with the Ontario, Canada, Vital Statistics, the biographical information of the respondent: specifically, that respondent was born on November 24, 1973, in Sudbury, Canada to Steve John Riess and Penny Susan Peppin.

The officer also verified from the Canadian passport that the copy of the passport contained in Exhibit No. 7 was issued by them, to a Richard Riess, born November 24, 1973, in Sudbury, Canada. See Exhibit 13, tab B.

Based upon the documentation submitted by the Department of Homeland Security, this Court finds that it has proven by clear and convincing evidence that the respondent was born in Sudbury, Canada, and therefore, has established that respondent is an alien.

The burden now shifts to the respondent to prove by clear and convincing evidence that he is lawfully present in the United States pursuant to a prior admission. This Court has reviewed all of respondent's documentary evidence and also taken into consideration his statements made in court.

None of the documents submitted by the respondent establish that he is lawfully present in the United States. Respondent had stated to the Court that he has no proof of lawful entry as no documentation exists to show that he ever entered the United States. According to the respondent, he was never issued an I-94.

After careful review of respondent's case and consideration of the totality of the evidence, this Court cannot find that respondent has met his burden to prove the time, place, date and manner of his entry into the United States. In essence, respondent has failed to establish that he is lawfully present in the United States pursuant to a prior admission.

Therefore, this Court must find that respondent is inadmissible as charged, and will sustain the above-referenced charge. Respondent's motion to terminate is therefore denied.

And here, Spencer-Walters is denying my motion to terminate without even addressing or mentioning any of the arguments or legal authorities presented therein. That is not how the law is supposed to work. If a party makes a motion and presents clear, irrefutable legal authorities supporting that motion, the judge is supposed to provide some explanation for why she's disregarding or contradicting those authorities. The fact that Spencer-Walters makes no mention of them proves she knows they're right and that she was obligated to rule consistent with them - which would mean, ruling in my favor.

Notice, in the next couple of paragraphs, Spencer-Walters addresses my motion for change of venue and she references the authorities I cited. Why do you suppose she does that for the motion for change of venue but not for the motion to terminate?

Regarding respondent's motion to change venue, respondent requests that venue be changed in his case to another location due to what respondent has described as violations of his constitutional rights regarding the practice and observance of his religion, the lack of protection of his constitutional rights, to name a few.

Respondent has submitted several submissions to this Court in that respect, which are all a part of this record. Upon review of respondent's motion, this Court first of all states that it lacks the authority to rule on constitutional issues. See Matter of Patel, 19 I&N Dec. 774 (BIA 1988), Matter of Valdovinos, 18 I&N Dec. 343 (BIA 1982), Matter of Bogart, 15 I&N Dec. 552 (BIA 1975, 1976): A.G. 1976, Matter of Chery and Hasan, 59 I&N Dec. 380 (BIA 1975), Matter of Santana, 13 I&N Dec. 362 (BIA 1969), Matter of L-, 4 I&N Dec. 556 (BIA 1951).

In addition, respondent has failed to specify the location that he would want venue to be changed to, and this Court does not find that good cause had been established for these proceedings to be transferred to another location.

Based on the above, the motion for change of venue is therefore denied.

This Court has attempted to consider respondent for possible relief. Respondent admitted that he is married to a United States citizen and has been so married since the year 2000, but that no petition has been filed on his behalf. The Court could not determine if respondent qualified for cancellation of removal under Section 240A(b) of the Act as he stated to the Court that he could not disclose to this Court whether he has been present in the United States for at least 10 years.

The Court also could not properly consider whether respondent has a viable citizenship claim, as the respondent stated to the Court that he could not disclose to this Court if his parents were United States citizens.

Based upon the above, this Court finds that as no petition has been filed on the respondent's behalf, the respondent does not appear to be eligible for the relief of adjustment of status before this Court at this time.

In addition, based upon the statements made to the respondent or lack thereof, this Court cannot determine at this time whether or not respondent is eligible for cancellation of removal or whether he has a viable citizenship claim.

The Court has also considered respondent for voluntary departure. However, based upon respondent's refusal or reluctance to provide some facts about his case for this Court's consideration, this Court is not inclined to grant voluntary departure as a matter of discretion.

Accordingly the following orders are entered:

ORDER

IT IS HEREBY ORDERED that the charge of inadmissibility as referenced above is hereby sustained.

IT IS HEREBY ORDERED that respondent's motion to terminate is denied.

IT IS HEREBY ORDERED that respondent's motion for change of venue is denied.

IT IS HEREBY ORDERED that any request for voluntary departure in this case is hereby denied.

Respondent is ordered removed from the United States to Canada.

LINDA I. SPENCER-WALTERS
United States Immigration Judge

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE LINDA I. SPENCER-WALTERS, in the matter of:

RICHARD STEVEN RIESS
A 088 664 582
Eloy, Arizona

is an accurate, verbatim transcript of the recording as provided by the Executive Office for Immigration Review and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.

Mary Lou Leidig, Transcriber
Free State Reporting, Inc.

September 16, 2009
(completion date)

By submission of this CERTIFICATE PAGE, the Contractor certifies that a Sony BEC/T-147, 4—channel transcriber or equivalent and/or CD, as described in Section C, paragraph C.3.3.2 of the contract, was used to transcribe the Record of Proceeding shown in the above paragraph.