Reasons for Judgment on Appeal (BIA), Deportation of Patrick Fox (2009-12-17)

Synopsis

This is the Board of Immigration Appeals (BIA) ruling, dismissing my appeal and upholding the removal order of the US Immigration Court.

One of the issues I raised in my appeal brief was that the Immigration Judge relied on a sworn declaration of a CBSA officer, but that declaration was unauthenticated, and the purported maker of it was not produced for cross-examination. Another issue I raised was that the Immigration Judge also relied on the information contained in an I-213 form prepared by a particular ICE Officer, but that officer also was not made available for cross-examination.

It is well established law that if the court is going to make a ruling which is going to have a significant adverse affect on a party, and that ruling is going to be based on a sworn declaration or a police report, then the person who made that declaration or report must be made available for cross-examination. Otherwise, the contents of those declarations or reports amount to nothing more than hearsay.

Another very significant issue I raised was that DHS's and the State Department's own policies exempt Canadian citizens from entry document requirements. And they require that an undocumented Canadian citizen within the US must be treated as a duration of status case. That necessarily means that a Canadian citizen within the US cannot be found to have entered without admission (unless, of course, he admits to it), and cannot be found to be unlawfully present within the US, unless he admits that his most recent entry date was more than 180 days prior to the date he is encountered by the immigration authorities.

The Immigration Judge had completely ignored these arguments and the legal authorities I provided to support them. And now, the BIA also completely ignored them. It's as though I never even made the arguments. But they're right there, in writing, in my briefs and the court transcripts.

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U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File: A088 664 582 - Eloy, AZ

Date: DEC 17 2009

In re: RICHARD STEVEN RIESS

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

Pro se

ON BEHALF OF DHS:

Dominique J. Honea
Assistant Chief Counsel

CHARGE:

Notice:

Sec.

237(a)(1)(B), I&N Act [8 U.S.C. § 1227(a)(1)(B)] -
In the United States in violation of law (withdrawn)

Lodged:

Sec.

212(a)(6)(A)(i), I&N Act [8 U.S.C. § 1182(a)(6)(A)(i)] -
Present without being admitted or paroled

APPLICATION: Termination

The respondent appeals from an Immigration Judge’s decision dated August 26, 2009, finding the respondent removable as charged and ordering the respondent removed from the United States. The respondent's appeal will be dismissed.1

The respondent on appeal contends that the Immigration Judge erred in finding that the Department of Homeland Security (“DHS”) sustained its burden of proving the respondent’s alienage by clear and convincing evidence. The respondent further asserts that, even if the DHS sustained its burden of proving alienage, the Immigration Judge erred in finding the respondent removable as charged under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i). We disagree. See 8 C.F.R. § 1003.1(d)(3)(ii) (stating that the Board reviews questions of law de novo).

As the Immigration Judge noted, the DHS presented a Record of Deportable/Inadmissible Alien, (Form I-213), which indicates that the respondent’s name is Richard Steven Riess, born on November 24, 1973, in Sudburry, Ontario, Canada (Exh. 8). The DHS also submitted a copy of a Canadian passport bearing the name of Richard Riess, born on November 24, 1973, in Sudburry, Canada (Exh. 9). In addition, the DHS submitted the sworn declaration of a deportation officer with the Canada Border Services Agency (Exh. 13 at Tab B). The officer attested that he verified with the Ontario, Canada, Vital Statistics, that a Richard Reiss was born in Sudburry, Ontario, Canada, on November 24, 1973 (Exh. 13 at Tab B).

Yes, Jacob did verify that a person named Richard Riess (or more specifically "Ricky" Riess) was born in Sudbury, Ontario, Canada on 1973-11-24, but he DID NOT verify, nor did he claim to have verified, that I was that person.

Notice, that has been my argument all along: That even though a person named Richard Riess was born in Sudbury, Canada on 1973-11-24, I am not that person. I have been candid about changing my name to Richard Riess and assuming that person's identity.

Now notice: All the Canadian and US authorities absolutely REFUSE to do anything to verify whether I'm actually that person! They refuse to do a DNA comparison test of any of Ricky Riess's family, even though Ricky Riess's father has offered to particiapte in that. They've destroyed all records of Ricky Riess's fingerprints - though they did so too late because those fingerprints were provided to ICE in 2008, then provided to me by USCIS through Freedom of Indformation in 2009, and now they're on this website.

The officer also declared that he verified that a Canadian passport was issued to a Richard Riess, born in Sudburry, Ontario, Canada, on November 24, 1973, which is consistent with the information submitted by the DHS relating to the copy of the Canadian passport contained in the record (Exhs. 7, 9).

The respondent on appeal raises various challenges to the legality of the above described evidence asserting essentially that it cannot properly be used to establish his alienage. However, while each piece of evidence may alone be insufficient, collectively such evidence sufficiently establishes that the respondent is one Richard Riess, born on November 24, 1973, in Sudburry, Ontario, Canada. Significantly, the respondent does not dispute either that his name is Richard Riess or that he was born on November 24, 1973. Therefore, on this record, we decline to set aside the Immigration Judge’s decision finding that the DHS sustained its burden of proving the respondent’s alienage by clear and convincing evidence.

We further find no reason to disturb the Immigration Judge’s decision finding that the respondent has failed to establish by clear and convincing evidence that he is lawfully in the United States pursuant to a prior admission. See 8 C.F.R. § 1240.8(c). As the Immigration Judge noted, the respondent has presented no evidence demonstrating the time, place, and manner of entry into this country. Indeed, the respondent on appeal does not assert that he is present in this country pursuant to a lawful admission. Instead, he claims that he is a citizen, but has provided absolutely no proof to support such a claim. See Matter of Rodriguez-Tejedor, 23 I&N Dec. 153, 164 (BIA 2001) (noting that evidence of a foreign birth gives rise to a rebuttable presumption of alienage). Moreover, contrary to the respondent’s assertion on appeal, that the respondent may have been exempt from receiving a visa or an I-94, does not excuse an unlawful entry

But there was absolutely no evidence of an unlawful entry. Generally, the lack of an entry document, such as a visa or an I-94, is sufficient to establish unlawful entry. However, given that DHS's documented policies exempted Canadians from being issued entry documents, and the State Department's policy that Canadians without an entry document are to be treated as duration of status cases, then the lack of an entry document or any other record of entry for a Canadian means absolutely nothing. It certainly would not be evidence of unlawful entry.

Back then (before all the cameras and sensors along the border), the only way a Canadian citizen could be established to have entered unlawfully is if they admitted to it.

So there was absolutely no evidence of unlawful entry and I was exempt from proving lawful entry. But the BIA, just like the Immigration Judge, is blatantly ignoring those policies because they're contrary to the ruling they wanted to make.

or relieve the respondent from the requirement that he provide clear and convincing evidence that he is lawfully in the United States pursuant to a prior admission

What the...? It absolutely DOES! That is exactly what the wording of the DHS policy and the State Department's "advice" on the matter states. The statement from the State Department said:

...a Canadian who enters the United States following inspection by an immigration officer but who receives neither a visa nor an I-94 is treated as a duration of status case. Therefore, such a non-citizen may begin to accrue unlawful presence only when an immigration judge or the immigration agency makes a finding of violation of status.

That clearly says that a Canadian who was not issued an entry document is to be treated as a duration of status case, which means they cannot begin to accrue unlawful presence until after an Immigration Judge makes a finding of inadmissibility. Which would, necessarily, mean such a finding of inadmissibility would have to be based on something other than unlawful presence. I just don't see how it's possible to understand that any other way.

for purposes of proving that he is not inadmissible as charged.

Finally, we find no due process violation or prejudice. The record reveals that the respondent received a full and fair hearing on the merits of his claim. He was provided the opportunity to present, examine, and object to evidence that affected his claim.

This is pure fucking insanity! Due process requires that the elements of that due process occur in a particular order. FIRST the government must establish a person is an alien. And the government must do so WITHOUT violating the person's fundamental rights, for example the rights to be free from unreasonable or arbitrary seizure (arrest/detention). THEN, only AFTER alienage has been established, the government may arrest, detain, and/or commence removal proceedings on them.

For the BIA to say I was provided due process because I "received a full and fair hearing", after being unlawfully detained for more than eight months, is simply outrageous.

And how can the BIA possibly say the hearing was "full and fair", in light of the fact that ICE had fingerprints proving I wasn't even the person they were claiming I was but they withheld those fingerprints. Granted, at the time of this appeal, I hadn't yet discovered that ICE had those fingerprints, so I can't fault the BIA for that. But ICE and DHS had the fingerprints in their possession so they absolutely knew about it.

Significantly, we do not find the respondent’s disagreement with the outcome of the Immigration Judge’s decision sufficient to demonstrate that the Immigration Judge improperly evaluated or disregarded the facts and evidence presented. Although the respondent alleges error, he has not articulated or identified prejudice stemming from such error. More importantly, the respondent has failed to demonstrate that the outcome of his case would have been different had the hearing been conducted in any other manner. Accordingly, the appeal will be dismissed.

ORDER: The respondent’s appeal is dismissed.

FOR THE BOARD