Request for Custody Redetermination Hearing (2008-02-25)
Synopsis
Background
I had a bond hearing in early January 2008, and was granted a bond of $5,000.
Subsequently, on 2008-02-06, DHS admitted on the record that they had no evidence of alienage - that is, no evidence I was not born in the US. At that same hearing, both the DHS lawyer and the judge openly acknowledged the burden was on the government to first establish alienage TR 2008-02-06 p21l21-p22l1.
Neither ICE nor the Immigration Court, have any authority or jurisdiction over a person who is not an alien - that is, over a person who was born in the US. And as the judge and DHS acknowledged, the burden is on DHS to prove the person was not born in the US, it is not on the person to prove they were born in the US.
As of the date of this request for a new custody redetermination hearing, I had been in ICE custody for five months. And ICE/DHS had not even established I was an alien! I had brought this up repeatedly, at the prior hearings, but the Immigration Judge simply ignored that fact.
It was my position that DHS's acknowledgment, in court, that they had no evidence of alienage, created a material change in circumstances, warranting a new custody determination. The change in circumstances was that prior to that admission on 2008-02-06, I had testified and insisted in the Immigration Court that I was born in the US and was a US citizen, and DHS had not stated one way or the other that they did, or did not, have any evidence to the contrary.
So their admission on 2008-02-06 that they DID NOT have any evidence to refute my claim of citizenship completely changed the strength of their allegations against me. Until DHS has established, with clear and convincing evidence, that a person is an alien, it is illegal for them to detain that person on immigration allegations.
This was my fourth request for a custody redetermination hearing! This time, rather than submitting it as a request to the court clerk, who would normally handle court scheduling, I submitted it as a formal motion and served a copy on DHS. That way, the court couldn't keep rejecting it as they had done the three prior times.
PDFA88 664 582
1705 East Hanna Road
Eloy, Arizona 85231
Redetermination Hearing
The Respondent, Richard Steven Riess in pro se, respectfully requests of the court to be granted a Custody Redetermination Hearing for the reason that, by the Department of Homeland Security's own admission, in court on February 6th, 2008 the Department has absolutely no evidence of my alleged alienage and, as such, has no authority or jurisdiction to arrest or detain me.
Section 287 of the Immigration and Nationality Act grants authority to detain a "person suspected of being an alien" only for the purpose of interrogation and only "briefly". All other references in Section 287 are to "aliens" which implies that alienage MUST be established BEFORE an arrest and detention can be executed.
For the foregoing reasons, the Respondent respectfully requests that the court grant a custody redetermination hearing in this matter.
Richard Steven Riess
Certificate of Service
I, Richard Steven Riess, hereby certify that a true and correct copy of the attached "Request for Custody Redetermination Hearing" was served upon the interested party addressed below by placing a copy in a sealed envelope and mailed by the Institutional inter-house mail system.
U.S. Department of Homeland Security
Immigration and Customs Enforcement
1705 E. Hanna Rd.
Eloy, Arizona 85231