In next year's Statistical Yearbook and press releases, Esteban Tiznado-Reynes' deportation Tuesday morning from the Florence Service Processing Center to Mexico will be used to show Immigration and Custom Enforcement's (ICE) efficacy in ridding the country of "criminal aliens." But the truth is that in his case and thousands of others, ICE is disregarding the rules for handling probative evidence of U.S. citizenship,and unlawfully deporting people.
Ignoring information from a local non-profit about a 2008 trial in which a jury believed Tiznado's evidence of U.S. citizenship and thus found him "not guilty" of "Illegal Reentry" (a charge predicated on alienage), ICE agents Monday refused to heed Tiznado's plea to appear in an immigration court and simply dumped him Mexico. (On Monday Tiznado placed numerous panicked calls about once again being effectively kidnapped and taken from his country.)
When Jesus Tiznado, Esteban's father, was born the Tiznado family lived where they had for the last 10,000 years, according to Esteban's court-appointed attorney, Jesse Smith, "They were part of the Tohono O O’dham tribe, one of the oldest tribes continuing in one place. Their tribe goes from Tucson east, halfway to San Diego." He continued, "[Esteban's] dad was born in 1922 in a little town called Tapowa, north of the border. The tribe didn't have a hospital. Everyone was born at home." Esteban was born in 1974 in Mexico to a Mexican mother. "The dad had the family down there because it was cheaper," Smith explained. Esteban was the last of ten kids and in 1977, when he was three, the "father brought the whole family up to Tucson."
In 1979 the father applied and had approved a delayed birth certificate for himself certified by the Arizona Office of Vital Records. It references receipt of Jesus Tiznado's October 10, 1924 Certificate of Baptism, an October 29, 1928 record of his elementary school enrollment at age six in Arizona's Gilbert Public Schools, reference to Jesus's U.S. birth on his daughter's 1958 Mexican birth certificate, and the 1977 affidavit of a family friend.
In 1989 the Citizenship and Immigration Services denied Jesus Tiznado his request for Certificates of Citizenship for his children, the only explanation being that Tiznado had submitted a delayed birth certificate, without any evidence that would suggest it had been obtained fraudulently or was defective in any other way. Smith says, "What's really offensive here is that some immigration agent who's been here less than 500 years kicking out someone who's been here 10,000 years. That's kinda nervy." Finances prevented an appeal, Smith explains, "It would have cost them $100 per kid. [The government] said no and that was that. No one was getting kicked out at the time," and the family let the matter drop.
In the 1990s Congress decided to demonize criminal aliens and Esteban, convicted of possessing 20 lbs of marijuana, was on their radar. When he was released in 2000 following his prison time for this and an attempted car theft charge, he was deported to Mexico. He was caught trying to return -- what's this guy going to do in Mexico with no family, no friends, no place to live? -- and charged with Illegal Reentry. His court-appointed defender, concerned about the previous convictions upping the sentencing for this -- encouraged him to plead guilty rather than assert his U.S. citizenship. Esteban served a 51 month prison sentence for a crime for which U.S. citizenship is conclusive evidence of innocence.
After serving his sentence he again was deported and again returned, and again was caught and again charged with Illegal Reentry in 2006. This time, though, he had a good lawyer. Jesse Smith, a Tuccon criminal attorney, organized the testimony of an expert witness, family members, and produced documentary evidence of Jesus Tiznado's U.S. citizenship as well has his having met the residency criteria for automatically conveying U.S. citizenship to his Mexican-born children. The only defense against the Illegal Reentry charge was Esteban's U.S. citizenship and jury notes to the judge show this was the issue on which they were focused.
On April 24, 2008 they unanimously voted Not Guilty. On April 30, 2008 Smith moved on grounds of Double Jeopardy to dismiss a remaining order for his arrest -- the government was claiming that, although he was not convicted, the "Illegal Reentry" charge violated the conditions of his 2006 parole -- and prevailed. Tiznado was free, or so it might seem.
After the trial, "ICE picks him up and says fuck you, as far as we're concerned you're not a citizen." In May, 2008 they deported him again. "There's an opinion from the Ninth Circuit that says they can't prosecute him, it's Double Jeopardy. The don't prosecute him, but they keep kicking him out."
And Tiznado, who does not belong in Mexico, keeps returning home. But it's becoming more and more dangerous, and expensive, and even deadly. "It used to be very easy to walk back in illegally. I don't know how many times they've kicked him out and he would come back in, but they've really expanded all these check points. And because of the war against drugs in Mexico, some of the cartels have taken over the alien smuggling. You can't come in on your own anymore, they'll kill you."
For his most recent return in February, 2011, his mom and his sisters sent him $1,000 to pay a coyote. After two days of walking, and 50 miles in from the border the coyote shows the four guys who've paid him some burlap sacks of marijuana dropped off by pick-up trucks to evade the highway checks, and orders them to put them on their backs. Border Patrol caught them and they were arrested and Esteban initially charged with Illegal Reentry and Possession With Intent to Distribute Marijuana. Smith demonstrated Esteban's innocence through physical evidence (the absence of any burlap fibers on Esteban), medical records (recent and past hospitalization operations), a scar from surgery, and the testimony of someone else in the group ("This guy wasn't carrying anything because of his back injury"). It was a bench trial. By then the prosecution had dropped the Illegal Reentry charge because of Double Jeopardy, and on November 22, 2011 Judge Cindy Jorgenson found Esteban Not Guilty on the drug charge.
Nonetheless, a week ago Tuesday, as the country was preparing to celebrate the destruction of the towns and peoples who lived here before invaders inspired by the pursuit of Paradise and Amazons wiped them out, Esteban remained in government custody, estranged from his family, including his mother, Julia, who is presently hospitalized.
The legal picture here appears murky because of the dead zone between the government not meeting its burden of proof of his alienage and Tiznado seeming not to meet his burden of proof, because he is foreign born, of U.S. citizenship.
The scenario in which Tiznado and many others find themselves is liminal and thus provocative of all sorts of fascinating questions about the vagueries of borders, nationalities, and immigration charges that mix civil and criminal adjudications. But by no means does this absolve the government of the charge of false imprisonment and kidnapping.
1) On November 19, 2009 John Morton issued an order to ICE agents and attorneys stating that "because of complexity of citizenship and nationality law, many [cases] may require additional investigation and substantial legal analysis. As a matter of law, ICE cannot assert its civil immigration enforcement authority to arrest and/or detain an USC [United States Citizen]." The memorandum also states: "In all cases, any uncertainty about whether the evidence is probative of U.S. citizenship should weigh against detention." Esteban was telling ICE agents at Florence that he'd won a trial based on new documents and expert statements about his U.S. citizenship. Why didn't someone look this up?
2) On Monday, a local nonprofit attorney called ICE at Florence SPC and asked them to hold off on Esteban’s deportation until further investigation could be done on his citizenship claim. In other words, ICE knew about Esteban's claims and he was not simply lost in the cracks of the vast deportation machine. A deportation officer at Florence SPC told her that a previous analysis of his U.S. citizenship claim would stand in the absence of any new evidence to the contrary and he would be deported that evening.
3) Tiznado has a cousin, Humberto, now in Utah, who was in a similar situation in San Diego during the same time frame. Humberto was represented by ex- San Diego Federal Defender, Sara Peloquin. Humberto also had been originally denied his Certificate of Citizenship but then appealed and prevailed. She writes, "In spite of a letter [to ICE] from the AUSA [Assistant U.S. Attorney] indicating there was a strong likelihood that my client was a citizen, they [ICE] deported him." (Thanks to some incredible work by Sara, Humberto is now back in Utah and I will describe his experiences later.)
4) The “Reinstatement of Removal Order” authorized by CFR § 241.8 states: “The immigration officer shall attempt to verify an alien's claim, if any, that he or she was lawfully admitted…” U.S. citizens cannot be found to have violated rules for lawful entry. The immigration agents’ failure to investigate the evidence of Esteban’s U.S. citizenship violates the regulation and thus, absent legal authority for his imprisonment and removal, renders these actions false imprisonment and kidnapping.
It's tempting to dismiss this case because of Esteban's convictions. Esteban's no choir boy, but he never held someone captive for 51 months.
On Tuesday the local attorney spent the day poring through the 2008 trial transcripts, tracking for the benefit of Florence SPC deportation officers the evidence of Esteban's U.S. citizenship that had proved so convincing for the 12 Arizona jurors. For naught. Esteban had been deported on Tuesday morning, and his whereabouts are currently unknown. ICE has stated that they will conduct a new analysis of his claim to citizenship, but even if they correctly conclude he is a citizen, there is no way to let Esteban know of their decision.
UPDATE DECEMBER 2: Yesterday Esteban called his attorney from Caborca, Mexico.
UPDATE DECEMBER 3, 1: 30 pm: I just spoke with Estevan. He is in Caborca because another person on the bus from Florence SPC to Mexicali on Tuesday is from there and said he could spend two nights with him. He's worn out his welcome sleeping on Manuel's floor and has no money and no idea where he will go in the next few hours. His mother is elderly and sick and his siblings are scrambling to make ends meet for their own families, "especially because Christmas is coming," Estevan told me, and therefore are unable to help him out.
To read more, see "U.S. Government Unlawfully Deporting U.S. Citizens as Aliens," Virginia Journal of Social Policy and the Law, 2011, 115 p.