Tuesday, February 5, 2013

American Citizen Detained and Subject to Deportation (Again)?

Esteban Tiznado-Reyna, who is currently detained and undergoing removal proceedings, claims that he is a U.S. citizen and, therefore, could not be removed. (The full article is here).

In particular, in 2008, Tiznado-Reyna was charged with violating 8 U.S. 1326 or the crime of illegal re-entry. Violation of this crime requires the government to prove beyond a reasonable doubt that the defendant is (1) an alien, (2) has been removed, and (3) entered, attempted to enter or is in the U.S. At trial, Tiznado-Reyna presented evidence of his U.S. citizenship, presumably challenging the first element.  A jury ultimately found Tiznado-Reyna not guilty.

His victory, however, was unavailing. Sometime after that trial, ICE removed him. He came back 2011 and, after being found not guilty of drug charges, he was once again placed in removal proceedings.

Among other issues, this case raises an interesting question about the role a jury's finding of citizenship in the context of a criminal trial should play in the overall claim of citizenship for purposes of removal proceedings. No doubt, Tiznado-Reyna would be forced to definitely prove his citizenship (again) in the removal case.  

Unfortunately, as Professor Jacqueline Stevens has documented in her June 2011 article, U.S. Government Unlawfully Detaining and Deporting U.S. Citizens as Aliens, a number of Americans have been removed from this country in recent memory.



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