Emergency Mandamus Filed in CA9; ICE Detains U.S. Citizen; District Court Fails to Act

Emergency Mandamus Filed in CA9; ICE Detains U.S. Citizen; District Court Fails to Act

"On May 30, 2012, Petitioner Esteban Tiznado-Reyna filed a petition for writ of habeas corpus and motion for preliminary injunction to the United States District Court of the District of Arizona. See Exhibit 1, Docket Report for 12-cv-01159-SRB-SPL.  In this petition, Mr. Tiznado-Reyna contends that Immigration and Customs Enforcement (“ICE”) lacks jurisdiction to detain him on the basis of his non-frivolous claim to United States Citizenship.  Six months later, the district court has failed to rule on the preliminary injunction or Mr. Tiznado-Reyna’s multiple motions to expedite, and the magistrate judge has failed to issue a Report and Recommendation on the habeas petition.  The district court’s failure to act effectively abrogates this Court’s decision in Flores-Torres v. Mukasey, 548 F.3d 708 (9th Cir. 2008), which requires a threshold decision on ICE’s jurisdiction to detain a person with a non-frivolous claim to United States citizenship.  On this basis, Mr. Tiznado-Reyna seeks an emergency petition for mandamus and injunctive relief. ... In April 2008, a three-day trial was held to determine whether Mr. Tiznado-Reyna was guilty of illegal reentry as an “alien.”  At the conclusion of this trial, Mr. Tiznado-Reyna was acquitted by a jury of illegal reentry.  See Exh. 2, 3.  It is difficult to imagine more conclusive and resounding evidence of a non-frivolous claim to U.S. citizenship than acquittal by a jury on an element of alienage.  In light of the not guilty verdict, it would be absurd to state that Mr. Tiznado-Reyna’s claim to citizenship “lacks an arguable basis in law or fact.”  See Guti v. INS, 908 F.2d 495, 496 (1990).  Similarly, a contention that Mr. Tiznado-Reyna’s claim to citizenship is not “supported by competent evidence,” see Lew Shee v. Nagle, 7 F.2d 367, 368 (9th Cir.1925), would directly contradict the jury’s findings of fact.  Simply put, it is impossible to contest that the jury’s acquittal of Mr. Tiznado-Reyna on the element of alienage establishes anything other than a prima facie claim to U.S. citizenship.  Therefore, Mr. Tiznado-Reyna has far exceeded his burden to prove that he has a non-frivolous claim to U.S. citizenship, and under Flores-Torres, ICE lacks jurisdiction to detain him." - In re Esteban Tiznado-Reyna, filed by Kara Hartzler.  [Hat tip to Prof. Jacqueline Stevens for the alert!]

- Kara Hartzler, Esq.