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Deportation Dilemma

Is the government trying to boot an American citizen?

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The last time Esteban Tiznado-Reyna got busted, he was sneaking back into his own country. That much seems clear.

Whether he can be here legally is another matter.

In between the two is a web of tribal ancestry, protean government policies and bureaucratic absurdity. But either way, Esteban Tiznado-Reyna sits in jail, a Native American waiting for a judge to decide whether he's an American citizen. And if he's deported to Mexico, he'll just come back again.

To officials with U.S. Customs and Immigration Enforcement, or ICE, Tiznado-Reyna is a common criminal. And several judges have ordered him back to Mexico time and again.

But while he may not be an upstanding citizen, his advocates say he's a citizen nonetheless—a 38-year-old mentally challenged man whose legal status was decided in district court, so decisively, in fact, that never again can he be charged with illegally entering the United States. Indeed, they consider him symbolic of a twisted immigration system that targets bona fide Americans for deportation.

Among those proponents is San Diego attorney Kara Hartzler, who in December filed an emergency petition with the 9th U.S. Circuit Court of Appeals requesting that Tiznado-Reyna be released while an immigration court deliberates on his nationality yet again.

And though Tiznado-Reyna's is among thousands of cases currently snagged in a court backlog—one that can keep people lingering behind bars for years—his situation has a certain resonance.

According to Hartzler, this case is animated by two distinct issues. The first is whether Tiznado-Reyna can be deported at all. The second hinges upon the government's right to keep her client jailed while it makes up its mind on the first issue. "The law says that if he has a 'nonfrivolous' claim to citizenship," she argues, "then (ICE) is not allowed to keep him in detention while this process is going on."

The details appear to make his citizenship claim about as "nonfrivolous" as they come, says Tucson attorney Jesse Smith.

Although Tiznado-Reyna was born in Mexico, says Smith, the man's American-born father is a member of the Tohono O'odham tribe. While the O'odham have inhabited the Sonoran Desert for centuries, the 1853 Gadsden Purchase carved a new boundary through the heart of their ancestral range. Today, some 1,000 tribal members remain scattered among small Mexican villages south of that border, and the rest inhabit a vast reservation southwest of Tucson.

Given a tribal tradition of migrating back and forth across the border, often to remote villages, it was hardly unusual for birth records to be misplaced or simply nonexistent. That appears to be the case with Esteban's father, Jesus Tiznado, who was born in a remote village north of the border in 1922.

Jesus later moved to Mexico, where in 1974 Esteban was born to a Mexican mother. By 1977, says Smith, the family had settled in Tucson.

In 1979, Jesus Tiznado received a delayed birth certificate from the U.S. government. Nonetheless, 10 years later that same government denied certificates of citizenship for his children.

Esteban Tiznado-Reyes already had one drug conviction under his belt when he was sent to prison for attempted auto theft in the 1990s. After completing his sentence, he was immediately deported to Mexico, only to be caught trying to return. Following what many consider shoddy legal advice, he pleaded guilty to illegal re-entry and served another 51 months in prison.

Upon release, Tiznado-Reyna was deported once more, only to return and face fresh charges of illegal re-entry. But this time, Smith was appointed to handle his case. In 2008, using an expert witness and documents proving Jesus Tiznado's U.S. citizenship, Smith convinced a federal jury that Tiznado-Reyna could hardly be guilty of illegally entering the country when he wasn't even an illegal immigrant.

Smith also won a "double jeopardy" ruling that his client could never again be tried for crossing into the United States.

Yet U.S. Customs and Immigration was not so easily dissuaded. Soon after Tiznado-Reyna's aquittal, he was deported one more time.

In February 2011, he was caught accompanying a load of dope through the desert. But Smith says he was just crossing with the smugglers, who increasingly mix their human and drug cargoes. A judge agreed, and in November of that year Tiznado-Reyna was acquitted of drug charges. And though he couldn't be prosecuted for illegal re-entry, ICE reignited deportation proceedings against him.

Today, Tiznado-Reyna cools his heels in federal detention, and Smith keeps a copy of his 2008 double-jeopardy motion on hand, dispatching it to the feds whenever they arrest his former client for illegal re-entry.

"Kafkaesque" is how Smith describes this case. "It's ridiculous, because they can't prosecute him for re-entry. And they know if they kick him out he's going to keep coming back because his whole family is here. He doesn't have any family in Mexico. All they're doing is making him run the gauntlet through the desert risking his life."

The Weekly was unable to directly contact Tiznado-Reyna by press time. Nor could ICE immediately provide information specific to his case. But the agency did issue a press release saying that "U.S. Immigration and Customs Enforcement ... treats all claims of U.S. citizenship with the utmost seriousness and has taken numerous steps to ensure that the detention of U.S. citizens does not occur."

Ironically, this case of double jeopardy actually puts the feds in a double bind. Last fall, U.S. Homeland Security Secretary Janet Napolitano announced a policy shift that included reviewing the cases of some 300,000 undocumented aliens in the throes of deportation proceedings. The goal, Napolitano said, was deciding which of them could be referred to low-priority status and possibly have their cases closed. This new approach, called "prosecutorial discretion," was aimed at freeing clogged immigration courts, making room for speedier removal of criminal aliens stuck in our prisons on the taxpayers' dime.

As a result, the government is even more compelled to deport a repeat offender like Tiznado-Reyna—assuming it can prove he's not an American citizen.

Regardless, he's not alone. That is revealed in one recent study by Jaqueline Stevens, a political science professor at Northwestern University in Evanston, Ill., and author of the book States Without Nations: Citizenship for Mortals. Her investigation indicates that database glitches have led to an increasing number of American citizens in ICE detention.

Stevens says Tiznado-Reyna's case is just particularly appalling example of that trend. "It illustrates the problems that people—not just those with claims of U.S. citizenship, but anyone in ICE detention—has in getting their due-process rights heard."

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