Krasilych v. Holder, No. 09-1026 (7th Cir. Sept. 9, 2009).

Krasilych v. Holder, No. 09-1026 (7th Cir. Sept. 9, 2009).

Where the BIA issues its own opinion and does not expressly adopt the IJ’s findings, a court of appeals review the BIA’s decision. This court reviews the agency’s legal conclusions de novo, and this court will uphold the agency’s factual determinations so long as they are supported by substantial evidence.

The petitioner’s contention that evidence gathered from Operation Durango must be suppressed if the government does not prove that the investigation adhered to the Attorney General’s Guidelines for INS Undercover Operations is a mischaracterization of this court’s holding in Pieniazek v. Gonzales, 449 F.3d 792 (7th Cir. 2006). In Pieniazek, this court held that the Attorney General’s Guidelines for INS Undercover Operations were still relevant to undercover investigations despite the fact that former INS is now part of Homeland Security. However, this court expressed no opinion about whether the guidelines were legally enforceable or, if so, whether failure to follow them would require exclusion of evidence.

The Attorney General’s Guidelines for INS Undercover Operations are internal rules that have no legal force. Unlike regulations, which are adopted after notice and comment, internal rules do not bind an agency: if all the Attorney General has done is to tell his staff how he wants to exercise his discretion—language that brings his subordinates’ acts in line with his wishes but does not reduce his discretion to do otherwise—then there is no substantive rule enforceable in any forum.

Even assuming that the Attorney General’s Guidelines for INS Undercover Operations are enforceable and were not followed in Operation Durango, the BIA was still correct in approving the IJ’s decision to deny the petitioner’s request to exclude evidence because the exclusionary rule generally does not apply in removal proceedings.

The Court previously left open the possibility that the exclusionary rule may apply where there have been egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained. What the Fourth Amendment, which prohibits unreasonable searches and seizures, has to do with the petitioner’s involvement in Operation Durango-- a three-year undercover investigation coordinated by immigration authorities, the FBI, and the Social Security Administration, targeting the fraudulent procurement of immigration benefits--escapes this court, and he has not even come close to identifying an “egregious violation” of any other liberty.

The petitioner’s argument that the temporary I-551 stamp on his passport obtained during a three-year undercover investigation coordinated by immigration authorities, the FBI, and the Social Security Administration, targeting the fraudulent procurement of immigration benefits conferred upon him lawful permanent resident status is without merit.

The I-551 stamp on the petitioner’s passport was “authentic” in the sense that the same stamp would have been used if the government had approved a bona fide application for permanent residence. When used legitimately, the stamp is a symbol that immigration authorities have favorably adjudicated an application to adjust status, and in the absence of “countervailing evidence” the stamp itself can be used to verify a claim of permanent residence. Where the petitioner’s application to adjust status was never adjudicated, and where he “countervailing evidence” makes clear that the stamp—which expired of its own accord in 2001—was placed in his passport only to give Operation Durango’s fraudulent-document scheme the appearance of legitimacy, the I-551 stamp is symbolic of nothing.

Because the agency’s determination of removability is supported by substantial evidence, and the petitioner did not apply for relief from removal, the order of removal must stand.