Jaime Mireles v. ALBERTO R. GONZALES , Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-3217 & 04-4196
J AIME M IRELES ,
Petitioner,
v.
A LBERTO R. G ONZALES , Attorney General
of the United States,
Respondent.
____________
Petitions for Review of Decisions
of the Board of Immigration Appeals
____________
S UBMITTED D ECEMBER 1, 2005—D ECIDED J ANUARY 10, 2006
____________
Before EASTERBROOK , R IPPLE , and K ANNE , Circuit Judges.
E ASTERBROOK , Circuit Judge. Immigration officials
ordered Jaime Mireles removed to Mexico after conclud-
ing that he had arrived by stealth and has never had an
entitlement to be in this country. His principal contention is
that the agency failed to establish that he is not a citizen of
the United States. The record contains his Mexican birth
certificate plus his admission that Mexico is the only nation
of which he is a citizen, but he maintains that he should not
have been given an opportunity to make that admission.
The admission is recorded in a Form I-213, which recaps
information that Mireles supplied in an application for
adjustment of status. Had that request been granted,
Mireles would have been authorized to remain in the

-- 1 of 6 --

2 Nos. 04-3217 & 04-4196
United States. Now he insists that, because the agency
routinely denied such applications by aliens who enter
without inspection unless a visa was “immediately available
at the time of filing the adjustment application,” 8 C.F.R.
§245.2(a)(2)(i) (1995), it violated his rights under the due
process clause of the fifth amendment to accept the applica-
tion in the first place—for the result might be (and here,
was) that it would work to his detriment without an
offsetting prospect that it would yield a benefit. Moreover,
Mireles asserts, the lawyer who prepared the application for
adjustment of status had been suspended from practice by
the time the agency made its decision.
We shall assume for the sake of argument that aliens who
enter without inspection, as Mireles did, had and have
slight chance of receiving any benefit by applying for
adjustment of status, and that a visa was not “immediately
available” for Mireles, so that his application in particular
was pointless. Likewise we shall assume that Mireles’s
former lawyer is no longer authorized to practice immigra-
tion law. Still, how would relying on contentions that the
alien freely made violate the Constitution—and why would
an exclusionary rule apply to statements voluntarily
submitted to the agency by anyone, whether or not licensed
to practice law?
The exclusionary rule does not apply to removal proceed-
ings. INS v. Lopez-Mendoza, 468 U.S. 1032, 1040-50 (1984).
What is more, even during a criminal investigation, where
the suspect possesses rights considerably greater than those
of persons in civil removal proceedings, there is no auto-
matic bar to eliciting information, although the result is
much more likely to assist the prosecutor than to assist the
suspect. And except with respect to custodial interrogation,
officials need not advise the suspect of his right not to
speak. Mireles does not contend that the agency engaged in
custodial interrogation or that any of his statements was
involuntary under the constitutional standard. See, e.g.,

-- 2 of 6 --

Nos. 04-3217 & 04-4196 3
Colorado v. Connelly, 479 U.S. 157 (1986); Miller v. Fenton,
474 U.S. 104 (1985). There is accordingly no basis for
precluding consideration of information that Mireles
furnished.
That is not all. At the removal hearing, Mireles was asked
his nationality. He refused to answer, maintaining that the
question is “against my constitutional rights.” His lawyer
stated that Mireles was asserting “rights under the 1st
Amendment, freedom of expression, and the 5th Amend-
ment, due process clause.” We have no idea what “rights”
either Mireles or counsel could have had in mind. Witnesses
lack a general right to withhold relevant evidence. To the
contrary, the public has a right to every man’s evidence. See
United States v. Nixon, 418 U.S. 683 (1974). The only
arguably pertinent right not to answer would be the
privilege against compulsory self-incrimination, but Mireles
does not contend that a truthful answer would have tended
to incriminate him. Even if it had, invocation of this
privilege in a removal proceeding may be the basis of an
adverse inference. Lopez-Mendoza, 468 U.S. at 1043-44;
United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153-
54 (1923). The agency therefore was free to conclude that
Mireles is not a citizen of the United States.
Immigration Judge Jennie L. Giambastiani entered the
order requiring Mireles’s removal. He contends that she
should not have participated as an adjudicator (that,
indeed, her service violated the due process clause) because,
before she became an immigration judge, she had been
District Counsel of the Immigration and Naturalization
Service’s Chicago office, which initiated these proceedings.
Giambastiani’s name is on the agency’s response to
Mireles’s motion to terminate the removal proceeding, and
Mireles’s counsel wrote to her asking her to use prosecuto-
rial discretion to terminate the removal proceedings. If
Giambastiani were a judge under Article III, the question
would be whether she “served in governmental employment

-- 3 of 6 --

4 Nos. 04-3217 & 04-4196
and in such capacity participated as counsel, adviser or
material witness concerning the proceeding or expressed an
opinion concerning the merits of the particular case in
controversy”. 28 U.S.C. §455(b)(3). We will never know
whether she did—or whether, instead, her name appeared
pro forma because of her job and whether counsel’s request
was intercepted by a subordinate— because Mireles did not
submit any evidence pertinent to this subject (or seek
discovery), did not ask her to recuse herself, and did not
contend on appeal to the Board of Immigration Appeals that
she should have done so sua sponte. He therefore failed to
exhaust his administrative remedies, and 8 U.S.C.
§1252(d)(1) prevents us from considering this issue.
What Mireles did contend before the IJ and the Board is
that his removal would cause exceptional hardship to his
widowed mother, a naturalized citizen of the United States
who, Mireles maintains, depends on his emotional support
and his (illegal) earnings. (They are illegal because he is not
authorized to work in this country, and it is unlawful for
anyone to employ him. 8 U.S.C. §1324a.) Neither the IJ nor
the Board thought that his mother’s hardship would be
“exceptional and extremely unusual”, the statutory stan-
dard for cancellation of removal based on hardship to an
alien’s immediate relative. 8 U.S.C. §1229b(b)(1). We lack
jurisdiction to review his contention that the agency should
have exercised discretion in his favor. Decisions under
§1229b are not reviewable by the federal judiciary. 8 U.S.C.
§1252(a)(2)(B)(i); Leyva v. Ashcroft, 380 F.3d 303 (7th Cir.
2004). This is true whether the alien’s argument is that the
agency abused its discretion or that it failed to conduct a
thorough review of the record. See Perales-Cumpean v.
Gonzales, 2005 U.S. App. L EXIS 25569 (10th Cir. Nov. 25,
2005).
The REAL ID Act of 2005 creates an exception for consti-
tutional contentions and other pure issues of law. Pub. L.
109-13, 119 Stat. 231, 310, to be codified at 8 U.S.C.

-- 4 of 6 --

Nos. 04-3217 & 04-4196 5
§1252(a)(2)(D). Mireles does advance two arguments that
meet this description. One is that the immigration judge
made a legal error in understanding the meaning of
“exceptional and extremely unusual hardship”. This
argument is mistaken; the IJ used the right legal standard.
(We are not authorized to review how the IJ exercised
discretion under that standard.)
The other argument Mireles founds on the Constitution.
He maintains that he had a constitutional right to have the
agency initiate deportation proceedings against him before
April 1, 1997, when amendments to the immigration law
made his legal position less favorable. Until then the
remedy of “suspension of deportation” would have
been available to one in his position. It has long been
established, however, that there is no right to be arrested
and prosecuted as soon as the government is legally able to
do so. See Hoffa v. United States, 385 U.S. 293, 309-10
(1966). Mireles does not contend that the timing decision
rested on his speech or any other constitutionally forbidden
characteristic. He entered the United States covertly and
did not attempt to secure permission until after being
caught; he has no liberty or property interest in the tim-
ing of the proceedings to remove him. Queues often move
slowly; the general public, too, might wish that these
matters be handled more expeditiously, but that depends
largely on the size of the agency’s staff, which is outside
its control.
Mireles’s other contentions do not require discussion. The
petitions for review are denied.

-- 5 of 6 --

6 Nos. 04-3217 & 04-4196
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-10-06

-- 6 of 6 --