Mireles v. Gonzales, 04-3217.

• Decision Date: 10 January 2006
• Docket Number: No. 04-4196.,No. 04-3217.,04-3217.,04-4196.
• Citation: 433 F.3d 965
• Parties: Jaime MIRELES, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

433 F.3d 965

Jaime MIRELES, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 04-3217.

No. 04-4196.

United States Court of Appeals, Seventh Circuit.

Submitted December 1, 2005.

Decided January 10, 2006.

COPYRIGHT MATERIAL OMITTED

Royal F. Berg, Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, William C. Minick, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before EASTERBROOK, RIPPLE, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Immigration officials ordered Jaime Mireles removed to Mexico after concluding 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 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 application 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 immigration 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 proceedings. INS v. Lopez-Mendoza, 468 U.S. 1032, 1040-50, 104 S.Ct. 3479, 82 L.Ed.2d 778 (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 automatic 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., Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (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 Amendment, 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, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (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, 104 S.Ct. 3479; United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153-54, 44 S.Ct. 54, 68 L.Ed. 221 (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 prosecutorial discretion to terminate the removal proceedings. If Giambastiani were a judge under Article III, the...