Aston Rampasard v. U.S. Atty. General , 147 F. App'x 90 ( 2005 )


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  •                                                          [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT                FILED
    ________________________
    U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 04-15038                  August 26, 2005
    Non-Argument Calendar          THOMAS K. KAHN
    ________________________              CLERK
    BIA Docket No. A75-861-350
    ASTON RAMPASARD,
    Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    Respondent.
    __________________________
    Petition for Review of a Decision
    of the Board of Immigration Appeals
    _________________________
    (August 26, 2005)
    Before BIRCH, BLACK and BARKETT, Circuit Judges.
    PER CURIAM:
    Jamaican citizen Aston Rampasard petitions for review of a decision of the
    Board of Immigration Appeals (BIA), affirming the Immigration Judge’s (IJ’s)
    decision denying his motion to suppress his confession to committing passport
    fraud and ordering that he be removed for that reason, 
    8 U.S.C. § 1227
    (a)(3)(D).1
    We deny the petition for review.
    We review only the decision of the BIA and not the decision of the IJ,
    “except to the extent that [the BIA] adopts the IJ’s opinion.” Al Najjar v. Ashcroft,
    
    257 F.3d 1262
    , 1284 (11th Cir. 2001). In immigration cases, we review legal
    conclusions made below de novo, but will uphold the administrative factual
    findings if they are supported by substantial evidence. Farquharson v. United
    States Attorney Gen., 
    246 F.3d 1317
    , 1320 (11th Cir. 2001).
    The Fifth Amendment protects individuals against compulsory self-
    incrimination.2 U.S. Const. Amend. V. In order to protect these Fifth Amendment
    rights, the Supreme Court has established a “prophylactic rule” requiring that
    those subject to custodial interrogation must be informed, inter alia, of their right
    1
    Rampasard has not claimed either to this Court or the BIA that, if his confession was
    admissible, there was insufficient evidence to remove him. Accordingly, Rampasard has waived
    any challenge to his removal other than the suppression issue. See Mohammed v. Ashcroft, 
    261 F.3d 1244
    , 1248 n.3 (11th Cir. 2001).
    2
    Contrary to the representations of the parties and the IJ, the right against compulsory
    self-incrimination is secured by the Fifth Amendment, not the Fourth Amendment.
    2
    to remain silent and to have an attorney present during questioning. Miranda v.
    Arizona, 
    86 S. Ct. 1602
    , 1624–26 (1966). In criminal cases, inculpatory
    statements obtained during custodial interrogations in which Miranda warnings
    are not given are subject to suppression. See United States v. Muegge, 
    225 F.3d 1267
    , 1269–70 (11th Cir. 2000).
    However, in INS v. Lopez-Mendoza, 
    104 S. Ct. 3479
    , 3489 (1984), the
    Supreme Court held the evidence resulting from an illegal but peaceful arrest may
    be introduced in deportation cases. While Lopez-Mendoza dealt with government
    conduct that violated the Fourth Amendment, the Supreme Court’s opinion
    suggested its rationale applies to any evidence that would be subject to the
    exclusionary rule in a criminal case. See 
    id. at 3489
     (stating “the . . . balance
    between costs and benefits comes out against applying the exclusionary rule in
    civil deportation hearings held by the INS”). In addition, Lopez-Mendoza
    suggested, but did not expressly hold, that “egregious violations of Fourth
    Amendment or other liberties that might transgress notions of fundamental
    fairness and undermine the probative value of the evidence obtained” might
    warrant the use of the exclusionary rule in immigration proceedings. See 
    id.
    The BIA has indicated the exclusionary rule may apply in immigration cases
    in some circumstances. Matter of Barcenas,
    19 I. & N. Dec. 609
    , 611 (1988).
    3
    However, “[o]ne who raises the claim questioning the legality of the evidence
    must come forward with proof establishing a prima facie case before the Service
    will be called on to assume the burden of justifying the manner in which it
    obtained the evidence.” 
    Id.
     Under BIA precedent, evidence is admissible if it is
    probative and its admission would be fundamentally fair. 
    Id.
    Even assuming arguendo that Rampasard’s proffer should be credited, it did
    not assert facts constituting an “egregious” violation of the Fifth Amendment. At
    most, Rampasard’s proffer would establish he was locked in a room with five
    government employees and interrogated. Rampasard has not claimed he was
    physically threatened, interrogated for an unusually long time, or denied any
    ordinary comfort during his interrogation. In fact, Rampasard’s proffer did not
    even expressly claim that the interrogating officers failed to read him his Miranda
    warnings. Thus, even assuming arguendo an “egregious” violation of the Fifth
    Amendment would warrant suppression in an immigration case, there was no
    evidence in the record such a violation occurred. Accordingly, the IJ did not err
    by denying Rampasard’s suppression motion, concluding he had represented
    himself as a U.S. citizen in order to obtain a passport, and ordering his removal.
    PETITION DENIED.
    4
    

Document Info

Docket Number: 04-15038; BIA Docket A75-861-350

Citation Numbers: 147 F. App'x 90

Judges: Birch, Black, Barkett

Filed Date: 8/26/2005

Precedential Status: Non-Precedential

Modified Date: 11/5/2024