Zinoviy Krasilych v. Eric Holder, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1026
Z INOVIY K RASILYCH,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an
Order of the Board of Immigration Appeals.
No. A 077 656 426
S UBMITTED S EPTEMBER 16, 2009 Œ —D ECIDED S EPTEMBER 29, 2009
Before F LAUM, E VANS, and SYKES, Circuit Judges.
P ER C URIAM. The Department of Homeland Security
initiated removal proceedings against Zinoviy Krasilych,
a Ukranian citizen, for remaining in the United States
Œ
On May 12, 2009, we granted a motion from Petitioner
Zinoviy Krasilych to waive oral argument. Thus, the petition
for review is submitted on the briefs and the record. See F ED .
R. A PP . P. 34(a)(2).
2 No. 09-1026
past the expiration of his visa. Krasilych denied that his
presence was unlawful, but an immigration judge (“IJ”)
concluded otherwise and ordered Krasilych removed to
the Ukraine. The Board of Immigration Appeals (“BIA”)
upheld that decision. Krasilych petitions this court for
review, and we deny the petition.
Krasilych entered the United States on a three-month
tourist visa in June 1998 and overstayed. More than two
years later, on October 11, 2000, Krasilych visited a store-
front called “G.S. Golden Travel” on Chicago’s Belmont
Avenue for a meeting with officer Clarence Robinson,
an immigration employee. Krasilych was accompanied
by Jan Mikas, the man who arranged the meeting (and
whom, Krasilych says, he believed was a lawyer). With
Robinson’s help, Krasilych completed an INS form I-485,
the application to adjust status to lawful permanent
resident. At the close of the meeting, Robinson marked
Krasilych’s Ukranian passport with an authentic I-551
stamp, which typically serves as temporary proof that
an applicant has been approved for permanent-resident
status and is awaiting a permanent-resident card (com-
monly known as a “green card”). See Sharkey v. Quarantillo,
541 F.3d 75, 80 n.4 (2d Cir. 2008). The stamp on Krasilych’s
passport reads: “Processed for I-551. Temporary Evi-
dence of Lawful Admission for Permanent Residence.
Valid Until 10/11/2001. Employment Authorized.” Robin-
son told Krasilych that, if asked by authorities, he should
say his application for adjustment of status was granted
because his brother is a United States citizen. Krasilych
does not have a brother, and he told the officer so
but nevertheless accepted the stamp.
No. 09-1026 3
About a year later Krasilych received from immigra-
tion authorities in Lincoln, Nebraska, a letter stating
that his application for permanent residence was being
processed, but he never received a green card. Nor did
he ever get an updated I-551 stamp in his passport even
after the existing stamp expired in October 2001. In fact,
he heard nothing more from immigration authorities
until September 29, 2005, almost five years later, when
Special Agent Randy Beckwith from Immigration and
Customs Enforcement (“ICE”) served him with a Notice
to Appear for removal proceedings, charging him with
remaining in the country longer than permitted, see 8
U.S.C. 1227(a)(1)(B). At a hearing before the IJ, Krasilych
admitted through counsel that he is a Ukrainian citizen
and had entered the United States in June 1998 with
permission to remain for only three months. But Krasilych
denied that he was in the country unlawfully and,
pointing to the temporary I-551 stamp on his passport,
insisted that he had become a lawful permanent resident.
What Krasilych didn’t yet know was that his Belmont
Avenue meeting with Robinson had ensnared him in
“Operation Durango,” a three-year undercover investiga-
tion coordinated by immigration authorities, the FBI,
and the Social Security Administration, targeting the
fraudulent procurement of immigration benefits. At
Krasilych’s removal hearing in April 2007, Special Agent
Beckwith—who was responsible for issuing Notices to
Appear and locating suspects from the investiga-
tion—testified that investigators had opened storefront
“travel agencies” where aliens went, either on their own
initiative or with help from a crooked middleman like
4 No. 09-1026
Jan Mikas, to meet with corrupt immigration employees
who could be paid off for genuine documentation. See
generally United States v. Wantuch, 525 F.3d 505, 508 (7th
Cir. 2008) (describing “Operation Golden Schemes,”
another undercover investigation operating from the
same “G.S. Golden Travel” storefront); Skorusa v.
Gonzales, 482 F.3d 939, 940-41 (7th Cir. 2007) (describing
Operation Durango). The immigration employees at
the storefronts, however, were actually undercover
agents, and in virtually all cases, Beckwith testified, the
alien had no legitimate basis for lawful status, and so
the undercover agent would give the alien a cover
story—usually that he or she had a sponsoring sibling—to
use in the event that authorities questioned the alien
about his or her status. The I-551 stamp placed on the
alien’s passport was real; an identical stamp would have
been used if the alien had obtained status through legiti-
mate means, and, according to Beckwith, some aliens
caught up in Operation Durango had even left the
country and returned using their stamped passports
to gain readmission. Beckwith added, though, that im-
migration authorities had tolerated the use of these fraud-
ulently obtained I-551 stamps only long enough to “pro-
vide a legitimacy to the operation”; authorities had
never actually issued a green card or processed an ap-
plication for permanent residence from an alien
involved in the investigation.
Also testifying at the removal hearing was Clarence
Robinson, the undercover agent who played the role of
corrupt green-card adjudicator during Operation
Durango. Robinson testified that aliens, believing they
No. 09-1026 5
were “bypassing the system” and procuring a genuine
green card, would typically pay him $5,000 at the con-
clusion of an interview. Robinson recalled that near the
end of his meeting with Krasilych and Mikas, they had
briefly left the room, and, when they returned, Mikas had
handed over $5,000 in currency. It is unclear from the
record whether criminal charges were ever lodged
against Krasilych, but Mikas pleaded guilty and was
sentenced in 2004 on federal charges—stemming from
the events of October 11, 2000—of bribing a public
official and conspiracy to defraud the United States.
Krasilych asked the IJ to exclude any evidence
gathered during Operation Durango. Citing our decision
in Pieniazek v. Gonzales, 449 F.3d 792 (7th Cir. 2006),
Krasilych argued that, in order to submit evidence
from Operation Durango, the government was required
to prove that the investigation had complied with the
Attorney General’s Guidelines on INS Undercover Opera-
tions. These guidelines specify, among other things,
how and by whom a proposed undercover investigation
must be approved. See United States Attorneys’ Manual,
tit. 9, §§ 1901-1906. Although the government had sub-
mitted a signature sheet from the Operation Durango
proposal evidencing prior approval by the local and
regional directors of the former INS, Krasilych demanded
that the entire proposal be produced and, if not, that the
evidence be suppressed. Without that evidence, Krasilych
argued, there was no proof that the I-551 stamp on
his passport had been fraudulently obtained and that
he was not in fact a lawful permanent resident. But
even with the evidence, he argued, he had never given
6 No. 09-1026
money directly to Robinson, so the stamp had been
applied “gratuitously” and was thus a legitimate
conferral of permanent-resident status.
The IJ rejected Krasilych’s arguments. First, the IJ
explained, he was satisfied that the Attorney General’s
guidelines had been followed, but, even if they had not,
Krasilych was not entitled to have any evidence sup-
pressed. And, in any event, the IJ continued, an I-551
stamp in a passport does not make a lawful permanent
resident of someone who, like Krasilych, was never even
eligible for that status. The IJ thus concluded that
Krasilych was not lawfully present and, because Krasilych
had not requested any form of relief, ordered him re-
moved. The BIA agreed with the IJ’s reasoning and dis-
missed Krasilych’s appeal.
Where, as here, the BIA issues its own opinion and
does not expressly adopt the IJ’s findings, we review the
BIA’s decision. See Xiao v. Mukasey, 547 F.3d 712, 717 (7th
Cir. 2008). We review the agency’s legal conclusions
de novo, Sankoh v. Mukasey, 539 F.3d 456, 465 (7th Cir.
2008), and we will uphold the agency’s factual deter-
minations so long as they are supported by substantial
evidence, Krishnapillai v. Holder, 563 F.3d 606, 615 (7th Cir.
2009).
In his petition for review, Krasilych renews his
argument that the evidence from the undercover inves-
tigation should have been excluded from his removal
proceedings. As he argued before the IJ and the BIA,
Krasilych insists that we held in Pieniazek that evidence
gathered from Operation Durango must be suppressed if
No. 09-1026 7
the government does not prove that the investigation
adhered to the Attorney General’s Guidelines for INS
Undercover Operations. This is a mischaracterization of
our holding. Pieniazek involved an alien who, like
Krasilych, had become involved in Operation Durango,
and the government had used evidence gathered
during that operation to support a charge of removability.
449 F.3d at 793. At the time of his removal hearing, the
alien had a request pending with DHS under the
Freedom of Information Act for information about Opera-
tion Durango; with this information, he, like Krasilych,
hoped to establish that the Attorney General’s guidelines
had not been followed and to argue, consequently, that the
evidence gathered through the investigation should be
suppressed. Id. He sought a continuance to await the
requested information, but the IJ denied the request,
reasoning that the Attorney General’s guidelines no
longer had any force because the former INS was now
part of the Department of Homeland Security and was
no longer under the Attorney General’s control. Id. at 794.
We concluded, however, that the guidelines were still
relevant to undercover investigations and therefore
remanded the case in light of the IJ’s flawed reasoning.
Id. But we expressed no opinion about whether the guide-
lines were legally enforceable or, if so, whether failure to
follow them would require exclusion of evidence. These
questions, we recognized, were for the BIA to address
in the first instance.
Nor would we have taken the position Krasilych sug-
gests. The Attorney General’s guidelines are internal
rules that have no legal force. Unlike regulations, which
8 No. 09-1026
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 discre-
tion—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.” Miller v. Henman, 804 F.2d 421, 424 (7th Cir.
1986); cf. Fano v. O’Neill, 806 F.2d 1262, 1264 (5th Cir.
1987) (explaining that INS Operations Instructions are
nonbinding because they “do not purport to be anything
other than internal house-keeping measures”); Kwon v.
INS, 646 F.2d 909, 918-19 (5th Cir. 1981) (concluding
that internal INS procedures “furnish only general guid-
ance for service employees” and do not have the force
of law).
But even assuming that the guidelines are enforceable
and were not followed in Operation Durango, the BIA
was still correct in approving the IJ’s decision to deny
Krasilych’s request to exclude evidence because the
exclusionary rule generally does not apply in removal
proceedings. See INS v. Lopez-Mendoza, 468 U.S. 1032,
1050-51 (1984); Mireles v. Gonzales, 433 F.3d 965, 967 (7th
Cir. 2006); Martinez-Camargo v. INS, 282 F.3d 487, 492 (7th
Cir. 2002). In Lopez-Mendoza, the Court left open the
possibility that the exclusionary rule may apply where
there have been “egregious violations of Fourth Amend-
ment or other liberties that might transgress notions of
fundamental fairness and undermine the probative
value of the evidence obtained.” 468 U.S. at 1050-51;
see also Martinez-Camargo, 282 F.3d at 492. Hoping to fit
No. 09-1026 9
into this exception, Krasilych blithely asserts that “Fourth
Amendment violations” in Operation Durango were
“widespread and egregious.” What the Fourth Amend-
ment, which prohibits unreasonable searches and
seizures, has to do with Krasilych’s involvement in Opera-
tion Durango escapes us, and he has not even come
close to identifying an “egregious violation” of any
other liberty.
We turn finally to Krasilych’s argument that the tempo-
rary I-551 stamp on his passport conferred lawful perma-
nent resident status. The stamp used by Robinson to
mark Krasilych’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. See
8 C.F.R. § 103.2(b)(17); Sharkey, 541 F.3d at 80 n.5. But
Krasilych’s application was never adjudicated (it would
have been denied if it was), and the “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 stamp, then,
is symbolic of nothing.
Because the agency’s determination of removability
is supported by substantial evidence, and Krasilych
did not apply for relief from removal, the order of
10 No. 09-1026
removal must stand. Accordingly, the petition for
review is D ENIED.
9-29-09