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 FED.

R. APP. P. 34(a)(2).

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1026

ZINOVIY KRASILYCH,

Petitioner,

v.

ERIC H. HOLDER, 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

SUBMITTED SEPTEMBER 16, 2009 —DECIDED SEPTEMBER 29, 2009 

Before FLAUM, EVANS, and SYKES, Circuit Judges.

PER CURIAM. The Department of Homeland Security

initiated removal proceedings against Zinoviy Krasilych,

a Ukranian citizen, for remaining in the United States
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 storefront 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 (commonly 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 Evidence of Lawful Admission for Permanent Residence.

Valid Until 10/11/2001. Employment Authorized.” Robinson 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 immigration 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 investigation 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 investigation—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 legitimate 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 immigration authorities had tolerated the use of these fraudulently obtained I-551 stamps only long enough to “provide a legitimacy to the operation”; authorities had

never actually issued a green card or processed an application 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 conclusion 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 Operations. 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 submitted 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 suppressed. 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 removed. The BIA agreed with the IJ’s reasoning and dismissed 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 determinations 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 investigation 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 Operation 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 guidelines 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 suggests. 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 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.” 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 guidance 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 Amendment 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 Amendment, which prohibits unreasonable searches and

seizures, has to do with Krasilych’s involvement in Operation 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 temporary I-551 stamp on his passport conferred lawful permanent 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 DENIED.

9-29-09