In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 04-3217 & 04-4196

JAIME MIRELES,

Petitioner,

v.

ALBERTO R. GONZALES, Attorney General

of the United States,

Respondent.

____________

Petitions for Review of Decisions

of the Board of Immigration Appeals

____________

SUBMITTED DECEMBER 1, 2005—DECIDED JANUARY 10, 2006

____________

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
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 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 (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.,
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 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 (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 prosecutorial discretion to terminate the removal proceedings. If

Giambastiani were a judge under Article III, the question

would be whether she “served in governmental employment
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 standard 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. LEXIS 25569 (10th Cir. Nov. 25,

2005).

The REAL ID Act of 2005 creates an exception for constitutional contentions and other pure issues of law. Pub. L.

109-13, 119 Stat. 231, 310, to be codified at 8 U.S.C.
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 timing 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.
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