In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3008

PIOTR M. PIENIAZEK,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

____________

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A76 291 240.

____________

ARGUED JANUARY 20, 2006—DECIDED JUNE 5, 2006

____________

Before FLAUM, Chief Judge, and BAUER and RIPPLE,

Circuit Judges.

BAUER, Circuit Judge. This appeal from a decision of the

Board of Immigration Appeals is accompanied by a lastminute motion to remand filed by Respondent. We grant the

motion and remand to the Board so it can reconsider its

decision in light of the Immigration Judge’s error. The

Immigration Judge erred in holding that the Attorney

General Guidelines for Undercover Operations, which

were promulgated in 1984 to govern undercover investigations by the Immigration and Naturalization Service (INS),

no longer applied because INS was reorganized under the

Department of Homeland Security (DHS) and therefore the

Attorney General was no longer the head of INS. The INS
2 No. 05-3008

ceased to exist on March 1, 2003, but its functions were

assumed by agencies within the newly formed DHS. The

Immigration Judge reasoned that since the chain of command had changed, the Guidelines were irrelevant to

Pieniazek’s case. The Immigration Judge erred and we

remand to the Board of Immigration Appeals to consider

Pieniazek’s case in light of the governing Guidelines.

Piotr Pieniazek was admitted to the United States on

September 7, 1997. He arrived from Poland as a nonimmigrant visitor and he was authorized to stay in the United

States for a short time, but his visit was not to exceed

March 6, 1998. As it turns out, Pieniazek remained in the

United States beyond March 6, 1998, and as far as the

record shows, he did not seek nor receive authorization from

the former INS to prolong his stay. Pieniazek was subsequently charged with removability as an alien who remained in the United States for a time longer than permitted. See INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). The

parties disputed the events and dealings leading to

Pieniazek’s removal order. Some of the evidence gathered

to support the government’s charge was obtained from the

INS undercover investigation known as “Operation

Durango.” Undisputed, however, is the fact that Pieniazek

was charged with removability based on his visa overstay

alone.

In support of the charges, Respondent filed a form I-213,

which is a Record of Deportable/Inadmissible Alien, in

Immigration Court. The information used to complete the

I-213 form was gathered from Pieniazek’s “A-file,” which is

the permanent record that the INS maintains for persons

seeking citizenship in the United States, and from evidence

obtained as part of the ongoing “Operation Durango”

investigation.

At a hearing before the Immigration Judge, Pieniazek

filed a motion to continue and a motion to terminate
No. 05-3008 3

proceedings in Immigration Court. In his motion to continue proceedings, Pieniazek argued that the INS’s undercover operations were governed by the directive, “Attorney

General Guidelines for INS Undercover Operations,” which

was adopted in 1984. Further, he urged that INS’s failure

to follow the procedures laid out in the Guidelines served as

grounds for suppression of any evidence obtained in the

undercover investigation. Pieniazek explained to the

Immigration Court that he had filed a Freedom of Information Act request with DHS to determine whether the

evidence used to place him in removal proceedings was

improperly obtained, and thus possibly subject to suppression.

In an oral opinion entered on February 24, 2004, the

Immigration Judge found Pieniazek removable as charged

and denied both his motion for a continuance and his

motion to terminate removal proceedings. The Immigration

Judge concluded that Pieniazek’s continuance request

was based on “speculative reasons.” While the Immigration Judge noted Pieniazek’s argument that the Attorney

General Guidelines from 1984 applied to his case, he

concluded that since DHS was no longer reporting to the

Attorney General, the Attorney General Guidelines governing INS undercover operations no longer applied to

DHS’s actions. This conclusion is wrong.

Finally, the Immigration Judge concluded that the

government established removability by clear and convincing evidence. The Board of Immigration Appeals

affirmed the decision of the Immigration Judge without

opinion. See 8 C.F.R. § 1003.1(e)(4).

An immigration case may be continued if there is “good

cause” present. See 8 C.F.R. § 1002.39. Pieniazek argues

that he has good cause and should be able to suppress

any evidence gathered from “Operation Durango” if the INS

violated the Attorney General Guidelines for Undercover
4 No. 05-3008

Operations. Pieniazek is entitled to an answer on this

question.

We grant Respondent’s request to remand this case so

that the Board can reconsider the entirety of its decision in

light of the fact that the Attorney General Guidelines

on INS Undercover Operations continue to govern DHS’s

actions.

REMANDED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-5-06