United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

Nos. 09-1296/3629

___________

Jorge Angel Puc-Ruiz, *

*

Petitioner, *

* Petition for Review of an Order of the

v. * Board of Immigration Appeals.

*

Eric H. Holder, Jr., Attorney General *

of the United States, *

*

Respondent. *

___________

Submitted: September 23, 2010

Filed: December 23, 2010

___________

Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges.

___________

MELLOY, Circuit Judge.

Jorge Angel Puc-Ruiz, a native and citizen of Mexico, petitions for review of

a Board of Immigration Appeals ("BIA") decision dismissing his appeal from an

Immigration Judge's ("IJ") order removing him from the United States to Mexico.

Puc-Ruiz argues that the evidence of his alienage and lack of lawful status in the

United States should have been suppressed because it was obtained in violation of his

rights under the Fourth Amendment, Fifth Amendment, and agency regulations. PucRuiz also contends that the BIA erred in affirming the IJ's denial of voluntary

departure and erred in denying Puc-Ruiz's motion to strike the IJ's written decision as
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ultra vires. We dismiss the petition for review from the denial of voluntary departure

and deny the petition for review in all other respects.

I. Background

Jorge Angel Puc-Ruiz is a native and citizen of Mexico. In the early morning

hours of August 25, 2007, Puc-Ruiz was patronizing Mexico on Main, a restaurant in

St. Charles, Missouri. At around 4:00 a.m., local police entered the restaurant without

a warrant, apparently acting on a tip that the restaurant was serving alcohol in

violation of a municipal ordinance. When asked for identification, Puc-Ruiz produced

a valid Missouri driver's license. Puc-Ruiz and five other Mexican nationals were

arrested and transported to the police station, where they were fingerprinted and

detained. During this time, the St. Charles Police Department contacted U.S.

Immigration and Customs Enforcement ("ICE"). While Puc-Ruiz was in police

custody, ICE Agent Jeffrey Othic interviewed him by telephone and determined that

Puc-Ruiz was an undocumented foreign national. Consequently, Agent Othic issued

an immigration detainer for Puc-Ruiz, and on August 27, 2007, the St. Charles police

released Puc-Ruiz to ICE custody. Then, Agent Othic conducted a second, more indepth interview with Puc-Ruiz. During this interview, Agent Othic prepared a Form

I-213, in which he memorialized the information obtained during the two interviews

with Puc-Ruiz, including that Puc-Ruiz was an undocumented alien who had last

entered the United States on August 15, 1998 near Douglas, Arizona without

inspection. The Form I-213 also reflected the results of a computerized records

search, which had returned an IDENT record indicating that Puc-Ruiz had previously

elected voluntary departure after an encounter with immigration authorities in 1998,

as well as Agent Othic's understanding that Puc-Ruiz had been arrested for "a

municipal ordinance violation of Drinking Alcohol after 1:30 AM."

On August 28, 2007, Agent Othic personally served Puc-Ruiz with a Notice to

Appear, charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(I). Agent
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Othic also filed the document with the immigration court to commence removal

proceedings. The following day, Puc-Ruiz was released on bond. Between one and

two weeks later, he received a ticket from the St. Charles Police Department stating

that he had violated a liquor license on August 25. However, there is no evidence that

Puc-Ruiz ever owned or operated the establishment in which he was arrested. On

October 25, 2007, the prosecuting attorney for the City of St. Charles decided not to

prosecute the charge against Puc-Ruiz, and on December 17, 2007, a St. Charles

municipal court judge ordered the arrest record expunged on the grounds that "the

arrest . . . was based on false information" and "there [was] no probable cause at the

time of the action to expunge to believe that [Puc-Ruiz] committed the offense."

Puc-Ruiz first appeared before an IJ on December 18, 2007. Following that

hearing, he moved to suppress the evidence resulting from his arrest on August 25,

2007, including the I-213 form, and to terminate proceedings. Following a removal

hearing on January 8, 2008, the IJ issued a summary decision denying Puc-Ruiz's

motions to suppress and terminate, declining to grant his request for voluntary

departure, and ordering him removed to Mexico. On February 5, 2008, Puc-Ruiz

timely filed his Notice of Appeal with the BIA. On February 6, 2008, the IJ issued a

written Decision and Order of the Immigration Judge, providing written reasons in

support of the oral decision of January 8, 2008. The written decision explained that

even if the initial arrest was improper, the manner in which ICE obtained the

information relating to Puc-Ruiz was reasonable and in accordance with routine

procedures. Indeed, the IJ could find "no allegations in the record of any misconduct

on ICE's part." This being so, and because the probative value of the evidence

obtained by ICE was not undermined by the "alleged improper and unrelated

activities" of the St. Charles police, Puc-Ruiz's motion to suppress was denied.

Additionally, the IJ explained that Puc-Ruiz's request for voluntary departure was

denied "as a matter of discretion." 
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On March 4, 2008, Puc-Ruiz filed a motion to strike the IJ's written decision,

arguing that the order was filed after the IJ had been divested of jurisdiction over the

case. In a written decision on January 13, 2009, a three-member panel of the BIA

affirmed the IJ's decision and denied Puc-Ruiz's motion to strike. The BIA agreed

with the IJ that because ICE officers had no role in Puc-Ruiz's arrest or initial

detention, "the information relating to [Puc-Ruiz's] alienage was not tainted and thus

is not subject to suppression." Further, the BIA held that Puc-Ruiz's due process and

regulatory claims failed because there was no fundamental unfairness in the process

by which Agent Othic obtained information about Puc-Ruiz's identity or alienage, and

ICE had not violated agency regulations. The BIA also found that the IJ's written

decision of February 6, 2008 was properly issued and that the IJ's denial of voluntary

departure was not an abuse of discretion. Puc-Ruiz timely filed a motion for

reconsideration, which was denied on October 28, 2009. This appeal follows.

II. Discussion

Pursuant to the REAL ID Act of 2005, we retain jurisdiction to review

"constitutional claims or questions of law" raised upon a petition for review

challenging a removal order. 8 U.S.C. § 1252(a)(2)(D). "When the BIA adopts and

affirms the IJ's decision, but also adds reasoning of its own, we will review both

decisions together." Chen v. Mukasey, 510 F.3d 797, 800 (8th Cir. 2007). We review

questions of law de novo but accord substantial deference to the BIA's interpretation

of immigration statutes and regulations. Lateef v. Dep't of Homeland Sec., 592 F.3d

926, 929 (8th Cir. 2010). "We review the agency's findings of fact for substantial

evidence under the statutory standard for immigration cases: '[T]he administrative

findings of fact are conclusive unless any reasonable adjudicator would be compelled

to conclude to the contrary.'" Chen, 510 F.3d at 800 (quoting 8 U.S.C. §

1252(b)(4)(B)).
1

"The 'body' or identity of a defendant or respondent in a criminal or civil

proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is

conceded that an unlawful arrest, search, or interrogation occurred." INS v.

Lopez-Mendoza, 468 U.S. 1032, 1039–40 (1984). However, Puc-Ruiz is not seeking

to suppress his identity, but rather evidence relating to his alienage, which is

suppressible. See id. at 1040.

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A. Motion to Suppress

(i) Fourth Amendment claim

Puc-Ruiz seeks to suppress all statements and documentation regarding his

national origin and citizenship obtained by ICE—including the Form I-213 prepared

by ICE Agent Othic—as a result of his arrest by the St. Charles police.1

 He argues

that St. Charles police officers egregiously violated his Fourth Amendment rights by

arresting him without probable cause, and, therefore, the use of any evidence resulting

from that arrest would render his removal proceedings fundamentally unfair under the

Fifth Amendment. Without the Form I-213, Puc-Ruiz contends, the government

cannot meet its burden of proving his alienage and removability, and so his removal

proceedings should be terminated.

The United States Supreme Court has held that the exclusionary rule generally

does not apply in civil deportation hearings because the likely costs of excluding

probative evidence outweigh the likely social benefits. INS v. Lopez-Mendoza, 468

U.S. 1032, 1039–42 (1984).

Important as it is to protect the Fourth Amendment rights of all persons,

there is no convincing indication that application of the exclusionary rule

in civil deportation proceedings will contribute materially to that end.

On the other side of the scale, the social costs of applying the

exclusionary rule in deportation proceedings are both unusual and

significant.
2

Although only three other Justices joined the part of Justice O'Connor’s

majority opinion where the exception for "egregious" constitutional violations

appears, the four dissenters contended that the exclusionary rule applies in the civil

and the criminal contexts alike, and would have approved any limitation on the

majority's decision. 468 U.S. at 1051–61 (Brennan, White, Marshall, and Stevens, JJ.,

dissenting); see also Gonzalez-Rivera v. INS, 22 F.3d 1441, 1448 n.2 (9th Cir. 1994)

(reaching the same conclusion). Accordingly, it is reasonable to read Lopez-Mendoza

as showing that eight justices would have applied the exclusionary rule in

circumstances where evidence was obtained through an "egregious" Fourth

Amendment violation.

3

Counsel for Puc-Ruiz confirmed at oral argument that he is not alleging any

Fourth Amendment violations on the part of ICE agents.

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Id. at 1046. The costs of suppression in this context are "unusual and significant"

because a deportation hearing’s purpose "is not to punish past transgressions but

rather to put an end to a continuing violation of the immigration laws" by "provid[ing]

a streamlined determination of eligibility to remain in this country." Id. at 1039.

Thus, suppression "would require the courts to close their eyes to ongoing violations

of the law" by compelling them "to release from custody persons who would then

immediately resume their commission of a crime through their continuing, unlawful

presence in this country." Id. at 1046–1050. "Even the objective of deterring Fourth

Amendment violations should not require such a result." Id. at 1047.

However, the Court limited its holding to circumstances that do not involve

"egregious violations of Fourth Amendment or other liberties that might transgress

notions of fundamental fairness and undermine the probative value of the evidence

obtained." Id. at 1050–51.2

 Puc-Ruiz argues that the Lopez-Mendoza Court’s

reasoning applies in the instant case because the deterrent value of applying the

exclusionary rule in a federal civil deportation proceeding is at least as great when the

target of the rule's deterrent effect is state criminal enforcement officers rather than

federal immigration agents.3

 The government counters that application of the

exclusionary rule in this context is precluded by the Supreme Court's holding in
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United States v. Janis, 428 U.S. 433 (1976). In Janis, the Court held that evidence

gathered in violation of the Fourth Amendment by state police should not be excluded

in a federal civil tax proceeding because "common sense dictates that the deterrent

effect of the exclusion of relevant evidence is highly attenuated when the 'punishment'

imposed upon the offending criminal enforcement officer is the removal of that

evidence from a civil suit by or against a different sovereign." 428 U.S. at 457–58.

Puc-Ruiz contends that Janis is distinguishable. It is unnecessary for us to decide this

issue because, regardless, we conclude that the police conduct at issue in this case

does not rise to the level of an "egregious" Fourth Amendment violation. 468 U.S. at

1046.

What constitutes an "egregious" Fourth Amendment violation under LopezMendoza is a matter of first impression for this Court. The probative value of the

evidence obtained as a result of Puc-Ruiz's arrest is undisputed; we therefore examine

whether the alleged Fourth Amendment violation was sufficiently egregious to

"transgress notions of fundamental fairness." In introducing the egregiousness

exception, the Lopez-Mendoza Court cited Rochin v. California, 342 U.S. 165 (1952),

as an example of an egregious constitutional violation. In Rochin, police officers

recovered narcotics, which the defendant had swallowed, by forcing the defendant to

swallow an emetic solution to induce vomiting. Id. at 166. The Rochin Court held

that such “brutal conduct,” which “shocks the conscience” and “offend[s] the

community's sense of fair play and decency,” constitutes an egregious constitutional

violation. 342 U.S. at 172–73.

While "egregious" violations are not limited to those of physical brutality,

Gonzalez-Rivera v. INS, 22 F.3d 1441, 1449 (9th Cir. 1994), Lopez-Mendoza requires

more than a violation to justify exclusion, Almeida-Amaral v. Gonzales, 461 F.3d 231,

236 (2d Cir. 2006) ("[W]hile the lack of any valid basis whatsoever for a seizure sets

the stage for egregiousness, more is needed."). There is no evidence in the record that

the St. Charles police employed an unreasonable show or use of force in arresting and
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detaining Puc-Ruiz. Cf. Lopez-Mendoza, 468 U.S. at 1051 (finding that credible

evidence gathered in connection with "peaceful arrests by INS officers" need not be

suppressed in an INS civil deportation hearing). Additionally, Puc-Ruiz has not

argued that the decision to arrest him was based on his race or appearance. See, e.g.,

Almeida-Amaral, 461 F.3d at 237 (holding that deciding to stop an individual solely

on the basis of his race is an egregious constitutional violation); Gonzalez-Rivera, 22

F.3d at 1449–52 (same). This is not an exhaustive list of the conduct that could

constitute an egregious constitutional violation. However, Puc-Ruiz has made no

allegations of police misconduct beyond his assertion that the arresting officers lacked

probable cause at the time of his arrest. Moreover, this is not a case in which police

officers invaded private property and detained individuals with no articulable

suspicion whatsoever. The record indicates that the arresting officers were acting on

information provided to them by the wife of one of the arrestees that alcohol was

being consumed on the premises of Mexico on Main, in violation of a municipal

ordinance. Based on the record before us, therefore, we are unable to conclude that

the St. Charles police perpetrated an egregious violation of Puc-Ruiz’s Fourth

Amendment rights.

(ii) Due Process claim

Next, Puc-Ruiz argues that suppression is required because the post-arrest

conduct of ICE agents deprived him of due process within the meaning of the Fifth

Amendment. Specifically, Puc-Ruiz contends that ICE’s failure to inform Puc-Ruiz

of his rights or provide an explanation for his arrest, and the coercive nature of Agent

Othic’s questioning, transgressed notions of fundamental fairness. We reject this

argument for two reasons. First, the Fifth Amendment states only that no person

"shall be compelled in any criminal case to be a witness against himself." U.S. Const.

amend. V. A removal hearing is a civil proceeding, and the fact that an alien has not

received Miranda-like warnings will not render his statements inadmissible in a

deportation hearing. See, e.g., United States v. Alderete-Deras, 743 F.2d 645, 647–48
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(9th Cir. 1984); Chavez-Raya v. INS, 519 F.2d 397, 402 (7th Cir. 1975). Second, an

alien must show coercion, duress, or improper action on the part of the immigration

officer in order to demonstrate that his statements were involuntary. Bustos-Torres

v. INS, 898 F.2d 1053, 1057 (5th Cir. 1990). The BIA expressly affirmed the IJ’s

finding that Puc-Ruiz's statements were made voluntarily, and substantial evidence

supports this determination.

We accept the BIA's factual determinations so long as they are supported by

substantial evidence on the record, Lateef, 592 F.3d at 929, and we give much weight

to the credibility determinations of the IJ, Al Milaji v. Mukasey, 551 F.3d 768, 772

(8th Cir. 2008). Puc-Ruiz points to no evidence in the record rebutting Agent Othic's

testimony that Puc-Ruiz answered questions freely and that his answers were

forthcoming. Puc-Ruiz's affidavit does not mention any misconduct by ICE agents

and contains no reference to Puc-Ruiz's interviews with Agent Othic. Indeed, the only

suggestions of coercion or duress during Puc-Ruiz's interviews with Agent Othic

derive from counsel's unsupported assertions in Puc-Ruiz's brief, to which we accord

no weight. INS v. Phinpathya, 464 U.S. 183, 188 n.6 (1984). Consequently, we

conclude that the BIA did not err in affirming the IJ's determination that Puc-Ruiz's

statements to Agent Othic regarding his alienage and lack of lawful status in the

United States were voluntarily made and need not be suppressed.

(iii) Regulatory claim

Finally, Puc-Ruiz contends that suppression is required because ICE violated

agency regulations 8 C.F.R. §§ 287.3(a) and (c). Section 287.3(a) requires that an

alien arrested without a warrant and placed in removal proceedings be interviewed by

an immigration officer other than the arresting officer, unless no other qualified officer

is readily available and locating one would entail unnecessary delay. Section 287.3(c)

requires that such an alien be advised of the reasons for his arrest, of his right to legal

representation, and that any statement made may be used against him in a subsequent
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proceeding. Additionally, § 287.3(c) requires that the alien be given a list of the free

legal services available in the district where the hearing will be held.

Under the BIA's case law, a regulatory violation can result in the exclusion of

evidence if the regulation in question serves a purpose of benefit to the alien and the

violation prejudiced interests of the alien which were protected by the regulation. In

re Garcia-Flores, 17 I. & N. Dec. 325, 328 (BIA 1980). "As a general rule, . . .

prejudice will have to be specifically demonstrated," unless compliance with the

regulation is mandated by the Constitution, in which case prejudice may be presumed.

Id. at 329 (citing United States v. Calderon-Medina, 591 F.2d 529, 532 (9th Cir.

1979)); see also Leslie v. Attorney Gen. of U.S., 611 F.3d 171, 175–80 (3d Cir. 2010).

To demonstrate prejudice, the alien must show that the regulatory violation harmed

his interests "in such a way as to affect potentially the outcome of [his] deportation

proceeding." In re Garcia Flores, 17 I. & N. Dec. at 328; accord Ram v. Mukasey, 529

F.3d 1238, 1242 (9th Cir. 2008).

The BIA "decline[d] to find that a regulatory violation occurred" because there

was no evidence in the record demonstrating either that another officer, other than

Agent Othic, was available to interview Puc-Ruiz or that Agent Othic failed to

properly warn Puc-Ruiz that any statement he made could be used against him in

subsequent proceedings. The BIA may have erred in shifting the burden to Puc-Ruiz

to demonstrate that ICE did not comply with agency regulations. See, e.g., Singh v.

Mukasey, 553 F.3d 207, 216 (2d Cir. 2009) (finding that the government had not

established compliance with 8 C.F.R. § 287.3(a) where "[t]he record does not show

that no other qualified officer was available to examine [the alien]."). However, we

find that any error was harmless because Puc-Ruiz has not demonstrated prejudice.

Compliance with 8 C.F.R. §§ 287.3(a) and (c) is not constitutionally mandated

and therefore prejudice cannot be presumed. In re Garcia-Flores, 17 I. & N. Dec. at

329 (finding that an alleged violation of the "warning" requirements set forth in 8
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C.F.R. § 287.3 could not be presumed to have prejudiced the respondent's interests);

Ali v. Gonzales, 440 F.3d 678, 682 (5th Cir. 2006) (finding prejudice cannot be

presumed for violations of 8 C.F.R. § 287.3); Navarro-Chalan v. Ashcroft, 359 F.3d

19, 23 n.3 (1st Cir. 2004) (same); Martinez-Camargo v. INS, 282 F.3d 487, 492 (7th

Cir. 2002) (finding that compliance with § 287.3(a) is not constitutionally mandated

and therefore prejudice cannot be presumed); Mosqueda-Araujo v. Gonzales, 135 Fed.

App'x 87, 88 (9th Cir. 2005) (unpublished) (same). Puc-Ruiz has not shown that the

alleged regulatory violations potentially affected the outcome of his deportation

proceeding. In his brief, Puc-Ruiz contends that he was intimidated by Agent Othic

because Agent Othic was the agent responsible for placing Puc-Ruiz in ICE custody,

and had a different ICE agent conducted the second interview, Puc-Ruiz would not

have divulged any information about his national origin and citizenship. Similarly,

he claims that had he been informed that any statements he made could be used

against him in future proceedings, he would have remained silent during his

interviews with Agent Othic. And had he been provided with a list of legal service

providers, he would have obtained counsel, who would have advised him not to

answer Agent Othic's questions. Under none of these hypothetical scenarios would

the outcome of Puc-Ruiz's deportation proceeding have been different, however.

To meet its burden of establishing removability by clear and convincing

evidence, 8 U.S.C. § 1229a(c)(3), the government must only show identity and

alienage; then the burden shifts to the alien to prove he is lawfully present in the

United States pursuant to a prior admission, 8 U.S.C. §§ 1229a(c)(2), 1361; see also

Almeida-Amaral, 461 F.3d at 234. Critically, Puc-Ruiz cannot demonstrate that ICE

would have failed to discover his alienage or immigration status absent his statements

to Agent Othic while in ICE custody. Assuming, without deciding, that Puc-Ruiz is

correct in identifying Agent Othic as the "arresting officer" for purposes of

8 C.F.R. § 287.3, any regulatory violations by ICE agents must necessarily have

occurred after Puc-Ruiz was transferred to ICE custody. Since 8 C.F.R. § 287.3(a)

directs that, if possible, the alien should be examined by an officer other than the
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arresting officer, any violation of the regulation must necessarily have occurred after

Puc-Ruiz had been taken into ICE custody by Agent Othic. Similarly, because

8 C.F.R. § 287.3(c) requires that the examining officer give certain information and

warnings, any violation would have had to occur after Puc-Ruiz was in ICE custody.

But the record indicates that Puc-Ruiz had already admitted his alienage and illegal

status to Agent Othic during the telephonic interview that occurred while Puc-Ruiz

was in the custody of the St. Charles police. Thus, the second interview, during which

Agent Othic memorialized Puc-Ruiz's prior statements on the Form I-213, did not

generate any additional information. See Martinez-Camargo, 282 F.3d at 492

(reaching the same conclusion on similar facts). Further, even if Puc-Ruiz had never

made any statement to Agent Othic, ICE could have established Puc-Ruiz's

removability from the routine booking information collected by the St. Charles police.

For example, Agent Othic could have run Puc-Ruiz's name through the same records

checks, which would have produced the same computerized IDENT record showing

that Puc-Ruiz is a Mexican citizen who had previously elected voluntary departure

after an encounter with immigration authorities in 1998. Thus, Puc-Ruiz has not

demonstrated prejudice, and we therefore conclude that if BIA erred in finding that

ICE did not violate any agency regulations, the error was harmless.

B. Motion to Strike the Immigration Judge's Written Decision

Puc-Ruiz argues that the BIA erred in denying his motion to strike the IJ's

written decision because the decision was authored after Puc-Ruiz filed his Notice of

Appeal and, therefore, after the IJ was divested of jurisdiction over the case. In its

October 28, 2009 decision denying Puc-Ruiz's motion for reconsideration, the BIA

held that even if the IJ's written decision is ultra vires, the denial of Puc-Ruiz's motion

to strike was harmless error as no prejudice resulted. We agree.

This Court reviews for abuse of discretion a denial by the BIA of a motion to

remand. Clifton v. Holder, 598 F.3d 486, 490 (8th Cir. 2010). The abuse-of-
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discretion standard is "highly deferential" to the BIA's decision. Averianova v.

Holder, 592 F.3d 931, 936 (8th Cir. 2010). Nonetheless, the BIA abuses its discretion

when it "departs from established policies." Clifton, 598 F.3d at 490. Under BIA

precedent and established policy, an IJ loses jurisdiction over a removal case once the

alien files a Notice of Appeal with the BIA. In re Aviles, 15 I. & N. Dec. 588, 588

(BIA 1976); In re Mintah, 15 I. & N. Dec. 540, 541 (BIA 1975); Board of

Immigration Appeals Practice Manual § 4.2(a)(ii). When the IJ lacks jurisdiction, his

decisions are nullities. In re Mintah, 15 I. & N. Dec. at 541. Because Puc-Ruiz filed

his Notice of Appeal with the BIA on February 1, 2008, the IJ's written decision,

issued on February 6, 2008, was ultra vires and thus a nullity. In its January 13, 2009

decision, the BIA acknowledged that the IJ's oral decision and memorandum did not

meet the substantive requirements of 8 C.F.R. § 1240.12(a), which demands that the

IJ's decision must include a finding on removability, reasons for the finding, and a

final order of the IJ. The BIA has an established policy of remanding a removal case

when the IJ fails to issue a decision that complies with the substantive requirements

of § 1240.12(a). In re A-P-, 22 I. & N. Dec. 468, 477 (BIA 1999). Thus, in its

January 13, 2009 decision, the BIA erred in denying Puc-Ruiz's motion to strike.

However, Puc-Ruiz has not demonstrated that the outcome would have been

any different but for the BIA's error. When the IJ issues a decision that fails to

comply with the substantive requirements of 8 C.F.R. § 1240.12(a), the only remedy

is to remand to the IJ for preparation of a full decision. In re A-P-, 22 I. & N. Dec. at

468. Puc-Ruiz has pointed to no factual or legal inconsistencies between the IJ's oral

and written decisions, and has proffered no other evidence indicating that, upon

remand, the IJ would do anything other than re-issue the same written decision that

was improperly issued on February 6, 2008. Consequently, we find that the BIA's

error was harmless and decline to remand on this issue.
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C. Denial of Application for Voluntary Departure

Finally, Puc-Ruiz argues that the IJ's denial of his request for voluntary

departure violated his constitutional rights under the Fifth Amendment's guarantees

of equal protection and due process. This Court lacks jurisdiction to review the

discretionary denial of voluntary departure under 8 U.S.C. § 1229c,

8 U.S.C. § 1252(a)(2)(B)(i), unless the denial raises "a colorable constitutional claim

or question of law." Garcia-Aguillon v. Mukasey, 524 F.3d 848, 849 (8th Cir. 2008).

We must "keep[] in mind that a petitioner may not create jurisdiction by cloaking an

abuse of discretion argument in constitutional or legal garb." Id. (internal quotations

omitted). If the constitutional claim concerns due process, then the petitioner must

also demonstrate that the violation resulted in actual prejudice, defined as whether an

alternate result "may well have resulted" without the violation. Al Khouri v. Ashcroft,

362 F.3d 461, 466 (8th Cir. 2004).

Puc-Ruiz argues that the IJ denied him both due process and equal protection

of the law by issuing the denial as a punitive reaction to Puc-Ruiz's exercise of his

right to remain silent during the deportation hearing. Puc-Ruiz relies on the IJ's

statement that "[s]omeone that comes into my court and won't admit alienage is not

going to be entitled to voluntary departure as a matter of my discretion." This

statement was made in denying a request for voluntary departure made by Isai GarciaTorres, another illegal immigrant who had been arrested along with Puc-Ruiz and

whose case was adjudicated prior to Puc-Ruiz's, during the same deportation hearing.

Puc-Ruiz contends that this statement indicates that the IJ intended to punish anyone

who exercised their right to silence in order to preserve their claims on appeal.

However, the IJ's arguably objectionable statement was made with reference to

Garcia-Torres, and not Puc-Ruiz. In denying Puc-Ruiz's request for voluntary

departure, the IJ explained that he denied the request based on Puc-Ruiz's presence in

the United States after having previously been granted voluntary departure.

Additionally, in his written decision, the IJ explicitly acknowledged the necessity of
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Puc-Ruiz's silence in order to preserve for appeal his constitutional suppression claim.

Consequently, there is substantial evidence in the record to support the BIA's finding

that the IJ based his decision on the fact that Puc-Ruiz had previously been granted

voluntary departure, and not on Puc-Ruiz's choice to remain silent at his hearing.

Because Puc-Ruiz's argument amounts to nothing more than a challenge to the IJ's

discretionary and fact-finding exercise, it must be dismissed for lack of jurisdiction.

Garcia-Aguillon, 524 F.3d at 850; Garcia-Mateo v. Keisler, 503 F.3d 698, 700 (8th

Cir. 2007).

Next, Puc-Ruiz contends that the IJ violated Puc-Ruiz's due process rights and

denied him a "fundamentally fair" hearing by refusing to hear case-specific evidence

and instead denying Puc-Ruiz's request for voluntary departure based upon a

categorical rule. Again, Puc-Ruiz relies on the arguably objectionable statement made

by the IJ in denying Isai Garcia-Torres's request for voluntary departure, arguing that

the IJ had pre-decided Puc-Ruiz's case even before he took the stand based on an

anticipated exercise of his right to silence. Alternatively, Puc-Ruiz asserts that if the

IJ denied the request based on the fact that Puc-Ruiz had previously been granted

voluntary departure, the IJ still demonstrated an impermissible degree of pre-decision

by failing to inquire into any countervailing discretionary factors. Puc-Ruiz contends

that this error was prejudicial because it resulted in an underdeveloped record. Even

if Puc-Ruiz had raised a colorable due process claim on this ground, however, he has

failed to demonstrate prejudice. Neither in his appeal to the BIA nor in his instant

appeal has Puc-Ruiz presented a single favorable factor or any countervailing equities

that might have weighed against the IJ's decision to deny his present request for

voluntary departure on the basis of Puc-Ruiz's presence in the United States after

having previously been granted voluntary departure.
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III. Conclusion

For the reasons stated above, we dismiss the petition for review from the denial

of voluntary departure and deny the petition for review in all other respects.

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