                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

CHUYON YON HONG,                         
                           Petitioner,          No. 06-72823
                  v.
                                                Agency No.
                                                A71-953-072
MICHAEL B. MUKASEY, Attorney
General,                                          OPINION
                    Respondent.
                                         
          On Petition for Review of an Order of the
               Board of Immigration Appeals

                  Argued and Submitted
        December 7, 2007—San Francisco, California

                       Filed March 4, 2008

      Before: Dorothy W. Nelson and Carlos T. Bea,
  Circuit Judges, and Louis F. Oberdorfer,* Senior Judge.

                Opinion by Judge D.W. Nelson




  *The Honorable Louis F. Oberdorfer, Senior United States District
Judge for the District of Columbia, sitting by designation.

                               2015
                      HONG v. MUKASEY                     2017


                         COUNSEL

Robert Baizer, Oakland, California, for the petitioner.
2018                      HONG v. MUKASEY
Song E. Park, United States Department of Justice, Washing-
ton, D.C., for the the respondent.


                              OPINION

D.W. NELSON, Senior Circuit Judge:

   Chuyon Hong petitions for review of the order for her
removal from the United States. Petitioner argues that evi-
dence used against her in removal proceedings should have
been suppressed because it was obtained through violations of
federal regulations committed by a United States immigration
officer. Because the exclusionary rule does not generally
apply to immigration proceedings, and Petitioner’s due pro-
cess rights were not violated, we deny in part her Petition for
Review. Petitioner also seeks reconsideration of the denial of
her application for cancellation of removal. However, we lack
jurisdiction to review this discretionary decision, and dismiss
this portion of the petition. Petitioner’s petition is denied in
part and dismissed in part.

I.       Factual and Procedural Background

   Chuyon Hong, a native and citizen of South Korea, attained
permanent resident status in the United States in or around
1992. She derived that status as a minor through her father,
who had inappropriately secured his own status as a profes-
sional permanent resident alien holding an advanced degree or
exceptional ability. Petitioner’s father had obtained this status
through participation in an illegal conspiracy in which bribes
were exchanged for fraudulent green cards. Leland Sustaire,
a supervisory officer at the former Immigration and Natural-
ization Service (“INS”), perpetrated the scheme.1 To cover his
     1
    On March 1, 2003, the INS ceased to exist as an independent agency
within the Department of Justice and its enforcement functions were trans-
ferred to the Department of Homeland Security (“DHS”), pursuant to
§ 441 of the Homeland Security Act, Pub. L. No. 107-926, 116 Stat. 2135
(Nov. 25, 2002).
                       HONG v. MUKASEY                     2019
tracks, Sustaire had destroyed government files, but saved a
list of “A” numbers that identified aliens who obtained
unwarranted changes in their status. When a Department of
Justice (“DOJ”) investigation into the conspiracy began in
1994, Sustaire gave this list to his personal defense attorney,
intending to provide prosecutors the aliens’ identities in order
to secure leniency for himself. Sustaire’s attorney delivered
the list, which identified Petitioner, to the DHS Office of
Inspector General. DHS used the Sustaire list to determine
whether aliens there listed had unlawfully obtained permanent
resident alien status.

   The presence of Hong’s identifying A-number on the list
led to her being placed in removal proceedings, where she
was charged with being an alien not in possession of a valid
immigrant visa or entry document at the time of her entry or
status adjustment. Petitioner denied the charge of removabil-
ity and alternatively applied for cancellation of removal. Peti-
tioner was not charged with fraud or knowledge of the scheme
in which her father participated.

   Both prior to and at the hearing, Petitioner moved to
exclude evidence that consisted of, or originated with, the
Sustaire list. Petitioner argued that Sustaire had unlawfully
obtained nonpublic information and violated agency regula-
tions protecting Petitioner’s right to privacy. The immigration
judge (“IJ”) rejected Petitioner’s motion. The IJ determined
that Petitioner had not shown she was prejudiced by the
alleged violation of DOJ privacy regulations, because she had
no procedural or substantive right to possess illegal residency
documents, or to have possession of such documents con-
cealed from the government. Though the IJ recognized that
Sustaire’s actions had placed Petitioner in an unenviable posi-
tion, the Sustaire list and a transcript of Sustaire’s testimony
at a trial of a co-conspirator were admitted as evidence.

  The IJ held that the charge of removability had been proven
by clear, unequivocal, and convincing evidence. The IJ then
2020                   HONG v. MUKASEY
denied Petitioner’s application for cancellation of removal
because Petitioner could not demonstrate that her removal
would cause exceptional and extremely unusual hardship to
her child, the sole relative who qualified for consideration
under § 240A(b) of the Immigration and Nationality Act, 8
U.S.C. § 1229b(b).

   On appeal, the Board of Immigration Appeals (“BIA”)
determined that the IJ had properly denied Petitioner’s motion
to suppress. The BIA stated that no rigid rule compelled
exclusion of evidence from administrative proceedings, and
that such exclusion was proper only where the prejudice to the
individual was the result of the violation of a regulation
intended to confer a benefit on that individual. See Matter of
Garcia-Flores, 17 I. & N. Dec. 325, 327-28 (BIA 1980). The
BIA held that Petitioner, as an alien holding her permanent
alien status as a result of criminal fraud, had no protected
interests violated. In addition, the BIA held the entire sup-
pression issue meritless, because the Fourth Amendment
exclusionary rule does not apply to removal proceedings. See
INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984); Matter
of Sandoval, 17 I. & N. Dec. 70, 79-80 (BIA 1979). The BIA
also noted that the exclusionary rule does not apply where the
government learns of the evidence from an independent
source. See Segura v. United States, 468 U.S. 796, 797
(1984). Finally, the BIA agreed that Petitioner had failed to
show sufficient hardship to warrant cancellation of removal,
and affirmed that she was statutorily ineligible for this relief.
Hong now seeks review of her removal order, arguing that the
source of the critical evidence against her — the Sustaire list
— should have been suppressed.

II.    Standard of Review

   Questions of law, and in particular due process challenges
to removal orders, are reviewed de novo. Colmenar v. INS,
210 F.3d 967, 971 (9th Cir. 2000). We give deference under
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
                       HONG v. MUKASEY                       2021
Inc., 467 U.S. 837 (1984), to the agency’s interpretation of the
INA. Parilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir.
2005). We must give “controlling weight” to the Board’s
interpretation of immigration regulations “unless [the inter-
pretation] is plainly erroneous or inconsistent with the regula-
tion.” Providence Health System-Washington v. Thompson,
353 F.3d 661, 665 (9th Cir. 2003).

III.   Jurisdiction

   Under 8 U.S.C. § 1252, we have jurisdiction to review the
BIA’s final order calling for Petitioner’s removal. However,
this authority does not extend to review of the Board’s discre-
tionary denial of Petitioner’s application for cancellation of
removal based on the IJ’s finding petitioner did not prove her
removal would result in exceptional and extremely unusual
hardship. Such a finding “is a subjective, discretionary judg-
ment that has been carved out of our appellate jurisdiction.”
Romero-Torres v. Ashcroft, 327 F.3d 887, 888 (9th Cir.
2003); see also 8 U.S.C. § 1252(a)(2)(B)(I) (“[n]otwithstand-
ing any other provision of law . . . no court shall have jurisdic-
tion to review any judgment regarding the granting of relief
under . . . . [the section governing cancellation of removal, 8
U.S.C. § 1229b.”) As a result, we have jurisdiction over Peti-
tioner’s petition for review of her removal order, but no
authority to review the denial of her application for cancella-
tion of removal.

IV.    Discussion

  A. The Exclusionary Rule Is Generally An Inappropriate
  Remedy In Immigration Proceedings.

  [1] The exclusionary rule is “an exceptional remedy typi-
cally reserved for violations of constitutional rights.” United
States v. Smith, 196 F.3d 1034, 1040 (9th Cir. 1999); see also
United States v. Calandra, 414 U.S. 338, 348 (1974) (describ-
ing the exclusionary rule as a “judicially created remedy
2022                   HONG v. MUKASEY
designed to safeguard Fourth Amendment rights generally
through its deterrent effect”). The Supreme Court has held the
Fourth Amendment exclusionary rule does not generally
apply in immigration proceedings, because, “[c]onsistent with
the civil nature of the proceeding, various protections that
apply in the context of a criminal trial do not apply . . . .” INS
v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984); see also
United States v. Janis, 428 U.S. 433, 447 (1976) (The
Supreme Court has “never . . . applied [the exclusionary rule]
to exclude evidence from a civil proceeding, federal or
state.”) The Lopez-Mendoza Court found that applying the
exclusionary rule would be particularly costly in the immigra-
tion context. Lopez-Mendoza, 468 U.S. at 1045-50. Unlike in
a criminal case, where excluding evidence would merely pre-
vent conviction for a prior crime, applying the rule here
would allow for aliens’ continued, unlawful presence in the
country, and would thus “require the courts to close their eyes
to ongoing violations of the law.” Id. at 1046.

   Here, the BIA cited these precedents and held the entire
suppression issue without merit. The BIA did acknowledge
that exceptional circumstances would justify an exception to
the general rule announced in Lopez-Mendoza, but held that
none of those special circumstances existed in Petitioner’s
case. Petitioner does not contest that the exclusionary rule is
generally inapplicable in immigration proceedings. She con-
tends, however, that an exception would be appropriate here,
on the grounds that Sustaire’s violation of an agency regula-
tion compromised fundamental fairness and undermined her
due process rights.

  B. Petitioner Had No Protected Interest In Keeping Her
  Unlawful Status Secret From the Government.

   [2] The blanket rule announced in Lopez-Mendoza did not
address the potential exclusion of evidence in two circum-
stances. First, the rule did not cover instances where trans-
gressions implicate “fundamental fairness and undermine the
                       HONG v. MUKASEY                      2023
probative value of the evidence obtained.” Id. at 1050-51.
Second, the Court did not address challenges “to the INS’s
own internal regulations.” Id. The inadmissibility of evidence
that undermines fundamental fairness stems from the Fifth
Amendment due process guarantee that operates in removal
proceedings. See, e.g., Bridges v. Wixon, 326 U.S. 135, 152-
53 (1945); U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260,
267-68 (1954). As for the specific application of this doctrine
in a case of alleged regulatory violations, there is no “rigid
rule . . . under which every violation of an agency regulatory
requirement results in . . . the exclusion of evidence from
administrative proceedings.” Matter of Garcia-Flores, 17 I. &
N. Dec. 325, 327 (BIA 1980). Instead, the BIA has adopted
from the Ninth Circuit a two-prong test to evaluate the poten-
tial exclusion of evidence obtained through a violation of
agency regulations. First, the regulation must serve a “purpose
of benefit to the alien.” Id. at 328. Second, the regulatory vio-
lation will render the proceeding unlawful “only if the viola-
tion prejudiced interests of the alien which were protected by
the regulation.” Id.

   [3] Here, the parties dispute whether Sustaire even violated
the principal regulation upon which Petitioner relies. That
regulation, 5 C.F.R. § 2635.703(a), forbids “the improper use
of nonpublic information to further [an employee’s] own pri-
vate interest . . . by knowing unauthorized disclosure.” Non-
public information is defined as information the employee
gains by reason of federal employment and “knows or reason-
ably should know has not been made available to the general
public . . . [or] been disseminated to the general public.” 5
C.F.R. § 2635.703(b).

   [4] Petitioner asserts that Sustaire improperly used nonpub-
lic information to further his private interest when he shared
Petitioner’s A-number with his criminal defense attorney in
the hopes of obtaining lenient treatment from prosecutors.
Although it is not clear the regulation bars such actions, we
need not reach this question because petitioner fails the sec-
2024                   HONG v. MUKASEY
ond prong of the Garcia-Flores test. First, the evidence in
question — an alien’s identifying A-number — does not qual-
ify as nonpublic information under the terms of the regulation,
because the number is available on public documents, includ-
ing memoranda issued by a court in an immigration matter.

   [5] Second, the benefit Sustaire received — leniency in
exchange for cooperation with prosecutors — does not seem
to be barred by the regulation. The regulation prohibits
employees from misusing such information “in a financial
transaction . . . or allow[ing] the improper use . . . to further
his own private interest or that of another, whether through
advice or recommendation, or by knowing unauthorized dis-
closure.” 5 C.F.R. § 2635.703(a). Sustaire could be said to
have furthered his own interest as he provided information to
investigators in return for more lenient treatment than he oth-
erwise would have received. Yet the regulation is written so
as to prevent government employees from profiting from mis-
using information, not to prevent criminals from cooperating
with a legitimate investigation. To bar evidence because it
came through cooperation would force us to credit an argu-
ment “that has been rejected by every circuit that has consid-
ered it,” including the Ninth. United States v. Smith, 196 F.3d
1034, 1038 (9th Cir. 1999).

   Even if Sustaire had violated the regulation, the evidence
gained thereby would still not be suppressed unless Petitioner
could demonstrate, under the Garcia-Flores two-part test, that
she held protected interests that were prejudiced by the viola-
tion. Petitioner argues that her privacy interests were violated,
and that the violation prejudiced her by providing evidence of
her removability. This argument fails, however, because Peti-
tioner held no protected interest in keeping from the govern-
ment the unlawful means by which she obtained her status.

   [6] Petitioner’s right to privacy, whatever its contours, does
not extend to keeping secret the fact that she obtained her sta-
tus through an act of criminal fraud. While the circumstances
                       HONG v. MUKASEY                     2025
were unfortunate in that Petitioner’s father, rather than Peti-
tioner herself, unlawfully procured her status, it was not fun-
damentally unfair for the evidence of this crime to be
admitted. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.
2000) (reversal of a BIA decision on due process grounds is
available where the petitioner suffered prejudice, and the pro-
ceeding was “so fundamentally unfair that the alien was pre-
vented from reasonably presenting his case.”) Petitioner
argues she was prejudiced by the introduction of the evidence
because it provided the basis for her removal. Clearly the evi-
dence hurt Petitioner’s case. But Garcia-Flores does not bar
evidence that prejudices a petitioner; the rule bars evidence
that prejudices protected interests held by that petitioner.
Here, Petitioner never obtained a lawful benefit that war-
ranted protection by the regulation. She was thus not deprived
of any protected right, because the only element of her case
that she sought to keep private was the fact that she earned her
status unlawfully.

   [7] We hold that in this immigration proceeding, where the
regulation appears not to have been violated, and any alleged
violation would still not have deprived Petitioner of any pro-
tected right, the evidence was properly admitted.

Conclusion

  [8] We DENY in part Petitioner’s petition for review
because the exclusionary rule does not generally apply in
immigration proceedings and petitioner’s due process rights
were not violated such that probative evidence should have
been suppressed. We DISMISS her petition in part because
we lack jurisdiction to review the discretionary decision to
deny her application for cancellation of removal.

  DENIED IN PART, DISMISSED IN PART
