                           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 last-
minute 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 investiga-
tions 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 com-
mand 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 nonimmi-
grant 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 subse-
quently charged with removability as an alien who re-
mained in the United States for a time longer than permit-
ted. 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 con-
tinue proceedings, Pieniazek argued that the INS’s under-
cover 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 Informa-
tion Act request with DHS to determine whether the
evidence used to place him in removal proceedings was
improperly obtained, and thus possibly subject to suppres-
sion.
  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 Immigra-
tion 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 gov-
erning 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 con-
vincing 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




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