                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                FILED
                     ________________________
                                                    U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                            No. 04-15038                  August 26, 2005
                        Non-Argument Calendar          THOMAS K. KAHN
                      ________________________              CLERK

                      BIA Docket No. A75-861-350

ASTON RAMPASARD,


                                                   Petitioner,

     versus

U.S. ATTORNEY GENERAL,


                                                   Respondent.

                     __________________________

                     Petition for Review of a Decision
                   of the Board of Immigration Appeals
                      _________________________

                           (August 26, 2005)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
       Jamaican citizen Aston Rampasard petitions for review of a decision of the

Board of Immigration Appeals (BIA), affirming the Immigration Judge’s (IJ’s)

decision denying his motion to suppress his confession to committing passport

fraud and ordering that he be removed for that reason, 8 U.S.C. § 1227(a)(3)(D).1

We deny the petition for review.

       We review only the decision of the BIA and not the decision of the IJ,

“except to the extent that [the BIA] adopts the IJ’s opinion.” Al Najjar v. Ashcroft,

257 F.3d 1262, 1284 (11th Cir. 2001). In immigration cases, we review legal

conclusions made below de novo, but will uphold the administrative factual

findings if they are supported by substantial evidence. Farquharson v. United

States Attorney Gen., 246 F.3d 1317, 1320 (11th Cir. 2001).

       The Fifth Amendment protects individuals against compulsory self-

incrimination.2 U.S. Const. Amend. V. In order to protect these Fifth Amendment

rights, the Supreme Court has established a “prophylactic rule” requiring that

those subject to custodial interrogation must be informed, inter alia, of their right


       1
         Rampasard has not claimed either to this Court or the BIA that, if his confession was
admissible, there was insufficient evidence to remove him. Accordingly, Rampasard has waived
any challenge to his removal other than the suppression issue. See Mohammed v. Ashcroft, 261
F.3d 1244, 1248 n.3 (11th Cir. 2001).
       2
          Contrary to the representations of the parties and the IJ, the right against compulsory
self-incrimination is secured by the Fifth Amendment, not the Fourth Amendment.

                                                 2
to remain silent and to have an attorney present during questioning. Miranda v.

Arizona, 86 S. Ct. 1602, 1624–26 (1966). In criminal cases, inculpatory

statements obtained during custodial interrogations in which Miranda warnings

are not given are subject to suppression. See United States v. Muegge, 225 F.3d

1267, 1269–70 (11th Cir. 2000).

      However, in INS v. Lopez-Mendoza, 104 S. Ct. 3479, 3489 (1984), the

Supreme Court held the evidence resulting from an illegal but peaceful arrest may

be introduced in deportation cases. While Lopez-Mendoza dealt with government

conduct that violated the Fourth Amendment, the Supreme Court’s opinion

suggested its rationale applies to any evidence that would be subject to the

exclusionary rule in a criminal case. See id. at 3489 (stating “the . . . balance

between costs and benefits comes out against applying the exclusionary rule in

civil deportation hearings held by the INS”). In addition, Lopez-Mendoza

suggested, but did not expressly hold, that “egregious violations of Fourth

Amendment or other liberties that might transgress notions of fundamental

fairness and undermine the probative value of the evidence obtained” might

warrant the use of the exclusionary rule in immigration proceedings. See id.

      The BIA has indicated the exclusionary rule may apply in immigration cases

in some circumstances. Matter of Barcenas,19 I. & N. Dec. 609, 611 (1988).

                                           3
However, “[o]ne who raises the claim questioning the legality of the evidence

must come forward with proof establishing a prima facie case before the Service

will be called on to assume the burden of justifying the manner in which it

obtained the evidence.” Id. Under BIA precedent, evidence is admissible if it is

probative and its admission would be fundamentally fair. Id.

      Even assuming arguendo that Rampasard’s proffer should be credited, it did

not assert facts constituting an “egregious” violation of the Fifth Amendment. At

most, Rampasard’s proffer would establish he was locked in a room with five

government employees and interrogated. Rampasard has not claimed he was

physically threatened, interrogated for an unusually long time, or denied any

ordinary comfort during his interrogation. In fact, Rampasard’s proffer did not

even expressly claim that the interrogating officers failed to read him his Miranda

warnings. Thus, even assuming arguendo an “egregious” violation of the Fifth

Amendment would warrant suppression in an immigration case, there was no

evidence in the record such a violation occurred. Accordingly, the IJ did not err

by denying Rampasard’s suppression motion, concluding he had represented

himself as a U.S. citizen in order to obtain a passport, and ordering his removal.

      PETITION DENIED.




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