       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    Miguel v. INS                                No. 02-3758
    ELECTRONIC CITATION: 2004 FED App. 0062P (6th Cir.)
                File Name: 04a0062p.06                    AMERICAN CIVIL LIBERTIES UNION, Cleveland, Ohio,
                                                          for Petitioner. Allen W. Hausman, U. S. DEPARTMENT OF
                                                          JUSTICE, CIVIL DIVISION, Washington, D.C., for
UNITED STATES COURT OF APPEALS                            Respondent.
              FOR THE SIXTH CIRCUIT                                           _________________
                _________________
                                                                                  OPINION
 ANGELINA MIGUEL,              X                                              _________________
                  Petitioner, -                              ROGERS, Circuit Judge. Angelina Miguel is a native and
                                -
                                -  No. 02-3758            citizen of Guatemala who was discovered by Immigration and
          v.                    -                         Naturalization Service agents after a warrantless entry into her
                                 >                        home. Miguel claims that the evidence obtained during the
                                ,                         search of her house should have been suppressed because the
 IMMIGRATION AND                -
 NATURALIZATION SERVICE,                                  search violated the Fourth Amendment. The Immigration
                                -                         Judge, relying solely on the admissions of Miguel’s counsel
                 Respondent. -                            during a hearing, decided that Miguel should be removed
                                -                         regardless of any potential Fourth Amendment violations.
                               N                          The Board of Immigration Appeals affirmed the decision of
   On Appeal from the Board of Immigration Appeals.       the Immigration Judge. Miguel appeals the denial of her
                  No. A76 507 819.                        motion to suppress. Because Miguel’s counsel admitted the
                                                          relevant facts establishing her removability, and because the
               Argued: February 4, 2004                   Immigration Judge did not rely on any of the evidence that
                                                          Miguel has asked to be suppressed, this court does not need
         Decided and Filed: February 26, 2004             to reach the potential application of the exclusionary rule to
                                                          the entry and seizure of evidence from her home in possible
   Before: NORRIS, GILMAN, and ROGERS, Circuit            violation of the Fourth Amendment. Accordingly, we deny
                      Judges.                             Miguel’s petition for review.

                  _________________                         Angelina Miguel is a 25-year-old native and citizen of
                                                          Guatemala. Miguel apparently entered the United States
                       COUNSEL                            “without being admitted or paroled” in 1996 near San Ysidro,
                                                          California.
ARGUED: Richard R. Renner, TATE & RENNER, Dover,
Ohio, for Petitioner.     Mary Jane Candaux, U. S.          According to Miguel’s statement, on or about the morning
DEPARTMENT OF JUSTICE, CIVIL DIVISION,                    of July 7, 1999, Miguel was at her residence in New
Washington, D.C., for Respondent. ON BRIEF: Richard R.    Philadelphia, Ohio, with another woman and three children
Renner, TATE & RENNER, Dover, Ohio, Raymond Vasvari,      whom they were babysitting. Miguel was allegedly upstairs

                            1
No. 02-3758                                     Miguel v. INS        3    4     Miguel v. INS                                No. 02-3758

in a bathroom, when Immigration and Naturalization Service                not revisit the issue. The IJ then asked Miguel some standard
(“INS”) agents knocked at the door. One of the children                   preliminary questions. In response, Miguel’s counsel
apparently answered the door and let in the three agents, who             admitted the factual allegations contained in the NTA.
were soon joined by two more agents.                                      Specifically, Miguel’s counsel admitted that Miguel was not
                                                                          a citizen of the United States, that she was a native and citizen
  Miguel came downstairs, and the agents announced they                   of Guatemala who entered the United States at an unknown
were looking for a person named Maria Garza. Miguel then                  time and place, and that she was not admitted or paroled after
retreated upstairs to a bedroom, but the INS agents soon                  inspection by an Immigration Officer. The IJ thereupon
knocked on the bedroom door. The agents came into the                     sustained the charge of removal and set a hearing date to
bedroom and began to question Miguel about her immigration                consider any relief from removal that Miguel sought to
status.1 Apparently believing she had an obligation to                    pursue. On August 10, 2001, the day of the next hearing,
answer, Miguel told the agents that she did not have any                  Miguel’s counsel stated that Miguel did not qualify for any
“papers from the United States” but that she had a birth                  form of relief. At that hearing, the IJ also indicated that she
certificate from Guatemala.                                               had denied the motion to suppress during the last hearing.
                                                                          Later that day, the IJ issued a ruling ordering the removal of
  As Miguel retrieved her birth certificate from an envelope              Miguel to Guatemala.
in her backpack, an agent allegedly snatched the entire
envelope from her hands. The envelope also contained other                   On Miguel’s timely appeal, the Board of Immigration
documents relating to her fiancé and daughter. Miguel was at              Appeals (“BIA”) issued a two-sentence decision affirming the
that time given a Notice to Appear (“NTA”) before the                     IJ’s decision. Miguel petitions this court for review, claiming
Immigration Court.                                                        that the IJ acted arbitrarily and capriciously when she did not
                                                                          hold an evidentiary hearing on Miguel’s motion to suppress
   On October 24, 2000, Miguel filed a motion to suppress all             and that the INS agents acted so egregiously when they
evidence derived from the entry and search of her home. The               entered her home without a warrant as to require the
motion alleged that the INS agents entered her private                    suppression of the evidence gained during that entry.
residence without a valid warrant and failed to advise her of
her constitutional rights. On November 8, 2000, the                         The decision of the IJ was proper because Miguel admitted
Immigration Judge (the “IJ”) in the removal proceeding                    that she was an alien, that she was not legally admitted into
indicated that an evidentiary hearing should be held on the               the United States, and that she has no basis for any form of
motion to suppress. On the date set for the evidentiary                   relief. An evidentiary hearing as to the possible egregious
hearing, Miguel was late. The IJ denied the motion to                     nature of the agents’ entry into Miguel’s home would
suppress because Miguel had abandoned it by “her failure to               therefore have been irrelevant.
appear” and also because the affidavits did not support a
finding of egregious conduct. After Miguel arrived, the IJ did              Miguel admitted before the IJ that she is a removable alien,
                                                                          and, regardless of whether the evidence at her home should be
                                                                          suppressed, these admissions establish her removability. See
    1
     It is unclear whether the wom en let the agents in or if they just
barged in. However, Miguel’s motion to suppress indicates that the
agents simply o pened the doo r without perm ission.
No. 02-3758                                Miguel v. INS      5    6       Miguel v. INS                                      No. 02-3758

8 C.F.R. § 240.10(c) (2000)2 (“The immigration judge shall         and is not inadmissible as charged.” 8 C.F.R. § 240.8(c)
require the respondent to plead to the notice to appear by         (2000). To avoid removal, Miguel could also show that she
stating whether he or she admits or denies the factual             is eligible for some type of relief from removal, but she bears
allegations and his or her removability under the charges          the burden of proof in making such a showing. 8 C.F.R.
contained therein. If the respondent admits the factual            § 240.8(d) (2000). Miguel admitted later, however, that she
allegations and admits his or her removability under the           does not qualify for any form of relief.
charges and the immigration judge is satisfied that no issues
of law or fact remain, the immigration judge may determine           Miguel does not contest the jurisdiction of the Immigration
that removability as charged has been established by the           Court over her person. See INS v. Lopez-Mendoza, 468 U.S
admissions of the respondent.” (emphasis added)); 8 U.S.C.         1032, 1039 (1984) (“The ‘body’ or identity of a defendant or
§ 1361 (“In any removal proceeding . . . the burden of proof       respondent in a criminal or civil proceeding is never itself
shall be upon [the alien] to show the time, place, and manner      suppressible as a fruit of an unlawful arrest, even if it is
of his entry into the United States . . . . If such burden of      conceded that an unlawful arrest, search, or interrogation
proof is not sustained, such person shall be presumed to be in     occurred.”). Instead, Miguel argues that the IJ improperly
the United States in violation of law.”); see also INS v. Lopez-   denied her motion to suppress without an evidentiary hearing.
Mendoza, 468 U.S. 1032, 1039 (1984) (“In many deportation
cases the INS must show only identity and alienage; the               However, even a favorable ruling for Miguel on her motion
burden then shifts to the respondent to prove the time, place,     to suppress would not change her established removablity
and manner of his entry.”).                                        because she has not asserted any applicable basis for relief
                                                                   from removal.3 In Matter of Burgos, 15 I. & N. Dec. 278,
   During a hearing, the IJ specifically asked Miguel, through     279-80 (BIA 1975), the BIA concluded that the IJ properly
an interpreter, how she answered the factual allegations           found the aliens deportable because of their admissions. The
contained in the NTA. The NTA indicated that she is not a          aliens in Burgos had submitted a motion to suppress before
citizen or national of the United States; that she is a native     the IJ, but the IJ denied this motion. Id. at 270. In Burgos, as
and citizen of Guatemala; and that she was not admitted or         in the present case, the administrative record did not contain
paroled into the United States. Miguel then admitted these         any evidence that was obtained in the search, and the aliens
factual allegations through counsel. The admissions have not       essentially argued that “their physical presence is the
been challenged on appeal.                                         evidence to be suppressed as that presence was obtained
                                                                   illegally.” Id. at 280. However, the BIA held that after the
  After Miguel’s alienage was established by her admission         Burgos aliens admitted their alienage, the burden shifted to
and was not contradicted by any additional evidence in the         them to prove their time, place, and manner of entry into this
record, Miguel needed to demonstrate by clear and                  country. Id. The Burgos opinion continued:
convincing evidence that she is “lawfully in the United States
pursuant to a prior admission, [or that] she is clearly and
beyond a doubt entitled to be admitted to the United States            3
                                                                         The Supreme Court in Lopez-Me ndoza held tha t the Fourth
                                                                   Amendm ent exclusio nary rule does not ap ply in deportation proceedings,
                                                                   but appeared to leave open the possibility that the exclusionary rule might
   2
                                                                   app ly in cases involving “egregious vio lations” of the Fourth Amendment.
     8 C.F.R. § 240 has been subsequently renumbered as 8 C.F.R.   Lopez-Me ndoza, 468 U.S. at 105 0-51 (plurality opinion). M iguel asse rts
§ 1240.                                                            that an “egregio us violation” o ccurred in her case.
No. 02-3758                                Miguel v. INS       7

  Since they failed to sustain that burden, they are
  presumed to be in the United States in violation of law.
  The [INS] did not rely upon any statement taken or any
  evidence seized at the time of the [the aliens’] arrest to
  establish deportability. Thus, even if the arrest was
  illegal, this would not invalidate the subsequent
  deportation proceedings . . . .
Id.
   The Supreme Court’s decision in Lopez Mendoza did not
change the analysis of Burgos. See, e.g., Yadidi v. INS, No.
92-70042, 1993 WL 306238, at **1 (9th Cir. Aug. 12, 1993)
(“Yadidi’s admissions at the deportation hearing formed the
basis of the IJ’s deportation order. Thus, the IJ did not err by
denying Yadidi’s motion to continue or by refusing to
consider further his motion to suppress.”). Likewise, the
evidence of Miguel’s removability did not come from an
allegedly illegal entry, search, arrest, or interrogation, but
instead the evidence of her alienage and removability came
from her own admissions at a subsequent removal hearing.
  As the IJ did not rely on any of the evidence that Miguel
asked to be suppressed, this court does not need to reach the
potential application of the exclusionary rule to the entry and
seizure of evidence from her home in possible violation of the
Fourth Amendment.
  For the foregoing reasons, we deny Miguel’s petition for
review.
