Admissibility of Alien Amnesty Application Information in Prosecutions of Third Parties
T h e c o n fid e n tia lity p ro v is io n s o f th e Im m ig ra tio n R efo rm a n d C o n tro l A c t o f 1986 g e n e ra lly b a r fe d e ra l p ro s e c u to rs fro m in tro d u c in g in fo rm a tio n fro m a lie n a m n e sty a p p lic a tio n s as e v id e n c e in c rim in a l p ro s e c u tio n s o f th ird parties, b u t th e u se o f s u c h in fo rm a tio n is no t b a rre d in p ro s e c u tio n s o f th ird p a rtie s fo r c rim e s th a t facilitate, o r a re c lo se ly re la te d to, the Filing o f a fa lse a m n e sty a p p li c a tio n .
J u stic e D e p a rtm e n t u se o f a m n e s ty a p p lic atio n in fo rm a tio n is a lso s u b je c t to re g u la tio n s issu ed b y the I m m ig ra tio n a n d N a tu ra liz a tio n S ervice. T h o s e re g u la tio n s lim it s u c h use a g a in st th ird p a rtie s to th e p ro s e c u tio n o f p e rs o n s w h o have “c re a te d o r s u p p lie d a false w ritin g or d o c u m e n t for u se ” in an a m n e s ty a p p lic a tio n , w h ic h m a y include p e rso n s w h o ta k e b rib e s to ap p ro v e fa lse a m n e sty a p p li c a tio n s
D e c e m b e r 2 2 , 1993
M e m o r a n d u m O p in io n f o r t h e In s p e c t o r G e n e r a l D e p a r t m e n t o f J u s t ic e
This memorandum responds to your request for our legal opinion on whether the confidentiality provisions of 8 U.S.C. § 1255a(c)(5) bar Justice Department prosecutors from introducing evidence consisting of information submitted as part of an illegal alien’s application for amnesty in a criminal prosecution of a third party (“(c)(5) information”). We conclude that (1) the introduction of such evi dence is generally barred under the plain language of the statute but (2) it is not barred by the statute in the prosecution of third parties for crimes (e.g., the accep tance of a bribe by a government official for approving a false amnesty applica tion) that facilitate or are closely related to the false amnesty application violations covered by 8 U.S.C. § I255a(c)(6). It should also be noted that a defendant who is not himself the alien whose amnesty application file is used in violation of the stat ute would not likely have standing to move for suppression of (c)(5) information. However, Justice Department use of amnesty application information is also subject to a specific regulation promulgated by the Immigration and Naturalization Service (“INS”), and that regulation limits use against third parties to the prosecu tion of persons who have “created or supplied a false writing or document for use in [an amnesty application].” 8 C.F.R. § 245a.2(t)(3), (4) (1993). We believe that language would generally allow use of (c)(5) information to prosecute INS em ployees who take bribes to approve false amnesty applications, based on the rea soning that such an employee participates in the creation of falsified documents used in an amnesty application.
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I. BACKGROUND
The Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (“IRCA”), established procedures whereby certain illegal aliens could apply for amnesty to remain in the United States and have their status adjusted to that of temporary resident alien. 8 U.S.C. § 1255a. In order to alleviate the con cerns of illegal aliens that information disclosed in their applications would be used as a basis to prosecute or deport them, IRCA included a confidentiality provision strictly limiting the Justice Department’s access to and use of information submit ted in alien amnesty applications. 8 U.S.C. § 1255a(c)(5). That provision’s prohi bition against the Justice Department’s use of amnesty application information contains several exceptions. For purposes of this opinion, the relevant exception allows Department officials to use such information “for enforcement of paragraph (6),” which is a reference to 8 U.S.C. § 1255a(c)(6) (“paragraph (6)”). Paragraph (6) provides criminal penalties for filing false or fraudulent amnesty applications, as follows:
Whoever files an application for adjustment of status under this sec tion and knowingly and willfully falsifies, misrepresents, conceals, or covers up a material fact or makes any false, fictitious, or frau dulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, ficti tious, or fraudulent statement or entry, shall be fined in accordance with Title 18, or imprisoned not more than five years, or both.
Although the paragraph (6) exception from IRCA’s confidentiality restriction clearly allows amnesty application information to be used in cases brought under paragraph (6) itself against aliens who file false applications, the permissibility of using such information in prosecuting third parties (e.g., an INS employee or bro ker who facilitates a falsified amnesty application) under other federal statutes (e.g., bribery or fraud statutes, or the aiding and abetting statute) presents a more difficult question. As you note in your request for our opinion, the answer to that question will affect the ability of the Inspector General’s Office to investigate INS employees who accept bribes for approving false legalization applications or mid dlemen who knowingly facilitate them.
II. ANALYSIS 1. Textual Interpretation
Since the question presented here is primarily a matter of statutory interpreta tion, the Supreme Court’s statement in United States v. Ron Pair Enterprises, 489 U.S. 235, 242 (1989) sets the framework for analysis:
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The plain meaning of legislation should be conclusive, except in the “rare cases [in which] the literal application o f a statute will produce a result demonstrably at odds with the intentions of its drafters.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982). In such cases, the intention of the drafters, rather than the strict language, controls. Ibid.
A c co rd INS v. Cardozo-F onseca, 4 8 0 U.S. 421, 432 n. 12 (1987) (“plain lan guage” is generally dispositive and resort to legislative history is warranted only to determ ine if “there is ‘clearly expressed legislative intention’ contrary to that lan guage”). IR C A ’s restriction on the Justice D epartm ent’s use of information submitted in an illegal alien amnesty application is set forth in 8 U.S.C. § 1255a(c)(5) (“subsection (c)(5)”), which provides in pertinent part:
N either the Attorney General, nor any other official or employee of the D epartm ent of Justice, or bureau or agency thereof, may —
(A) use the information furnished pursuant to an application filed under this section for any purpose other than to make a determina tion on the application or f o r enforcem ent o f paragraph (6) or for the preparation of reports to Congress under section 404 of the Im migration Reform and Control Act of 1986.1
(Em phasis added.) The language of the confidentiality provision is relatively straightforward, es tablishing a flat prohibition against the use o f application information by Justice D epartm ent personnel except in cases covered by the enumerated exceptions. H ow ever, as we discuss below in Part II.4, one federal appellate decision has loosely interpreted the statute to perm it disclosure of the application information for general law enforcem ent purposes that clearly do not fall within the paragraph (6) exception.2 W e do not believe that the opinion in question can be reconciled with the plain language o f the statute under the principles o f statutory interpretation established by the above-noted line of Supreme Court cases.
1 T he sectio n goes on to prohibit the D epartm ent and its officials from ’‘m ak[ing] any publication w hereb y the inform ation furnished . can b e id en tified ” and from perm itting anyone other than the desig nated o fficials “to ex am in e individual applications " 8 U .S.C. § 1255a(c)(5)(B ), (C ) V iolations o f the c o n fidentiality restrictions are m ade punishable by fines “ in accordance w ith T itle 18” or im prisonm ent o f not m ore than five years, o r both Id § I255a(c)(5). 2 U n ited S ta tes v H ern a n d ez, 913 F 2d 1506, 1512 (10th C ir 1990), cert, denied, 499 U S. 908 (1991) (hold in g that IR C A 's confidentiality restrictions “only p rohibit disclosures w hich aid in the deportation o f illegal alien s1').
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Specifically, subsection (c)(5) unambiguously prohibits the use of amnesty ap plication information in a criminal prosecution brought by Justice Department at torneys unless that prosecution falls within the single exception provided by the statute for law enforcement purposes — “enforcement of paragraph (6).” The in clusion of this discrete exception indicates that Congress specifically contemplated the need to allow the Department’s use of amnesty application information in the law enforcement context and chose to permit such use only for the enforcement purposes specified in the text — i.e., enforcem ent o f the false application provi sion. In this regard, the paragraph (6) exception falls squarely within the canon of statutory construction, “inclusio unius est exclusio alterius.” See, e.g., TV A v. Hill, 437 U.S. 153, 188 (1978) (canon applied to reject claim that enumerated excep tions to Endangered Species Act provisions were not exclusive). The inclusion of this specific exception, together with the failure to include a broader exception for general law enforcement uses, removes any textual ambiguity from subsection (c)(5) as to whether “enforcement of paragraph (6)” provides the sole basis for disclosures o f (c)(5) material in the law enforcement context.
2. Legislative History
Although the plain language of the provision would bar Department o f Justice officials from disclosing (c)(5) information in matters not covered by the paragraph (6) exception, a more permissive interpretation might be justified if IRCA ’s confi dentiality provision presented the “rare case” in which the plain meaning o f the text produces a result demonstrably at odds with the legislative intent. See G riffin , 458 U.S. at 571. However, IRCA ’s legislative history does not reveal a legislative in tent that is incompatible with a “plain meaning” interpretation of subsection (c)(5). The Senate version of IRCA was passed in lieu of the House bill after the Sen ate language was amended to incorporate much of the text of the House bill. Con sequently, the Report of the House Judiciary Committee has been viewed as the primary source of legislative history on IRCA. See H.R. Rep. No. 99-682, pt. 1 (1986), reprin ted in 1986 U.S.C.C.A.N. 5649 (“House Report”). The House Report provides little specific guidance on the confidentiality provi sions of 8 U.S.C. § 1255a(c)(5). Its most pertinent and prominent passage in that regard3 followed a discussion of the bill’s provision authorizing certain designated intermediary organizations to receive amnesty applications and forward them for processing when authorized to do so by the applicant. The Report then states:
The files and records kept by the organizations are confidential, and not accessible to the Attorney General or any other governmental
3 The referenced passage from the H ouse R eport has been the single passage o f IR C A s legislative his- tory cited in each o f Ihe opinions we have identified discussing the confidentiality provision See U nited S tales v H ern a n d ez. 913 F 2d at 1512, id. at 1514-15 (M cK ay, J , dissenting), Z am brano v IN S , 972 F 2d 1122, 1125 (9th C ir. 1992), va ca ted , 509 U.S. 918 (1993).
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entity. The applicant must consent to the application being for warded for official processing. The confidentiality o f the records is m eant to assure applicants that the legalization process is serious, and not a ruse to invite undocumented aliens to come forward only to be snared by the INS.
Id. at 73, reprin ted in 1986 U.S.C.C.A.N. at 5677. The R eport’s subsequent summary of the confidentiality provision in the sec- tion-by-section analysis is even less instructive, stating, “[new Section 245A(c)] [p]rovides for the confidential treatm ent of records and files relating to . . . [amnesty] ap p licatio n s] and establishes a penalty for permitting unlawful access to such information. Establishes a criminal penalty for fraudulent application.” Id. at 95, rep rin ted in 1986 U.S.C.C.A.N. at 5699. A fter the Conference Committee produced a compromise bill generally adopt ing the House version, a “Summary of Conference Compromise” that was submit ted ju st before the House vote on the C onference Report described the (c)(5) confidentiality provision as follows: “Ensures confidentiality of records by pro hibiting use o f information contained in an application for any purpose other than determ ining the m erits of the applications or whether fraud is involved.” 132 Cong. Rec. 31,632 (1986). In sum, we find nothing in the H ouse Report or other pertinent legislative his tory dem onstrating a congressional intent “demonstrably at odds,” see Ron P a ir E nterprises, 489 U.S. at 242, with the plain m eaning of 8 U.S.C. § 1255a(c)(5). IR C A ’s legislative history shows that Congress was preoccupied with the broader provisions o f the bill, such as em ployer sanctions and the question of whether alien amnesty should be authorized at all. If anything, the most pertinent portion of the legislative history shows that Congress intended the confidentiality provision to provide a strong assurance to illegal aliens that their amnesty applications would not be used against them. An interpretation of the statute that does not permit use of application information for all general law enforcement purposes can hardly be viewed as inconsistent with that intent.
3. “Enforcement o f Paragraph (6)”
A lthough it is clear that IRCA does not allow Justice Department personnel to use am nesty application information for law enforcement purposes other than “enforcem ent of paragraph (6),” determ ining the intended scope of that exception presents a m ore difficult question. The question presented is whether “enforcem ent o f paragraph (6)” should be limited solely to actual prosecutions brought under that statutory p rovision alone, or whether it can be more broadly interpreted to include investigations and prosecutions of other crimes that are sub stantially related to, or serve to facilitate, the false application violations covered
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by paragraph (6). W e believe that the broader interpretation more accurately re flects the meaning of the phrase “enforcement o f paragraph (6)” and the overall scheme of the statute. The concept of “enforcem ent” is a broad one, and a given statute may be “enforced” by means other than criminal prosecutions brought directly under it. See 2 Kenneth C. Davis, Adm inistrative Law Treatise § 9:1 at 217 (2d ed. 1979); SEC v. P acific Bell, 704 F. Supp. 11. 14 (D.D.C. 1989) (SEC is the “law enforce ment agency” with respect to federal securities laws although it lacks the power to prosecute criminal violations o f those laws); B lack’s Law D ictionary 528 (6th ed. 1990) (defining “enforcem ent” as “the carrying out of a mandate or com m and”). P ettigrew v. U nited States, 97 U.S. 385 (1878), for example, concerned an action brought by the government to recover the proceeds from the defendants’ sale o f tobacco that had been seized under the federal revenue laws and deposited with them. Under then-existing jurisdictional statutes, the Supreme Court would have lacked jurisdiction over the defendants’ writ of error unless the action being ap pealed was one brought to “enforce a revenue law of the United States.” Id. at 386. The C ourt’s jurisdiction was therefore challenged on the grounds that, al though the underlying seizure was pursuant to a revenue statute, the actual case was an action to enforce a common law bailment. The Court sustained its jurisdic tion, however, reasoning that the purpose of the action was to enforce “the right which the revenue law vests in the United States to this property.” Id. The Court concluded that “[i]t would be a very narrow and technical definition of the phrase ‘enforcement of any revenue law ’ which did not recognize this action as one brought for that purpose.” Id. We believe that it would be “very narrow” as well as overly-technical to con strue the expression “enforcem ent of paragraph (6)” to encompass only the prose cution of cases under the provisions of paragraph (6) itself. A more reasonable interpretation o f the expression recognizes that the government enforces the man date of paragraph (6) — the prevention and punishment of falsified or fraudulent amnesty applications — through other law enforcement activities as well.4 This mandate may be “enforced” by a variety of enforcement activities, including the investigation and prosecution o f other federal crimes when they involve amnesty application fraud: aiding and abetting such false applications, 18 U.S.C. § 2; making or accepting bribes to facilitate the success of false applications, 18 U.S.C. § 201; and mail fraud, 18 U.S.C. § 1341; wire fraud, 18 U.S.C. § 1343, or false statement to governm ent officials, 18 U.S.C. § 1001, that facilitate or are closely associated with paragraph (6) violations.
4 A contrary conclusion m ight be w arranted if, for exam ple, the exception to the confidentiality require- ment in § 1255a(c)(5)(A ) p erm itted the use o f application inform ation only “ for the prosecution o f violations of paragraph (6)" — language that w ould explicitly indicate a congressional intent to lim it the exception to those cases specifically brought under p aragraph (6) itself
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If the m ore restrictive interpretation were adopted, Department officials could not use such covered information fo r a wide-ranging investigation or prosecution of fraudulent amnesty application schem es if they were not planning a prosecution to be brought specifically under 8 U.S.C. § 1255a(c)(6). For example, the investi gation of a false amnesty application scheme might have produced evidence suffi cient to prosecute an INS employee or broker who took or conveyed bribes on behalf o f an illegal alien under circum stances where, for one reason or another, a paragraph (6) prosecution o f the alien h im self is unworkable (e.g., he is outside U.S. jurisdiction, deceased, or sim ply did not understand that he was filing false inform ation). Even though the resultant prosecution of the employee or broker would not include a charge based on paragraph (6) as such, it would exalt form over substance to assert that such a prosecution did not contribute to the “enforcem ent o f paragraph (6).” W e think instead that Congress intended the “enforcement of paragraph (6)” proviso to allow the use of the covered information in any investigation or prose cution aim ed at criminal violations that facilitate or are significantly related to false amnesty application filings.5 Paragraph (6 )’s broad prohibition of false amnesty application filings itself evidences this intent; the prohibition cannot be fully en forced unless those who facilitate the false filings can be prosecuted under other statutes with the best available evidence. In this regard, we doubt that a false application “facilitator” would have stand ing to m ove for suppression of evidence consisting of information from the alien amnesty application o f another person. Unlike the federal wiretap statute, for ex ample, 18 U.S.C. § 2518(10)(a)(iii), IR C A ’s confidentiality provision does not authorize “aggrieved persons” to m ove for suppression of evidence based on the im proper use of (c)(5) information. Under those circumstances, the same princi ples that lim it standing to assert Fourth A m endm ent rights in a motion to suppress should apply to the assertion o f statutory rights such as those established by IR C A ’s confidentiality provision. See, e.g., Rakas v. Illinois, 439 U.S. 128, 133- 38 (1978); A lderm an v. United States, 394 U.S. 165, 171-72 (1969) (“suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are ag grieved solely by the introduction o f damaging evidence”). A lderm an 's requirements for Fourth A m endm ent standing have been held appli cable to m otions to suppress evidence based upon statutory rights as well. U nited S ta tes v. G allo, 863 F.2d 185, 192 (2d Cir. 1988), cert, denied, 489 U.S. 1083 (1989). Sim ilarly, in Wilkinson v. FBI, 99 F.R.D. 148 (C.D. Cal. 1983), the court
5 T h is c o n clu sio n is not contrary to the ad v ice co n tain ed in the letter sent by this O ffice to the U S. A tto r ney for the S outhern D istrict o f New York referred to in yo u r request for this opinion L etter for M ary Jo W hite, U S. A ttorney, Southern District o f N ew Y ork, from R ichard L. S hiffnn, D eputy A ssistant A ttorney G en eral, O ffice o f Legal C ounsel at 2 (A ug 12, 1993) That letter observed that the U S A tto rn e y 's inten tion to re d a ct in fo rm atio n reflecting (c)(5) in fo im atio n from d o cum ents to be introduced in the trial in q ues tion w as "reaso n ab le " T he letter did not p u rp o rt to o ffer an opinion that such redaction was legally required
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held that a person who was not him self identified in certain government records did not have standing to assert a Privacy Act violation based on unauthorized disclo sure of those records. As the court stated: “This statute protects only those per sons who are wrongfully identified in government records and there is no actionable ‘derivative’ harm claimed under 5 U.S.C. § 552a.” Id. at 154. In light of these precedents, it is doubtful that defendants other than the actual aliens whose amnesty applications are used in violation of the IRCA’s confidentiality provision would have standing to move for suppression of evidence introduced in violation of that provision.
4. Judicial Opinions
Although we have concluded that 8 U.S.C. § I255a(c)(5) would permit the use of application information in prosecutions of crimes significantly related to false application violations, we note that the Tenth Circuit’s opinion in U nited S tates v. H ernandez, see su pra note 2, would permit even wider use of such information. Based on the principles of statutory interpretation discussed above, we do not find that opinion persuasive and would not recommend that Department prosecutors look to it as a sound guide for the use o f (c)(5) information. In H ernandez , a divided Tenth Circuit panel held that subsection (c)(5) did not bar Justice Department prosecutors from introducing evidence that the defendant had applied for amnesty under IRCA in order to prove charges that the defendant had illegally received firearms while an illegal alien and had made false statements in connection with the acquisition of firearms. In so holding, the court first re jected the lower court’s ruling that the name of a particular applicant for amnesty did not constitute “ ‘information’ subject to the confidentiality requirem ent.” 913 F.2d at 151 I. After establishing that an applicant’s name is subject to the confi dentiality provisions of subsection (c)(5), the court held that in enacting subsection (c)(5), “Congress sought only to prohibit disclosure of information to immigration authorities in the context of deportation proceedings.” Id. The court went on to conclude:
However, this concern is not implicated when the application is dis closed to a United States Attorney in a collateral criminal prosecu tion in which deportation is not at issue. W e therefore conclude that . . . § 1255a(c)(4) & (5) only prohibit disclosures which aid in the deportation of illegal aliens; Congress did not intend to inhibit prosecutions for violations arising under the Criminal Code.
Id. at 1512.
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Judge M cKay dissented sharply from this conclusion. His dissent stated:
I believe the cou rt’s opinion conflicts with the clear, unambigu ous language o f the statute and, in addition, creates an unwarranted exception which does not enhance the statute but rather flies in the face o f its purposes. The confidentiality provision could hardly be more sweeping. . . . I simply cannot torture either ambiguity or an exception out o f this provision.
I have never pretended to be one who would not read expan sively a statute or precedent for either an exception or extension providing it was warranted and consistent with the purposes of the statute. W hat has been done here not only is inconsistent with the purposes o f the statute but also is flatly contradictory to its pur poses. One can read nothing else in this statute except that it was intended to convey confidence that one coming forward under the statute could do so in com plete confidence that information in cluded in the application w ould be used only for the purposes for which it was filled out.
Id. at 1514 (M cKay, J., dissenting). As pointed out in the materials accom panying your request for this opinion, the Solicitor General conceded that H ernan dez was wrongly decided. Brief for the United States in Opposition to Petition for W rit o f Certiorari at 7-9, H ernandez v. U nited S tates (1990) (No. 90-6499). Referring to the confidentiality provision of 8 U.S.C. § 1255a(c)(5), the Solicitor G eneral’s brief stated, “we believe that this language prohibits the use of amnesty application information except for the pur poses specifically identified in the statute.” Id. at 9. Aside from asserting that the H ernan dez court’s interpretation o f the A ct’s confidentiality provisions was “incorrect,” the B rief stressed that “ [i]n this case, the United States Attorney did not argue for the construction of the statute adopted by the court of appeals and, to our knowledge, the United States has not urged that construction in any context.” Id. at 9 n.6. W e agree with the Solicitor G eneral’s contention that H ernandez was wrongly decided. W e do not believe that the text of the statute permits an interpretation that its confidentiality restrictions are confined to use of the information against the applicant alien in deportation proceedings. The statute explicitly sets forth the particular exceptions that Congress contem plated and chose to permit. While C ongress could easily have adopted a broader exception allowing use of amnesty inform ation “for crim inal law enforcem ent purposes,” it chose instead to limit the exception to “enforcem ent of paragraph (6).” Although a fair construction of that exception allows introduction o f (c)(5) information in a variety of prosecutions
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reasonably related to false application filings, it does not permit such use in any and all prosecutions as long as they are outside the deportation context. A final noteworthy opinion construing IRC A ’s confidentiality provision is Z am brano v. INS, see supra note 3, which was vacated by the Supreme Court on grounds other than those in issue here. Although the vacatur o f Z am brano de prives it of precedental authority, its analysis raises a significant issue warranting consideration in this context. In Z am brano , the court upheld the district court’s injunction ordering the INS to provide the plaintiffs with a list of aliens whose amnesty applications were denied based on allegedly invalid INS regulations. The names were sought by illegal ali ens in the context of a civil action asserting that these INS regulations were unduly restrictive. In holding that the (c)(5) confidentiality provision did not bar “court ordered discovery” of the applicant names, the court relied on the Supreme Court’s opinion in St. R egis P aper Co. v. U nited States, 368 U.S. 208 (1961). In St. Regis, the Court held that a confidentiality provision in the Census Act, containing language closely similar to that of (c)(5), applied only to Department of Commerce officials and did not “grant copies of the [covered Census materials] not in the hands of the Census Bureau an immunity from legal process.” Id. at 218. Accordingly, the Court held that the Federal Trade Commission (“FTC”) was entitled to obtain the St. Regis C om pany’s own copies of the reports it had submitted to the Census Bu reau pursuant to FTC reporting requirements. The Court further stated:
Ours is the duty to avoid a construction that would suppress other wise competent evidence unless the statute, strictly construed, re quires such a result. That this statute does not do. Congress did not prohibit the use of the reports p e r se but merely restricted their use while in the hands of those persons receiving them, i.e., the gov ernment officials.
Id. Neither St. Regis nor Zam brano contradicts our conclusion that subsection (c)(5) prohibits Justice Department use of amnesty application information in gen eral criminal prosecutions while allowing such use (subject to the limitations o f the INS regulation) in prosecuting crimes significantly related to amnesty application fraud. The St. R egis holding is confined to disclosure o f information in the hands o f third parties who are not subject to statutory disclosure restrictions that, as here, apply only to specific government officials. Z am brano — setting aside its vacated status — holds that an otherwise covered agency may disclose amnesty application information under the specific compulsion of judicial process. These opinions did not address the distinct issues raised when Justice Department officials, acting on
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their own initiative, seek to introduce such information as evidence in certain criminal prosecutions related to false application fraud.
5. The INS Regulation
Under authority delegated by the Attorney General, see 8 U.S.C. § 1103, the INS has prom ulgated an interpretive regulation governing access to and use of (c)(5) m aterial. 8 C.F.R. § 245a.2(t) (1993). This regulation is binding on other com ponents of the Justice Department. It prohibits the use of (c)(5) information for any purpose “except: (i) to make a determ ination on the application; or, (ii) for the enforcem ent of the provisions encom passed in section 245A(c)(6) of the Act, except as provided in paragraph (t)(4) of this section.” Id. § 245a.2(t)(3). W e interpret the INS regulation to mean that (c)(5) information may only be used in prosecutions o f aliens under subsection (c)(6) itself, except in those cases described in paragraph (t)(4) of the regulation. That paragraph authorizes INS to refer cases of am nesty application falsification or fraud to the U.S. Attorney “for prosecution of the alien o r o f any p erso n who crea ted o r su pplied a fa lse writing o r docu m ent f o r use in an application f o r adjustm ent o f status under this p a r t.” 8 C.F.R. § 245a.2(t)(4) (emphasis added). A lthough we believe that the statute itself would allow use o f (c)(5) material in a broader range o f situations than those authorized by the regulation, see supra Part II.3, the perm issible uses set forth in the regulation provide authoritative guidance for Justice D epartment components unless revoked or amended. However, the governm ent’s use of (c)(5) information in violation of the INS regulation would not necessarily be subject to judicial suppression or exclusion. U nited States v. C aceres, 440 U.S. 741 (1979). As this Office has previously construed Caceres, in the absence o f a statutory or constitutional violation, bad faith, or an element of justifiable reliance on an agency’s adherence to a regulation by the complaining party, a court will not exclude evidence in a criminal case solely on the ground that the evidence was obtained or used in violation of agency regulations.6 It is not clear w hether the regulation’s provision for the use o f (c)(5) material in third party cases would authorize use in the class of cases stressed in your request for opinion — i.e., acceptance of bribes by INS employees in return for approving false legalization applications.7 As a general proposition, we believe that it would. If an INS em ployee m akes any entries, marks of approval, or verifications on an
6 See M em o ran d u m for John M. H arm on, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, from C ass R Sunstein, A tio m ey -A d v iser, Office o f Legal C ounsel, Re: B inding Ejject oj D epartm ent o r A gencv G uid elin es (D ec. 19, 1980). 7 W e think the reg u latio n w ould generally allow use o f (c)(5) inform ation in the other class o f cases h ig h lig h ted in y o u r request, i.e , prosecution o f "m id d lem en ” w ho subm it false legalization applications on b e h a lf o f aliens Such m id d lem en would lik e ly be involved in the creation or supplying o f false docum ents used in the am n esty ap p licatio n , especially sin ce particip atio n in the subm ission o f a false application itself sh o u ld satisfy th at criteria
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amnesty application that he knows to be false or fraudulent, we believe he could be treated as supplying or creating a false writing or document within the meaning of paragraph (t)(4). We also note that the INS regulation does not limit the categories of crimes for which (c)(5) information can be used by federal prosecutors. We therefore believe that the INS regulation would allow (c)(5) information to be in troduced in the prosecution of an INS employee for taking an amnesty-related bribe as long as the bribe-taker in some way participated in the creation, supply, or submission of falsified documents (including the amnesty application itself) used in connection with an amnesty application.
Conclusion
Although 8 U.S.C. § 1255a(c)(5) generally prohibits the use of information from alien amnesty applications by federal prosecutors in criminal prosecutions other than prosecutions for filing false amnesty applications, we believe that the statute also permits the use of such information in prosecuting third parties for crimes that facilitate or are closely related to false amnesty application crimes.
W ALTER DELLINGER A ssistan t A ttorn ey G eneral Office o f L egal Counsel