ZENON JUAREZ HERNANDEZ, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-6499

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The court of appeals' opinion (Pet. App. B1-B20) is reported at 913
F.2d 1509.

                             JURISDICTION

   The judgment of the court of appeals was entered on September 10,
1990, and a petition for rehearing was denied on October 22, 1990.
Pet. App. A.  /1/ The petition for a writ of certiorari was filed on
December 12, 1990.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the Immigration Reform and Control Act of 1986 prohibits
the use of information obtained from an amnesty application as
evidence in a criminal proceeding.

                               STATEMENT

   After a jury trial in the United States District Court for the
District of Kansas, petitioner was convicted of making false
statements in connection with the acquisition of a firearm, in
violation of 18 U.S.C. 922(a)(6), and of receiving a firearm while an
illegal alien, in violation of 18 U.S.C. 922(g)(5).  The district
court suspended imposition of the sentence, placed petitioner on
probation for two years, and fined petitioner $250 on each count.  The
court of appeals affirmed.

   1. On November 27, 1987, Kansas State Trooper Daniel Dick observed
a vehicle, driven by petitioner, speeding on a highway near Dodge
City, Kansas.  The trooper pulled the car off the highway and asked to
see petitioner's driver's license.  He observed that petitioner and
the two passengers, Antonio Valadez and Manuel Delatore, had open beer
containers in the car.  The trooper ran a check on petitioner's
license and discovered that it had been suspended.  He cited
petitioner for driving with a suspended license, and he cited the two
passengers for transporting open containers of alcoholic beverages in
an automobile.  Pet. App. B2.

   While writing out the citations in his patrol car, the trooper saw
petitioner pass something to the passenger in the back seat, who then
ducked below the window level.  The trooper returned to petitioner's
car and placed petitioner under arrest (as permitted by Kansas law)
for driving with a suspended license.  Petitioner appeared to
understand the trooper, but he stated that his knowledge of English
was poor.  The trooper had Valadez translate petitioner's Miranda
warnings into Spanish.  After receiving those warnings, petitioner
indicated to the trooper that he understood his rights.  Pet. App.
B2-B3.

   The trooper made arrangements for towing the car and conducted an
inventory search of the vehicle.  He discovered a Colt pistol hidden
between the cushions of the back seat.  Upon questioning, Valadez and
Delatore stated that the gun belonged to petitioner.  Petitioner
acknowledged, in English, that he owned the gun and that he was an
illegal alien.  The trooper then took petitioner to a local jail and
contacted Robert Bohm of the Immigration and Naturalization Service
(INS).  Bohm spoke with petitioner over the telephone in Spanish.  In
the course of their conversation, petitioner acknowledged that he was
in the United States illegally.  Pet. App. B3-B4.

   2. Petitioner was indicted on charges of knowingly making a false
statement on a firearms purchase application, in violation of 18
U.S.C. 922(a)(6), and receipt of a firearm by an illegal alien, in
violation of 18 U.S.C. 922(g)(5).  At trial, Trooper Dick and Agent
Bohm testified that petitioner had admitted to each of them that he
was an illegal alien.  I Tr. 11, 49.  The government then introduced
into evidence an Alcohol, Tobacco and Firearms form dated April 27,
1987.  II Tr. 15-21.  The form recorded the sale to petitioner of the
Colt pistol found in petitioner's car.  II Tr. 21.  One of the
questions asked on the form was, "Are you an alien illegally in the
United States?", to which petitioner had answered "no." II Tr. 21-23.
An expert witness testified that the buyer's signature on the form
matched petitioner's signature.  II Tr. 53-59.  See Pet. App. B4, B7.

   The government then introduced into evidence an INS computer
printout summarizing the history of petitioner's dealings with the
INS.  II Tr. 32-39.  That record showed that, prior to the alleged
firearms offenses, petitioner had twice been deported as an illegal
alien.  II Tr. 40-41.  The computer record also showed that on
February 5, 1988, after the alleged offenses, petitioner applied for
amnesty, under provisions of the Immigration Reform and Control Act of
1986 (Immigration Reform Act), Pub. L. No. 99-603, 100 Stat. 3359, to
legalize his immigration status.  /2/ II Tr. 42.  Pet. App. B4, B7.

   Petitioner objected to the admission of the INS record showing that
he had applied for amnesty.  He relied on provisions of the
Immigration Reform Act that protect the confidentiality of information
furnished by an illegal alien on his amnesty application.  /3/ The
district court rejected petitioner's objection, concluding that the
Immigration Reform Act prohibits the use of the contents of an amnesty
application, but permits disclosure and use of the fact that an
individual has applied for amnesty.  The district court accordingly
held that the government's disclosure that petitioner had applied for
amnesty did not constitute the use of "information" subject to the
confidentiality requirement.  Pet. App. D1-D6.

   3. The court of appeals affirmed.  Pet. App. B1-B16.  It first
concluded that petitioner received proper Miranda warnings and that
petitioner lawfully waived his right to remain silent.  Accordingly,
the court held that petitioner's incriminatory statements to Trooper
Dick and to INS Agent Bohm were properly admitted into evidence.  Pet.
App. B4-B7.

   The court next rejected petitioner's claim that it was reversible
error for the government to introduce evidence that he filed an
application for amnesty.  The court of appeals disagreed with the
district court's conclusion that the government's use of the computer
printout did not involve the disclosure of any "information" within
the scope of the confidentiality provisions.  It ruled that disclosure
of the fact that an individual filed an application for amnesty was
possible only by identifying the applicant by the name or other
information that he included in the application.  Thus, the court of
appeals held that the government's computer printout necessarily
involved the use of "information furnished pursuant to an application"
for amnesty within the meaning of the confidentiality provisions.
Pet. App. B8-B9.

   The court of appeals construed the confidentiality provisions,
however, as permitting the use of such information as evidence in a
criminal case.  The court concluded that the statute is ambiguous as
to whether governmental use of amnesty information is precluded in all
circumstances or only in deportation proceedings.  Pet. App. B9.  /4/
It observed that a passage from the pertinent House Report stated:
"The confidentiality of the records is meant 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."
H.R. Rep. No. 682(I), 99th Cong., 2d Sess. 73 (1986).  The court
interpreted that statement as indicating that the confidentiality
provisions prohibit the use of application information only in
deportation proceedings and accordingly upheld the admission of
amnesty information in this case.  Pet. App. B10-B11.  /5/

   Judge McKay dissented.  Pet. App. B17-B20.  He agreed with the
majority that disclosure of the fact that an amnesty application was
filed necessarily reveals the name of the applicant, which was
included as part of the "information" furnished by the applicant.  Id.
at 19.  He concluded, however, that the "clear, unambiguous language
of the statute" requires that confidentiality be maintained against
the use of the application information in an unrelated criminal
proceeding.  Id. at B17, B20.

                               ARGUMENT

   Petitioner argues (Pet. 10-13) that the court of appeals
incorrectly interpreted the confidentiality provisions of the
Immigration Reform and Control Act of 1986 to allow the use of
information furnished pursuant to an amnesty application as evidence
in an unrelated criminal case.  We agree.  The issue, however, is not
of substantial or continuing importance.  Moreover, the erroneous
admission of the amnesty information in this case was harmless error
and therefore, under 28 U.S.C. 2111 and Fed. R. Crim. P. 52(a), would
not justify reversal of petitioner's convictions.  Review by this
Court is accordingly not warranted.

   1. In Baldrige v. Shapiro, 455 U.S. 345 (1982), this Court
considered the scope of the confidentiality provision of the Census
Act, which provides that "(n)either the Secretary, nor any other
officer or employee of the Department of Commerce or bureau or agency
thereof, may, except as provided in section 8 of this title -- (1) use
the information furnished under the provisions of this title for any
purpose other than the statistical purposes for which it is supplied."
13 U.S.C. 9(a)(1).  The Court held that the confidentiality provision
barred disclosure of census information under the Freedom of
Information Act and judicial discovery rules.  455 U.S. at 362.

   The Immigration Reform and Control Act of 1986 states, in similar
language, that "(n)either the Attorney General, nor any other official
or employee of the Department 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
determination on the application" or to enforce the Act's fraud
provisions or prepare reports to Congress.  8 U.S.C. 1255a(c)(5);  see
also 8 U.S.C. 1160(b)(6).  In accordance with Baldrige v. Shapiro,
supra, we believe that this language prohibits the use of amnesty
application information except for the purposes specifically
identified in the statute.  /6/

   2. Although we agree with petitioner that the court of appeals'
interpretation of the Act's confidentiality provisions is incorrect,
we submit that review by this Court is not warranted.  There is no
square conflict among the courts of appeals on this issue.  /7/
Furthermore, because the United States does not concur in the court of
appeals' interpretation, it will not advance that interpretation in
other cases, and the Department of Justice will take steps to assure
that the United States' position is communicated to government
attorneys.  Finally, the issue is unlikely to recur.  The deadline for
agricultural workers to file amnesty applications workers expired on
May 6, 1988.  See 8 U.S.C. 1160(a)(1)(A).  That was also the latest
date -- subject to a brief extension -- on which aliens continuously
in this country since January 1, 1982, could file amnesty
applications.  See 8 U.S.C. 1255a(a)(1).  Although it is possible that
other criminal cases might still arise in which the admission of
amnesty information would be in issue, the fact that this case alone
has raised the issue thus far suggests that such cases will arise very
infrequently, if at all.  /8/

   3. Moreover, a reviewing court is obligated to "give judgment after
an examination of the record without regard to errors or defects which
do not affect the substantial rights of the parties." 28 U.S.C. 2111;
see Fed. R. Crim. P. 52(a).  The record reveals that the trial court's
admission of evidence regarding petitioner's amnesty application was
harmless error, because it was wholly cumulative of other evidence and
could not have affected the verdict.  As we have explained above,
Trooper Dick and INS Agent Bohm testified that petitioner admitted
that he was an illegal alien.  In addition, the trial court admitted
into evidence INS records showing that petitioner had twice been
deported as an illegal alien prior to his offenses.  Thus,
petitioner's convictions were properly affirmed despite the erroneous
admission of the amnesty evidence.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   RICHARD A. FRIEDMAN

      Attorney

   FEBRUARY 1991

   /1/ The court of appeals treated petitioner's suggestion for
rehearing en banc as a petition for rehearing and a suggestion for
rehearing en banc.  See Pet. App. A1.

   /2/ The Immigration Reform Act allows an alien who is in the United
States illegally to apply for legalization of his immigration status
either as a temporary agricultural worker, 8 U.S.C. 1160, or,
providing he resided continuously in the country since January 1,
1982, as a permanent resident, 8 U.S.C. 1255a.  It is unclear from the
record which section petitioner invoked in his amnesty application.

   /3/ The Act's confidentiality provision for permanent residents
states as follows:

      Confidentiality of information.  Neither the Attorney General,
      nor any other official or employee of the Department 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 determination on the
      application or for enforcement of paragraph (6) (involving
      penalties for false statements in connection with the
      application) or for preparation of reports to Congress under
      section 404 of the Immigration Reform and Control Act of 1986,
      (B) make any publication whereby the information furnished by
      any particular individual can be identified, or (C) permit
      anyone other than the sworn officers and employees of the
      Department or bureau or agency * * * to examine individual
      applications.

8 U.S.C. 1255a(c)(5).  The confidentiality provisions for temporary
agricultural workers are virtually identical.  See 8 U.S.C.
1160(b)(6).

   /4/ The court observed that under the statute an illegal alien who
has filed a nonfrivolous amnesty application may stay deportation
pending final determination on the application.  See 8 U.S.C. 1160(d),
1255a(e).  The court reasoned that interpreting the confidentiality
provisions "in a manner which prohibited the Attorney General from
disclosing that an illegal alien had applied for amnesty would
frustrate the salutary policy behind Section 1160(d) and Section
1255a(e)." Pet. App. B9-B10.

   /5/ The court also rejected petitioner's claim that the INS
computer record should have been excluded as hearsay.  It ruled that
the INS record was admissible under the business record exception to
the hearsay rule, Fed. R. Evid. 803(6).  Pet. App. B11-B13.

   /6/ In 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.

   /7/ Petitioner describes the Tenth Circuit's decision in McNichols
v. Klutznick, 644 F.2d 844 (1981), as in conflict with the court of
appeals' decision in this case.  McNichols, however, was a census case
that was affirmed by this Court in conjunction with Baldrige.  See 455
U.S. 345 (1982).  Even if that case posed a conflict, it would be
solely an intra-circuit conflict that does not warrant this Court's
review.  See Wisniewski v. United States, 353 U.S. 901 (1957).

   /8/ In several cases, district courts have sought to extend the
statutory deadline for filing amnesty applications as part of the
remedy for their finding that the government has not administered the
amnesty application process in accordance with the applicable statutes
and regulations.  See, e.g., Haitian Refugee Center, Inc. v. Nelson,
694 F. Supp. 864 (S.D. Fla. 1988), aff'd, 872 F.2d 1555 (11th Cir.
1989), cert. granted, 110 S. Ct. 2584 (1990).  Even assuming that
court action might increase somewhat the total number of amnesty
applications, the precise issue in this case -- the use of amnesty
application information in criminal proceedings other than
fraud-in-the-application proceedings -- is not likely to arise with
any frequency.