Admissibility of Alien Amnesty Application

Information in Prosecutions of Third Parties

The c o n fid e n tia lity p ro v isio n s o f the Im m igration R eform and C ontrol A ct o f 1986 generally b a r fede ral p ro se cu to rs from introducing in fo rm atio n from alien am nesty applications as e v id e n ce in 

crim in a l p ro se cu tio n s o f third parties, b u t the use o f such inform ation is not b arred in prosecutions 

o f th ird p arties fo r c rim es that facilitate, o r are closely related to, the Filing o f a false am nesty a p p licatio n .

Ju stice D e p artm e n t use o f am n e sty application inform ation is also subject to regulations issued by the 

Im m ig ra tio n a n d N a tu ra liz atio n Service. T hose reg u la tio n s lim it such use a gainst third p arties to 

the p ro se cu tio n o f p ersons w h o have “c re a te d o r supplied a false w riting or d o cu m en t for use” in an 

a m n e sty a p p lic atio n , w h ic h m ay include persons w ho tak e bribes to approve false am nesty ap p lic atio 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 evidence 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 acceptance of a bribe by a government official for approving a false amnesty application) 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 statute 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 prosecution 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 employees who take bribes to approve false amnesty applications, based on the reasoning that such an employee participates in the creation of falsified documents 

used in an amnesty application.

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Adm issibility o f Alien Am nesty Application Information in Prosecutions o f Third P arties

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 concerns 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 submitted in alien amnesty applications. 8 U.S.C. § 1255a(c)(5). That provision’s prohibition 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 section and knowingly and willfully falsifies, misrepresents, conceals, 

or covers up a material fact or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false 

writing or document knowing the same to contain any false, fictitious, 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 broker 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 middlemen who knowingly facilitate them.

II. ANALYSIS

1. Textual Interpretation

Since the question presented here is primarily a matter of statutory interpretation, 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 of 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 ccord INS v. Cardozo-Fonseca, 480 U.S. 421, 432 n. 12 (1987) (“plain language” is generally dispositive and resort to legislative history is warranted only to 

determine if “there is ‘clearly expressed legislative intention’ contrary to that language”).

IRCA ’s restriction on the Justice Department’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:

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 f o r enforcement o f paragraph (6) or for 

the preparation of reports to Congress under section 404 of the Immigration Reform and Control Act of 1986.1

(Emphasis added.)

The language of the confidentiality provision is relatively straightforward, establishing a flat prohibition against the use of application information by Justice 

Department personnel except in cases covered by the enumerated exceptions. 

However, as we discuss below in Part II.4, one federal appellate decision has 

loosely interpreted the statute to permit disclosure of the application information 

for general law enforcement purposes that clearly do not fall within the paragraph 

(6) exception.2 We do not believe that the opinion in question can be reconciled 

with the plain language of the statute under the principles of statutory interpretation 

established by the above-noted line of Supreme Court cases.

1 The section goes on to prohibit the D epartm ent and its officials from ’‘m ak[ing] any publication 

w hereby the inform ation furnished . can be identified” and from perm itting anyone other than the designated officials “to exam ine individual applications " 8 U.S.C. § 1255a(c)(5)(B), (C) V iolations of the confidentiality restrictions are made punishable by fines “in accordance with Title 18” or im prisonm ent o f not 

m ore than five years, or both Id § I255a(c)(5).

2 U nited States v H ernandez, 913 F 2d 1506, 1512 (10th C ir 1990), cert, denied, 499 U S. 908 (1991) 

(holding that IR C A 's confidentiality restrictions “only prohibit disclosures which aid in the deportation of 

illegal aliens1').

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Specifically, subsection (c)(5) unambiguously prohibits the use of amnesty application information in a criminal prosecution brought by Justice Department attorneys unless that prosecution falls within the single exception provided by the 

statute for law enforcement purposes — “enforcement of paragraph (6).” The inclusion 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., enforcement of the false application provision. 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 exceptions 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 of (c)(5) material in the law enforcement context.

2. Legislative History

Although the plain language of the provision would bar Department of 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 confidentiality provision presented the “rare case” in which the plain meaning of the text 

produces a result demonstrably at odds with the legislative intent. See Griffin, 458 

U.S. at 571. However, IRCA’s legislative history does not reveal a legislative intent 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 Senate language was amended to incorporate much of the text of the House bill. Consequently, 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), reprinted in 1986 U.S.C.C.A.N. 5649 (“House Report”).

The House Report provides little specific guidance on the confidentiality provisions 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 House Report has been the single passage of IRCA s legislative history cited in each of Ihe opinions we have identified discussing the confidentiality provision See United

Stales v H ernandez. 913 F 2d at 1512, id. at 1514-15 (M cKay, J , dissenting), Zam brano v IN S, 972 F 2d 

1122, 1125 (9th C ir. 1992), vacated, 509 U.S. 918 (1993).

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entity. The applicant must consent to the application being forwarded for official processing. 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.

Id. at 73, reprinted in 1986 U.S.C.C.A.N. at 5677.

The Report’s subsequent summary of the confidentiality provision in the section-by-section analysis is even less instructive, stating, “[new Section 245A(c)] 

[p]rovides for the confidential treatment of records and files relating to . . . 

[amnesty] applications] and establishes a penalty for permitting unlawful access to 

such information. Establishes a criminal penalty for fraudulent application.” Id. at 

95, reprinted in 1986 U.S.C.C.A.N. at 5699.

After the Conference Committee produced a compromise bill generally adopting the House version, a “Summary of Conference Compromise” that was submitted just before the House vote on the Conference Report described the (c)(5) 

confidentiality provision as follows: “Ensures confidentiality of records by prohibiting use of information contained in an application for any purpose other than 

determining the merits of the applications or whether fraud is involved.” 132 

Cong. Rec. 31,632 (1986).

In sum, we find nothing in the House Report or other pertinent legislative history demonstrating a congressional intent “demonstrably at odds,” see Ron Pair

Enterprises, 489 U.S. at 242, with the plain meaning of 8 U.S.C. § 1255a(c)(5). 

IRCA’s legislative history shows that Congress was preoccupied with the broader 

provisions of the bill, such as employer 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)”

Although it is clear that IRCA does not allow Justice Department personnel to 

use amnesty application information for law enforcement purposes other than 

“enforcem ent of paragraph (6),” determining the intended scope of that exception 

presents a more difficult question. The question presented is whether 

“enforcem ent of paragraph (6)” should be limited solely to actual prosecutions 

brought under that statutory provision alone, or whether it can be more broadly 

interpreted to include investigations and prosecutions of other crimes that are substantially related to, or serve to facilitate, the false application violations covered

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by paragraph (6). We believe that the broader interpretation more accurately reflects the meaning of the phrase “enforcement of paragraph (6)” and the overall 

scheme of the statute.

The concept of “enforcement” 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. Pacific Bell, 704 F. Supp. 11. 14 (D.D.C. 1989) (SEC is the “law enforcement agency” with respect to federal securities laws although it lacks the power to 

prosecute criminal violations of those laws); B lack’s Law D ictionary 528 (6th ed.

1990) (defining “enforcement” as “the carrying out of a mandate or command”). 

Pettigrew v. United States, 97 U.S. 385 (1878), for example, concerned an action 

brought by the government to recover the proceeds from the defendants’ sale of 

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 appealed was one brought to “enforce a revenue law of the United States.” Id. at 

386. The Court’s jurisdiction was therefore challenged on the grounds that, although 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 jurisdiction, 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 construe the expression “enforcement of paragraph (6)” to encompass only the prosecution of cases under the provisions of paragraph (6) itself. A more reasonable 

interpretation of the expression recognizes that the government enforces the mandate 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 of 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 government 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 requirement in § 1255a(c)(5)(A) perm itted the use of application information only “for the prosecution o f violations 

of paragraph (6)" — language that would explicitly indicate a congressional intent to limit the exception to 

those cases specifically brought under paragraph (6) itself

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If the more restrictive interpretation were adopted, Department officials could 

not use such covered information for a wide-ranging investigation or prosecution 

of fraudulent amnesty application schemes if they were not planning a prosecution 

to be brought specifically under 8 U.S.C. § 1255a(c)(6). For example, the investigation of a false amnesty application scheme might have produced evidence sufficient to prosecute an INS employee or broker who took or conveyed bribes on 

behalf of an illegal alien under circumstances where, for one reason or another, a 

paragraph (6) prosecution o f the alien him self is unworkable (e.g., he is outside 

U.S. jurisdiction, deceased, or simply did not understand that he was filing false 

information). 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 

“enforcement of 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 prosecution aimed 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 enforced 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 standing to move for suppression of evidence consisting of information from the alien 

amnesty application of another person. Unlike the federal wiretap statute, for example, 18 U.S.C. § 2518(10)(a)(iii), IRCA ’s confidentiality provision does not 

authorize “aggrieved persons” to move for suppression of evidence based on the 

improper use of (c)(5) information. Under those circumstances, the same principles that limit standing to assert Fourth Amendment rights in a motion to suppress 

should apply to the assertion of statutory rights such as those established by 

IRCA ’s confidentiality provision. See, e.g., Rakas v. Illinois, 439 U.S. 128, 133- 

38 (1978); Alderm 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 aggrieved solely by the introduction of damaging evidence”).

A lderm an's requirements for Fourth Amendment standing have been held applicable to motions to suppress evidence based upon statutory rights as well. United

States v. G allo, 863 F.2d 185, 192 (2d Cir. 1988), cert, denied, 489 U.S. 1083 

(1989). Similarly, in Wilkinson v. FBI, 99 F.R.D. 148 (C.D. Cal. 1983), the court

5 T his conclusion is not contrary to the advice contained in the letter sent by this O ffice to the U S. A ttorney for the Southern District of New York referred to in your request for this opinion Letter for M ary Jo 

W hite, U S. Attorney, Southern District o f N ew York, from Richard L. Shiffnn, Deputy A ssistant Attorney 

G eneral, O ffice o f Legal Counsel at 2 (Aug 12, 1993) That letter observed that the U S A ttorney's intention to redact inform ation reflecting (c)(5) infoim ation from docum ents to be introduced in the trial in question was "reasonable " The letter did not purport to offer an opinion that such redaction was legally required

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Admissibility' o f Alien Am nesty Application Information in Prosecutions o f Third Parties

held that a person who was not himself identified in certain government records did 

not have standing to assert a Privacy Act violation based on unauthorized disclosure of those records. As the court stated: “This statute protects only those persons 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 United States v.

Hernandez, see supra 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 of (c)(5) information.

In Hernandez, 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 rejected the lower court’s ruling that the name of a particular applicant for amnesty 

did not constitute “ ‘information’ subject to the confidentiality requirement.” 913 

F.2d at 151 I. After establishing that an applicant’s name is subject to the confidentiality 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 disclosed to a United States Attorney in a collateral criminal prosecution in which deportation is not at issue. We 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 McKay dissented sharply from this conclusion. His dissent stated:

I believe the court’s opinion conflicts with the clear, unambiguous language of the statute and, in addition, creates an unwarranted 

exception which does not enhance the statute but rather flies in the 

face of its purposes. The confidentiality provision could hardly be 

more sweeping. . . . I simply cannot torture either ambiguity or an 

exception out of this provision.

I have never pretended to be one who would not read expansively 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 of the statute but also is flatly contradictory to its purposes. 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 complete confidence that information included in the application would be used only for the purposes for 

which it was filled out.

Id. at 1514 (McKay, J., dissenting).

As pointed out in the materials accompanying your request for this opinion, the 

Solicitor General conceded that H ernandez was wrongly decided. Brief for the 

United States in Opposition to Petition for W rit of Certiorari at 7-9, Hernandez v. 

U nited States (1990) (No. 90-6499). Referring to the confidentiality provision of 8 

U.S.C. § 1255a(c)(5), the Solicitor General’s brief stated, “we believe that this 

language prohibits the use of amnesty application information except for the purposes specifically identified in the statute.” Id. at 9. Aside from asserting that the 

H ernandez court’s interpretation of the A ct’s confidentiality provisions was 

“incorrect,” the Brief 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 Hernandez 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 contemplated and chose to permit. While 

Congress could easily have adopted a broader exception allowing use of amnesty 

information “for criminal law enforcement purposes,” it chose instead to limit the 

exception to “enforcement of paragraph (6).” Although a fair construction of that 

exception allows introduction of (c)(5) information in a variety of prosecutions

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Adm issibility o f Alien Am nesty Application Information m Prosecutions o f Third Parties

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 IRCA’s confidentiality provision is Zam ­

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 of Zambrano deprives it of precedental authority, its analysis raises a significant issue warranting 

consideration in this context.

In Zam 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 aliens 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. Regis P aper Co. v. United 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 Company’s own copies of the reports it had submitted to the Census Bureau pursuant to FTC reporting requirements. The Court further stated:

Ours is the duty to avoid a construction that would suppress otherwise competent evidence unless the statute, strictly construed, requires such a result. That this statute does not do. Congress did not 

prohibit the use of the reports p er se but merely restricted their use 

while in the hands of those persons receiving them, i.e., the government officials.

Id.

Neither St. Regis nor Zambrano contradicts our conclusion that subsection 

(c)(5) prohibits Justice Department use of amnesty application information in general criminal prosecutions while allowing such use (subject to the limitations of the 

INS regulation) in prosecuting crimes significantly related to amnesty application 

fraud. The St. Regis holding is confined to disclosure of information in the hands 

of third parties who are not subject to statutory disclosure restrictions that, as here, 

apply only to specific government officials. Zambrano — 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 promulgated an interpretive regulation governing access to and use of 

(c)(5) material. 8 C.F.R. § 245a.2(t) (1993). This regulation is binding on other 

components of the Justice Department. It prohibits the use of (c)(5) information 

for any purpose “except: (i) to make a determination on the application; or, (ii) for 

the enforcement of the provisions encompassed 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 of 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 amnesty application falsification or fraud to the U.S. Attorney “for 

prosecution of the alien o r o f any person who created or supplied a false writing

or docum ent fo r use in an application fo r adjustment o f status under this p a rt.” 8 

C.F.R. § 245a.2(t)(4) (emphasis added).

Although we believe that the statute itself would allow use of (c)(5) material in 

a broader range of situations than those authorized by the regulation, see supra Part 

II.3, the permissible uses set forth in the regulation provide authoritative guidance 

for Justice Department 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. United States v.

Caceres, 440 U.S. 741 (1979). As this Office has previously construed Caceres, in 

the absence of 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 whether the regulation’s provision for the use of (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 employee makes any entries, marks of approval, or verifications on an

6 See M em orandum for John M. Harmon, Assistant A ttorney General, Office o f Legal Counsel, from 

C ass R Sunstein, A tiom ey-A dviser, Office o f Legal Counsel, Re: Binding Ejject oj D epartm ent or Agencv

G uidelines (Dec. 19, 1980).

7 We think the regulation would generally allow use o f (c)(5) inform ation in the other class of cases 

highlighted in your request, i.e , prosecution o f "m iddlem en” who subm it false legalization applications on 

beh alf of aliens Such m iddlem en would likely be involved in the creation or supplying of false documents 

used in the am nesty application, especially since participation in the subm ission o f a false application itself 

should satisfy that criteria

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Adm issibility o f Alien Am nesty Application Information in Prosecutions o f Third Parties

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 introduced 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.

WALTER DELLINGER 

Assistant Attorney General

Office o f Legal Counsel

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