US v. Hernandez, Crim. A. No. 88-10068-01.

• Decision Date: 15 May 1989
• Docket Number: Crim. A. No. 88-10068-01.
• Citation: 714 F. Supp. 1140
• Parties: UNITED STATES of America, Plaintiff, v. Zenon HERNANDEZ, Defendant.
• Court: U.S. District Court — District of Kansas

714 F. Supp. 1140

UNITED STATES of America, Plaintiff, v. Zenon HERNANDEZ, Defendant.

Crim. A. No. 88-10068-01.

United States District Court, D. Kansas.

May 15, 1989.

Assistant U.S. Atty. Kim Martin, Wichita, Kan., for plaintiff.

Assistant Public Defender, Marilyn M. Trubey, Topeka, Kan., for defendant.

OPINION AND ORDER

THEIS, District Judge.

Defendant was charged by indictment with two counts: I, making a false statement to obtain a firearm by representing that he was not illegally or unlawfully in the United States, a violation of 18 U.S.C. § 922(a)(6); II, unlawful receipt of a firearm by an illegal alien, a violation of 18 U.S.C. § 922(g)(5). An element common to both counts and the key element at trial was whether defendant was an illegal alien. A short time before trial commenced the court denied defendant's motion in limine to prevent the government from introducing proof of defendant's application for amnesty under the Special Agricultural Workers provision of the Immigration Reform Act. Immigration Reform and Control Act of 1986 § 302 (hereinafter the Act), 8 U.S.C. § 1160 (1986). The government sought to use the fact defendant applied for amnesty to corroborate defendant's admission to a state trooper and a Immigration and Naturalization Service agent that he was an illegal alien. The court now more elaborates on the oral reasons given for denying defendant's motion.

Defendant's opposition to the introduction of the fact of his application for amnesty is based on a statutory confidentiality provision of the Act. The Act has amnesty provisions for two types of illegal aliens: those residing in the United States before 1982 and special agricultural workers. § 201 of the Act, 8 U.S.C. § 1255a; § 302 of the Act, 8 U.S.C. § 1160. Both amnesty provisions have identical confidentiality provisions. § 201(a)(c)(4), (5) of the Act, 8 U.S.C. § 1255a(c)(4), (5); § 302(a)(b)(5), (6) of the Act, 8 U.S.C. § 1160(b)(5), (6). The sections provide:

LIMITATION ON ACCESS TO INFORMATION. — Files and records prepared for purposes of this section by designated entities operating under this section are confidential and the Attorney General and the Service shall not have access to such files or records relating to an alien without the consent of the alien.

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 (c6 or b7) Penalties for making a false statement on the amnesty application,

(B) make any publication whereby the information furnished by any particular individual can be identified, or

(C) permit anyone other than the sworn officers or employees of the Department or bureau or agency or with respect to applications filed with a designated entity, that designated entity, to examine individual applications.

Anyone who uses, publishes or permits information to be examined in violation of this paragraph shall be fined in accordance with title 18, United States Code, or imprisoned not more than five years, or both.

Id. (emphasis added).

In interpreting the confidentiality provision, the parties do not dispute that the Assistant United States Attorney is an agent of the Attorney General and the Department of Justice. The disputed ambit of the confidentiality statute is if it applies to the very making of an amnesty application. The government argues from the statutes' numerous references to "information" and "information furnished" that the data contained within the application is the material prohibited from examination or use by the Attorney General's agent. Defendant counters that the statutory prohibition is broader and must include any reference to an application for amnesty.

A plain reading of the statute supports the government's contention. Both titles of each subparagraph limit the use of "information." Particularly, the "information" to be kept "confidential" is "the information furnished pursuant to an application" and the "information furnished by any particular individual...." 8 U.S.C. §§ 1160(b)(6)(A), (B), 1255a(c)(5)(A), (B). The court does not find the occurrence of filling out an application within these phrases. The quoted portions are directed at the heart of an application: an applicant's residence, work history, current employment, etc. Neither the court nor the parties have found any cases construing this passage. On this blank slate, the court rules a careful reading of the statute cannot support the broader construction urged by defendant. The construction urged by the government also conforms to the workings of other provisions of the statute. In at least two places, the Act requires other branches of the federal government or a part of a state government to verify a person's immigration status. The court determines that Congress' desire to make the fact of application available to such a broad group of parties, including employers, state governments and other federal agencies, evinces an intent to not make the fact of application fall within the confidentiality provisions. Defendant's interpretation of the confidentiality provisions is at odds with other sections of the Act. The court must read a statutory provision within the larger context of the entire statute. Shell Oil Co. v. Iowa Department...