The Alien Cloak of Confidentiality: Look Who's Wearing It Now

John F. Kennedy University Law Review, Vol. 4, No. 1, pp. 23-63 (1992)

University of Washington School of Law Research Paper

UC Berkeley Public Law Research Paper No. 2463308

41 Pages Posted: 7 Jul 2014

See all articles by Stephen A. Rosenbaum

Stephen A. Rosenbaum

University of California, Berkeley - School of Law; University of California, Berkeley - Haas Institute for a Fair & Inclusive Society.

Date Written: January 1, 1992

Abstract

After more than a decade of debate, the United States Congress enacted the omnibus Immigration Reform & Control Act of 1986 (IRCA), which ushered in a period of "legalization" or adjustment of status to allow undocumented aliens "to emerge from the shadows."

Part I of this article explores the rationale of the legalization program, the experience of other countries in encouraging applications for their respective "amnesty" or "regularization" programs, and the components of the American approach designed to maximize participation through massive outreach and broad confidentiality.

Part II examines the Immigration and Naturalization Service's (INS) strict construction of the IRCA confidentiality proviso, based largely on the Supreme Court's interpretation of an analogous provision of the Census Act. The examination is done in the context of a national class action lawsuit, (Zambrano v. INS), in which the author was one of the counsel of record. Also considered are the positions taken by advocates for the legalizing immigrants and the views adopted by the courts.

Finally, Part III looks at other arguments for and against the disclosure of information to applicants' attorneys. The outcome of the disclosure battles has an immediate impact on continuing litigation, as attorneys for the immigrants continue to seek documents from the Government through discovery, or attempt to monitor INS implementation of court orders and consent decrees. Beyond this, the debate forces the judiciary to come to terms with three competing concerns: the congressional mandate to encourage participation in the legalization process by mitigating the immigrants' fears of approaching the INS; a strong American policy and legal precedent against governmental intrusion; and a practical need for lawyers to communicate with their clients.

In this balancing act, the stakes are particularly high for the nation's most vulnerable subclass. However, as this article attempts to show, the United States' social and juridical traditions allow for a resolution that fairly weighs these distinct concerns. In the end, common sense must prevail over a literal reading of the law.

Keywords: Immigration reform, amnesty, confidentiality, legalization, regularization, adjustment of status, outreach, Immigration and Naturalization Service (INS), Immigration Reform & Control Act (IRCA), Qualified Designated Entity (QDE)

Suggested Citation

Rosenbaum, Stephen A., The Alien Cloak of Confidentiality: Look Who's Wearing It Now (January 1, 1992). John F. Kennedy University Law Review, Vol. 4, No. 1, pp. 23-63 (1992); University of Washington School of Law Research Paper; UC Berkeley Public Law Research Paper No. 2463308. Available at SSRN: https://ssrn.com/abstract=2463308

Stephen A. Rosenbaum (Contact Author)

University of California, Berkeley - School of Law ( email )

Berkeley, CA 94720-7200
United States

University of California, Berkeley - Haas Institute for a Fair & Inclusive Society. ( email )

Berkeley, CA 94720
United States

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