In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4112

MOISES ARREOLA-ARELLANO,

Petitioner-Appellant,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent-Appellee.



Appeal from the Board of Immigration Appeals
No. A-91-887-063


Argued May 18, 2000--Decided August 3, 2000



  Before Posner, Diane P. Wood, and Williams, Circuit
Judges.

  Diane P. Wood, Circuit Judge. Moises Arreola-
Arellano, a 33 year old Mexican citizen, has been
residing illegally in the United States since
1985, with the exception of a single brief trip
back to Mexico in January of 1995. He applied for
legalization on October 10, 1988, but his
application was denied in 1991.

  On June 26, 1996, an Immigration and
Naturalization Service (INS) officer canvassed
the Palatine Park District in Palatine, Illinois,
where Arreola-Arellano worked. The INS officer
questioned Arreola-Arellano, recording notes from
the interview on an I-213 form ("Record of
Deportable Alien"). Those notes included
information from the materials that Arreola-
Arellano handed to the officer: a notice of
receipt of his legalization application, which
included the application’s file number (A-91 887
063, identifiable as a legalization file from the
initial A-91); a Mexican certificate showing that
he was born in that country on May 5, 1967; a
1993 Illinois identification card; and a 1994
Illinois drivers license. That afternoon the INS
began deportation proceedings against Arreola-
Arellano. He conceded deportability at his
December 2, 1997 immigration hearing and asked
for a suspension of deportation based on family
circumstances. First the immigration judge, and
later the Board of Immigration Appeals (BIA),
denied that request and ordered him to be
deported.

  Later, Arreola-Arellano noticed that the file
numbers of his legalization application and his
deportation proceeding were the same. This
prompted him to file a petition on July 11, 1999,
asking the BIA to reopen his case. His theory was
that the INS had violated the confidentiality
provisions of the Immigration Reform and Control
Act of 1987 (IRCA), in particular 8 U.S.C.
sec.sec. 1160(b)(5), (6), and 1255a(c)(5), by
using information from his 1988 legalization
application to deport him. The BIA dismissed his
petition to reopen; his appeal is from that
decision.

  We may overturn the BIA’s decision only if we
find that it abused its discretion. 8 C.F.R. sec.
3.2 (explaining that the decision to grant or
deny a motion to reopen is within the discretion
of the Board). The Board, moreover, has no right
to reopen proceedings unless the petitioner
provides new evidence that is material and was
not available or discoverable at the time of the
deportation hearing. 8 C.F.R. sec. 3.2.

  The fact that the file numbers of Arreola-
Arellano’s deportation file and legalization file
were the same could have been discovered by
Arreola-Arellano at the time of the deportation
hearing. He offers no rationale for not
mentioning his confidentiality argument at that
time. That fact alone strongly suggests that the
BIA acted within the bounds of its discretion in
refusing to reopen the case. Furthermore, the
INS’s apparent decision to use the same number
could not have made any difference to the outcome
of Arreola-Arellano’s petition. The undisputed
facts make it clear that whether or not INS
deportation officials read Arreola-Arellano’s
legalization application in possible violation of
the confidentiality rules, they did not use any
information contained in that application to
support the deportation order.

  Arreola-Arellano filed for legalization under
the IRCA, 8 U.S.C. sec. 1255a. That statute
allows undocumented aliens who have resided
continuously in the United States since January
1, 1982, to apply to the INS for legal resident
status, despite the usual barrier of not having
entered the United States legally. See H.R. Rep.
No. 682(I), 99th Cong., 2d Sess. 59-61 (1986);
Perez v. INS, 72 F.3d 256, 256 (2d Cir. 1995).
The IRCA includes a confidentiality provision
which is meant to assure people who wish to file
for legalization will not be deterred from doing
so by the prospect of attracting a troop of INS
officers bent on deportation to their doors. See
H.R. Rep. No. 682(I) at 62. Officials may not
"use the information furnished by the applicant
pursuant to an application" for any purposes
other than processing that application, enforcing
penalties for false statements in the
application, or fulfilling reporting requirements
to Congress. 8 U.S.C. sec. 1255a(c)(5).

  Arreola-Arellano argues that the file number
identity indicates that the INS looked to his
legalization application to determine that he was
residing illegally in the United States, and that
the INS used that information to deport him. An
examination of the facts in chronological order
proves this to be wrong. The INS officer
responsible for initiating deportation
proceedings against Arreola-Arellano encountered
him before she knew about his legalization
application. The officer was systematically
questioning the workers of the Palatine Park
District in the course of what the INS
euphemistically terms a "workplace survey."
Arreola-Arellano offers no reason at all to think
that the targeting of the Palatine Park District
had anything to do with his legalization
application.

  During his interview, Arreola-Arellano himself
gave the immigration officer a card certifying
his birth in Mexico in 1967. He also gave her a
permanent residence address located in Mexico.
Most significantly, Arreola-Arellano handed the
officer an INS receipt for his legalization
application. That receipt acknowledged Arreola-
Arellano’s application, and indicated that a
hearing had been scheduled for February 8, 1989.
On it was printed his A-91 file number. As
explained at oral argument, A-91 numbers are only
given to legalization applicants.

  At the conclusion of the Palatine interview,
based on information provided by Arreola-
Arellano, the immigration officer had a strong
suspicion that Arreola-Arellano was residing
illegally in the United States. Unless Arreola-
Arellano had been mistaken about his undocumented
status when he filed for legalization, or his
application had been granted and he had not
received the corresponding papers, Arreola-
Arellano was an illegal immigrant. That the INS
initiated deportation proceedings is not
puzzling. It did not do so based on information
contained in Arreola-Arellano’s application for
legalization. Rather, it did so based, in part,
on the fact that Arreola-Arellano had applied for
legalization before 1989 and did not claim that
his application had been accepted. The INS did
check on Arreola-Arellano’s legalization file to
make sure that his application had not been
granted before it proceeded to a deportation
hearing, but this prudent move did not violate
the IRCA’s confidentiality provision. (Indeed, we
would perhaps be facing a different lawsuit if it
had failed to check, and it turned out that the
application had been granted.) Section
1255a(c)(5) does not bar anyone from reading an
application or checking its final conclusion. Its
only mandate is against the use of information
retrieved from an application. Arreola-Arellano
claims that the INS could not have proven
deportability without using information from his
application. But we need not speculate as to how
the INS could have proven deportability, because
Arreola-Arellano conceded that he was deportable
at his deportation hearing.

  The BIA acted within the bounds of its
discretion in refusing to reopen Arreola-
Arellano’s case, and we therefore Affirm its
decision.
