Immigration and Naturalization Service
Participation in Computer Matching Program
with Department of Education
T he Im m igration and N aturalization Service has legal authority to participate in a co m p u ter
m atching p ro g ram with the D epartm ent o f Education in order to verify the im m igration
status o f alien applicants for federal student aid under Title IV o f the H igher E ducation A ct
o f 1965.
September 21, 1992
M em orandum O p in io n fo r t h e Secretary
D ata In t e g r it y B o a r d
You requested our opinion whether the Immigration and Naturalization
Service (“INS”) has legal authority to participate in a computer matching
program with the Department of Education (“Education”) involving alien
applicants for federal student aid under Title IV of the Higher Education Act
of 1965. As explained in more detail below, we conclude that INS does
have legal authority to participate in the matching program at issue.
I.
Pursuant to section 4 of the Computer Matching and Privacy Protection
Act of 1988 (“Act”), 5 U.S.C. § 552a(u)(l), the Attorney General established
the Data Integrity Board (“Board”) to oversee the Justice Department’s imple
mentation of the Act. See Att’y Gen. Order No. 1351-89 (June 7, 1989).
The Act requires the Board to review and approve all written agreements
that provide for the disclosure of Department records, including INS records,
through computer matching programs. 5 U.S.C. § 552a(u)(3)(A).‘ The review
1As defined in the Act, the term “matching program” means
any com puterized comparison o f . . . two or more automated systems of records or a system of
records with non-Federal records for the purpose o f . . . establishing or verifying the eligibil
ity of, or continuing compliance with statutory and regulatory requirements by, applicants
for, recipients or beneficiaries of, [or] participants in . . . assistance or payments under Fed
eral benefit programs.
5 U.S C. § 552a(a)(8).
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and approval process is intended to ensure compliance with relevant statutory
and regulatory requirements. Id. One of those requirements is that the
agreement “specify[] . . . the purpose and legal authority for conducting the
[matching] program.” Id. § 552a(o)(l)(A).
In February 1990, the Board approved a matching agreement between
INS and Education that gave Education access to the INS-created Alien
Status Verification Index (“ASVI”) for the purpose of verifying that each
alien applying for or receiving federal student aid is eligible for such assis
tance under 20 U.S.C. § 1091(a)(5).2 Before granting its approval, the Board
requested that INS and Education provide the Board with the “legal author
ity” for their participation in the program. INS relied upon section 103 of
the Immigration and Nationality Act (“INA”), which charges the Attorney
General “with the administration and enforcement of [the INA] and all other
laws relating to the immigration and naturalization of aliens.” 8 U.S.C.
§ 1103(a). With minor exceptions not relevant here, the Attorney General
has delegated the authority conferred upon him by section 103 to INS. 28
C.F.R. § 0.105(a).
In its initial approval of the INS-Education matching agreement and in a
subsequent annual review of the agreement, the Board expressed reserva
tions about the sufficiency of section 103 as authority for INS participation
in the program. The Board stated its view that section 121 of the Immigra
tion Reform and Control Act o f 1986 (“IRCA”), Pub. L. No. 99-603, 100
Stat. 3359, 3384-94, may have “superseded” section 103 of the INA, at least
with respect to matching programs such as the one between INS and Educa
tion. If INS lacks statutory authority to participate in the matching program,
the Board cannot continue to approve the INS-Education matching agreement.
II.
The Board’s reservations about INS’s authority to participate in the match
ing program with Education are based on the Board’s concern that the Act
prohibits all computer matching programs that are not supported by specific
legal authority, that is, a statute that specifically refers to, and affirmatively
authorizes, the matching program at issue. We conclude that this concern is
unfounded. As explained below, the Act requires only that there be legal
authority for a source agency to disclose information to a recipient agency
2 Section 1091(a)(5) provides that in order to receive any federally funded grant, loan, or work assis
tance, a student must
be a citizen or national of th e United States, a permanent resident o f the United
States, in the U nited States fo r other than a tem porary purpose and able to provide
evidence from [INS] of his o r her intent to becom e a permanent resident, or a per
m anent resident of the Trust Territory of the Pacific Islands, Guam, or the Northern
M ariana Islands.
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without violating the Privacy Act’s general prohibition against disclosures of
records absent written consent of the persons to whom the records pertain.3
Neither the Act itself nor any other legislation of which we are aware can
reasonably be read to require that there be specific statutory authority for a
matching program in order for an agency to conduct such a program in
accordance with the Act. Although the Act mandates that a matching agree
ment “specify[]” the legal authority for conducting the matching program, 5
U.S.C. §552a(o)(l), that requirement is procedural, not substantive. If the
statute required agencies to identify “specific” legal authority for conducting
a matching program, an argument might be made that explicit statutory au
thority was required for the particular program in question. See Black’s Law
Dictionary 1398 (6th ed. 1990) (defining “specific” as “[p]recisely formu
lated or restricted; definite; explicit; of an exact or particular nature”). The
term “specify[],” however, does not modify “legal authority.” Instead, it
merely indicates that the agency must identify some legal authority that
supports the program. See id. at 1399 (defining “specify” as “[t]o mention
specifically; to state in full and explicit terms; to point out; to tell or state
precisely or in detail; to particularize, or to distinguish by words one thing
from another”). Put another way, the term “specify[]” focuses on the nature
o f the identification, rather than the nature of the thing to be identified.
This reading of the statutory text is supported by the legislative history of
the Act, which demonstrates that Congress did not intend to create any addi
tional substantive legal obstacles to the implementation of computer matching
programs: “Provided that the new procedures in [the bill] have been com
plied with, any computer match that was lawful before passage of the bill
will continue to be lawful after passage.” H.R. Rep. No. 802, 100th Cong.,
2d Sess. 22 (1988), reprinted in 1988 U.S.C.C.A.N. 3107, 3128.4 The House
Report on the Act further indicates that the “legal authority” that must be
specified in a matching agreement is not legal authority for the matching
program per se, but authority that confirms the “legality of [the] disclosures
that are necessary to support computer matching.” Id. at 21, reprinted in
1988 U.S.C.C.A.N. at 3127. Thus, the House Report observes that “[w]here
records are disclosed by one agency to another for use in matching, the
3The Privacy A ct provides in part:
No agency shall disclose any record which is contained in a system of records by any
means o f communication to any person, or to another agency, except pursuant to a written
request by, or with the prior written consent of, the individual to whom the record pertains,
unless disclosure of the record would be [consistent with one of twelve enumerated exceptions].
5 U.S.C. § 552a(b).
4 When Congress intends to require agencies to obtain specific authorization in order to engage in a
particular activity that is otherwise within their authority, it does so explicitly. For example, in drafting
the provisions that govern the temporary or intermittent employment of experts and consultants, C on
gress specifically provided that an agency may procure the services of experts and consultants only
when “authorized by an appropriation or other statute.” 5 U.S.C. § 3109(b). Similarly, although an
agency m ight possess general authority to pay publicity experts in furtherance of its statutory m ission,
Congress has explicitly barred such payment unless funds are "specifically appropriated for that pu r
pose.” Id. § 3107.
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normal legal authority for the disclosure comes from a routine use [as provided
in 5 U.S.C. § 552a(b)(3)].”5 Id. (emphasis added).
Because the legality of disclosures of agency records is generally deter
m ined by reference to the exceptions set forth in 5 U.S.C. § 552a(b), the
“legal authority” required by 5 U.S.C. § 552a(o)(l) is the particular excep
tion under which disclosure is authorized. See Office of Management and
Budget, Privacy Act o f 1974; Final Guidance Interpreting the Provisions of
Public Law 100-503, the Computer Matching and Privacy Protection Act of
1988, 54 Fed. Reg. 25,818, 25,825 (1989) (“[B]ecause the Matching Act
does not itself authorize disclosures from systems of records for the pur
poses o f conducting matching programs, agencies must justify any disclosures
under [the Privacy Act, 5 U.S.C. § 552a(b)].”).6 In the case o f the INS-
Education m atching program, the relevant exception is the routine use
exception set forth in paragraph (3) of 5 U.S.C. § 552a(b). See supra note 5.
The program requires INS to disclose records from the ASVI to Education.
Consistent with 5 U.S.C. § 552a(a)(7), using the ASVI to verify the immi
gration status of applicants for or recipients of federal benefits is “compatible”
with the purpose for which the ASVI was created. Indeed, it is the central
purpose of the ASVI. As enacted by section 121(a)(1)(C) of IRCA, 42
U.S.C. § 1320b-7(d)(3) requires the states, in determining eligibility for fed
erally funded benefit programs, to demand proof of satisfactory immigration
status and to “utilize the individual’s alien file or alien admission number to
verify with [INS] the individual’s immigration status through an automated
or other system.” In section 121(c)(1) of IRCA, 100 Stat. at 3391, Congress
directed INS to “implement a system for the verification of immigration
status under [section 1320b-7(d)(3)].” That automated system is the ASVI.
Consistent with 5 U.S.C. § 552a(e)(4)(D), INS published a notice in the
Federal Register to inform the public that states and federal agencies would
make use of the ASVI to verify the immigration status of applicants for
federal benefit programs. See Verification of Immigration Status of Aliens
Applying for Benefits Under Certain Programs, 54 Fed. Reg. 5556 (1989).
INS also published specific notice of the INS-Education computer matching
program. See 55 Fed. Reg. 5904 (1990). Because the INS-Education match
ing program meets the requirements of the routine use exception set forth in
’ The routine use exception to the general rule against the nonconsensual disclosure o f agency records
applies when the disclosure would be “ for a routine use as defined in subsection (a)(7) of this section
and described under subsection (e)(4)(D) of this section.” 5 U.S.C. § 552a(b)(3). Under subsection
(a)(7), “the term ‘routine use’ means, w ith respect to the disclosure of a record, the use of such record
fo r a purpose which is compatible with the purpose for which it was collected.” Subsection (e)(4)(D)
requires that when an agency establishes or revises any system of records, it must publish a notice in the
Federal R egister that includes “each routine use o f the records contained in the system, including the
categories o f users and the purpose of such use.”
‘ The OM B guidelines further state that “ [s]ince the Com puter Matching Act provides no independent
authority for the operation of matching programs, agencies should cite a specific Federal or State statu
tory or regulatory basis for undertaking such programs.” Id. at 25,826. That the “basis” for a matching
program may include a state statute or a federal or state regulation provides additional support for the
view that the Act should not be interpreted to require agencies to identify specific federal statutory
authority for m atching programs.
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5 U.S.C. § 552a(b)(3), there is “legal authority” for the matching program
within the meaning of 5 U.S.C. § 552a(o)(l)(A).7
Section 121 of IRCA does not alter these conclusions. Section 121(a)(3)
would have required educational institutions participating in federal student
assistance programs under Title IV of the Higher Education Act of 1965 to
utilize an applicant’s "alien file or alien admission number to verify with
[INS] the individual’s immigration status through an automated or other
system.” 20 U.S.C. § 1091(h)(3). Institutions using the verification system
would have been required to abide by certain procedures designed to protect
applicants from erroneous verifications. See id. § 1091(h)(4)-(6). Section
121(c)(4)(B) of IRCA, however, gave Education authority to waive the ap
plication of IRCA to Title IV programs not later than April 1, 1988, if
Education determined that the costs of administering the verification system
otherwise required by IRCA would exceed the estimated savings generated
by the system.8 By letter dated March 28, 1988, Education informed Con
gress of its decision to exercise this waiver authority.
You have asked whether, consistent with the statutory framework, Educa
tion can waive the procedural requirements of section 121(a)(3) of IRCA but
still use the ASVI, which was implemented pursuant to section 121(c)(1) of
IRCA. You suggest that despite the waiver by Education, INS may be con
strained to permit access to the ASVI only in accordance with the specific
procedures prescribed by section 121. A contrary conclusion, you argue,
would be inconsistent with Congress’s decision to include student aid pro
grams in section 121 of IRCA and thereby to subject them to that statute’s
procedural requirements.
7 The INS-Education matching program is also consistent with the general statutory authority o f the
two agencies. The object of the program is to see that federal student assistance is not granted to persons
who are not eligible under 20 U.S.C. § 1091(a)(5). See supra note 2. It is appropriate for INS to pursue
this object because section 1091(a)(5) is a law “relating to the immigration and naturalization o f aliens”
such that it may be enforced by INS pursuant to section 103 of the INA, 8 U.S.C. § 1103(a). It is appro
priate for Education to pursue this object because section 1091(a)(5) is part o f Title IV o f the Higher
Education Act o f 1965, and because Education funds and, in conjunction with institutions o f higher
education, administers programs authorized by Title IV. 5ee20U .S.C . §§ 1070(b), 1072(a)(1), 1087b(a),
1087aa(a).
8 Section 121(c)(4)(B), 100 Stat. at 3392, provides:
If, with respect to [the system of grants, loans, and work assistance under Title IV of the
Higher Education Act o f 1965], the [Secretary o f Education] determines, on the Secretary’s
own initiative or upon an application by an administering entity and based on such inform a
tion as the Secretary deems persuasive . . . , that —
(i) [the Secretary] or the administering entity has in effect an alternative system of
immigration status verification which —
(I) is as effective and timely as the system otherwise required under the am end
ments made [to 20 U.S.C. | 1091] with respect to the program, and
(II) provides for at least the hearing and appeals rights for beneficiaries that would
be provided under [such amendments], or
(ii) the costs of administration o f the system otherwise required under such am end
ments exceed the estimated savings,
[the] Secretary may waive the application of such amendments to the covered program to the
extent (by State or other geographic area or otherwise) that such determinations apply.
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We conclude that Education’s waiver unequivocally relieves it of the obli
gation to comply with the procedural requirements of section 121 and that,
in the present circumstances, INS may share ASVI-generated data on federal
student aid applicants with Education without requiring Education to com
ply with section 121. Congress’s decision to include federal student assistance
programs among the programs covered by section 121 was conditional. Al
though section 121(a)(3) requires each “institution of higher education” to
obtain data on immigration status directly from INS, Congress gave Educa
tion express authority to waive this requirement if it found, “based on such
information as [Education] deem[ed] persuasive,” that the cost of institution-
by-institution access to the ASVI would exceed the benefits of such access. See
supra note 8. That is, Congress granted Education the authority to determine
whether federal student aid programs should be included in section 121.
Once Education decided to waive the requirements of section 121(a)(3),
however, it still faced the problem of enforcing, in a cost-effective manner,
the mandate of 20 U.S.C. § 1091(a)(5) that federal student assistance be
granted only to aliens in a satisfactory immigration status. See supra note 2.
A com puter matching program granting ASVI access to Education alone,
rather than to every one of the thousands of educational institutions around
the country, was Education’s preferred solution. Nothing in section 121 of
IRCA prohibits INS from granting access to the ASVI in these circum
stances. M oreover, the institution-by-institution access to the ASVI
contemplated by section 121 and the Education-only access established by
the INS-Education matching agreement are quite different, precluding the
inference that if Congress intended to regulate the former, it must have
intended to regulate the latter. That Education need not comply with section
121(a)(3) of IRCA does not mean that federal student aid applicants lack
procedural protections against erroneous determinations of their immigra
tion status by the ASVI, because the Computer Matching and Privacy
Protection Act sets forth procedures similar to those set forth in section
121(a)(3) that agencies must follow with respect to persons who are subject
to matching programs. See 5 U.S.C. § 552a(p).
ML
We conclude that INS does have legal authority to participate in a com
puter matching program with Education in order to verify the immigration
status of alien applicants for federal student aid under Title IV of the Higher
Education Act of 1965.
JOHN E. BARRY
Deputy Assistant Attorney General
Office o f Legal Counsel
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