Interim Decision #2745
MATTER OF ZAPATA
In Deportation Proceedings
A-21254261
A-22841115
Decided by Board December 19, 1979
(1) The permanent injunction entered in Silva v. Bell, F.Supp. , No. 76-C4268
(N.D. Ill., October 10, 1978), barring the deportation of certain Western Hemisphere
aliens with visa priority dates between July 1, 1968 and December 31, 1976, does not
apply to those who entered or reentered the United States en or after March 11, 1977.
(2) Section 10 of the Final Judgment Order of Silva v. Bell, F.Supp. , No. 76-C4268
(N.D. III., October 10, 1978), states that no member of the Silva class would be eligible
for a recaptured visa number unless he satisfied the current eligibility criteria for the
issuance ur an 1.11111111gaaut visa.
(3) "Eligibility" under section 10 of the Final Judgment Order of Silva v. Bell is not
synonymous with the availability of nonpreference visa numbers, but refers to
statutory eligibility for a visa.
(4) Although the aliens were members of the Silva class, they had lost the protection of
the permanent injunction entered in Silva v. Bell because they had entered after
March 10, 1977, and not because nonpreference visa numbers were unavailable to
them.
CHARGE:
Order Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2))—Entry without inspection—
both respondents
ON BEHALF OF RESPONDENTS: ON BEHALF OF SERVICE.
Joseph J. Rey, Esquire Daniel L Kahn, Esquire
P.O. Box 10187 Trial Attorney
El Paso, Texas 79992
By: Miiholion, Chairman; Maniatia, Appleman, Maguire, and Farb, Board Members
In a decision dated March 6, 1979, the immigration judge found the
respondents deportable as charged and granted them voluntary departure. The respondents appeal from this decision. The appeal will be
dismissed.
The respondents are husband and wife, and iiatives and citizens of
Mexico. They have a priority date of March 25, 1975, for non preference
visa purposes.
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On appeal, the respondents contend that the immigration judge
erred in not granting their applications for suspension of deportation
under section 244 of the Immigration and Nationality Act, 8 U.S.C.
1254, and that the decision is not supported by the evidence. Neither of
these contentions has any merit and both could be said to fall within 8
C.F.R. 3.1(d)(1)(a)(ii) as frivolous grounds of appeal, since the respondent's present attorney conceded at the deportation hearing that they
were not eligible for suspension of deportation, and in fact never
applied for it, and also because they admitted all of the allegations of
the Order to Show Cause and conceded deportability. (Tr. pp. 4, 5). The
contention concerning the motions made by the respondents at the
hearing is not clear. The respondents in their appeal do not specify any
motion that was denied. A review of the record indicates that they did
request a continuance of the case until a visa became available. (Tr. p.
14, 15). This motion was correctly denied by the immigration judge
because the possibility of a visa becoming available was very remote
and he was obligated to enter an order finally disposing of the case.
Here he found that no useful purpose would be served by a continuance
and he was well within his authority to conclude the proceedings.
Matter of Garcia, 16 I&N Dec. 653 (BIA 1978).
There is another aspect of this case, however, which has not been
presented by the respondents on appeal. This is the issue of the
protection afforded the respondents by the final order entered in Silva
v. Bell, No. 76-C4268 (N.D. EL, October 10, 1978). The immigration
judge found that the reentry on February 16, 1978, without inspection
divested them of any protection that the Final Judgment Order may
have accorded them under Silva. He also found that under the tenth
section of the Order the respondents did not come under Silva because
nonpreference visa numbers were not available to them.'
We agree with the first conclusion that the reentry in February 1978,
took them outside of the protection of the final order, but only so far as
it pertained to the portion of the Silva order that barred the deportation of Silva aliens' The language of this section appears to us to be
clear. The respondents can therefore not be accorded this protection.
We do not agree, however, that section 10 of the Final Judgment
Order should be interpreted as it was by the immigration judge. This
' The Seventh Circuit has overruled this decision as it relates to allocation of visa
numbers. Refit*, Silva v. Bell,
605 F.2d 978 (7 Cir. 1979).
No alien who entered the United States on or after March 11,1977, shall be protected
by this order. However, the INS shall apply its usual policies and procedures concerning
the application of discretion in determining the length of time the alien may be
permitted to remain in the United States." (Section 3, Temporary Restraining Order,
made a permanent injuction, Silva v. Bell, id.
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section states that:
10. No class member shall be eligible for a recaptured visa number unless he/she
satisfies the current eligibility criteria for the issuance of an immigrant visa.
The immigration judge held this to mean that because nonpreference visa numbers were unavailable to the respondents they had not
"satisfied the current eligibility criteria." The language of the order
appears to be a variation of that used in section 4(b) of the Temporary
Restraining Order which was made a permanent injunction in Section
5 of the Final Judgment Order and which excluded from Silva protection certain aliens who were:
... clearly not eligible for an immigrant visa under Section 212(a)(15), (16), (r) or (19)
of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(15), (16), (17) or (19). ...
Read in conjunction, these provisions show that the intent remains
the same: to exclude those aliens who are statutorily ineligible to
receive a visa.'
The fact that nonpreference numbers are presently unavailable does
not constitute "ineligibility" under the terms of Silva. These are distinct issues. To hold otherwise would be to find that no Silva aliens
whatsoever could currently come under the protection of the Final
Judgment Order, a rather difficult position to maintain since a major
purpose of the Order was to protect aliens who should have been
accorded visa numbers but were not because of the misallocation of the
numbers to Cuban refugees. The Findings of Fact in the Final Judgment Order also make this clear in the recognition by the District
Court that there would be insufficient visa numbers available for the
Silva class aliens'
In this case, the respondents, as noted, have a priority date of March
25, 1975. This comes within the time frame of July 1,1968 to December
31, 1976, established in the Silva order. It is clear therefore that the
respondents meet the qualifications for those included in the Silva
class, and are qualified to receive a recaptured nonpreference visa
number if otherwise eligible, if and when they come available. It is
equally clear that the fact that non preference visa numbers are not
available does not destroy their underlying eligibility for protection
from deportation. This does not mean that Silva nonpreference visa
eligibility is synonymous with protection from deportation. This protection of the Silva order is only accorded those who entered the
United States before March 11, 1977, and who have not since reentered.
The respondents here do not come within this protection. So, although
they are not ineligible for Silva order protection from deportation
' Sections 4(a), (b), and (c) also provide other grounds for excluding Silva aliens from
the protection of the restraining order. These are not applicable here.
Final Judgment Order, Findings of Fact, 19, 20, Silva v. Bell, id.
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because nonpreference numbers are unavailable, they are ineligible
because they entered the United States after March 10, 1977. The
appeal is accordingly dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondents are permitted to depart
from the United States voluntarily within 30 days from the date of this
order and under such conditions as the District Director deems appropriate; and in the event of failure to so depart, the respondents shall be
deported as provided in the immigration judge's order.
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