Matter of Zapata (agency decision, December 19, 1979)

Plain-English summary

The Board considered a Mexican husband and wife who had been found deportable for entering the United States without inspection. The respondents argued that they qualified for suspension of deportation and that the Silva v. Bell injunction protected them while they waited for a visa, but they had conceded deportability and had reentered the United States after March 10, 1977. The Board held that the reentry removed the protection against deportation, while the unavailability of nonpreference visa numbers did not itself make them statutorily ineligible under the Silva order. It dismissed the appeal and allowed voluntary departure within 30 days, subject to deportation if they did not depart.

Decision snapshot

• Cited authorities: 8 U.S.C. §§ 1251(a)(2), 1254, 1182(a)(15), 1182(a)(16), 1182(a)(17), and 1182(a)(19); 8 C.F.R. §§ 3.1(d)(1)(a)(ii) and 3.2
• Outcome: The appeal was dismissed, voluntary departure was allowed for 30 days, and deportation would follow if the respondents did not depart.
• Key point: Reentry after March 10, 1977 removed the respondents from the Silva injunction's protection against deportation, even though unavailable visa numbers did not make them statutorily ineligible under the order.

Full text (BIA official public release)

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 depar- ture. 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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 Interim Decision #2745 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 respond- ent'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 deporta- tion 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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Interim Decision #2745
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 nonprefer- ence 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 protec- tion 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 dis- tinct 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 pro- tection 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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Interim Decision #2745 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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