ZAPATA

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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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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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 Judg-

ment 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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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 appro-

priate; 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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