Petition — Contreras De Avila v. Smith
Supreme Court brief1981
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814 α F ED
l 10 1981
No. [ALEXANDER L. STEVAS,
ö CLERK
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UTIKE - Pyar wee US. |
In TRR
Supreme Court of the United States
Ocroser Term, 1981
IMELDA CONTRERAS DE AVILA, et al.,
Petitioners,
vs.
WILLIAM FRENCH SMITH, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRUCE L. GOLDSMITH
ROBERT E. LEHRER (Counsel of Record)
KRISTINE POPLAWSKI
Legal Assistance Foundation of Chicago
343 South Dearborn Street
Chicago, Illinois 60604
(312) 341-9180
KALMAN RESNICK
Jacobs, Burns, Sugarman & Orlove
201 N. Wells Street, Suite 1900
Chicago, Illinois 60606
RANDALL SCHMIDT
Mandel Legal Aid Clinic
6020 S. University Avenue,
Chicago, Illinois 60637
JOEL SPRAYREGEN
Aaron, Schimberg, Hess, Rusnak,
Deutsch & Gilbert
55 West Monroe Street
Chicago, Illinois 60603
Counsel for Petitioners
Midwest Law Printing Co., Chicago 60611, (312) 321-0220
QUESTION PRESENTED
Whether the Department of State’s withholding, from
eligible Mexican visa applicants, of 13,366 preference
visas authorized by Congress during fiscal year 1977
violates the Immigration and Nationality Act.
PARTIES
The petitioners are: Imelda Contreras De Avila, Velia
Hurtado-Espinoza, Raul Camarena-Salinas, Narsizo
Romero-Bahena, Juan Ayala-Bucio, Josefina Ibarra De
Ayala, Fidel Ocampo-Ocampo, Candelario Escobar De
Ocampo, individually and on behalf of all others similar-
ly situated, and Filemon Avila, Francisca Camarena,
Clemente Hurtado, Agripina Romero, Norma Veronica
Ayala, Ruby Ocampo, Fidel Ocampo, Jr., individually
and on behalf of all others similarly situated.
The respondents are: William French Smith, as At-
torney General of the United States; United States
Department of Justice; Alexander Haig, as Secretary of
the United States Department of State; United States
Department of State; Doris Meisner, as Commissioner of
the Immigration and Naturalization Service; the Im-
migration and Naturalization Service; and Joel L.
Rogers, as Acting District Director of the Chicago Dis-
trict of the Immigration and Naturalization Service.
1 Pursuant to Sup. Ct. R. 40, they are substituted for the
originally named government officials who were Griffin Bell,
Cyrus Vance, Leonel Castillo, and David Vandersall, respec-
tively. The respondents are referred to collectively as “the
government.”
TABLE OF CONTENTS
QUESTIONS PRESENTED . . .
J)) ͤͤ „„
TABLE OF AUTHORITIES. . .
RR
ben,, .
Mao eee.
STATEMENT OF THE CASE . . .
REASONS FOR ALLOWANCE OF
, ⅛ d! T— —„—ẽ.d
The Government's Failure To Allocate 13,366
Visas Authorized By Congress Under The
Immigration And Nationality Act Raises An
Important Question Of Statutory Construction
Which Has Not Been, But Should Be, Re-
— u.... „4e
A. The Government's Failure To Allocate
13,366 Visas So Substantially Affects
Such A Large Group Of Persons Seeking
Lawful Residence In The United States
As To Render The Question Important ...
B. Under The 1976 Amendments To The
Immigration And Nationality Act Only
Visas Issued After January 1, 1977,
Should Have Been Charged Against The
20,000 Mexican Preference Limit And
The Government Should Have Allocated
The 13,366 Visas Not Issued In Fiscal
Year 1977 To Mexican Visa Applicants ..
iv
TABLE OF AUTHORITIES
Cases
Bridges v. Wixon, 326 U.S. 135 (1945) . 8
Certain Named and Unnamed Non-Citizen Chil-
dren And Their Parents v. Texas, ..... 1
renn verkbbosesvecescncencvcvscessevoveve 8
Fiallo v. Bell, 430 U.S. 787 (1977) . . . . . 16
Galvan v. Press, 347 U.S. 522 (1954) . . . . . 16
Kleindienst v. Mandel, 408 U.S. 753 (1972) . 16
Patterson v. Lamb, 329 U.S. 539 (1947) . s
Rogers v. Quan, 357 U.S. 193 (1958) . . . 8
Securities and Exchange Commission v. Capital
Gains Research Bureau, 375 U.S. 180 (1963) ..... 8
Silva v. Bell, 605 F. 2d 978 (7th Cir. 1979) 13, 15
Train v. City of New York, 420 U.S. 35 (1975) .... 15
Statutes And Regulations
8 U.S.C. §1101(aX27) (1970), as amended, 8 U.S.C.
e 4
e MND.» poesedigusccsbcdnsevtensss cebubpecseccceoecsse 3, 5, 9
8 U.S.C. §1151(a) (1970), as amended, 8 U.S.C.
§1151(a) (1976 Ed. Suppl. III) . 4
4
5
8 U.S.C. §1151(a) (1976), as amended, 8 U.S.C.
§1151(a) (1976 Ed. Suppl. III). 3,
8 U.S.C. §1152(a) ven 4
8 U.S.C. §1152(a) (1976), as amended, Act of
March 17, 1980, Pub. L. 96-212, Title II,
§203(b), 94 Stat. 107 3, 9
8 U.S.C. §1153(a) . 3, 4
8 U.S.C. §1153(b) and (c) — 1
8 U.S.C. 51182 1
28 U.S.C. §1254(i) 2
V
Section 21(e) of the 1965 Amendments to the
Immigration and Nationality Act, Pub. L. 89-
inn
Section 10 of the 1976 Amendments to the
Immigration and Nationality Act, Pub. L. 94-
571, 90 Stat. 2703, 2707 .......
Act of March 17, 1980, Pub. L. 96-212, Title II.
§204(a), (b), Pub. L. 96-212, 94 Stat. 102, 108
Section 118 of the Fiscal Year Transition Act,
90 Stat. 383, 389 (April 21, 1976) .
Other Authorities
Hearings on the Operation of the Immigration and
Nationality Act as Amended by The Act of
October 3, 1965 Before Subcomm. No. 1 of the H.
Comm. on the Judiciary, 90th Cong., 2d Sess.,
c
H. Rep. No. 94-1553 on H. R. 14535, H. Comm. on
the Judiciary, 94th Cong., 2d Sess. (1976) ......
S. Rep. No. 748 on H.R. 2580, S. Comm. on the
Judiciary, 89th 52555 Ist Sess. (1965) ............
INC) Coe oe eee
4, 10
3, 9
16
16
11
15
3
“a
9
Ty
sod hs
sa) td
rm | gi
W to
2 gg
vi
APPENDIX
Opinion of the United States Court of
Appeals for the Seventh Circuit, dated
n
Memorandum Decision of the United States
District Court for the Northern District
of Illinois, Eastern Division, dated May
G
Memorandum Decision of the United States
District Court for the Northern District of
Illinois, Eastern Division, dated February
c
Permanent Injunction of the United States
District Court for the Northern District of
Illinois, Eastern Division, dated February
27, 1980 en ae
Amended Final Judgment Order of th
United States District Court for the Northern
District of Illinois, Eastern Division, dated
DSIRE BI RI AA
Order of the United States Court of Appeals
for the Seventh Circuit Denying Petition for
Rehearing and Suggestion for Rehearing
en banc, dated June 8, 1981 .
Immigration and Nationality Act Amend-
ments of 1976
Memorandum Decision of the United States
District Court for the Northern District of
Illinois, Eastern Division, dated September
17, 1979
Deposition of Cornelius D. Scully, III,
August 5, 1978
la
15a
36a
48a
57a
71a
In Tue
Supreme Court of the United States
Ocronnn Tzrm, 1981
IMELDA CONTRERAS DE AVILA, et al.,
Petitioners,
WILLIAM FRENCH SMITH, et al.
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIROUIT
Petitioners respectfully request a writ of certiorari
issue to review the judgment and order of the United
States Court of Appeals for the Seventh Circuit, entered
in this proceeding on March 10, 1981.
1
OPINIONS BELOW
The opinion of the Seventh Circuit, issued on March
10, 1981, is found at 643 F. 2d 471. The opinion is
appended at pp. la-l4a, infra. The Memoranda of
Decision of the district court were issued on May 18,
1979, and February 27, 1980, a Permanent Injunction
was issued on February 27, 1980, and an Amended
Final Judgment Order was issued on March 14, 1980.
As none of these opinions and orders was officially
reported, they are appended at pp. 15a-56a, infra.
JURISDICTION
The jurisdiction of this Court is invoked pursuant to
28 U.S.C. §1254(i) and Sup. Ct. R. 17.1(c) to review a
judgment of the Seventh Circuit Court of Appeals,
entered on March 10, 1981. A timely petition for rehear-
ing and suggestion for rehearing en banc was denied on
June 8, 1981, three judges dissenting, p. 57a, infra.
8
STATUTORY PROVISIONS INVOLVED
Section 202(a) of the Immigration and Nationality
Act, as effective in 1977, provides, in part:
That the total number of immigrant visas made
available to natives of any single foreign state un-
der paragraphs (1) through (8) of section 1153(a) of
this title shall not exceed 20,000 in any fiscal year.
8 U.S.C. §1152(a) (1976), as amended, Act of March
17, 1980, Pub. L. 96-212, Title II, §203(b), 94 Stat.
107.
8 U.S.C. §1101 note provides:
The foregoing provisions of this Act, including the
amendments made by such provisions, shall become
effective on the first ng | of the first month which
begins more than sixty days after the date of enact-
ment of this Act.?
The 3 system set out at 8 U.S.C. 6115 ga) became
pplice le to Mexico pursuant to the 1976 Amendments, 8
. * ag 9 (1976), as amended, 8 U.S.C. §1151(a) (1976
Suppl.
The cited provision is section 10 of the 1976 Amendments
to the Immigration and Nationality Act, Pub. L. 94-571, 90
Stat. 2703, 2707. The 1976 Amendments are found in their en-
tirety at pp. 58a-65a, infra.
3
STATEMENT OF THE CASE
1. This case involves the government's failure to
allocate 13,366 visas authorized by Congress under the
1976 Amendments to the Immigration and Nationality
Act (1976 Amendments), Pub. L. 94-571, 90 Stat. 2703,
to Mexican visa applicants during fiscal year 1977.
These visas confer lawful permanent resident status on
qualified aliens seeking to reside in the United States.
An alien becomes qualified for a visa on the basis of
meeting statutory eligibility criteria. See 8 U.S.C. §1182.
2. Prior to January 1, 1977, immigration to the
United States from the Western Hemisphere“ was
regulated solely by a 120,000 limit on visa issuances in
any fiscal year. §21(e) of the 1965 Amendments to the
Immigration and Nationality Act (1965 Amendments),
Pub. L. 89-236, 79 Stat. 911, 921; 8 U.S.C. §1101(a)X(27)
(1970), as amended 8 U.S.C. §1101(a)(27) (1976). Visa
applicants were processed strictly on a first-come, first-
served basis. Such visa applicants were termed “special
immigrants.” Id. In contrast, Eastern Hemisphere visa
applicants were processed in order of preferences de-
fined by familial relationships and labor skills, subject to
both a per country limit of 20,000 and a hemisphere
quota of 170,000. 8 U.S.C. §1151(a) (1970), as amended, 8
U.S.C. §1151(a) (1976 Ed., Suppl. III); 8 U.S.C. §§1152(a),
1153(b) and (e). The 1976 Amendments applied the
Eastern Hemisphere preference system and the 20,000
per country limit on preference immigration to the
Western Hemisphere. The 120,000 Western Hemisphere
quota was unchanged. 8 U.S.C. §115l(a) (1976), as
The Western Hemisphere is defined as North, South, and
Central America and adjacent islands. 22 C. F. R. §42.1 (1976).
5 os
amended, 8 U.S.C. §1151(a) (1976 Ed. Supp. III); 8
U.S.C. §1152(a). The 1976 Amendments became effective
on January 1, 1977, after one-quarter of fiscal year 1977
had elapsed. 8 U.S.C. §1101 note.‘
3. During the first quarter of 1977 (October-
December 1976), before the 1976 Amendments became
effective, Mexican visa applicants were issued 14,203
special immigrant visas pursuant to §21(e) of the 1965
Amendments. For the remaining nine months of fiscal
year 1977, thé government issued 5,435 preference visas
to Mexican visa applicants, i.e., visas available under the
new preference system that the 1976 Amendments es-
tablished for the Western Hemisphere. The government
charged both the special immigrant visas issued before
the effective date of the 1976 Amendments and the
preference visas issued after the effective date against
the Mexican per country limit of 20,000, in effect
reaching the 20,000 limit.
4. Of the 120,000 visas authorized by Congress for
allocation to Western Hemisphere visa applicants in
fiscal year 1977, only 106,634 visas were actually issued.
The remaining 13,366 visas were available for issuance
in fiscal year 1977. However, these visas were not
allocated as all visa demand by non-Mexican Western
Hemisphere visa applicants had been satisfied. Further,
the outstanding Mexican demand was not satisfied as
the 20,000 limit on Mexican immigration was reached,
due to the charging of the 14,203 special immigrant
visas to this limit. Absent the charging of these special
immigrant visas to the 20,000 limit, the 13,366 unused
visas would have been allocated to Mexican visa
applicants.
4 Fiscal year 1977 extended from October 1, 1976, to
September 30, 1977.
8
5. The named Plaintiffs in this action are visa
applicants qualified for consideration for preference
visas under the 1976 Amendments, and their sponsoring
U.S. citizen and permanent resident alien relatives
(referred to collectively as the “visa applicants”). On
March 29, 1978, they sued the government, claiming
that the government’s application of the 20,000 limit on
Mexican preference immigration to the special im-
migrant visas issued in the three months of the fiscal
year prior to the effective date of the 1976 Amendments
unlawfully reduced Mexican preference immigration
authorized by Congress for fiscal year 1977 by 13,366
visas. The visa applicants further claimed that the
statute required the 20,000 limit to be applied only to
the preference visas issued in fiscal year 1977, all of
which were issued subsequent to January 1, 1977. This
prospective interpretation of the 1976 Amendments
would permit the full allocation of the 13,366 unissued
visas to Mexican visa applicants.
6. The District Court:
(a) Certified a class consisting of Mexican visa
applicants and their sponsoring relatives and subse-
quently granted partial summary judgment in
favor of the visa applicants.
(b) Ruled that the government unlawfully re-
duced the level of Mexican preference immigration
in fiscal year 1977 by charging the visas issued in
fiscal year 1977 before the effective date of the 1976
Amendments to the Mexican quota on preference
visas implemented by the 1976 Amendments.
Memorandum Decision of May 18, 1979, p. 32a, infra.
Accordingly, it determined that the 13,366 visas
authorized by Congress for use in fiscal year 1977
were available to be allocated to the waiting Mex-
3
ican preference visa applicants. However, the dis-
trict court decided that since the 20,000 quota only
applied to nine months of fiscal year 1977, only a
pro rata share of the 20,000 limit should be avail-
able, or 15,000 preference visas. As 5,435 preference
visas were already issued, 9,565 remained to be al-
located. Id., p. 33a, infra.
(e) Certified two subelasses, for the purpose of
relief, to be represented by separate counsel. Memo-
randum Decision of September 17, 1979, pp. 66a-70a,
infra. This division recognized that there were more
waiting visa applicants than visas available under
the district court’s decision, and thus that the two
subclasses might have competing claims for the
limited pool of visas. Memorandum Decision of May
18, 1979, pp. 25a-27a, infra.
(d) Entered a Final Judgment providing for the
issuance of the 9,565 preference visas to the two
subclasses. Amended Final Judgment Order, dated
March 14, 1980, pp. 58a-56a, infra. The district court
also issued a Permanent Injunction that allowed those
members of the subclasses previously identified as
likely to be considered for these 9,565 visas to re-
main in the United States until they were processed
for visas. Permanent Injunction dated February 27,
1980, pp. 48a-52a, infra.
6. On March 10, 1981, the Seventh Circuit reversed
the judgment of the district court, ruling that the
special immigrant visas issued prior to January 1, 1977,
were chargeable to the 20,000 limit even though these
visas were not preference visas. p. 13a, infra.
W 1
REASONS FOR ALLOWANCE OF THE WRIT
THE GOVERNMENT'S FAILURE TO ALLOCATE
13,366 VISAS AUTHORIZED BY CONGRESS UNDER
THE IMMIGRATION AND NATIONALITY ACT RAISES
AN IMPORTANT QUESTION OF STATUTORY CON-
STRUCTION WHICH HAS NOT BEEN, BUT SHOULD
BE, RESOLVED BY THIS COURT.
A. The Government's Failure To Allocate 13,366 Visas
So Substantially Affects Such A Large Group Of
Persons Seeking Lawful Residence In The United
States As To Render The Question Important.
This case presents this Court with the opportunity to
examine, for the first time, the visa processing system.
The specific que, on raised is an important one in two
respects, First, if the Court of Appeals’ decision is al-
lowed to stand, a substantial number of visa processing
opportunities will be lost. This Court has previously
recognized that a decision affecting a sizeable class may
signify an important case in the immigration context.
See Rogers v. Quan, 357 U.S. 193, 194 (1958), Bridges v.
Wixon, 326 U.S. 135, 146, 166 (1945). See also Securities
and Exchange Commission v. Capital Gains Research
Bureau, 375 U.S. 180, 185 (1963); Patterson v. Lamb, 329
U.S. 589, 541 (1947).
Second, the rights and values at issue here are es-
pecially important. The visas involved here confer
lawful permanent resident status to aliens, i.e., the
opportunity for permanent reunification with close
family members, gainful employment in the United
States, and the possibility of acquiring United States
citizenship. See Certain Named and Unnamed Non-
Citizen Children and Their Parents v. Teras, US.
othe , 65 L. Ed. 2d 1151, 1156-1157 (1980) (Powell, J., in
chambers).
pallies
B. Under The 1976 Amendments To The Immigration
And Nationality Act Only Visas Issued After January
1, 1977, Should Have n — 3. The
20,000 Mexican Preference Limit And The Govern-
ment Should Have Allocated The 13,366 Visas Not
—— In Fiscal Year 1977 To Mexican Visa Ap-
plicants.
Two statutory provisions govern this case. The first
concerns the 20,000 per country limit on preference im-
migration. The 20,000 per country limit is expressly and
exclusively linked to the issuance of preference visas:
. . the total number of immigrant visas and the
number of conditional entries made available to
natives of any single foreign state under paragraphs
(1) through (8) of section 1153(a) of the title [i.e., the
categories under the preference 75 shall not
exceed 20,000 in any fiscal year. 8 U.S.C. §1152(a)
(1976) as amended, Act of March 17, 1980, Pub. L.
pe Title II. §203(b), 94 Stat. 107. (Emphasis
The second provision is the one declaring the effective
date of the imposition of the preference system, with its
20,000 ceiling, on the Western Hemisphere:
The foregoing provisions of this Act, including the
amendments made by such provisions, shall become
effective on the first day of the first month which
begins more than sixty 4 after the date of enact-
ment of the Act. §10 of the 1976 Amendments, 90
Stat. 2707. (Emphasis added).
As the 1976 Amendments were enacted on October 20,
1976, they became effective in their entirety on January
1, 1977. See 8 U.S.C. §1101 note.
The government treated the first provision as a broad
fiscal year quota, limiting more than the preference im-
migration to which it refers. The government charged
all visas issued to Mexican nationals in fiscal year 1977
against the Mexican 20,000 limit, even though only some
are
5,465 of these visas were preference visas. The remain-
ing 14,203 special immigrant visas had been issued in
fiscal year 1977, but prior to the effective date of the
1976 Amendments and pursuant to the statutory author-
ization of the 1965 Amendments governing Western
Hemisphere immigration. See §21(e) of the 1965 Amend-
ments, 79 Stat. 921. The 13,366 preference visas not
issued in fiscal year 1977 would have been issued to
Mexican visa applicants, but for the charging of the
special immigrant visas to the 20,000 lim‘t on Mexican
preference immigration.
Whether read in conjunction or separately, the two
statutory provisions mandate an alternative interpreta-
tion from the one the government adopted and the Court
of Appeals accepted. The 20,000 limit on Mexican im-
migration was a limit on preference immigration; it did
not apply to special immigrant visa issuances. Moreover,
the preference system became effective on January 1,
1977. Thus, the 20,000 Mexican limit also became effec-
tive on January 1, 1977. Prior visa issuance patterns
during the first three months of fiscal year 1977 were of
no consequence to the proper implementation of these
two provisions of the 1976 Amendments.
The Court of Appeals justified the government’s inter-
pretation of the two provisions, asserting that the legisla-
tive history indicated Congress intended to impose the
20,000 limit on preference immigration at the beginning
of the fiscal year. Congress’ failure to actually provide
for this result in the statute is ascribed to inadvertence.
pp. lla, 13a, infra. A careful reading of the legislative
history demonstrates that this conclusion is without any
foundation.
The Court of Appeals’ decision treats the 20,000 per
country limit as an independent provision of the 1976
Amendments, which can be understood and applied
ey a
without any consideration of the other provisions of the
immigration laws. In this context, the decision views the
20,000 limit as a blanket prohibition against issuance of
more than 20,000 visas of any kind to a single country in
fiscal year 1977. This analysis disregards the clear con-
gressional purpose of favoring the immigration of
preference visa applicants up to a per country limit of
20,000 preference visas.
The 1976 Amendments were intended to facilitate im-
migration by relatives of United States citizens and per-
manent resident aliens and conform the Western
Hemisphere visa issuance process with the preference
system then governing Eastern Hemisphere immigra-
tion. H. Rep. No. 94-1553 on H.R. 14535, H. Comm. on
the Judiciary, 94th Cong., 2d Sess. 1 (1976) (“1976 House
Report”) as reprinted in [1976] U.S. Code Cong. and
Adm. News, 6078, 6081. The 20,000 ceiling on preference
immigration placed all countries on an equal footing in
competing for the limited pool of preference visas,
thereby abolishing any considerations of national origin
in the «wiamigration system. Instead, the law would
provide for prospective uniform treatment among
Western Hemisphere countries. Id. at 6081.
The pur of this bill is to eliminate inequities in
existing law re 4. — admission of immigrants
from countries in the Western Hemisphere. Toward
this end, it extends to the Western Hemisphere the
seven-category preference system (with minor
modifications), the 20,000 per country limit, and the
provisions for adjustment of status currently in
any for Eastern Hemisphere countries. Id., at
Congress also expressed concern about the extended
backlog of Western Hemisphere visa applicants, char-
acterizing the long waiting list and delays as “unfore-
— Bi
seen and unintended” results of the 1965 Amendments.
1976 House Report, at 6074, 6075.5 Congress sought
through the imposition of the preference system with
its per country limits to reduce the backlog and expedite
the reuniting of families. Id., at 6076, 6078, 6079.
Numerous other references in the legislative history
support this general proposition, i.e., that the goals of
uniform treatment and facilitation of reunification of
families were to be achieved by tying the 20,000 limit to
preference immigration. See 1976 House Report, at 6075-
6077, 6079, and 6085. Neither the government nor the
Court of Appeals cites a single contrary suggestion in
the legislative history. There is no such suggestion.
The application of the 20,000 ceiling to visa issuances
in the three months of the fiscal year prior to the im-
plementation of the preference system in fact restricted
opportunities for Mexican preference visa applicants
with close familial ties to United States citizens and
permanent residents. Moreover, the government’s inter-
pretation did not aid any non-Mexican preference ap-
plicants in obtaining visas, as all non-Mexican prefer-
ence visa demand was satisfied. Thus, the undue limita-
tion on Mexican immigration did not foster higher levels
of immigration from other Western Hemisphere coun-
tries.
5 The Court of Appeals makes the bald assertion that Con-
was unaware of the large Western Hemisphere waiting
ist. p. 12a, infra. The passage quoted here and another
found in the 1976 House Report at p. 6073 clearly indicate
that Con was not only aware, but also troubled by, the
waiting list problem.
a
Absent any benefit to non-Mexican visa applicants, the
Court of Appeals nonetheless seemed concerned with the
possibility that Mexico would receive a disproportionate
share of visas in fiscal year 1977 under either the visa
applicants’ or the district court’s interpretation. See p.
lla, infra. This concern is based on a misreading of
the legislative indicators.
First, Congress was well aware that Mexico had
the highest level of visa demand among Western
Hemisphere countries under the prior immigration
system.“ Nothing in the legislative history suggests that
the changes in the 1976 Amendments would preclude
Mexico from continuing to have the highest volume of
immigration in the Western Hemisphere.’
Second, Congress knew that high visa demand had a
direct impact on the relative distribution of visas among
countries governed by a hemispheric preference system.
In 1965, the Department of State had told Congress that
implementation of the Eastern Hemisphere preference
system would result in some oversubscribed countries
and other undersubscribed countries, leading to much
Between 1968 and 1976, Mexico experienced the highest
visa demand in the Western 2 psn Approximately for-
ty percent of each year’s Western Hemisphere quota (45,000
visas) was used by Mexican visa applicants. Congress con-
sidered permitting Mexico and Canada to have a ceiling of
35,000 visas under the 1976 Amendments, but re this
approach in favor of a system that eliminated consideration of
national origin or geographic proximity to the United States.
1976 House Report, at 6081.
The Seventh Circuit recognized this fact in Silva v. Be
605 F. 2d 978, 981 (7th Cir. 1979). N
higher issuances to the oversubscribed countries.“ Con-
gress evidenced no concern in 1965, nor in 1976, that
preference visas would be distributed to the various
countries in a hemisphere in accordance with the rela-
tive size of demand, rather than by some principle of
strict numerical equality.
Third, there was every reason to make the 13,366
preference visas available to Mexican nationals, once it
became apparent that the visas would not be needed by
non-Mexicans. Issuance of the 13,366 visas contributed
to the goals of family reunification and reduction of the
waiting list, without infringing on the rights of any non-
Mexican visa applicants.
The legislative history also clearly indicates the
reason Congress adopted a delayed implementation date.
The proposed amendments, on their face, provided for a
sixty-day delay in implementation to allow lead time for
setting up the preference system in the Western
Hemisphere. Both the Department of Justice and the
Departmert of State expressly approved of a delayed
implementation date, and in fact requested a ninety-day
delay. See Letter of Robert J. McCloskey, Assistant
Secretary of Congressional Relations, Department of
State, dated September 22, 1975; Letter of Michael
Ullmann, Assistant Attorney General, dated May 3,
1976, 1976 House Report, at 6092 and 6099.
The nationals of other countries which have been over-
subscribed will have al had on file applications and
therefore they will get the larger bulk of the numbers
This will last only for a period of 2 to 3 years and after that
point, everyone will be on an ee N Testimony of
arbara Watson, Acting Administrator, Bureau of Security
and Consular Affairs, Department of State, Hearings on the
Operation of the Immigration and Nationality Act as amended
| the Act of October 3, 1965 before Subcommittee No. 1 of the
5 (8887 on the Judiciary, 90th Cong., 2nd Sess. Ser. 23, at
2
There is thus absolutely no support in the legislative
history for the implementation of the 20,000 ceiling at
the start of the fiscal year (October 1, 1976). Rather,
every legislative indication supports the conelusion that
Congress authorized up to 20,000 preference visas to
de made available to Mexican visa applicants in the
nine months of fiscal year 1977 to which the prefer-
ence system was applicable. Thus, the 13,366 visas
should properly have been allocated to Mexican visa
applicants.®
In light of the clear expressions of legislative intent
cited above, the Court of Appeals’ characterization of
Congress’ failure to implement the 20,000 limit at the
start of the fiscal year as due to “inadvertence” is base-
less. See pp. lla, 18a, infra. Congress knew how to tie
a quota provision to a fiscal year when it wanted to ac-
® There is ample support for the general proposition that the
full number of visas authorized should be issued, given suf-
ficient demand.
Based upon .. . estimated —— 1 — demand, the Depart-
ment of Btate will allocate requested numbers to the ex-
tent of their availability ... S. Rep. No. 748 on H.R. 2580,
S. Comm. on the Judicia 89th Cong., ist Sess., U.S. Code
ane & Admin. News, ry 89 3338 (1965). (Emphasis add-
The goversesent shared this understanding.
“It has always been . . the view of the Visa Office that
5 5 of the numerical limitations on im-
igration by the Congress had two significances: the
—— ily] expressed one that immigration should not
exceed the 1 tations established, but also an intent on
the part of the Congress that immigration actually be
allowed up to hoes limits if the demand existed for it, and
that that imposed on us some obligations to „process up to
those limits when the demand existed for it.” 1978 Deposi-
tion of Cornelius D. Scully, III, at II-20, pp. 71a-72a,
infra.
See Silva v. 605 F.2d at 988. See also Train v. City of
New York, 420 U.S. 35 (1975).
dort, | TS
complish such a result. Six months prior to considera-
tion of the 1976 Amendments, Congress had adjusted the
Western Hemisphere quota to accommodate a change in
federal fiscal years generally that resulted in a fifteen
month fiscal year. The Fiscal Year Transition Act raised
the 120,000 quota to 150,000 for that extended year.
§118 of the Fiscal Year Transition Act, 90 Stat. 383, 389
(April 21, 1976). Similarly, in the 1980 Amendments to
the Immigration and Nationality Act, which took effect
in the middle of fiscal year 1980, Congress specifically
provided that the Amendments “. . . shall apply to fiscal
years beginning with the fiscal year beginning October
1, 1979.” Title II, §204(a) of the Act of March 7, 1980,
Pub. L. 96-212, 94 Stat. 102, 108. Congress further
provided for different effective dates for various
provisions of the 1980 Amendments. Id., at §204(b).
The regulation of the flow of immigration is an area
in which Congress exercises plenary power. See Fiallo v.
Bell, 430 U.S. 787, 792 (1977); Kleindienst v. Mandel,
408 U.S. 753, 765-766 (1972); Galvan v. Press, 347 U.S.
522, 531 (1954). As a result, this Court has shown ex-
treme deference to the Congressional mandate in the im-
migration area, Id., and this Court should be especially
reluctant to sanction the Court of Appeals’ departure
from the literal command of the 1976 Amendments.
Adherence to this clear statutory direction is especially
important when nothing in the legislative history sup-
ports the charging of visas issued prior to implementa-
tion of the preference system to the 20,000 limit on
preference visas. Rather, the plain meaning of the 20,-
000 limit and implementation provisions of the 1976
Amendments was consistent with the expressed goals of
family reunification and uniform treatment. By aban-
doning the statutory language in order to advance
a=] 7—
an alternative scheme for implementing the 20,000
limit, the Court of Appeals frustrated the central goals
of the new immigration system Congress enacted and
denied thousands of Mexican visa applicants oppor-
tunities to immigrate to the United States.
CONCLUSION
The writ of certiorari requested should be issued.
Respectfully submitted,
BRUCE L. GOLDSMITH
ROBERT E. LEHRER 8 of Record)
KRISTINE POPLAWSK
Legal Assistance 8 of Chicago
343 South Dearborn Street
Chicago, Illinois 60604
(312) 341-9180
KALMAN RESNICK
Jacobs, Burns, Sugarman & Orlove
201 N. Wells Street, Suite 1900
Chicago, Illinois 60606
RANDALL SCHMIDT
Mandel Legal Aid Clinic
6020 S. University Averue
Chicago, Illinois 60637
JOEL SPRAYREGEN
Aaron, 8 a Rusnak,
Deutsch & Gilbe
55 West Monroe “Street
Chicago, Illinois 60603
Counsel for Petitioners
APPENDICES
—la—
5 APPENDIX “A”
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Nos. 80-1590, 80-1680 and 80-1681
IMELDA CONTRERAS DE AVILIA, FIDEL OCAMPOOCAMPO,
CANDELARIO ESCOBAR DE OCAMPO, et al.,
Plaintiffs-A ppellees
and Cross-Appellants,
5
BENJAMIN CIVILETTI, et al.,
Defendants-A ppellants
and Cross-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 78 C 1166—Prentice H. Marshall, Judge.
ARGUED DECEMBER 4, 1980—-DECIDED MARCH 10, 1981
Before CUMMINGS and Woop, Circuit Judges, and
BARTELS, Senior District Judge.*
BARTELS, District Judge. This is an appeal by the
United States Government and by the plaintiffs, a group
of Mexican visa applicants, from an amended final order
and permanent injunction against the application by the
State De ment of its interpretation of the Immigra-
tion and Nationality Act Amendments of 1976, P.L. No.
* The Honorable John R. Bartels, Senior United States
District Judge for the Eastern District of New York, sitting
by designation.
—2a—
94-571, 90 Stat. 2703-2707, amending 8 U.S.C. §§ 1101 et
seq. (“the 1976 amendments”).
The 1976 amendments imposed a limitation of 20,000
per fiscal year on immigration from any Western
emisphere country.' The government's fiscal year runs
from October 1 to September 30, but the 1976
amendments did not become effective until et 1
1977, after one full quarter of fiscal year 1977 had
expired. During that first quarter, 14,203 visas were
issued to Mexicans pursuant to the immigration system
which prevailed in the Western Hemisphere before the
new law became effective. The State Department never-
theless charged those visas against the newly-imposed
national quota of 20,000, leaving only 5797 visas
available for Mexican immigrants between January 1
and d 30. 1977, of which 5435 were actually
issued.
A group of Mexican visa applicants and their
sponsoring relatives (“the applicants”) filed a class
action in the United States District Court for the
Northern District of Illinois, claiming that the State
Department's“ application of the per country quota
resulted in an underallocation of visas to them in fiscal
ear 1977, in that the first quarter visas should not
ave been charged against Mexico’s annual allotment.
The applicants sought “recapture” of 13,366 unissued
visas for the benefit of class members currently on the
immigrant waiting list.
The Western Hemisphere is defined as North America
(including Central ae. South America and adjacent
islands. C. F. R. § 42.1 (1980).
As a result of procedures in the visa issuance system not at
issue here, actual issuances do not always match the
authorized level of allocation.
Named as defendants in this action are the United States
Department of State, the Secretary of State, the Department
of Justice and the Attorney General, the immigration and
Naturalization Service and its commissioner. In the discus-
sion, however, only the State Department, whose policy has
given rise to this lawsuit, will be mentioned.
—3a—
The district court held that the State Department
should not have charged, against the 20,000 limitation,
visas issued in the Western Hemisphere prior to the
effective date of the 1976 amendments, January 1, 1977,
and that the quota should have been applied pro rata to
the three quarters of fiscal year remaining after that
date. Under this construction 15,000 visas should have
been issued to Mexicans between January 1 and the end
of the fiscal year on September 30, 1977. Accordingly,
the trial judge ordered the recapture of 9565‘ visas for
the benefit of the plaintiff class. Since there were
conflicting interests among the applicants as to the
proper allocation of recaptured visas, the qudge certified
two subclasses to argue this issue.“ He adopted a
4 The district court allocated 15,000 visas to Mexicans from
January 1 to September 30, 1977, but the State Department
actually issued only 5435 visas to Mexicans during this
period. The difference between the two figures is 9565.
5 The first subclass consisted of “preference” applicants, and
was defined to include:
All current 1 immigrant visa applicants who are
natives of Mexico, and all United tes citizens or
permanent residents who are relatives of those Mexican
visa applicants who established their entitlement to
3 status on the basis of such familial relation-
ips.
The second subclass consisted of non- preference“ ap-
plicants, and was defined to include:
All current 822 immigrant visa applicants who
are natives of Mexico, and all United States citizens or
permanent residents who are relatives of those Mexican
visa applicants who established their entitlement to non-
8 status on the basis of such familial relation-
ips.
The terms “preference status” and (non- preference status“
refer to the visa applicant’s entitlement, or non-entitlement to
a preference under the eight ca ry system provided for
al n of visas in section 1153(a) of the Immigration and
Nationality Act, See note 7, infra, and accompanying text.
The two subclasses had adversary interests in the relief
ordered because any visas recaptured would have to be
allocated in accordance with section 1153(a).
—da—
formule for allocation of the recaptured visas, and
ordered injunctive relief providing, inter alia, that
applicants in this country who were likely to receive
visas pursuant to the court’s decision could not be
deported pending their issuance. All parties have
appealed, seeking reversal of all or part of the district
court’s disposition of the case. We are required to
interpret a statute which, because of its effective date of
January 1, 1977, purporting to cover the fiscal year
beginning October 1, 1976, has created an ambiguous
gap as to the application of visas issued before January
1, 1977 against the limitation of 20,000.
Immigration System Prior to the 1976 Amendments
To understand the action of the State Department and
its adoption of the challenged construction of the 20,000
per country limit, it is necessary to 1 the
context of the problem through a brief history of the
n of the Immigration and Nationality Act, 8
S.C. §§ 1101 et . (“the Act”) both before and
immediately after® the effective date of the 1976
amendments thereto, January 1, 1977. Prior to that date,
immigration to this country was Ft gry 8 b
the Act of October 8, 1965, 79 Stat. 911-922 (“the
amendments”) which amended the basic Immigration
and Nationality Act of 1952. Under the 1965 amend-
ments what amounted to a dual sytem applied to
immigration from the Eastern and Western Hemi-
spheres respectively.
Immigration from the East was subject to an overall
annual limitation of 170,000, 8 U.S.C. § 1151(a) (1970),
while the annual 8 quota from the Western
Hemisphere was 120,000. Section 21) of the 1965
amendments. The law also accorded different pref-
erences to eight categories of Eastern Hemisphere visa
applicants according to their familial relationship with
nited States citizens or permanent residents, posses-
The Immigration and Nationality Act has been further
amended since 1976, effecting changes not here germane.
0
sion of certain professional skills, or refu status. 8
U.S.C. § 1153(a)(1)-(8).? Each of seven so-called prefer-
ence” categories was allocated a percentage of the
overall hemispheric quota, and those preferences based
on family ties to United States citizens or permanent
residents were also entitled to unused visas from a
higher category. The eighth, so-called “non-preference”
category received only visas unused by the seven
reference groups. In addition to the 170,000 limit on
mmigration from the Eastern Hemisphere as a whole,
the 1965 amendments provided that the number of
immigrants from any Eastern country not exceed 20,000
per fiscal year. 8 U.S.C. § 1152(a) (1970).
The provisions governing immigration from Western
Hemisphere nations were markedly different from those
in effect with respect to the rest of the world. Although
immigration from this hemisphere was limited to 120,-
000 per fiscal year, this limitation was not incorporated
into the Immigration and Nationality Act itself.
Moreover, Western Hemisphere immigrants were defined
’ Paraphrased, the preference categories set out in 8 U.S.C.
§ 1153(a) are as follows:
(1) unmarried children of United States citizens: 20%;
(2) spouses and unmarried children of permanent
residents: 20%, plus any unused visas from category (1);
(8) “members of the professions, or [those] who because
of their exceptional ability in the sciences or the arts will
substantially benefit 9 the national economy
cultural interests, or welfare of the United States“ and
whose services are sought by a United States em-
ployer: 10%;
(4) married children of United States citizens: 10%
plus any unused visas from preferences (1)-(3);
(5) siblings of United States citizens over twenty-one
years old: 24%, plus unused visas from categories (1)-(4);
(6) immigrants capable of performing certain jobs for
which a shortage of labor exists in this country: 10%;
(7) conditional entries made available to refugees by
the Attorney General: 6%;
(8) residual ca {non-preference]: unused visas
from preferences (1 7}.
—6a—
as “special immigrants”, 8 U.S.C. § 1101(aX27) (1970),
and were not subject to any annual per country
quota. 8 U.S.C. § 1153(a) (1970). In the absence of such a
limitation, Mexico annually accounted for 40-45,000 im-
migrants per year, or upwards of a third of the overall
hemispheric quota.
The eight category preference system set out in sec-
tion 118 la) of the Act did not apply to Western
Hemisphere visa n either. Instead, such
applicants were required to obtain a labor certification
from the United States Secretary of Labor, or show ex-
emption from this N based on certain familial
e N to Uni States citizens or permanent
residents. 8 U.S.C, S118 ga 14) (1970). Congress did not
establish a system for processing special penn teranits
and the State Department administratively established
the policy of processing such visa applicants in strict
chronological order according to the “priority date” on
which they had either obtained a labor certification or
submitted documentation showing exemption therefrom.
22 C. F. R. §§ 42.62, 42.63 (1975).
Changes by the 1976 Amendments
The Immigration and Nationality Act Amendments of
1976 N a number of changes in the Act. In effect,
the special legislation that had governed the Western
Hemisphere was repealed, and Western Hemisphere im-
migrants were made subject to the same pees» She a
system that had governed the rest of the world since
1965. The most significant change that the 1976
amendments accomplished was the imposition on the
Western Hemisphere of the 20,000 limitation on im-
migration from any one country and along with it the
elf t category, preference system theretofore applicable
only in the Eastern Hemisphere.’ While the 120,000
* A savings clause provided that those on immigration
waiting lists as of the effective date of the 1976 amendments
would treated as lowest priority, “non-preference” appli-
cants under the amended Act, with the right to show
(Footnote continued on following page)
—74—
Western Hemispheric quota remained in effect, section
1152(a) of the Act, now applicable to buth hemispheres,
provided that:
[T}he total number of immigrant visas . . . made
available to natives of any single foreign nation un-
der paragraphs (1) through (8) of section 1153(a) of
this title shall not exceed 20,000 in any fiscal year.
8 U.S.C. § 1152(a) (1976) (emphasis added).
This dispute arises from the fact that section 1152(a)
did not indicate whether visas issued to special im-
migrants in the first quarter of fiscal year 1977 were to
be counted towards the 20,000 quota. The 14,203 visas
issued to Mexicans in that time had clearly not been
“made available ... under... section 1153(a)” as that
rovision was not yet in effect with respect to the
estern Hemisphere. The State Department
nevertheless adopted a policy (the “cross-systems charg-
ing policy”) of counting the first quarter visas towards
each Western Hemisphere country’s national quota. As a
result, only 5797 visas were allocated to Mexico in the
final three quarters of the fiscal year, of which onl
5435 were actually issued. Due to administrative dif-
ficulties in implementing the new system in the first
ear of its operation, actual visa issuances in the
estern Hemisphere in fiscal year 1977 fell short by
13,366 of the hemispheric quota. It was these unissued
4 5 that the plaintiffs sought to recapture in their law-
suit.
Discussion
The imposition on Western Hemisphere countries
after the beginning of the fiscal year of a quota
manifestly intended to apply on a full fiscal-year basis
created an ambiguity in the Act as to visas issued in the
first quarter of fiscal year 1977. As the district court
* continued
entitlement to a higher preference. Section b) of the
Aer en and Nationality Act Amendments of 1976
1
noted in its opinion, three solutions to this ambiguity are
possible. The approach adopted by the State Department
was to charge all visas issued in the fiscal year against
the quota, despite the absence of an explicit mandate for
doing so. The plaintiffs, on the other hand, advocate giv-
ing no effect at all to the quota with respect to the first
quarter of the fiscal year. In their view, a full 20,000
visas should have been issued to Mexicans in the last
three quarters of fiscal year 1977. The third resolution,
and the one adopted by the district court, was to apply
the 20,000 quota on a pro rata basis over the portion of
fiscal year 1977 during which the 1976 amendments
were effective, so that % of 20,000, or 15,000 visas would
be allocated to Mexicans during the last three quarters
of the fiscal year.
In choosing among these different hog it
becomes necessary to ascertain and _ effectuate the
. „ purpose in enacting the 1976 amendments.
ilbrook v. Glodgett, 421 U.S. 707 (1975). To that end, it
is important to note that the interpretation of the State
Department, the agency statutorily entrusted with ad-
ministration of the Immigration and Nationality Act, 8
U.S.C. § 1104, is entitled to substantial deference, Quern
v. Mandley, 436 U.S. 725, 738 (1978), and should be
followed “unless there are compelling indications that it
is wrong.” New York State Department of Social Services
v. Dublino, 413 U.S. 405, 421 (1973 (quoting Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969)).
With these principles in mind, we examine the validity
of the three possible interpretations.
The State Department’s responsibili for ad-
ministering the Immigration and Nationality Act in-
cludes the provisions relating to numerical limitations
on immigration. 8 U.S.C. §§ 1104, 1152(b)&(d), 1153(e).
In construing its obligations the State Department relies
primarily on the legislative history of the 1976 amend-
ments to support its cross-systems 1 ome
It is clear from the following language in House Report
No. 94-1553, which accompanied the bill, that Congress
intended to eliminate disparities in immigration matters
among Western Hemisphere countries and between the
—9Ja—
Ar- hemispheres, ensuring that all nations be treated
alike:
During the 94th Congress, a general consensus
has been reached that the 20,000 per country limit
should be extended to all countries of the world, in-
cluding those phically contiguous to the
United States. Such a provision is included in the
Administration’s immigration bill. H.R. 10323, in
contrast to Administration support during the 93rd
Congress of a 35,000 allotment for the contiguous
countries
The decision by this Committee to limit all coun-
tries to 20,000 has been based primarily on the
desire that this legislation mark the final end of an
immigrant quota system based on nationality,
whether the rationale behind it be the alleged
national origins of our citizenry, as it was in the
past, or geographical proximity—the argument
reviously advanced for preferential treatment of
Canada and Mexico. The proposed legislation re-
jects the concept of a “special relationship” between
this country and certain other countries as a basis
for our immigration law, in favor of a uniform
treatment for all countries.
A No. 94-1553, 94th Cong., 2d Sess. 8-9, reprinted
in [1976] U.S. Code Cong. & Adm. News 6080-81.
_In considering an earlier bill to amend the Immigra-
tion and Nationality Act, the House rejected a provision
giving Mexico a 35,000 annual limitation, as 8 to
the generally 3 20,000 limit. 119 Cong. Rec.
31456.64. The State Department thus argues that it
would have violated the clearly-expressed Congressional
intent that immigration from no country exceed 20,000
r year, if it had allocated more than 5797 visas to
exicans in the final three quarters of fiscal year 1977.
The plaintiffs, in support of their position, cite the
plain language of section 1152(a), which limits to 20,000
575 ear only those visas issued pursuant to section
15940), They point out that the 14,304 visas issued
to Mexicans in the first quarter of fiscal year 1977
—10a—
were not made available pursuant to section 1153(a), as
that provision was not in effect until January 1, 1977,
after the first quarter of the fiscal year had expired. In-
voking the maxim of statutory interpretation expressio
unius est exclusio alterius, they contend that by men-
tioning only visas issued pursuant to § 1153(a), Congress
meant to exclude from the 20,000 quota visas issued un-
der the pre-1976 amendments system. They further con-
tend that the State Department's cross-systems charging
policy gave retroactive effect to the quota by applying it
to visas issued before its effective date, interfering with
their “settled expectations” and “antecedent rights” to
the issuance of visas. Citing settled immigration practice
that numerical limits on visa issuance are also man-
datory levels that must be reached, Silva v. Bell, 605
F.2d 978, 988 (7th Cir. 1979), the applicants claim that
they were entitled to the issuance of a full 20,000 visas
in that portion of fiscal year 1977 during which the 1976
amendments were in effect.
The district court held that the State Department's in-
terpretation of the 1976 amendments was “both un-
reasonable and contrary to Congressional intent”, stress-
ing that the 14,203 visas issued to Mexicans in the first
quarter of fiscal year 1977 were not required by the
literal language of section 1152(a) to be counted towards
the national quotas. The district court reasoned that
the quota applied only to those visas “made available”
under the preference system as applied to Western
Hemisphere immigrants for the first time on January 1,
1977, and thus did not include visas issued between Oc-
tober 1, 1976 and December 31, 1976. Acknowledgin
that the 1976 amendments’ legislative history indica
Congress’ desire to limit all countries to 20,000 visas an-
nually, the court concluded that this objective had no
effect prior to the amendments’ effective date, January
1, 1977. In its view, the cross-systems charging policy
amounted to an impermissible retroactive application of
the quota.
The district judge thus agreed with the plaintiffs that
the State Department’s application of the 1976
amendments was unlawful. Unlike the applicants,
—lla—
however, the judge, in his construction of the Act, did
take account of the fact that one quarter of the fiscal
year had elapsed when the 1976 amendments became
effective. He noted that section 2 of the 1976
amendments, 8 U.S.C. § 115l(a), provided that visa
issuance should proceed at a more or less uniform rate
over the course of the year,’ and concluded that issuing
a full year’s quota to Mexicans in the final three
uarters of fiscal year 1977 would constitute preferen-
tial treatment by allowing them to immigrate at a rate
faster than that enjoyed by immigrants from other coun-
tries. The trial court held that the proper application of
the 20,000 quota was to prorate it over the final three
uarters of the fiscal year, and decided that members of
the plaintiff class were entitled to 9565 additional visas.
While the district court’s pro rata approach is a more
plausible interpretation of the statute than the
applicants’, neither interpretation justifies the conclu-
sion that the State Department’s cross-systems charging
policy was unreasonable. Indeed, the applicant’s pro-
construction is the poorest choice because it ignores
the legislative history altogether. Plaintiffs and the dis-
trict court were too prone to conclude that Congress’
failure to refer to “special immigrant” visas in imposin
the 20,000 limitation indicated its intention that suc
visas not be counted towards the fiscal year quota. Their
argument assumes that Congress considered and re-
jected the option of counting those visas, Tri-State Ter-
minals, Inc. . Jesse, 596 F.2d 752, 755 n.2 (7th Cir.
1979), an assumption which is untenable in this case.
It is, however, obvious that Congress in the 1976
amendments through inadvertence failed to inform the
State Department how to administer during a fraction
® Section 1151(a) of the Act in effect provides that visas are
not to be issued at a rate exceeding approximately one
quarter of the hemispheric quota per quarter of the fiscal
year.
—122—
of the fiscal year a statute designed to apply on a full
fiscal year basis.“
Where the 3 of interpretation concerns a situa-
tion apparently not foreseen by the legislators, it is a
propriate to consult those areas covering the same sub-
ject where expression of the legislative intent is clear,
and extrapolate therefrom. Montana Power Co. v.
FPC, 445 F.2d 739 (D.C.Cir, 1970) (en bane), cert.
denied, 400 U.S. 1013 (1971). We believe Congress clear-
ly intended that the 1976 amendments impose the same
ceiling on immigration from all countries whether from
the Eastern or Western Hemisphere. H.R.Rep. No. 94-
1553, supra. By the time the State Department con-
fronted the problem of applying the 1976 amendments
to Western Hemisphere immigrants in mid-fiscal year, a
7 9 waiting list of applicants had developed, and it
had no reason to expect that the 120,000 hemispheric
quota would not be reached regardless of which inter-
pretation it adopted. In a situation like this, where there
were ig nd not enough visas to satisfy Western
Hemisphere demand, the State Department had to for-
mulate a policy consistent with the aim of equalizin
treatment of all countries. The approach it adopted avoid-
ed issuing more than 20,000 visas to nationals of any one
country within the fiscal year, unlike that of either
plaintiffs or the district court.
8 visas issued during the first quarter of fiscal
year 1977, before the effective date of the 1976
amendments, did not amount to a retroactive application
of the quota. Visa applicants have no vested right in the
issuance of a visa. Knauff v. Shaughnessy, 338 U.S. 537,
542 (1950); compare Greene v. United States, 376 U.S.
149, 159-60 (1964). Since the cross-systems charging
policy had no effect on visas already issued, it did not in-
terfere with the “settled expectations” of any person.
10 It is relevant to note that the provision imposing the
quota was not drafted specifically for Western Hemisphere
countries. In fact, it had been in effect with respect to the rest
of the world since 1965. It was simply extended by the 1976
amendments to the Western Hemisphere.
—13a—
The State Department’s application of the 1976
amendments is not rendered retroactive “merely because
the facts or requisites upon which its subsequent action
depends. are drawn from a time antecedent to the
ia Reynolds v. United States, 292 U.S. 433, 449
The dispute in this case arises from the gap in the
1976 amendments caused by Congress’ inadvertent
failure to require that Western Hemisphere visas issued
in the first quarter of fiscal year 1977 be charged
against the 20,000 quota. The result of such a mistake
should not be given effect when to do so would pervert
the manifest. purpose of the statute as a whole. United
States v. Brown, 333 U.S. 18, 26 (1948); In re Adamo,
619 F.2d 216, 222 (2d Cir. 1980); United States v. Bab-
cock, 580 F.2d 1051, 1053 (D.C.Cir. 1976). A literal inter-
pretation of the 1976 amendments must yield to clear
contrary evidence of Congressional intent. Natl Rail-
road Passengers Corp. v. Nat'l Assoc. of Railroad
Passengers, 414 U.S. 453 (1974); United States „.
Campos-Serrano, 404 U.S. 293, 298 (1971).
We conclude that the State Department's cross-systems
charging policy was both reasonable and consistent with
the Congressional desire to eliminate disparities in im-
migration among all countries. To give effect to that ob-
jective, it was reasonable for the State Department to
count visas issued in the first quarter of fiscal year 1977,
although they had not been “made available” under
paragraphs (1) through (8) of section 1153(a), which was
not in effect with respect to the Western Hemisphere
until January 1, 1977.
Accordingly, we hold that_the district court erred in
deciding that the State Department’s cross-systems
charging policy was unlawful. Under the circumstances,
it is unnecessary to reach the other issues on appeal.
—l4a—
The district court’s memorandum decision of May 18,
1979 is reversed, and the Amended Final Order and
Permanent Injunction are dissolved.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Senenth Cirenit
—l5a—
APPENDIX “B”
IN THE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IMELDA CONTRERAS DE AVILA, FIDEL OCAMPO-OCAMPO,
CANDELARIO ESCOBAR DE OCAMPO, et al.,
Plaintiffs,
No. 78 C 1166 v.
GRIFFIN BELL, as Attorney General of the United
States; UNITED STATES DEPARTMENT OF JUSTICE,
Cyrus VANCE, etc., et al.,
Defendants.
MEMORANDUM DECISION
In this class action for injunctive and declaratory
relief, plaintiffs, who are Mexican visa applicants and
their United States citizen or permanent resident
sponsors, claim that the State Department’s interpreta-
tion of the Immigration and Nationality Act Amend-
ments of 1976 (1976 Amendments), Pub. L. No. 94-571,
90 Stat. 2707, codified at 8 U.S.C. § 1101 et seqg., was
unlawful and a violation of plaintiffs’ due process rights.
Plaintiffs contend that the State Department’s interpre-
tation of the 1976 Amendments had the effect of
decreasing the number of permanent resident visas
available in 1977 to Mexican immigrants and they seek
declaratory and injunctive relief from the State De-
artment and the Immigration and Naturalization
ervice (INS). Jurisdiction is predicated upon 28 U.S.C.
1331, 1361 and 8 U.S.C. § 1329. The prayer for
eclaratory relief is based upon 28 U.S.C. §§ 2201, 2202.
Plaintiffs have moved for certification of three classes,
and the parties have submitted cross motions for
summary judgment.
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Compre..ension of the summary judgment and certifi-
cation motions requires a review of the procedures for
allocating permanent visas before and after the 1976
Amendments. Prior to 1977, the procedure for granting
visas was determined by the 1965 Amendments to the
Immigration and Nationality Act. Pub. L. No. 89-326, 79
Stat. 911. Immigrants from the Western Hemisphere
obtained visas as “special immigrants.” 8 U.S.C. § 1101
(aX27XA). Congress limited such immigration by impos-
ing 120,000 per year limit on visas for immigrants from
the Western Hemisphere, Pub. L. No. 89-236, § 21(e), 79
Stat. 911, 921, and by requiring immigrants to satisfy a
labor certification uirement. See 8 U.S.C. § 1182(a)
(14) (as amended). To fulfill the labor certification
requirement, an immigrant had to obtain a finding by
the Secretary of Labor that an insufficient number of
workers in the United States were able to perform the
job the immigrant intended to perform. Parents of adult
United States citizens and spouses and minor unmarried
children of United States citizens were exempt from the
120,000 quota. Pub. L. No. 89-236, § 21(e), 79 Stat. 911,
921. The 1965 Amendments also exempted from the
labor certification requirement the parents, spouses, and
unmarried minor children of either United States
citizens or aliens with permanent residence visas. /d.,
§ 10(a), 79 Stat. at 917.
To obtain a permanent visa under the 1965 Amend-
ments, an immigrant would first show the United States
consulate that he had obtained the required Department
of Labor certification or was exempt from the require-
ment. 22 C.F.R. § 42.61(a) (1976). The consulate would
then issue the immigrant a priority date and give the
applicant “immigrant status.” The immigrant would
then be placed on a waiting list, which was processed
strictly in chronological order, without regard to the
immigrant’s method of qualifying for immigrant status
or his country of origin. 22 C.F.R. § 42.63(a) (1976).
After an- immigrant’s name was selected from the
waiting list, and he was interviewed at the United
States consulate to insure that he was entitled to a visa,
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the visa was issued and the consulate issuing the visa
would inform the State Department, which would then
charge the visa against the 120,000 limit.
The 1976 Amendments to the Immigration and
Naturality Act changed this procedure for Western
Hemisphere immigrants to conform it to the procedure
already in use for Eastern a 0 U. 45 H.
Rep. No. 94-1553, 94th Cong., 2d . U.S. e Cong.
& Ad. News 6073 (1976). The 1976 Amendments
retained the 120,000 fiscal year quota established by the
1965 Amendments.' In addition, the 1976 Amendments
established a quota of 20,000 visas per country per fiscal
year for Western Hemisphere countries as was already
in effect for Eastern Hemisphere countries. 8 U.S.C.
§ 1152. Further, the new procedure provided for a series
of preferences by which the 20,000 per country quota
and the 120,000 hemispheric quota were to be allocated.
8 U.S.C. § 1153(a). The preference system, which was
already in effect for Eastern Hemisphere immigration,
rovided for seven categories of preference based on
amilial relationships to United States citizens or
permanent residents, professional skills, or refugee
status.2 Five of the seven preference categories are
1 The current statute combines the 120,000 Western Hemi-
sphere quota with the 170,000 Eastern Hemisphere quota for
a total limit on immigration of 290,000. 8 U.S.C. § 1151(a).
2 The preference categories and their respective percentage
of the 120,000 quota (now 290,000) were:
(1) Unmarried children of United States citizens: twenty
rcent.
(2) — and unmarried children of permanent resi-
dents: twenty percent and any unused visas from
reference 11
(3) Members of the professions or those who, because of
“their exceptional ability in the sciences or the arts
will substantially benefit prospectively the national
economy, cultural interests or welfare of the United
States” and whose services are sought by a United
States employer: ten percent.
(Footnote continued on following page)
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exempt from the labor certification requirement.“ Each
preference category was allocated a percentage of the
120,000 quota, which is now a 290,000 world quota, and
several are also allocated the unused visas that remain
from the preceding preference categories. An eighth
preference category, termed the “nonpreference” cate-
gory, is allocated only the residual visas not used in the
seven preference groups.
To receive a permanent visa, an immigrant first
establishes to the INS that he is qualified for a
particular preference. 8 U.S.C. § 1154(a); 22 C.F.R.
§ 42.42. The State Department then issues the im-
migrant “preference status” and a priority date. 8
U.S.C. § 1154(b); 22 C.F.R. § 42.61. The visa petition is
then sent to the United States consulate located where
the immigrant will submit a visa 8 If the
immigrant is already residing in the United States and
meets certain qualifications, he may avoid the visit to a
consulate by N to the INS for adjustment of
status.” See 8 C. F. R. § 204.3 and 8 U.S.C. § 1255. The
applications for adjustment of status receive final
interviews in the order in which the INS receives the
applications. Kramer deposition; Plaintiffs’ exhibit 1, at
15. Those immigrants who apply for permanent visas
2 continued
(4) Married children of United States citizens: ten
6055 plus any unused visas from preferences
1
3).
bing of United States citizens over twenty-one
years old: twenty-four percent plus unused visas
from preferences (1)-(4).
(6) Immi ts capable of performing specific skilled or
unskilled labor, not temporary or seasonal, for which
a shortage of such workers exists in the United
States: ten percent.
(7) Conditional entries made available by the Attorney
General to refugees: six percent.
(8) Residual category: only the unused visas from prefer-
ences (1)-(7).
See 8 U.S.C. § 1153(a).
These are preferences (1), (2), (4), (5), and (7).
(5)
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through the consulates receive interviews in the order of
their preference and in chronological order within each
preference. 8 U.S.C. § 1153(b), (c); 22 C.F.R. § 42.63.
The Secretary of State authorizes issuance of visas
based on expected demand and the availability of visas
within each country quota and within each preference.
If the full 20,000 quota has been used by a particular
country in the previous yea, the State Department
allocates each preference its s atutory percentage of the
20,000 quota. 8 U.S.C. § 1153(e). When a consulate issues
a visa or the INS adjusts a status, the State Department
charges the visa or adjustment to the applicable world,
formerly hemisphere, quota and the per country and
preference quotas. 8 U.S.C. § 1255, 22 C.F.R. § 42.64.
The hemisphere and per country quotas applied to the
fiscal year, which begins on October 1. The effective
date of the 1976 Amendments was January 1, 1977. See
Pub. L. No. 94-571, § 10, 90 Stat. 2707. Because the 1977
fiscal year was already in progress when the amend-
ments became effective, the defendants implemented the
20,000 per country quota by charging the visas issued
during the first three months of fiscal 1977 to the 20,000
limit for each country. Although the visas issued
between October 1 and December 31, 1976 were issued
pursuant to the procedure established by the 1965
Amendments, for the purposes of the 20,000 per country
limit the defendants treated these visas as eighth or
nonpreference category visas as defined by the 1976
Amendments. See 8 U.S.C. § 1153(a)(8). Thus, because
the applicants receiving visas issued during 1976 could
not have established their entitlement to a particular
preference in the as yet unborn preference system, the
State Department could pot categorize the 1976 visas
within any of the preferences except the eighth prefer-
ence residual category. Of the 26,886 visas issued to
Western Hemisphere immigrants during the period
October 1—December 31, 1976, 14,203 were issued to
Mexican immigrants. Garner deposition; Plaintiffs’ ex-
hibit 2, at 83, 88. Consequently, only 5,797 visas
remained from the 20,000 quota for Mexican im-
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migrants, and only 5,435 were actually issued. Id. at 89.
The State Department issued 106,634 Western Hemi-
sphere visas during fiscal year 1977, leaving 13,366
visas unused from the 120,000 Western Hemisphere
quota. Jd. at 83.
In March 1978, plaintiffs brought this suit alleging
that the defendants’ interpretation of the 1976 Amend-
ments was unlawful. According to plaintiffs, the 14,203
Mexican visas issued during the first three months of
fiscal 1977 should not have been charged against the
fiscal 1977 Mexican quota of 20,000. Inasmuch as only
5,435 visas were issued to Mexicans in fiscal 1977 under
the 1976 Amendments, i.e., between the January 1, 1977
effective date of the statute and October 1, 1977, and
because 13,366 visas less than the 120,000 hemispheric
quota were issued to Western Hemisphere applicants
during fiscal 1977, plaintiffs wish to recapture 13,366
visas for distribution to Mexican aliens, arguing that
even then only 18,801 Mexicans (out of a potential 20,000)
will have received visas during fiscal 1977 under the
1976 Amendments.
Class Certification
Plaintiffs wish to certify three classes. The first class
consists of natives of Mexico who prior to October 1,
1977 established priority dates under the regulations in
effect from 1968 to 1977 and who have not yet had final
visa or adjustment of status interviews. The second class
consists of all native Mexicans who are now residing in
the United States with nonpreference status or approved
or pending preference petitions who, but for the
defendants’ unlawfu! charging of the 14,203 October 1—
December 31, 1976 visas, would have been within sixty
days of receiving a visa. Class III consists of permanent
residents or United States citizens who are relatives of
members of those Class I members who established their
priority dates and preference status on the basis of such
familial relationships. Plaintiffs seek distribution of the
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recaptured visas to the members of Class I and to enjoin
the deportation of members of Class II.‘
Defendants, however, contend that we should not
certify any of these classes. Noting the general rule that
nonresident aliens have no standing to invoke the
jurisdiction of the United States courts, defendants
challenge the standing of members of Class I who are
not residents of the United States. Defendants further
contend that a conflict of interest exists among the
members of Class I which precludes representation of the
members of Class I by one counsel. Defendants perceive
a conflict arising from the peculiar nature of the transi-
tion year of 1977. Because the Western Hemisphere
preference system did not take effect until January 1,
1977, the time necessary to complete an application
under the preference system caused a lag between the
effective date of the 1976 Amendments and the receipt
of the first preference application. The flow of prefer-
ence petitions during 1977 did not approach the rate of
applications in 1978 when the application procedure was
in full gear. Therefore, according to defendants, many of
the visas issued during 1977 were issued to non-
preference aliens, because the State Department at-
tempts to issue the visas at a uniform rate from month
to month and the demand for preference petitions was
insufficient, particularly during the first part of 1977.
Forty percent of the visas issued between January 1.
1977 and October 1, 1977 were issued to nonpreference
applicants. See Garner declaration, Defendants’ exhibit
4. This pattern would have remained the same even if
the defendants had issued an additional 13,000 visas
during 1977.
Under 8 C. F. R. § 242.5(aX2){3), as amended by 43 Fed.
Reg. 29526 (July 10, 1978), an alien who has a priority date no
later than sixty days after the date shown in the latest Visa
Office bulletin representing what priority date is first on the
waiting list for a particular country and preference, and has
applied for an immigrant visa at an American consulate
which has accepted jurisdiction of the case, is granted relief
from deportation.
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Therefore defendants argue that on the one hand we
cannot distribute recaptured visas entirely according to
the statutory preference scheme because such a distribu-
tion would ignore the realities of the allocation that
would have taken place in 1977. On the other hand, we
cannot distribute the recaptured visas only to non-
preference aliens who have priority dates before October
1, 1977, because surely some preference petitions were
outstanding as of that date. Thus defendants argue that
preference aliens and nonpreference aliens have conflict-
ing interests in the allocation of any recaptured visas.
Defendants argue that Class II, composed of aliens
who would be within sixty days of receiving visas absent
defendants’ unlawful charging policy, should not be
certified because the class as plaintiffs have defined it
would not necessarily be entitled to relief from deporta-
tion under the federal regulations. Moreover, defendants
contend that at this time we cannot determine who the
members of Class II are. Finally, defendants perceive
potential conflict of interest among members of Class III
and urge us not to certify it.
Plaintiffs answer the standing argument by asserting
that nonresident aliens do have standing to challenge
governmental action which has been “committed to
agency discretion” under § 10 of the Administrative
Procedure Act, 5 U.S.C. § 702. Furthermore, plaintiffs
contend that the issue of nonresident alien standing is
irrelevant here, because if we direct defendants to
distribute withheld visas, any distribution must follow
the statutory scheme as it existed and operated in 1977,
and this distribution would necessarily benefit both
resident and nonresident aliens regardless of whether
they are all members of the class.
Plaintiffs further a that any conflict of interest is
illusory, because very few preference applicants were on
the waiting list as of October 1, 1977, and very few of
these preference petitions remain unissued today. There-
fore, the bulk of the recaptured visas should and would
be given to nonpreference aliens. Plaintiffs argue that
their definition of Class II follows the definition of aliens
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entitled to relief from deportation under the federal
regulations, and that no conflict of interest arises among
Class III members.
In ee | whether to certify Class I, we initially
note that defendants have not questioned, nor do we,
that this class is so numerous as to preclude joinder and
that questions of law or fact are common to the class.
See F. R. C. P. 23(a)(1)-(2).
We also hold that nonresident aliens have standing to
challenge the defendants’ interpretation of the 1976
Amendments. Nonresident aliens 8 of visas by
defendants’ actions have certainly suffered the “injury in
fact” required by the Constitution. See, e.g., Association
of Data Processing v. Camp, 397 U.S. 150, 152 (1970).
Courts have recognized that the general rule that non-
resident aliens have no standing to sue in United States
courts, see e.g. Johnson v. Eisentrager, 339 U.S. 763
(1950), does * apply if a specific statutory scheme
permits suits by nonaliens injured by the operation of the
statute. See Berlin Democratic Club v. Rumsfeld, 410 F.
Supp. 144 (D.D.C. 1976). Congress clearly intended the
visa distribution system to apply to United States
residents and tm oa Nonresidents and residents
are equally “aggrieved by agency action” in this case
within the meani of §10 of the Administrative
Procedure Act, whic 40 that
A person suffering — wrong because of agency
action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is
entitled to judicial review.
5 U.S.C. § 702. Both residents and nonresidents are thus
“arguably within the zone of interests to be protected or
regulated by the statute.” Assoc. of Data Processing v.
Camp, supra at 158. See Estrada v. Ahrens, 296 F.2d
690, 695 (5th Cir. 1961); Jaimez-Revolla v. Bell, Attorney
won in F. 2d (D.C. Cir., No. 77-1949, March 27,
Some courts have held that administrative decisions
affecting immigration are not reviewable. See Cobb v.
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Murrell, 386 F.2d 947 (5th Cir. 1967); Rumaharbo v.
Sec / of Labor, 390 F. Supp. 208 (D.C. C. 1975). The
legislative history of the Immigration and Nationality
Act indicates, however, that the duty to allocate visas up
to the limit of the quotas, unlike the administrative
decisions involved in the cited cases, is not “committed
to agency discretion” under § 10 of the Administrative
Procedure Act so as to preclude judicial review. See
Hearings on H.R. 2590 Before Subcomm. No. 1 of the H.
Comm. on the Judiciary, 89th Cong., Ist Sess., Ser. 7, 35
(1965); S. Rep. No. 748, 89th Cong., Ist Sess., U.S. Code
Cong. & Ad. News 3328, 3338 (1965). Thus we hold that
both residents and nonresidents have suffered identical
injury as a result of agency action, and both groups have
standing to sue.
We now turn to the remaining class certification
issues of whether the representative parties’ claims are
2 of the class claims under Rule 23(aX3), whether
the named plaintiffs will 88 represent the class
under Rule 26a (4), and whether injunctive or declara-
tory relief is shag se with respect to the class as a
whole under Rule 23(b “( 2).
If we find that the defendants unlawfully withheld
visas during 1977, these visas should have been dis-
tributed between January 1, 1977 and October 1, 1977.
Therefore the visas should now be distributed to those
visa applicants who would have received them in 1977.
This distribution would not be possible, however,
because many applicants who would have received one
of the recaptu visas have since been issued visas.
Because the withheld visas were not issued in fiscal
1977, preference applicants who had established their
entitlement to preference status before October 1, 1977
had to wait until 1978 or 1979 to receive their visas.
This meant that fewer visas were available in 1978 and
rib for preference applicants with later priority
ates.
Three possible fact situations illustrate the form that
relief might take. If the demand for preference applica-
tions had been great enough in the last nine months of
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1977 to absorb all of the visas that should have been
issued, then we would take the displacement effect caused
by the shifting waiting list into account and order the
visas distributed according to the statutory preference
scheme. Although this would have the result of issuing
visas to th who were not on the waiting list as of
October 1, 1977, the recipients of the recaptured visas
would be the persons who would now be suffering injury
from the defendants’ unlawful interpretation of the
statute.
The second possibility is that demand for preference
status visas was not great enough during the first nine
months of 1977 to absorb the additional visas. If all
preference applicants who had submitted applications
during 1977 had been issued visas in 1977, then all of
the additional visas would have gone to nonpreference
applicants. Thus, if there were enough nonpreference
applicants with 1977 or before priority dates, then the
entire lot of recaptured visas would be allocated to
nonpreference aliens.
Unfortunately, however, we apparently do not have a
situation here as simple as either of the first two.
Instead we have a third situation somewhere in between.
Some preference applicants did remain on the waiting
list as of October 1, 1977. Thus had the defendants
issued more visas during 1977, some or all of these
tg would have received visas during fiscal 1977.
en the displacement effect would have come into play,
and all preference applicants now on the waiting list
would be higher on the list and closer to receiving a
visa. Nonpreference applicants would have received the
visas remaining from the recaptured visas after the
preference demand was satisfied.
Thus, under the facts as both defendants and plaintiffs
have alleged them, any recaptured visas would go to
both nonpreference and preference applicants. Conse-
quently, both ee are competing for a limited
number of visas, and each group would be benefitted by
a reduction in the relief granted to the other. Any
proposed scheme for distribution of recaptured visas
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would depend upon proof of the number of preference
and nonpreference applicants who were on the waiting
list as of October 1, 1977 and whether all preference
applicants as of that date would have received visas
during 1977 if the defendants had issued recaptured
visas orig. „ year.“ Thus insofar as relief is
concerned, t groups have conflicting interests which
reclude certification. See Rules 23(aX3) and (4); 7 C.
right & A. Miller, Federal Practice and Procedure
§ 1768 at 647; Plekowski v. Ralston Purina Co., 68 F.R.D.
15 7 1975), appeal dismissed, 557 F. 2d 1218 (5th
ir. ,
Nevertheless all current visa applicants have been
injured by defendants’ interpretation of the statute,
and all visa applicants have an identical interest in the
action’s central issue of whether the defendants lawfully
interpreted the statute. See DuPree v. E. J. Brach &
Sons, Division of American Home Products Assoc., 77
F.R.D. 3 (N.D. Ill. 1977). Both preference and non-
preference aliens have a coextensive interest in seeking
to 3 the maximum possible visas for Mexican
aliens. Thus no confliet exists for the e 3768 of deter-
mining the merits of this case, namely a determination
of whether defendants properly applied the statute.
Therefore we will choose the option exereised by many
courts in class actions by certifying a class for the
purpose of adjudicating the liability issues in the case.
See Frankel v. Wyllie and Thornhill, Inc., 55 F. R. D. 330,
334 (W.D. Va. 1972); Seligson v. Plum Tree, Inc., 55
F. R. D. 259, 252 (E.D. Pa. 1972). We will exercise our
5 Defendants have stated that all preference applicants as of
October 1, 1977 would not have received visas during 1977
because all 1 mplionray applicants who had not recei visas
by the end of the year had applied for and received preference
status during the last month of fiscal 1977. Because the State
Department distributed the quota at a uniform rate from
month to month, by September most of the withheld visas
would have been issued to nonpreference applicants and few
visas would have remained for preference applicants. See
Garner declaration.
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power under 28 U.S.C. § 2201 to issue a declaratory
3 as to defendants' interpretation of the statute.
f we decide that the plaintiff class is entitled to any
relief, then we can exercise our authority under Rule
23(cX4)(B) to divide the class into subclasses. We would
then await separate representation of the conflicting
subclasses of preference and a: bared applicants to
rahe how the recaptu visas should be dis-
tributed.
Accordingly we now certify a class consisting of all
current Mexican visa applicants, including both prefer-
ence and nonpreference applicants, and all United
States citizens or permanent residents who are relatives
of those Mexican visa applicants who established their
entitlement to preference status on the basis of such
familial relationships.“ The certification is only for the
ea ro of determining whether the defendants correct-
y interpreted the 1976 Amendments.
We need not consider certification of plaintiffs’
proposed Class III, inasmuch as we have included all
members of Class III in the class we have certified for
the liability issues. Plaintiffs’ motion for certification of
Class II, consisting of those aliens who are within sixty
days of having a visa available to them is denied without
prejudice because we cannot determine with specificity
the parameters of the class, nor could we afford it any
relief until we have determined if and how any
additional visas are to be distributed.
Cross Motions for Summary Judgment
Plaintiffs contend that defendants’ interpretation of
the 1976 Amendments is unlawful. According to plain-
tiffs, no visas issued during 1976 should have been
6 These relatives have standing to challenge unlawful
application of the immigration laws by virtue of the injury
resulting from A 151 from ag Cf. Fiallo v. Levi, 406
F. =a 162, 1 * 1975); Faustino u. INS, 302 F.
Supp. 212 (S. D. N. V. 1969).
—28a—
charged against the 20,000 per country quota because
the quota did not become effective until January 1, 1977.
Plaintiffs argue that defendants’ interpretation of the
Amendment resulted in a retroactive application. Con-
sequently the 14,203 visas issued between October 1 and
December 31, 1976 charged to the Mexican 20,000 quota
were improperly charged and should have been avail-
able to Mexican immigrants during the first nine
months of 1977. Moreover, plaintiffs argue, defendants
cannot now justify the issuance of only 5,435 visas on the
basis of the 120,000 hemisphere quota, because only
106,634 Western Hemisphere visas were issued during
fiscal 1977. Thus plaintiffs seek to recapture the
remainder of the 1977 hemispheric quota, 13,366, to be
issued to Mexican immigrants.’
For their part defendants contend that their interpre-
tation of the statute is a reasonable one which we should
not disturb. They argue that the 1976 Amendments are
ambiguous N ey do not indicate how the 20,000
per country quota was to be allocated in the transition
year, fiscal 1977. They note three ible resolutions of
the ambiguity. Pursuant to the first resolution, plain-
tiffs’ interpretation, the State De ent would have
er. charging visas to the Mexican quota on the
effective date of the statute, January 1, and the full
20,000 quota would have been allocated during the last
nine months of fiscal 1977. Under the second inter preta-
tion, the State Department upon the effective date of the
statute would have distributed the 20,000 per country
visas pro rata over the remainder of fiscal 1977. Then
’ Plaintiffs also contend that defendants’ interpretation of
the statute violated their due process rights. We need not
reach this issue, because if defendants applied the statute
incorrectly, we have the ast to order them to correct their
unlawful act. See 8 U.S. 8 . Silva v.
Bell. 76 C 4268 (N. P. Ili., unpublished order, October 10,
1978). If defendants’ eaten” woe application of the
— were correct, then plaintiffs’ due process argument
ppears.
—29a—
the State Department could have issued 15,000 Mexican
visas during the last three-fourths of fiscal 1977.
The final interpretation is the one the defendants
used. Finding the Congressional intent clear to limit the
number of immigrants from a particular country to
20,000 per fiscal year, defendants implemented that
policy within the confines im by the 1976 Amend-
ments. Because only three-fourths of fiscal 1977 re-
mained when the preference system became effective,
and because the State Department had issued visas
during the beginning of fiscal 1977 pursuant to the 1965
Amendments, defendants could implement the 20,000
per fiscal year limit only by charging the visas issued
during the last three months of calendar 1976 against
the 20,000 quota as nonpreference visas.
Defendants draw support for this interpretation from
Ab) of the 1976 Amendments, Pub. L. No. 94-571, 90
tat. 2703, 2707, which provides that any immigrant
who had a priority date issued pursuant to the 1965
Amendments before the effective date of the 1976
Amendments is entitled to immigrant status under
1153(aX8), the nonpreference category. They relied on
Ab) and the Congressional intent to limit immigration
to 20,000 per country for any fiscal year to resolve the
ambiguity in the statute created by the disparity
between the statute’s effective date and the beginning of
the fiscal year.
Defendants argue that their implementation of the
statute was not retroactive inasmuch as the procedure
for issuing visas in 1976 was not in any way governed by
or subject to the requirements imposed by the 1976
Amendments. Rather, the State Department only counted
the visas that had been issued in 1976 to determine how
many visas remained for issuance in the last nine
months of fiscal 1977.
We should not disturb defendants’ implementation of
the statute unless their interpretation is an unreason-
able one ‘or contrary to congressional intent. See
Nazareno v. Attorney General, 512 F.2d 936, 940 (D.C.
—30a—
Cir.), cert. denied, 423 U.S. 832 (1975). For several
reasons, however, we find defendants’ interpretation of
the 1976 Amendments to the Immigration and Naturali-
ty Act to be both unreasonable and contrary to Congress’
intent.
First, although defendants admit that the 14,203
Mexican visas issued between October 1 and December
31, 1976 were not issued pursuant to the 1976 Amend-
ments’ preference system, these 14,203 visas were
nevertheless applied to the quota of 20,000 Mexican visas
per fiscal year. This application was directly contrary to
Congressional intent as we discern it. The section of the
1976 Amendments which establishes the 20,000 quota,
codified at 8 U.S.C. § 1152, provides that
[The total number of immigrant visas and the
number of conditional entries made available to
natives of any single foreign state under paragraphs
(1) through (8) of section 1153(a) of this title shall not
exceed 20,000 in any fiscal year. (emphasis added).
Thus, by the express language of the Act the quota
applies only to those visas made available under the
33 system, which was applied to Western
emisphere immigrants for the first time on January 1.
1977. Defendants concede that the permanent visas
issued from October 1 through December 31, 1976 were
not issued pursuant to the preference system. We see no
basis for arguing that any of those October through
December 1976 visas were “made available” under the
8 categories contained in 8 U.S.C. § 115 80a (1)
Moreover, although defendants contend that §9(b) of
the 1976 Amendments provides authority for treating
the late calendar 1976 visas as eighth preference visas,
we do not understand how defendants take comfort from
the section. Section & b) provides that
An alien chargeable to the numerical limitation
contained in section 21(e) of the Act of October 3,
1965 [the 120,000 hemispheric quota] who estab-
lished a priority date at a consular office on the
—3la—
basis of entitlement to immigrant status under
statutory or regulatory provisions in existence on
the day before the effective date of this act shall be
deemed to be entitled to immigrant status under
section 203(aX8) of the Immigration and Naturality
Act [codified at 8 U.S.C. § 1153(a)(8)] and shall be
accorded the priority date previously established by
him. Nothing in this section shall be construed to
preclude the acquisition by such an alien of a
preference status under section 203(a) of the
Immigration and Naturality Act.
As we read this section, it merely categorizes those
immigrants who had satisfied the requirements under
the 1965 Amendments for obtaining a visa but had not
yet applied for preference status. Section Ab) allows
these immigrants to retain their priority date but
requires them to be processed through the statutory
preference scheme. The section cautions that the treat-
ment of special status applicants as nonpreference
applicants in no way limited their rights to obtain
preference status with the same priority date. The
provision thus allows these immigrants to retain their
place on the waiting list and indicates which preference
will be applicable. Section %b) is necessary to provide a
route through the preference system by which these
immigrants could obtain visas after January 1, 1977 and
to avoid the need for reapplication. This purpose is
inapplicable to immigrants who already have received
visas, and the statute makes no mention of immigrants
who are already permanent residents. Accordingly, we
see no basis for defendants’ reliance on § Xb) as a
justification for treating the October—December, 1976
visas as eighth preference visas for the purpose of
charging them to the fiscal 1977 quota.
Furthermore, although the Congressional intent to
limit immigration to 20,000 persons per country for each
fiscal year is obvious, we do not agree that this
Congressional intent has any relationship to or bearing
upon the period prior to January 1, 1977. Inasmuch as
the statute was not effective until that date, Congress’s
—32a—
intention to limit immigration to 20,000 per country also
had no effect until that date. Regardless of whether
fiscal year 1977 coincided with the effective date of the
statute, to apply the 20,000 quota to any period prior to
the effective date of the statute is a _ retroactive
application without basis in Congressional intent. See In
re Higginbotham, 430 F.2d 155 (7th Cir. 1970).
The conclusion that defendants have erred does not,
however, mandate that plaintiffs’ interpretation of the
statute is correct. Under plaintiffs’ theory, the govern-
ment would be required, given adequate demand, to
issue 20,000 Mexican visas between the effective date of
the statute and the end of the fiscal year, regardless of
the length of that period. We cannot accept this
proposition. Congress clearly intended a specific limit to
apply to immigration from the Western Hemisphere,
and the statute was meant to conform the Western
e ee. limits. The House Report to the 1976
Amendments notes that the proposed legislation rejects
the concept of a ‘special relationship’ between this
country and certain other countries as a basis for
immigration law, in favor of a uniform treatment for all
countries.” H. Rep. No. 94-1553, 94th Cong., 2d Sess.,
U.S. Code Cong. & Ad. News 6073, 6081. Prior to the
establishment of the 20,000 per country quota, Mexican
immigrants composed between 35,000 and 45,000 of the
120,000 hemispheric quota. See Arias declaration, De-
fendants’ exhibit 1. If we were to interpret the statute to
allow 20,000 Mexican visas to be issued during the first
nine months of 1977, then a “special relationship” would
indeed exist for Mexico, and Mexican immigration
would proceed at a pace not enjoyed by any Eastern
Hemisphere’s country’s immigrants.
Furthermore, § 201(a) of the 1976 Amendments pro-
vided that the issuance of visas to Western Hemisphere
immigrants could not exceed 32,000 in any of the first
three quarters of the fiscal year.“ Pub. L. No. 94-571, 90
8 The current statute, which does not distinguish between
Eastern and Western Hemisphere immigrants, establishes a
1115 10 ee in any of the first three quarters. See 8 U.S.C.
a).
—33a—
Stat. 2703. Thus Congress intended the hemispheric
quota to be distributed uniformly over the course of the
year, and a holding that required the State Department
to crowd the full per country quota of Mexico into three
3 of the fiscal year would disrupt this uniformity.
e therefore believe that Congress did not intend
immigration for the first nine months of the statute's life
to proceed at a rate higher than in subsequent years.
Thus we hold that the most reasonable approach is to
apply the 20,000 quota pro rata to the last three-fourths
of fiscal 1977. Under this interpretation defendants
could have issued 15,000 Mexican visas, or 9,565 more
than were issued.
Therefore we hold that the plaintiff class is entitled to
a declaratory judgment to the effect that defendants
should have issued an additional 9,565 visas to Mexican
immigrants. We add here our tentative conclusions as to
the form that further relief will take. These conclusions
are subject to change upon additional submissions of
data by the parties and separate representation of
subclasses. We conclude that the 9,565 visas should be
distributed to two subclasses. The class we have
certified thus should be divided into two subclasses
under Rule 23(c\4XB), the first subclass consisting of all
current preference applicants and the other consisting of
nonpreference applicants as of October 1, 1977.9 We
cannot yet conclude that the number of preference
applicants as of October 1, 1977 should dictate the
number of recaptured visas that the class of preference
applicants should receive, because the government
contends that most of the preference applicants as of
that date had established their preference status during
the last month of fiscal 1977. Therefore, because the
The government has noted that it would like an opportuni-
ty to challe the typicality and adequacy of representation
under Rule 23(a\3) and (4) of the named plaintiffs in the
amended complaint. They will now have an vi N to
poise the named plaintiffs as representatives of these
subclasses.
—34a—
State Department issued visas at a uniform rate, the
State Department would not have had enough visas
remaining by the last month to satisfy the preference
demand arising during September, 1977 even if an
additional 9,565 visas had been issued. Moreover, the
figures that the parties have given us are not exact. We
do not know how many preference applicants were on
the list as of October 1, 1977, nor how many
nonpreference applicants there were on that date.
Furthermore, we must have specific data as to when the
preference applicants that were outstanding as of
October 1 were submitted in order to determine how the
visas would have been distributed had the State
Department issued them in 1977. Consequently we
cannot yet make even tentative conclusions as to how the
visas should be allocated between the two subclasses.
The two subclasses must have separate representation so
that their interest in receiving as many visas as possible
will be protected.
Plaintiffs’ motion for class certification is granted for
liability issues and a class is certified consisting of all
current Mexican visa applicants, including both prefer-
ence and nonpreference applicants, and all United
States citizens or permanent residents who are relatives
of those Mexican visa applicants who established their
entitlement to preference status on the basis of such
familial relationships. Plaintiffs’ motion for summary
judgment is granted in part in accord with the views
herein expressed. Defendants’ motion for summary
© This figure should not include all preference applicants
who have priority dates prior to October 1, 1977, use
many of these applicants may have established their priority
dates under the 1965 Amendments and then retained the
dates upon receiving preference status under the 1976
Amendments. If they obtained preference status after October
1, 1977, they would not have n on the waiting list as of
October 1, 1977, even though their priority dates are from
before that date.
—35a—
judgment is denied. Cause is set for report on status
June 11, 1979 at 9:30 a.m.
ENTERED:
/s/ PRENTICE H. MARSHALL
United States District Judge
DATED: May 18, 1979.
—36a—
APPENDIX “C”
IN THE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IMELDA CONTRERAS DE AVILA, et al.,
Plaintiffs,
No. 78 C 1166 v.
GRIFFIN B. BELL, et al.,
Defendants.
MEMORANDUM DECISION
In this class action for injunctive and declaratory
relief, plaintiffs, who are Mexican visa applicants and
their United States citizen or permanent resident spon-
sors, sought recapture of visas allegedly incorrectly
charged to the yearly quota for Mexico in fiscal year
1977. In our memorandum decision of May 18, 1979, we
held that the State Department had interpreted the 1976
Amendments to the Immigration and Nationality Act in-
correctly and that 9,565 additional visas should be
awarded to Mexican immigrants. We certified a class
for liability issues but held that the class had to be
divided into subclasses, with separate counsel, before we
could grant relief. On September 17, 1979 we certified
two subclasses, and on December 21, 1979 and on
January 18, 1980, we entered a temporary restraining
order and a modified temporary restraining order en-
joining the Immigration and Naturalization Service
(INS) from deporting certain immigrants who may be
entitled to recapture visas. We are now prepared to rule
on plaintiffs’ motion for final judgment and permanent
injunctive relief.
*
—37a—
DISTRIBUTION OF RECAPTURED VISAS
The 1976 Amendments established a per country
quota of 20,000 permanent resident visas per fiscal year.
8 U.S.C. § 1152. Although the fiscal year begins on Oc-
tober 1, and the 1976 Amendments did not become effec-
tive until January 1, 1977, the State Department charg-
ed visas awarded between October 1, 1976 and January
1. 1977 against the fiscal 1977 quota. We held that the
State Department should not have begun charging visas
against the per country quota until January 1, 1977, the
effective date of the 1976 Amendments, and that the
uota should have been applied pro rata to the three-
ourths of fiscal 1977 remaining after the effective date
of the statute. Thus 15,000 visas, or 9,565 additional
visas, should have been issued to Mexican immigrants
between January 1, 1977 and September 30, 1977.
The 1976 Amendments established a preference
scheme for distributing the per country quota. 8 U.S.C.
§ 1153(a). Each of the preference categories is allocated
a percentage of the per country quota. An eighth
category, the “nonpreference” category, is allocated only
the residual visas not actually issued to the seven
preference groups. We determined that applicants for
abe gine visas and applicants for nonpreference visas
ad conflicting interests in the allocation of the recap-
tured visas. The separate counsel for these two groups
and the government have submitted 1 . — plans for
the distribution of the 9,565 recaptu visas.
Because the preference system was not in full swing
for most of fiscal 1977, a considerable time elapsed
before the demand for preference category visas
equalled the quantity available. Therefore, because the
State Department allocates the quota uniformly from
month to month, most of the recaptured visas would
have gone to nonpreference applicants. The government
and both subclasses have agreed that 8,496 visas should
be issued to nonpreference subclass members in strict
chronological order by priority date. The parties dis-
agree, however, as to the proper distribution of the 1,069
remaining visas to the preference class.
—38a—
The government argues that the full 1,069 visas
should not be distributed. The State Department makes
visa numbers available to consular offices in a monthly
allocation. If the visa numbers allocated do not result in
the actual issuance of visas and so remain unused in that
month, they must be returned to the State Department
for redistribution in later months. The numbers issued
for a particular month often do not lead to an equal
number of issuances, because some applicants on the
waiting list either do not appear for their final interview
or are found ineligible at the interview. If the numbers
allocated during September, the last month of the fiscal
year, are not used, they cannot be used in subsequent
months. Thus the full 20,000 quota is not reached in
many fiscal years. See Declaration of Franklin H.
Baker. Because the only preference demand left un-
satisfied in fiscal 1977 arose during September, defen-
dants contend that many of the 1,069 numbers allocated
to preference applicants during 1977 would have
remained unissued.
The first of the preference categories with unsatisfied
demand in fiscal 1977 were the second category, with
872 applicants on the waiting list, and the fourth
category, with 225 applicants. Taking the rate of unused
numbers from September, 1977 through December,
1977, the government found a 55% rate for second
preference and 49% for fourth preference. Therefore, the
defendants contend that only 392 visas, or 45% of the se-
cond preference waiting list, should now be reissued to
second preference fy 07 As for the fourth
preference applicants, defendants note that all of the
fourth preference demand was satisfied in fiscal 1978.
Therefore, no current fourth preference applicants are
now suffering the ill effects of defendants’ charging
licy. Thus the 115 visas (51% of 225) that would have
n issued in 1977 should be subject to the “fall down”
effect of the preference system and be allocated to
lower preference categories. Although the government
believes that these 115 visas should go to fifth
preference applicants, defendants assert that further
study must precede a conclusion that fifth preference
—39a—
applicants are the current victims of the State
Department’s failure to issue the 115 visas to fourth
preference applicants.
The nonpreference class ares a different scheme.
They contend that all 9,565 visas should be
redistributed, regardless of the failure rate offered by
the defendants. The nonpreference plaintiffs presume
that the State Department would have overallocated visa
numbers in order to approach the 20,000 quota. This
overallocation would have been based on the failure rate
or the unused number rate, which the nonpreference
plaintiffs say should be derived only from the failure
rate for September, 1977. The failure rate in September,
1977 was 39%. Thus to issue 1,069 visas with a 39%
failure rate the State Department would have had to
issue 1,752 visas numbers. Given the September, 1977
reference demand, the 1,752 visa numbers would have
n allocated as indicated in the first column of the
Su table, with the 61% success rate in the second
column:
Numbers Visas
Allocated Issued
First preference 0 (no demand) 0
Second preference 872 (total demand) 532
Third preference 0 (no demand) 0
Fourth preference 225 (total demand) 137
Fifth preference 209 (total demand) 127
Sixth preference 18 (total demand) 11
Seventh preference 0 (no demand) 0
Nonpreference group 428 ay ad of 262
Then, the nonpreference plaintiffs look at fiscal 1978
8 According to these plaintiffs, no demand for
irst, third, fourth, fifth, sixth, and seventh preference
existed in October, 1978. Thus the nonpreference
applicants claim that no applicants in any of these
oe are now suffering injury as a result of the unlaw-
ul charging policy, and any visas that would have been
unused by these groups in 1977 would have dropped
—40a—
down to the nonpreference category. Thus of the 1,069
visas, 532 would be allocated to second preference
applicants and 567 would be issued to nonpreference
applicants.
The preference plaintiffs also assert that all 1,069
visas should be issued. The preference class argues,
however, that all of the 1,069 visas should be issued to
preference applicants. These plaintiffs state that 872
visas, the extent of the second preference demand in
September, 1977, should be issued to applicants from
that category. The remaining 197 visas should be issued
to fifth preference applicants, because the number of
visas allocated to fourth preference applicants, the
moe for which demand existed in September, 1977,
satisfied the demand for fourth preference visas in fiscal
1978. If, however, we choose to apply a failure rate, the
preference plaintiffs argue that we should apply a 20%
failure rate rather than either the 39% rate proposed by
nonpreference plaintiffs or the 55% and 49% rates
proposed by the government.
Our goal in affording relief is to place the class
members in the position they would be in absent the il-
legal charging policy. Silva v. Bell, 605 F.2d 978, 985
(7th Cir. 1979). Given the nature of the visa distribution
process, however we can only reach a rough a
proximation of this goal. The parties have reached their
own approximation with respect to nonpreference visas,
agreeing that 8,496 visas would have been originally
issued to nonpreference applicants. But we have no
practicable way of determining with certainty how the
remaining 1,069 visas would have been distributed.
Therefore we must make certain assumptions in order to
oe ny the distribution as it would have taken
place
One assumption we decline to accept, however, is the
government’s assertion that because of the percentage of
numbers which would have been issued but not used, not
all 1,069 visas would have been actually used. In Silva v.
Bell, supra, the State Department was ordered to
redistribute all Cuban visas, which had incorrectly been
—4la—
charged to the 120,000 Western Hemisphere quota. No
reduction in recaptured visas was made simply because
the 120,000 quota would not have been completely used
in any of the years at issue. Moreover, the INS official
responsible for allocating visa numbers during 1977 has
stated that he designed his allocations to insure that
Mexico reached or came close to its 20,000 annual visa
limit, that he regularly overallocated numbers to Mex-
ican posts because he was aware of the return rate, and
that his practice of overallocating to Mexico carried over
into September, 1977. Declaration of Franklin H.
Baker, 115, 7, 8.1! We see no reason why we should not
now frame relief for the injured class members so as to
achieve the State Department’s desired goal of using the
full 20,000 — Inasmuch as we cannot be certain how
close the defendants would have come to issuing 20,000
visas in fiscal 1977, we believe that our equitable powers
enable us to favor the 8 class by structuring relief
so as to exhaust the full quota.
We do , however, with the nonpreference plain-
tiffs and the defendants that to distribute the visas as
they would have been distributed during 1977, we must
take into account the percentage of allocated visa
numbers that would not have been used. This is not in-
consistent with our holding that the distribution of
recaptured visas should reach a full quota, because we
can presume that the unused visa numbers would con-
stitute the overallocation of numbers necessary to reach
the quota. Neither the nonpreference plaintiffs’ figures
1 Although Mr. Baker states that he overallocated the visas
so as to reach the 20,000 quota, he states that he would
have allocated only 1,100 visas to preference ap licants in
September, 1977. This allocation would certa * not be
enough to result in the issuance of 1,069 visas. It is ible
that the 1,100 visa numbers, when combined with the
numbers necessary to result in the issuance of 8,500 non-
2 visas, would constitute a significant overallocation.
ven if this is the case, Mr. Baker's attempt to overallocate to
reach the quota would have fallen short of the mark. As we
will demonstrate, infra, ours will not.
—42a—
nor the defendants’ figures are based on particularly
reliable data, however. The percentage that would be
relevant in determining the failure rate would be deriv-
ed from the failure rate of those applicants who would
have received final interviews in September, 1977 if the
State Department had issued 1,069 additional visas. But
these applicants did not receive interviews in
September, 1977, so the nonpreference plaintiffs’ figures
based on actual September, 1977 issuances is not ac-
curate. Moreover, some of the preference applicants who
would have received interviews in September, 1977 did
not have their interviews or receive visas until after
January 1, 1978. Thus the government’s percentage, bas-
ed on the September, 1977 - December, 1977 figures,
uses data from a month, September, when no visas or in-
terviews were given to the relevant applicants, and does
not use data from months, such as January, 1978, when
some visas were issued to those applicants.”
The figures do, however, give us a general idea of
what the failure rate would have been. They are more
persuasive than the 20% figure urged by the preference
plaintiffs. Their only support for this figure seems to be
that it will benefit them more than the other proposed
figures. Because we have no more reliable figures than
those proposed by the nonpreference plaintiffs and the
government, we will take those figures into account and
adopt the figure of 40% as our rough approximation of
what the unused number rate would have been.
Because we have assumed for the purposes of shaping
relief that the State Department would have allocated
enough visas to compensate for the failure rate, we must
make our calculations assuming a 40% rate. Making this
assumption, the State Department would have issued
1,781 visa numbers for September, 1977 as follows:
2 Moreover, the government figures measure only second and
fourth preference visa issuances. But, assuming an overalloca-
tion, some of the visas issued during September, 1977 would
have been issued to other preference categories.
—43a—
Number
First preference 0 (no demand)’
Second preference 872 (total demand)
Third preference 0 (no demand)
Fourth preference 225 (total demand)
Fifth preference 209 (total demand)’
Sixth preference 18 (total demand)*
Seventh preference 0 (no demand)’
Nonpreference group 452 (remainder)
Assuming a 60% success rate, this allocation would have
resulted in the following issuance of visas:
Number
Second preference 524
Fourth preference 135
ifth preference 126
ixth preference 12
Nonpreference group 272
We must then examine the visa allocation in fiscal
1978. If the processing of a particular preference group
became current during 1978, so that no members
remained on the waiting list, then any applicant who
See Baker Declaration.
Id. 9.
Id. 110.
Id. 11. Although Mr. Baker indicates that this 225 figure
includes an overallocation, there would be no point in
allocating visas to a preference category beyond the current
demand for that ca Thus we will assume that the de-
mand for the fou preference category was 225 in
ber, 1977. Because of the “fall down” effect discussed
i this assumption will not have any effect on the actual
distribution of visas.
7 See forms FS-469, Visa Number Demand, Exhibit C to
Nonpreference Plaintiffs’ Reply Memorandum.
d.
Ja.
oor. &
—44a—
was later placed on the waiting list would not have his
application delayed by the unlawful charging policy,
and thus no members now currently on the preference
waiting list for that category would be suffering injury.
The only preference category that was not current by
October, 1978 was the second preference category. See
U.S. Department of State Visa Bulletin for October,
1978, Nonpreference Plaintiffs’ Exhibit D to Reply
Memorandum. Thus 524 visas should now be
redistributed to second preference applicants. The
remaining 273 visas that would have gone to preference
applicants in September, 1977 should fall down to the
nonpreference category, in addition to the 272 visas that
would have gone to the nonpreference category as a
result of the failure rate in September, 1977.
Therefore, the State Department should distribute 524
visas to second preference applicants and 9,041 visas to
nonpreference applicants in accordance with the Final
Judgment Order entered herein.
INJUNCTIVE RELIEF
On December 21, 1979 we entered a temporary
restraining order, which we modified on January 18,
1980. The temporary restraining order enjoins the INS
from deporting any Mexican immigrant who has a se-
cond preference priority date earlier than April 1, 1978
or a nonpreference priority date earlier than July 1,
1976. The plaintiffs have moved for a permanent injunc-
tion to this effect which would protect the immigrants
for the duration of the distribution process. The govern-
ment urges us not to award any permanent injunctive
relief, and if we do, defendants have several criticisms
of the plaintiff's proposed injunction.
The government contends that the proposed injunction
is improper because it would benefit more immigrants
than would stand to gain from the distribution of the
recaptured visas. Defendants note that there are present-
ly over 130,000 nonpreference applicants on the —
list. Defendants also argue that the injunction woul
—45a—
conflict with a similar injunction entered in the Silva
case. Finally, the government contends that the im-
migrants to be protected by the injunction, who are in
the country illegally, have unclean hands and so are not
entitled to relief.
None of these criticisms are persuasive. First, the in-
junction would not be overbroad, because the 130,000
waiting list is made up of aliens who are still in Mexico,
as well as those who are in the United States. Moreover,
more than the first ten to twenty thousand members of
the waiting list must be protected, because many of the
nonpreference applicants on the waiting list are entitled
to relief under the Silva case. Second, because the in-
junction here is similar to the one entered in Silva, and
because the cut-off date for priority dates of non-
preference applicants is later in plaintiffs oD pean in-
junction than the date the Silva court used, we cannot
see how the pro injunction conflicts with the Silva
injunction. Finally, defendants’ unclean hands argument
is inapposite given the INS policy of extending relief
from deportation to those who are close to receiving a
visa. See 8 C. F. R. § 245.5. Absent the defendants’ unlaw-
ful charging policy, many of the immigrants protected
by the injunction would now have visas. Therefore, we
conclude that the plaintiffs are entitled to a permanent
injunction.
We have entered, with modifications, the injunction
the plaintiffs seek. We add only a few comments here
with respect to the criticisms defendants have made.
The government, in a supplemental memorandum, has
proposed as a cut-off for priority dates July 1, 1973
room than the July 1, 1976 date for nonpreference
pplicants now in effect in the temporary restraining
— As plaintiffs note, however, protecting only the
19,000 immigrants with pre-July 1, 1973 dates is clearly
insufficient, because many of these 19,000 are entitled
to, and will receive, visas as part of the Silva distribu-
tion. Therefore, the July 1, 1976 date will stand.
—46a—
We have incorporated the defendants’ suggestion that
only immigrants entering the country prior to December
14, 1979 are protected.
The government also challenges the work authoriza-
tion paragraph in plaintiffs’ proposed injunction. This
prov ion is identical to the provision contained in the
Silva injunction. Alth liability was not at issue in
Silva, and although the rt of Appeals may ultimately
determine that the class . by the injunction is
not entitled to relief, we believe that work authorization
is necessary to prevent further injury to immigrants
who have been injured by what we have held to be an
unlawful charging policy.“ The authorization will date
back to the last date the immigrant entered the country.
The government has also criticized other provisions of
the ety “og injunction which are identical to provisions
in t ilva injunction. See Proposed Permanent Injunc-
tion, 113, 4, 7, Defendants’ Memorandum in Response,
18-22. The government has not submitted anything
which persuasively or conclusively indicates that these
provisions, as used in Silva, have . difficulties in
administration or implementation. Therefore, we see no
reason why these provisions should not be part of the in-
junction in the instant case.
Finally, we agree with the government that with
res to the second preference immigrants, once the
INS has identified by name the likely beneficiaries of
the distribution process, the injunction should protect
only those named applicants. In identifying the second
preference applicants likely to obtain relief, the INS
should make substantial allowance for the probability
that many of the numbers issued to applicants on the
waiting list will not actually result in the issuance of
visas. The INS in making this allowance should use at
least a 40% rate, the failure rate we used here.
1 Fer the —— 1 that the 3 8 as . oe
is not over ° provision regarding employmen
authorization is not overbroad.
—47a—
Final judgment and a permanent injunction will
enter.
ENTER:
/s/ Prentice H. Marshall
United States District Judge
DATED: February 27, 1980.
—48a—
APPENDIX “D”
IN THE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CONTRERAS DE AVILA, et al.,
Plaintiffs,
No. 78 C 1166 v.
GRIFFIN B. BELL, et al.,
Defendants.
PERMANENT INJUNCTION
This cause having come before the Court, and it
appearing from the record that members of plaintiffs’
class will suffer separation from their families, loss of
employment, and expulsion from the United States by
defendants’ actions:
It is hereby ORDERED, ADJUDGED and DECREED:
1. Except as specifically provided in this order, any
Mexican second preference immigrant visa applicant
who entered the country prior to December 14, 1979 and
who is known by the Immigration and Naturalization
Service (hereinafter “INS”) to have a priority date
earlier than April 1, 1978, and any Mexican non-
preference immi t visa applicant who entered the
country prior to mber 14, 1979 and who is known
by the INS to have a priority date earlier than July 1,
1976, shall be permitted by the INS to remain in the
United States, and the INS shall not begin, continue or
conclude any effort to expel such an alien. The
prohibited efforts include, but are not limited to, deten-
tion, requiring the posting of bond, issuing orders to
show cause, holding deportation hearings, entering
deportation orders, terminating voluntary departure,
issuing warrants of deportation, failing to cancel orders
—49a—
and warrants of deportation previously issued, denying
stays of deportation, and issuing bag and baggage
letters (Form I-166) and voluntary departure letters
(Form I-210). With respect to second preference im-
migrants, once the INS has identified by name the like-
ly beneficiaries of the ee program, with a sub-
stantial allowance of at least 40% for unused visa
numbers, this injunction shall apply only to those named
beneficiaries.
2. Any alien known to the INS to.be a native of Mex-
ico and not a United States citizen or a lawful perma-
nent resident of the United States who hereafter has
contact with the INS shall be informed by the INS in
pe! 8 that such person may have rights under this
order.
3. The INS may begin, continue or conclude any ef-
fort to expel an alien otherwise protected by this order,
including the taking of any of the efforts specifically
mentioned in paragraph 1, if:
(a) the regional commissioner or acting regional
commissioner personally concludes that the alien’s
continued presence in the United States would be
contrary to the national interest or security, in
which case that official shall set forth in writing all
his reasons for reaching that conclusion; or
(b) the regional commissioner or acting regional
commissioner personally concludes, after due con-
sideration of 7 waivers of grounds of ex-
cludability and of permission to reapply for admis-
sion pursuant to Section 212(a\(16) and (17) of the
Immigration and Nationality Act, 8 U.S.C.
§1182(aX16) and (17), that an alien is clearly not
eligible for an immigrant visa under Section
212(a)(15), (16), (17) or (19) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)15), (16), (17) or
(19), in which case that official shall set forth in
writing all his reasons for reaching that conclusion
and shall give the alien a minimum of seven days’
notice before the INS proceeds with any effort to
expel the alien; or
—50a—
(c) the District Director, Acting District Direc-
tor or Deputy District Director personally con-
cludes, after due consideration of possible waivers
of grounds of excludability, that the alien is clearly
not eligible for an immigrant visa on any grounds
other than those specified in subparagraphs (a) and
(b) above, in which case that official shall set forth
in writing all his reasons for reaching that conclu-
sion.
4. The Board of Immigration Appeals shall not dis-
miss an alien’s appeal nor sustain an INS appeal in a
deportation case in which the record of proceedings
clearly shows that the alien is a Mexican second
preference immigrant visa applicant with a priority
date earlier than April 1, 1978, or a Mexican non-
preference immigrant visa applicant with a priority
date earlier than July 1, 1976, unless:
(a) the Board determines, after due considera-
tion of possible waivers of inadmissibility, and of
8 to mony for admission, pursuant to
ection 212(aX16) and (17) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(aX16) and (17),
that the alien is clearly not eligible for an im-
migrant visa; or
(b) the regional commissioner or acting regional
commissioner informs the Board in writing that the
alien’s continued presence in the United States
would be contrary to the national interest or securi-
ty.
In any case involving a native of Mexico in which the
record does not clearly show that the alien has a second
preference priority date earlier than April 1, 1978 or a
nonpreference priority date earlier than July 1, 1976,
the Board may adjudicate the case without restriction,
but shall enclose a copy of the following notice in both
English and Spanish with its order:
Regardless of the enclosed decision, you may be
allowed to stay in the United States because of a re-
cent court ruling if you have a registration date
—5la—
earlier than April 1, 1978 for a second preference
immigrant visa or earlier than July 1, 1976 for a
nonpreference immigrant visa. The court rulin
relates to the case of Contreras De Avila v. Bel
No. 78 C 1166 (N.D. III.). Please contact your at-
torney or authorized representative or an INS office
for further information.
5. Nothing in this order shall prevent a deportation
hearing from being held, nor a decision from being
rendered by a special inquiry officer (Immigration
Judge) in any case in which the alien seeks relief under
either Section 244(a) or Section 245 of the Immigration
and Nationality Act, 8 U.S.C. § 1254(a) or § 1255, or
seeks any other form of relief from deportation. The en-
forcement of any resulting decision that may be un-
ros mie to the alien is subject to the terms of this
order.
6. Each person protected from expulsion action by
this order shall be granted employment authorization,
— pro tunc, to the date the person entered the United
tates.
7. The INS shall 1 . supply each person who is
permitted to remain in the United States pursuant to
this order a Form I-94 (Arrival- Departure Record)
stam “Contreras: Indefinite authorization to remain.
Employment Authorized.”
8. The purpose of this Permanent Injunction is to
maintain the status quo as to those members of the class
earlier certified by this Court who are not clearly in-
eligible for an immigrant visa. Any determination that
an alien is protected or is not protected by this order
shall not be binding at the time the alien seeks actual
issuance of an immigrant visa or adjustment of status.
9. The INS shall promptly communicate in writing
the text of this order to its regional, district and sub-
offices, which are files control offices or whose officer in
charge has authority to issue orders to show cause in
deportation proceedings, and to the Board of Immigra-
tion Appeals.
—52a—
10. This Order is entered without requirement that
laintiffs or members of their class post bond or security
or costs or damage.
11. This Order may be modified by the Court upon a
showing by any of the parties that equity requires such
a modification or amendment.
12. This Order will expire upon completion of the
recapture program authorized by Final Judgment
Order in this action.
ENTER:
/s/ Prentice H. Marshall
United States District Judge
DATED: February 27, 1980.
—53a—
APPENDIX “E”
IN THE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IMELDA CONTRERAS DE AVILA, et al.,
Plaintiffs,
No. 78 C 1166 v.
GRIFFIN B. BELL, et al.,
Defendants.
AMENDED FINAL JUDGMENT ORDER
By Order of May 18, 1979, a class of all current Mex-
ican visa applicants, including both preference and non-
preference applicants, and all United States citizens or
permanent residents who are relatives of those Mexican
visa applicants who established their entitlement to
preference status on the basis of such familial
relationships was certified for liability issues. By the
same order, Plaintiffs were granted partial summary
judgment on the issue of liability.
On September 17, 1979, 2 subclasses were certified.
Subclass 1 consists of all current prefer nce immigrant
visa applicants who are natives of wiexico, and all
United States citizens or permanent residents who are
relatives of those Mexican visa applicants who establish-
ed their entitlement to preference status on the basis of
such familial relationships. Subclass 2 consists of all
current non-preference immigrant visa applicants who
are natives of Mexico, and all United States citizens or
permanent residents who are relatives of those Mexican
visa applicants who established their entitlement to non-
preference status on the basis of such familial
relationships.
—54a—
This matter now comes before the court on plaintiffs’
motion for a permanent injunction. Based upon the
depositions and declarations of defendants’ agents, and
upon the previous findings of fact and rulings of law in
this cause of action, contained in the Memorandum Deci-
sion of May 18, 1979 granting plaintiffs summary judg-
ment on the issue of liability, it is hereby ORDERED, AD-
JUDGED, and DECREED, that:
A. Defendants shall establish a program for the
recapture and reallocation of the 9,565 preference im-
migrant visa numbers unlawfully assigned to Mexican
visa applicants who were issued special immigrant visas
during October through December, 1976. Visa numbers
shall allocated under this recanture program in the
following manner:
1. Nine thousand forty-one (9,041) visa numbers shall
be allocated to the subclass of nonpreference visa
applicants. Such applicants shall be considered for
recaptured visa numbers in the chronological order of
their priority dates, as they qualify for visa or adjust-
ment of status interviews.
2. Five hundred twenty-four (524) recaptured visa
numbers shall be allocated to the subclass of preference
visa applicants. These 524 visas will be allocated to
members of the second preference category.
(a) The recaptured visa numbers shall be
allocated in stages. In the first stage, visa numbers
shall be made available to those current second
preference subclass members who were reported as
documentarily qualified to the Visa Service Offices
as of July 22, 1977, but who were not issued visas
during September, 1977. These applicants shall be
considered for recaptured visa numbers in the
chronological order of their priority dates as they
qualify for visa or adjustment of status interviews.
(b) If it is determined that there is insufficient
demand under the first stage of visa number alloca-
tion to exhaust the recaptured visa numbers dis-
tributed to the second preference category, a second
—55a—
stage of visa allocation shall be implemented in
which unused visa numbers shall be made available
to those current second preference visa applicants
who were reported as documentarily qualified to
the Visa Services Offices as of August 22, 1977, but
who were not issued visas during October, 1977.
These applicants shall be considered for recaptured
visa numbers in the chronological order of their
priority dates, as they qualify for visa or adjust-
ment of status interviews. This second stage shall
be implemented as soon as it is determined to be
necessary for visa allocation, but in no event later
than six months after the initiation of visa alloca-
tion under the first stage.
(c) If after four months following initiation of
the second allocation stage there continues to be in-
sufficient demand to exhaust the recaptured visa
numbers distributed to the second preference
category under the first or second allocation stages,
the second stage allocation procedure shall be
repeated for months subsequent to October, 1977,
until all of the recaptured visa numbers have been
allocated and issued.
(d) The court recognizes the possibility that un-
avoidable delays in obtaining necessary documents
may prevent otherwise eligible second preference
applicants from participating in a particular alloca-
tion stage. Therefore, once a preference subclass
member is eligible to participate in one of the
allocation stages, he/she may continue to participate
in the recapture program until all recaptured visa
numbers available to his/her preference category
have been exhausted.
8. All unused recaptured visa numbers to which any
second preference or nonpreference category is entitled
shall be considered to be immediately available to visa
applicants in such categories. The priority date of the
first applicant in the second preference and non-
preference category to whom a recaptured visa number
is not immediately available shall be published in the
—56a—
monthly Visa Bulletin as a “visa allocation cut-off date”
for the recapture program. This date will be used for
the purpose of determining the eligibility of class
members for adjustment of status.
B. All deportation and expulsion actions against
members of plaintiffs’ class shall cease in accordance
with the Permanent Injunction.
C. The 3 program shall continue until all of
the L ee visa numbers have been allocated or
issued.
D. Defendants shall report monthly to the court on
the progress of the recapture program, and in particular
on:
(1) The monthly and cumulative visa issuances
to applicants from the second preference and non-
preference categories, and for each allocation stage;
(2) The number of preference subclass members
who have been determined to be eligible to par-
ticipate in any allocation stage of the recapture
program, but who have not been allocated visa
numbers;
(3) The issuance or notation of Forms I-94
(Arrival-Departure Record) evidencing authoriza-
tion to remain in the United States pursuant to the
Permanent Injunction;
(4) All cases considered by the regional com-
missioner or assistant regional commissioner pur-
suant to paragraph 3 of the Permanent Injunction;
(5) Any difficulties encountered in ad-
ministering the recapture program.
E. This court retains jurisdiction of this action for
purposes of modifying the Amended Final Judgment
Order as the interests of justice may require.
ENTER:
/s/ Prentice H. Marshall
United States District Judge
DATED: 3/14/80
—57a—
APPENDIX “F”
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
June 8, 1981
Before
Hon. WALTER J. CUMMINGS, Circuit Judge
Hon. HARLINGTON Woop, IR., Circuit Judge
Hon. JOHN R. BARTELS, Senior District Judge*
IMELDA CONTRERAS DE AVILA, et al.,
Plaintiffs-A ppellees,
and Cross-Appellants,
Nos. 80-1590, 80-1680, and 80-1681 v.
BENJAMIN CIVILETTI, et al.,
Defendants-A ppellants
and Cross-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 78 C 1166—Prentice H. Marshall, Judge.
ORDER
On consideration of the petition for rehearing and
suggestion for rehearing en banc filed in the above-en-
titled cause by Imelda Contreras De Avila, et al., plain-
tiffs-appellees and cross-appellants, a vote of the active
members of the Court was requested, and a majority** of
the active members of the Court have voted to deny a
rehearing en banc. All of the judges on the original
panel have voted to deny the petition for rehearing.
Accordingly,
It Is ORDERED that the aforesaid petition for rehear-
ing be, and the same is hereby, DENIED.
* The Honorable John R. Bartels, Senior District Judge of
the Eastern District of New York, is sitting by designation.
** Chief Judge Fairchild and Circuit Jud Swygert and
Cudahy voted to grant the petition for rehearing.
—58a—
APPENDIX “G”
PUBLIC LAW 94-571 [H.R. 14535]; Oct. 20, 1976
IMMIGRATION AND NATIONALITY ACT
AMENDMENTS OF 1976
An Act to amend the Immigration and Nationality Act, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assem-
bled. That this Act may be cited as the “Immigration
and Nationality Act Amendments of 1976”.
SEC. 2. Section 201 of the Immigration and National-
ity Act (8 U.S.C. 1151) is amended—
(1) by striking out subsection (a) and inserting
in lieu thereof the following:
“Sec. 201. (a) Exclusive of special immigrants de-
fined in section 101(a)(27), and immediate relatives of
United States citizens as specified in subsection (b) of
this section, (1) the number of aliens born in any foreign
state or dependent area located in the Eastern Hemi-
sphere who may be issued immigrant visas or who may
otherwise acquire the status of an alien lawfully admit-
ted to the United States for permanent residence, or
who may, pursuant to section 203(a)(7), enter condition-
ally, shall not in any of the first three quarters of any
fiscal year exceed a total of 45,000 and shall not in any
fiscal year exceed a total of 170,000; and (2) the number
of aliens born in any foreign state of the Western Hemi-
sphere or in the Central Zone, or in a dependent area
located in the Western Hemisphere, who may be issued
immigrant visas or who may otherwise acquire the sta-
tus of an alien lawfully admitted to the United States
for permanent residence, or who may, pursuant to sec-
tion 203(a)(7), enter conditionally shall not in any of the
first three quarters of any fiscal year exceed a total of
32,000 and shall not in any fiscal year exceed a total of
120,000”; and
(2) by striking out subsections (c), (d) and (e).
—59a—
Sec. 3. Section 202 of the Immigration and National-
ity Act (8 U.S.C. 1152) is amended—
(1) by striking out the last proviso in subsection
a),
(2) by striking out subsection (c) and inserting
in lieu thereof the following:
“(c) Any immigrant born in a colony or other com-
ponent or dependent area of a foreign state overseas
from the foreign state, other than a special immigrant,
as defined in section 101(a)(27), or an immediate rela-
tive of a United States citizen, as defined in section
201(b), shall be chargeable for the purpose of the limita-
tions set forth in sections 201(a) and 202(a), to the hemi-
sphere in which such colony or other component or
dependent area is located, and to the foreign state,
respectively, and the number of immigrant visas avail-
able to each such colony or other component or depend-
N area shall not exceed 600 in any one fiscal year.“;
an
(3) by inserting at the end thereof the following
new subsection:
“(e) Whenever the maximum number of visas or con-
ditional entries have been made available under section
202 to natives of any single foreign state as defined in
subsection (b) of this section or any dependent area as
defined in subsection (c) of this section in any fiscal
year, in the next following fiscal year a number of visas
and conditional entries, not to exceed 20,000, in the case
of a foreign state or 600 in the case of a dependent area,
shall be made available and allocated as follows:
“(1) Visas shall first be made available, in a
number not to exceed 20 per centum of the number
specified in this subsection, to qualified immigrants
who are the unmarried sons or daughters of citi-
zens of the United States.
“(2) Visas shall next be made available, in a
number not to exceed 20 per centum of the number
specified in this subsection, plus any visas not
—60a—
required for the classes specified in paragraph (1),
to qualified immigrants who are the spouses, un-
married sons, or unmarried daughters of an alien
lawfully admitted for permanent residence.
3) Visas shall next be made available, in a
number not to exceed 10 per centum of the number
specified in this subsection, to qualified immigrants
who are members of the professions, or who be-
cause of their exceptional ability in the sciences or
the arts will substantially benefit prospectively the
national economy, cultural interests, or welfare of
the United States, and whose services in the profes-
sions, sciences, or arts are sought by an employer in
the United States.
“(4) Visas shall next be made available, in a
number not to exceed 10 per centum of the number
specified in this subsection, plus any visas not
required for the classes specified in paragraphs (1)
through (3), to qualified immigrants who are the
married sons or the married daughters of citizens
of the United States.
5) Visas shall next be made available, in a
number not to exceed 24 per centum of the number
specified in this subsection, plus any visas not
required for the classes specified in paragraphs (1)
through (4), to qualified immigrants who are the
brothers or sisters of citizens of the United States,
provided such citizens are at least twenty-one years
of age.
“(6) Visas shall next be made available, in a
number not to exceed 10 per centum of the number
specified in this subsection, to qualified immigrants
capable of performing specified skilled or unskilled
labor, not of a temporary or seasonal nature, for
which a shortage of employable and willing persons
exists in the United States.
“(7) Conditional entries shall next be made avail-
able by the Attorney General, pursuant to such reg-
—6la—
ulations as he may prescribe, in a number not to
exceed 6 per centum of the number specified in this
subsection, to aliens who satisfy an Immigration
and Naturalization Service officer at an examina-
tion in any non-Communist or non-Communist-dom-
inated country, (A) that (i) because of persecution
or fear of persecution on account of race, religion,
or political opinion they have fled (I) from any
Communist or Communist-dominated country or
area, or (II) from any country within the general
area of the Middle East, and (ii) are unable or
unwilling to return to such country or area on
account of race, religion, or political opinion, and
(iii) are not nationals of the countries or areas in
which their application for conditional entry is
made: or (B) that they are persons uprooted by
catastrophic natural calamity as defined by the
President who are unable to return to their usual
place of abode. For the purpose of the foregoing the
term ‘general area of the Middle East’ means the
area between and including (1) Libya on the west,
(2) Turkey on the north, (3) Pakistan on the east,
and (4) Saudi Arabia and Ethiopia on the south:
Provided, That immigrant visas in a number not
exceeding one-half the number specified in this
paragraph may be made available, in lieu of con-
ditional entries of a like number, to such aliens who
have been continuously physically present in the
United States for a period of at least two years
prior to application for adjustment of status.
“(8) Visas so allocated but not required for the
classes specified in paragraphs (1) through (7) shall
be made available to other qualified immigrants
strictly in the chronological order in which they
qualify.”
Sec. 4. Section 203 of the Immigration and National-
ity Act (8 U.S.C. 1153) is amended—
(1) by striking out “201(a)ii)” each place it ap-
pears in paragraphs (1) through (7) of subsection (a)
—62a—
and inserting in lieu thereof in each such place
“201(aX1) or (2)”:
(2) by striking out the period at the end of para-
graph (3) of subsection (a) and inserting in lieu
thereof a comma and the following: “and whose
services in the professions, sciences, or arts are
sought by an employer in the United States.”:
(3) by striking out the period at the end of para-
graph (5) of subsection (a) and inserting in lieu
thereof a comma and the following: “provided such
citizens are at least twenty-one years of age.”; and
(4) by striking out the second sentence of subsec-
tion (e) and inserting in lieu thereof the following:
“The Secretary of State shall terminate the regis-
tration of any alien who fails to apply for an immi-
grant visa within one year following notification to
him of the availability of such visa, but the Secre-
tary shall reinstate the registration of any such
alien who establishes within two years following
notification of the availability of such visa that such
failure to apply was due to circumstances beyond
his control. Upon such termination the approval of
any petition approved pursuant to section 204(b)
shall be automatically revoked.”
Sec. 5. Section 21 A a(14) of such Act (8 U.S.C.
1182(a)(14)) is amended to read as follows:
“(14) Aliens seeking to enter the United States,
for the purpose of performing skilled or unskilled
labor, unless the Secretary of Labor has determined
and certified to the Secretary of State and the
Attorney General that (A) there are not sufficient
workers who are able, willing, qualified (or equally
qualified in the case of aliens who are members of
the teaching profession or who have exceptional
ability in the sciences or the arts), and available at
the time of application for a visa and admission to
the United States and at the place where the alien
is to perform such skilled or unskilled labor, and
—63a—
(B) the employment of such aliens will not adverse-
ly affect the wages and working conditions of the
workers in the United States similarly employed.
The exclusion of aliens under this paragraph shall
apply to preference immigrant aliens described in
section 203(a)(3) and (6), and to nonpreference im-
migrant aliens described in section 203(a)(8);”.
Sec. 6. Section 245 of the Immigration and National-
ity Act (8 U.S.C. 1255) is amended to read as follows:
“Sec. 245. (a) The status of an alien who was in-
spected and admitted or paroled into the United States
may be adjusted by the Attorney General, in his discre-
tion and under such regulations as he may prescribe, to
that of an alien lawfully admitted for permanent resi-
dence if (1) the alien makes an application for such ad-
justment, (2) the alien is eligible to receive an im-
migrant visa and is admissible to the United States for
permanent residence, and (3) an immigrant visa is
immediately available to him at the time his application
is filed.
“(b) Upon the approval of an application for adjust-
ment made under subsection (a), the Attorney General
shall record the alien’s lawful admission for permanent
residence as of the date the order of the Attorney Gen-
eral approving the application for the adjustment of sta-
tus is made, and the Secretary of State shall reduce by
one the number of the preference or nonpreference visas
authorized to be issued under sections 202(e) or 203(a)
within the class to which the alien is chargeable for the
fiscal year then current.
“(c) The provisions of this section shall not be applic-
able to (1) an alien crewman; (2) an alien (other than
an immediate relative as defined in section 201(b)) who
hereafter continues in or accepts unauthorized employ-
ment prior to filing an application for adjustment of sta-
tus; or (3) any alien admitted in transit without visa
under section 212(d\4\C).”
—64a—
Sec. 7. (a) Section 101(a( 27) of the Immigration
and Nationality Act (8 U.S.C. 1101(a\(27)) is amended
by striking out subparagraph (A) and by redesignating
subparagraphs (B) through (E) as subparagraphs (A)
through (D), respectively.
(b) Section 204 of such Act (8 U.S.C. 1154) is amended
to add a new subsection (f), to read as follows:
“(f) The provisions of this section shall be applicable
to qualified immigrants specified in paragraphs (1)
through (6) of section 202(e).”.
(e) Section 211(b) of such Act (8 U.S.C. 1181(b)) is
amended by striking out “section 101(a)(27)(B)” and
inserting in lieu thereof “section 101(a)27)A)”.
(d) Section 21264 (24) of such Act (8 U.S.C. 1182(a)
(24)) is amended by striking out “101(a)(27) (A) and (B)“
and inserting in lieu thereof “101(a)(27)(A) and aliens
born in the Western Hemisphere”.
(e) Section 241(aX10) of such Act (8 U.S.C. 1251(a)
(10)) is amended by striking out the language in the
parentheses and inserting in lieu thereof the following:
“other than an alien described in section 101(a)(27)(A)
and aliens born in the Western Hemisphere”.
(f) Section 244(d) of such Act (8 U.S.C. 1254(d)) is
amended by striking out “is entitled to special immi-
grant classification under section 101(a)27)(A), or“.
(g) Section 21(e) of the Act of October 3, 1965 (Pub-
lic Law 89-236; 79 Stat. 921), is repealed.
Sec. 8. The Act entitled “An Act to adjust the status
of Cuban refugees to that of lawful permanent residents
of the United States, and for other purposes”, approved
November 2, 1966 (8 U.S.C. 1255, note), is amended
by adding at the end thereof the following new section:
“Sec. 5. The approval of an application for adjust-
ment of status to that of lawful permanent resident of
the United States pursuant to the provisions of section 1
of this Act shall not require the Secretary of State to
reduce the number of visas authorized to be issued in
—65a—
any class in the case of any alien who is physically
present in the United States on or before the effective
date of the Immigration and Nationality Act Amend-
ments of 1976.”
Sec. 9. (a) The amendments made by this Act shall
not operate to affect the entitlement to immigrant status
or the order of consideration for issuance of an immi-
grant visa of an alien entitled to a preference status,
under section 203(a) of the Immigration and Nationality
Act, as in effect on the day before the effective date of
this Act, on the basis of a petition filed with the Attor-
ney General prior to such effective date.
(b) An alien chargeable to the numerical limitation
contained in section 21(e) of the Act of October 3, 1965
(79 Stat. 921), who established a priority date at a con-
sular office on the basis of entitlement to immigrant sta-
tus under statutory or regulatory provisions in existence
on the day before the effective date of this Act shall be
deemed to be entitled to immigrant status under section
203(aX(8) of the Immigration and Nationality Act and
shall be accorded the priority date previously estab-
lished by him. Nothing in this section shall be construed
to preclude the acquisition by such an alien of a prefer-
ence status under section 203(a) of the Immigration and
Nationality Act, as amended by section 4 of this Act.
Any petition filed by, or in behalf of, such an alien to
accord him a preference status under section 203(a)
shall, upon approval, be deemed to have been filed as of
the priority date previously established by such alien.
The numerical limitation to which such an alien shall
be chargeable shall be determined as provided in sec-
tions 201 and 202 of the Immigration and Nationality
Act, as amended by this Act.
Sec. 10. The foregoing provisions of this Act, includ-
ing the amendments made by such provisions, shall
become effective on the first day of the first month
which begins more than sixty days after the date of
enactment of this Act.
Approved October 20, 1976.
—66a—
APPENDIX “H”
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IMELDA CONTRERAS DE AVILA, et al.,
Plaintiffs,
No. 78 C 1166 v.
Griffin B. Bell, et al.,
Defendants.
MEMORANDUM DECISION
In this class action for injunctive and declaratory
relief, plaintiffs, who are Mexican visa applicants and
their United States citizen or permanent resident spon-
sors, seek the recapture of permanent resident visas
incorrectly charged against the Immigration and Natio-
nality Act’s per country quota for Mexico. In our memo-
randum decision of May 18, 1979, we held that the State
Deparment had interpreted the 1976 Amendments to
the Immigration and Nationality Act incorrectly and
that 9,565 additional visas should be awarded to Mexi-
can immigrants. Although we certified a class for liabil-
ity issues, we held that different groups within the class
would have conflicting interests in respect to relief.
Therefore we held that the class must be divided into
subclasses with separate representation before we could
afford any relief. Plaintiffs’ motion for certification of
these subclasses is now pending.
The 1976 Amendments established a per country
quota of 20,000 permanent resident visas per fiscal year.
8 U.S.C. § 1152. The fiscal year begins on October 1,
and the effective date of the 1976 Amendments was Jan-
uary 1, 1977. See Pub. L. No. 94-571, § 10, 90 Stat. 2707.
The State Department charged visas awarded between
—67a—
October 1, 1976 and January 1, 1977 against the per
country quota. This left 5,797 visas available for Mexi-
can immigrants between January 1, 1977 and Sep-
tember 30, 1977, and only 5,435 were actually issued.
Garner Deposition at 83, 88-89. We held that the State
Department should not have begun charging visas
against the per country quota until the effective date of
the 1976 Amendments, and that the quota should have
been applied pro rata to the three-fourths of fiscal year
1977 remaining after the effective date of the statute.
Thus 15,000 visas, or 9,565 additional visas, should have
been issued to Mexican immigrants between January 1,
1977 and September 30, 1977.
The 1976 Amendments established a preference scheme
for distributing the per country quota, 8 U.S.C. § 1153
(a). Each of the seven preference categories, which are
based on familial relationships to United States citizens
or permanent residents, professional skills or refugee
status, was allocated a percentage of the per country
quota. An eighth preference category, the “nonprefer-
ence” category, is allocated only the residual visas not
used in the seven preference groups. Because the prefer-
ence system was not in full swing when the State
Department incorrectly charged the Mexican visas, our
task in ordering distribution of the recaptured visas
becomes complicated. Inasmuch as the preference sys-
tem was not applicable to Western Hemisphere immi-
grants until January 1, 1977, a considerable time elapsed
before the demand for preference category visas equal-
led the quantity available. The State Department at-
tempted to allocate the quota uniformly from month to
month. Therefore, many of the recaptured visas would
have gone to immigrants in the nonpreference category
if issued in 1977. See Garner Declaration. Because of the
realities of the distribution as it would have occurred in
1977, we held that the preference applicants and the
nonpreference applicants have conflicting interests in
the scheme of distribution. These two groups now have
separate representation and have proposed two sub-
classes for certification.
—68a—
The first subclass consists of
All current preference immigrant visa applicants
who are natives of Mexico, and all United States
citizens or permanent residents who are relatives of
those Mexican visa applicants who established their
entitlement to preference status on the basis of such
familial relationships.
The second proposed subclass contains
All current non-preference immigrant visa appli-
cants who are natives of Mexico and who, prior to
October 1, 1977 established priority dates pursuant
to 22 C.F.R. § 42.62 (1968-1977), and all United
States citizens or permanent residents who are rel-
atives of those Mexican visa applicants who estab-
lished their entitlement to non-preference status on
the basis of such familial relationships.
The defendants argue that Be pow subclass 1 should
be conditionally certified. All of the named plaintiffs in
subclass 1 are second preference aliens, and defendants
argue that conflicts of interest may arise among mem-
bers of the various preference groups which would pre-
clude representation of the class by members of only one
preference category. Defendants also challenge the lim-
itation of proposed subclass 2 to aliens with priority
dates before October 1, 1977.
Plaintiffs do not contest the elimination of the October
1, 1977 cut-off date in proposed class 2. As for proposed
class 1, however, plaintiffs argue that because the num-
ber of preference applicants as of October 1, 1977 will
not under any circumstances approach the 9,565 total of
recaptured visas, the named plaintiffs can adequately
represent the subclass, and any conflict of interest
would be speculative.
We agree with plaintiffs that the possibility of con-
flicts of interest arising among the members of subclass
1 is at present speculative. We must order distribution
of recaptured visas as they would have been distributed
in fiscal 1977. Thus the number of preference applicants
—69a—
without visas as of October 1, 1977 would determine the
upper limit of visas available to preference applicants.
This number, however, does not dictate the number of
visas that preference applicants will receive, because
the government has stated that most of the preference
applicants on the list as of October 1, 1977 had estab-
lished their preference status during the last month of
fiscal 1977. Because the State Department issued visas
at a uniform rate, the State Department would not have
had enough visas remaining in September to satisfy the
preference demand arising during that month, even if
an additional 9,565 visas had been issued. Therefore all
preference applicants now have a coextensive interest in
establishing entitlement to the maximum number of
preference visas, all of which will be processed as the
statutory scheme would have dictated in 1977.
Thus, we have no doubt that the named plaintiffs, all
of whom come from one preference category, will ade-
quately represent the subclass. If out confidence in the
named plaintiffs proves misplaced, and a conflict of
interest arises, we will exercise our authority under
Rule 23(c)(1) to alter or amend our certification order.
We see no need to make our order conditional, because
as plaintiffs note, we have the authority to so alter the
certification order regardless of whether we condition-
ally certify the class. Therefore we certify subclass 1,
consisting of
All current preference immigrant
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