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De Avilia v. Civiletti

decided: March 10, 1981.

IMELDA CONTRERAS DE AVILIA, FIDEL OCAMPOOCAMPO, CANDELARIO ESCOBAR DE OCAMPO, ET AL., PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS,
v.
BENJAMIN CIVILETTI, ET AL., DEFENDANTS-APPELLANTS 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.

Before Cummings and Wood, Circuit Judges, and Bartels, Senior District Judge.*fn*

Author: Bartels

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 Department of its interpretation of the Immigration and Nationality Act Amendments of 1976, P.L. No. 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 Hemisphere country.*fn1 The government's fiscal year runs from October 1 to September 30, but the 1976 amendments did not become effective until January 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 nevertheless charged those visas against the newly-imposed national quota of 20,000, leaving only 5797 visas available for Mexican immigrants between January 1 and September 30, 1977, of which 5435 were actually issued.*fn2

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*fn3 application of the per country quota resulted in an underallocation of visas to them in fiscal year 1977, in that the first quarter visas should not have 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 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*fn4 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 judge certified two subclasses to argue this issue.*fn5 He adopted a formula 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 appreciate the context of the problem through a brief history of the provisions of the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq. ("the Act") both before and immediately after*fn6 the effective date of the 1976 amendments thereto, January 1, 1977. Prior to that date, immigration to this country was governed essentially by the Act of October 3, 1965, 79 Stat. 911-922 ("the 1965 amendments") which amended the basic Immigration and Nationality Act of 1952. Under the 1965 amendments what amounted to a dual system applied to immigration from the Eastern and Western Hemispheres 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 fiscal year quota from the Western Hemisphere was 120,000. Section 21(e) of the 1965 amendments. The law also accorded different preferences to eight categories of Eastern Hemisphere visa applicants according to their familial relationship with United States citizens or permanent residents, possession of certain professional skills, or refugee status. 8 U.S.C. § 1153(a)(1)-(8).*fn7 Each of seven so-called "preference" 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 preference groups. In addition to the 170,000 limit on immigration 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 as "special immigrants", 8 U.S.C. § 1101(a)(27) (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 immigrants per year, or upwards of a third of the overall hemispheric quota.

The eight category preference system set out in section 1153(a) of the Act did not apply to Western Hemisphere visa applicants either. Instead, such applicants were required to obtain a labor certification from the United States Secretary of Labor, or show exemption from this requirement based on certain familial relationships to United States citizens or permanent residents. 8 U.S.C. § 1182(a)(14) (1970). Congress did not establish a system for processing special immigrants 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 wrought a number of changes in the Act. In effect, the special legislation that had governed the Western Hemisphere was repealed, and Western Hemisphere immigrants were made subject to the same immigration 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 immigration from any one country and along with it the eight category preference system theretofore applicable only in the Eastern Hemisphere.*fn8 While the 120,000 Western Hemispheric quota remained in effect, section 1152(a) of the Act, now applicable to both hemispheres, provided that:

(T)he total number of immigrant visas ... made available to natives of any single foreign nation under paragraphs (1) through (8) of section 1153(a) of this title ...


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