Silva v. Bell

• Decision Date: 18 October 1979
• Docket Number: No. 79-1154,79-1154
• Citation: 605 F.2d 978
• Parties: Refugio SILVA et al., Plaintiff-Appellees, v. Griffin B. BELL, United States Attorney General, et al., Defendant-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 978

605 F.2d 978

Refugio SILVA et al., Plaintiff-Appellees, v. Griffin B. BELL, United States Attorney General, et al Defendant-Appellants.

No. 79-1154.

United States Court of Appeals Seventh Circuit.

Argued June 11, 1979.

Decided Aug. 23, 1979.

As Corrected Sept. 26, 1979.

As Modified on Rehearing Oct. 18, 1979.

Lauri Steven Filppu, Dept. of Justice, Washington, D. C., for defendants-appellants.

Bruce L. Goldsmith, Chicago, Ill., for plaintiffs-appellees.

Before CUMMINGS and TONE, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

TONE, Circuit Judge.

During the period from 1968 to 1976, 144,999 Cuban refugees were granted permanent resident status pursuant to the Cuban Adjustment Act of 1966, Pub.L. No. 89-732, 80 Stat. 1161. The visa numbers assigned to them were charged against the Western Hemisphere immigration quota, thereby making those visa numbers unavailable to applicants from Western Hemisphere countries other than Cuba. In 1976 it was determined that the Cuban charging was in error. The question in this case is how the erroneously charged visa numbers should be allocated among the Western Hemisphere applicants on the waiting list, chronologically without regard to national origin, as plaintiffs contend and the district court ordered, or in accordance with the historical immigration patterns for the countries involved, as the defendants contend. Also in issue are the standing of class members who are non-resident aliens, the proper composition of the plaintiff class, and the need for subclasses.

Plaintiffs sue on behalf of themselves and a class of visa applicants from Western Hemisphere countries whose applications were filed between July 1, 1968, and December 31, 1976, but have not yet been processed. Defendants are the Attorney General of the United States, other federal officials responsible for the implementation of the immigration laws, the Immigration and Naturalization Service (INS), and the Department of State.

I The Facts

An understanding of the problem presented requires knowledge of the recent history of the Immigration and Nationality Act and the defendants' errant attempts to implement amendments to the Act and later to correct earlier mistakes.

When Congress enacted the present Immigration and Nationality Act in 1952, Pub.L. No. 82-414, 66 Stat. 163, See 8 U.S.C. §§ 1101 et seq., it placed no restriction on the number of Western Hemisphere ¹ immigrants who could obtain permanent residence visas. 8 U.S.C. § 1101(a)(27)(C) (1964). In the 1965 amendment of the Act, Pub.L. No. 89-236, 79 Stat. 911, Congress created a select commission to study the problems of Western Hemisphere immigration and to recommend appropriate changes in the immigration laws, Id. at §§ 21(a) through (d), 79 Stat. 920-921. Western Hemisphere immigrants were classified as "special immigrants," Id. at § 8, 79 Stat. 916, but were not immediately subject to any quota. Congress did, however, provide that unless it enacted legislation to the contrary in the intervening time period, a numerical limitation on Western Hemisphere immigrants of 120,000 per fiscal year would become effective on July 1, 1968. Id. at § 21(e), 79 Stat. 921.

After the adoption of the 1965 Amendment but before the effective date of the § 21(e) quota on Western Hemisphere immigration, Congress enacted the Cuban Adjustment Act, Pub.L. No. 89-732, 80 Stat. 1161 (1966), to alleviate the barrier to permanent residence that immigration laws interposed for Cuban political refugees who had fled from Cuba to the United States after the revolution in that country. Admitted to the United States by the Attorney General pursuant to his discretionary parole power, 8 U.S.C. § 1182(d)(5), these refugees did not have visas granting them permanent residence status. Because, as § 1182(d)(5) prescribes, parole admittance is temporary and a paroled alien must eventually either secure a visa through regular procedures or return to his country of origin, these refugees sought visas. Regular procedures for visa application required contact with a consular post abroad. ² Most refugees, however, could not establish this necessary contact. The United States consulate in Cuba had been closed since 1961, making it impossible for Cubans to obtain visas in their native land. Many of the refugees arrived in this country in an impoverished state and were unable to pay for a trip outside the United States to visit a consulate. The closest consulates, those in Mexico and Canada, had lengthy waiting lists, which exacerbated the problem. Adjustment of status, the only avenue by which visa applicants already present in the United States could avoid the trip to a foreign country, 8 U.S.C. § 1255 (1970), was unavailable to natives of Cuba, 8 U.S.C. §§ 1255(c) and 1101(b)(5) (1970). In the Cuban Adjustment Act, Congress granted the Attorney General authority to adjust the status of any Cuban native or citizen who had been lawfully physically present in the United States for at least two years to that of permanent resident alien.

As the conditionally effective date of the § 21(e) Western Hemisphere quota approached, it became apparent that Congress would not enact countermanding legislation. Because the Cuban Adjustment Act did not expressly address the issue, defendants had to determine whether Congress had intended that Cuban "adjustees" be charged against the Western Hemisphere quota. Without formally explaining its reasons for doing so, the INS adopted the policy of charging the Cubans against the quota; apparently with some reluctance, the Department of State acquiesced in this decision.

The charging commenced on July 1, 1968, and continued for over eight years. In 1975 and 1976 several individual actions were filed by visa applicants challenging the charging policy. While these actions were pending the Attorney General re-examined the policy. The Justice Department's Office of Legal Counsel concluded in a memorandum that "Cuban refugees whose status is adjusted to that of alien admitted for permanent residence are not to be counted against the Western Hemisphere quota." Thereupon, on August 31, 1976, the Attorney General ordered the INS to alter its policy to conform with the position stated in the memorandum. The INS complied with this order on October 1, 1976. By that time, however, 144,999 Cuban adjustees had been charged against Western Hemisphere quotas. During the period the Cuban charging took place, each Cuban adjustee was charged against the Western Hemisphere quota for the year in which his status was adjusted.

On October 20, 1976, before the 144,999 erroneously charged visa numbers could be reclaimed and allocated to waiting applicants, Congress again amended the Immigration and Nationality Act, Pub.L. No. 94-571, 90 Stat. 2703. The 1976 Amendment retained the 120,000 person per year quota on total Western Hemisphere immigration, See 8 U.S.C. § 1151(a), and, in addition, imposed a limit of 20,000 on the total number of immigrant visas available in a fiscal year to natives of any single Western Hemisphere state. That limit became effective on January 1, 1977. Pub.L. No. 94-571, § 3(2), 90 Stat. 2703. This new quota reduced Mexican immigration to this country by as much as 50 per cent and thus "made room" for increased non-Mexican immigration under the total Western Hemisphere immigration quota. Because only Mexicans have sought visas in numbers exceeding 20,000, the length of time Mexicans must wait to have their applications processed has increased, and concomitantly, the percentage of Mexicans on the waiting list has grown since January 1, 1977. ³ The 1976 Amendment also extended the preference system, formerly applicable only to Eastern Hemisphere immigration, to Western Hemisphere immigration, Id., at § 7, 90 Stat. 2706, but that feature of the Amendment does not concern us. ⁴ The new 20,000-per-country quotas established by the 1976 Amendment, although they did not become effective until three months after the Cuban charging ceased and one and one-half months after this action was filed, are the major cause of difficulty in shaping appropriate relief in this case, as we shall explain later.

Plaintiffs filed this action on November 18, 1976, contending that defendants' charging policy violated the Immigration and Nationality Act and the due process clause of the Fifth Amendment, and seeking, Inter alia, to compel defendants to "recapture" the visa numbers assigned to Cuban refugees and reissue those numbers to members of the proposed plaintiff class. On January 12, 1977, the district court certified the plaintiff class, defined as follows:

All natives from independent countries of the Western Hemisphere who have been assigned priority dates for the issuance of immigrant visas between July 1, 1968 and December 31, 1976, and those priority dates have not yet been reached for processing and who have not been called for final immigrant visa interviews.

Insofar as is relevant here, the next significant event occurred on June 21, 1977, when defendants entered into a stipulation with the plaintiffs in Zambrano v. Levi, 76-C-1456, a related individual action pending before the trial judge to whom the instant case was assigned. In that stipulation defendants conceded that the challenged charging policy was in error; the court ordered defendants to recapture two of the wrongfully issued visa numbers and reissue them to the Zambrano plaintiffs. Remaining before the district court in this case after defendants' concession of liability was the question of relief, i.e., how to distribute the wrongfully issued visa numbers. Shortly after the Zambrano order was entered, defendants took it upon themselves to design a program to recapture and reissue the remaining wrongfully issued visa numbers, and by August, 1977, had commenced redistribution of these numbers without having consulted with plaintiffs or obtained the permission of the court.

In...