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ANGCO v. HAIG

UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF PENNSYLVANIA


May 29, 1981

Maria Angelina F. ANGCO et al., Plaintiffs,
v.
Alexander M. HAIG, Secretary of State, Defendant

The opinion of the court was delivered by: DITTER

In this action, I am called upon to construe "a unique and obscure provision" *fn1" of the Immigration and Nationality Act Amendments of 1976 ("the 1976 amendments"). Section 202(e) of the 1976 amendments alters the manner in which citizens of a foreign country are admitted to the United States as permanent residents. The change occurs with respect to a particular foreign nation whenever the maximum number of immigrant visas have been made available to its natives during the preceding fiscal year. The plaintiffs, all third and sixth preference applicants from the Philippines, were denied permanent residency status during fiscal year 1980 because the Philippines' annual quota of visas was issued to applicants in higher preference categories. Plaintiffs filed the instant action for declaratory and injunctive relief against the Secretary of State *fn2" alleging that the Department of State's refusal to apply section 202(e) to Philippine immigration in 1980 was premised upon an erroneous interpretation of the statute. The parties have filed cross-motions for summary judgment each advancing a different construction of this provision. *fn3" After careful consideration of the pleadings, briefs, and discovery on record, I have concluded that the Department of State's position is consistent with the express terms of the statute, with its legislative history, and with the purposes prompting its enactment by Congress in 1976. I will therefore grant summary judgment in favor of the defendant.

In order to consider adequately the issues raised in this case, the statutory scheme governing the distribution and allocation of visas must be examined in some detail. In fiscal year 1979, the total number of visas which could have been distributed worldwide was 290,000. 8 U.S.C. § 1151(a). *fn4" The maximum number of visas which may be allocated to the natives of a single foreign state in each fiscal year is 20,000. 8 U.S.C. § 1152(a). The way these visas are to be distributed within a single foreign state is governed by 8 U.S.C. § 1153(a) which sets forth eight preference categories in a descending order of priority. Each preference category is based upon some familial relationship to United States citizens or permanent residents, professional skills, or refugee status, and each is allotted a specified percentage of the worldwide quota of 290,000. *fn5" As a result, if a particular nation has a heavy visa demand in the higher preference categories its entire annual allotment of 20,000 visas will be filled almost exclusively from the high preference classifications and applicants in the lower preference categories will be precluded from having a realistic opportunity to obtain visas. This necessarily results in a large number of unfilled visa applications in the lower preference categories.

 In order to alleviate this situation, Congress enacted section 202(e) of the Immigration and Nationality Act Amendments of 1976, Pub.L. 94-571, § 3(3), 90 Stat. 2704 (1976) codified at 8 U.S.C. § 1152(e) which provides in pertinent part:

 

Whenever the maximum number of visas ... have been made available under section 202 to natives of any single foreign state ... in any fiscal year, in the next following fiscal year a number of visas ... not to exceed 20,000 ... shall be made available and allocated as follows .... *fn6"

 Section 202(e) then provides that the distribution of visas shall be made in accordance with a series of seven preference categories which substantially comport with those set forth in 8 U.S.C. § 1153(a)(1)-(7). *fn7" Each preference category is entitled to a specified percentage of that country's annual allotment of 20,000 visas. The express purpose of this amendment "is to insure a fairer distribution of visas under the preference system for those countries whose overall visa demand regularly exceeds the number available or of those with a particularly high demand for visas under a specific preference category." H.R.Rep.No.94-1553, 94th Cong., 2d Sess. 10, reprinted in (1976) U.S.Code Cong. & Ad.News 6073, 6082. This objective is accomplished by predicating the proportionate distribution of visas to each preference category upon that country's allotment of 20,000 visas rather than the worldwide total of 290,000.

 The consequences of distributing visas in accordance with section 202(e) as opposed to 8 U.S.C. § 1153(a) can be demonstrated by utilizing a concrete, albeit simplistic, illustration. Under the latter provision, applicants from the first preference category are entitled to 20 per cent of the worldwide annual quota of 290,000 or a total of 58,000 visas per fiscal year. Thus, first preference visa applicants from a foreign state have priority over lower preference applicants from that state until either the country's annual quota of 20,000 is met or until the worldwide first preference category ceiling of 58,000 is reached. In a country with a sufficiently strong demand by qualified, first preference visa applicants, the lion's share of that country's annual allotment of 20,000 visas will be distributed to first preference immigrants before the worldwide ceiling of 58,000 first preference visas are issued. Similarly, if second preference demand is also high in that country, the remainder of its 20,000 visas will be distributed to second preference applicants before the worldwide quota of 58,000 second preference visas is met. This serves to illustrate the practical consequence of distributing visas under 8 U.S.C. § 1153(a) in a country with a heavy demand in the top preference categories its annual allotment of visas is exhausted by applicants in the higher preference classifications thus precluding applicants in the lower preference categories from obtaining visas.

 By contrast, if visa distribution is made pursuant to section 202(e), the proportionate allocation of visas to the various preference categories is predicated upon the country's annual allotment and not the worldwide quota. If 20,000 immigrants are admitted, first preference applicants are entitled to 20 per cent of that amount or 4,000 visas. Second preference applicants are also entitled to 4,000 (20 per cent) plus any unused first preference visas; third preference applicants receive 2,000 visas (10 per cent); fourth preference 2,000 (10 per cent) etc. In this manner, the application of section 202(e) assures the continued availability of visas to lower preference applicants in countries with high levels of demand in the higher preference categories.

 Distribution of visas under the terms of section 202(e) in a fiscal year occurs only when, in the preceding fiscal year, "the maximum number of visas ... have been made available under section 202 to natives of any single foreign state." Defendant, relying upon the construction of this provision adopted by the Department of State and the Immigration and Naturalization Service (INS) *fn8" argues that the term "maximum number of visas ... made available under section 202 ...." refers to a foreign state's maximum annual allotment of 20,000 visas. Thus, whenever the statutory maximum of 20,000 visas is made available to the natives of a single foreign state, the distribution of visas in that country during the following fiscal year will be governed by section 202(e). In fiscal years 1977 and 1978, *fn9" the maximum number of 20,000 visas was made available to natives of the Philippines and, accordingly, the distribution of visas during fiscal years 1978 and 1979 was made under section 202(e). However, in fiscal year 1979, only 17,874 visas were made available to Filipino natives and, pursuant to the Department of State's interpretation of seciton 202(e), distribution of visas in fiscal year 1980 was made under the general provisions of 8 U.S.C. § 1153(a). *fn10"

  The plaintiffs, all from the Philippines, are third and sixth preference visa applicants. They presently reside in this country under temporary visas and are employed as registered nurses pursuant to alien labor certifications approved by the Department of Labor. Each plaintiff filed a preference petition for fiscal year 1980 and was given a priority date in accordance with 8 U.S.C. § 1153(c) and 8 C.F.R. § 204.1(c)(2). *fn11" However, because the distribution of visas in fiscal year 1980 was made under 8 U.S.C. § 1153(a), it became apparent that only the top two preference categories would receive visas and plaintiffs would be unable to obtain adjustments of status to permanent residents. They then commenced this action seeking, inter alia, a declaration that defendant's interpretation of section 202(e) is erroneous. *fn12" They contend that the distribution of visas under section 202(e) is triggered whenever the demand for visas in a given country exceeds the number that can be made available in a fiscal year. Under plaintiffs' interpretation, section 202(e) should have controlled visa distribution in fiscal year 1980 because, although less than 20,000 visas were actually made available to the Philippines in 1979, the demand for visas by Philippine natives was far in excess of that amount.

 The issue thus presented for resolution is a fairly narrow one: Whether the Department of State's authority to invoke section 202(e) is contingent upon a foreign state's having the statutory maximum of 20,000 visas made available to it during the preceding fiscal year or whether it suffices for the demand for visas to be in excess of the number that can be made available. Before addressing this issue, it is necessary to delineate the standard to be used in evaluating the parties' respective contentions. It is well settled that the interpretation of a statute by the governmental agency statutorily charged with its administration is entitled to great deference. Quern v. Mandley, 436 U.S. 725, 738, 98 S. Ct. 2068, 2076, 56 L. Ed. 2d 658 (1978); Zemel v. Rusk, 381 U.S. 1, 11, 85 S. Ct. 1271, 1278, 14 L. Ed. 2d 179 (1965). I am therefore required to sustain the defendant's interpretation of this statute "if it is reasonable and not contrary to the discernable intent of Congress, even if it is not the only reasonable interpretation ...." Nazareno v. Attorney General, 168 U.S. App. D.C. 22, 512 F.2d 936, 940 (D.C.Cir.), cert. denied, 423 U.S. 832, 96 S. Ct. 53, 46 L. Ed. 2d 49 (1975). See also De Avilia v. Civiletti, 643 F.2d 471, 475 (7th Cir. 1981) (Department of State interpretation of another provision of the 1976 amendments must be sustained "unless there are compelling indications that it is wrong."); Castillo-Felix v. Immigration & Naturalization Service, 601 F.2d 459, 465 (9th Cir. 1979). An examination of the plain terms of this provision, its rather sparse legislative history, and its underlying purposes convinces me that defendant's interpretation of section 202(e) is a reasonable construction of the words of the statute and is consistent with Congress' intent in enacting it.

 It is axiomatic that "(t)he starting point in every case involving the construction of a statute is the language itself." Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S. Ct. 2361, 2366, 60 L. Ed. 2d 980 (1979), quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S. Ct. 1917, 1935, 44 L. Ed. 2d 539 (1975) (Powell, J. concurring). Here, the statute in question was enacted as an amendment to section 202 of the Immigration and Nationality Act. It expressly provides that its terms control the issuance of visas "whenever the maximum number of visas ... have been made available under section 202 to natives of any single foreign state ... in any fiscal year ..." 8 U.S.C. § 1152(e) (emphasis added). Section 202(a) of the Act, 8 U.S.C. § 1152(a), sets the maximum number of visas to be made available to natives of any single foreign state in any fiscal year as 20,000. Clearly, section 202(e) incorporates the statutory maximum of 20,000 set by section 202(a). The plaintiffs' assertion that if section 202(e) was meant to utilize the 20,000 maximum it would have specified 20,000 is strained and unconvincing. In the first place, the import of the statute is reasonably clear as drafted. While Congress' specification of 20,000 visas in section 202(e) might well have precluded any question as to the precise interpretation of the statute, I cannot say that its failure to do so renders its meaning significantly less clear or defendant's interpretation less tenable. Further, the plaintiffs point to nothing in the statutory language supporting their proposed construction. I therefore conclude that the interpretation of section 202(e) adopted by the defendant is supported by the plain terms of the statute.

 A review of the relevant legislative history confirms this analysis. The 1976 Amendments were passed by the House of Representatives on September 29, 1976. Immediately before their passage, Rep. Joshua Eilberg, chairman of the House Subcommittee on Immigration, Citizenship and International Law described the operation of section 202(e) to the full House in the following manner:

 

(T)he bill would propose a formula which would provide that visas be distributed throughout the preference categories in those cases where a country has reached its 20,000 limit for visa issuance. This is designed to prevent one preference category from continuously utilizing a disproportionate share of visas by providing for the allocation of visas to all of the relative and labor preference categories in certain years. This distribution formula is extremely necessary if we are to insure that the goal of family reunification is achieved for all countries in the world.

 122 Cong.Rec. 33633 (1976) (emphasis supplied). Congressman Eilberg's understanding of this provision is identical to that contained in the House Report recommending passage of the amendments:

 

The section also adds a new Section 202(e) which provides that whenever the maximum number of visas or conditional entries has been made available to natives of a foreign state (20,000) or dependent area (600) in any fiscal year, in the following fiscal year visas or conditional entries will be made available and allocated to that foreign state or dependent area according to the priorities and percentages set forth in the preference system, as modified by this legislation.

 H.R.Rep.No.94-1553, 94th Cong., 2d Sess. 14, reprinted in (1976) U.S.Code Cong. & Adm.News 6073, 6085-86 (emphasis supplied). 13 It is clear that although this issue did not generate extended discussion or debate, *fn14" it was generally intended by the Congress that enacted this legislation that the application of section 202(e) was to be predicated upon a country's reaching its statutory maximum of 20,000 visas.

 As has been demonstrated, plaintiffs' contentions find little support in the language of section 202(e) or in its legislative history. The principal thrust of their argument, however, is that I should adopt their interpretation of this provision because it better furthers the objectives that the statute is designed to achieve. Specifically, it is contended that, as occurred in fiscal year 1979, the actual number of visas which can be made available may be something less than 20,000 even though the demand for visas is significantly in excess of that amount. They argue that under these circumstances, defendant's construction of 202(e) serves to preclude those in the lower preference categories from obtaining visas even though, in terms of demand, the country is oversubscribed in the higher preference categories. Thus, by predicating the invocation of section 202(e) upon the availability of 20,000 visas, defendant ostensibly defeats that provision's purpose of assuring continued visa availability to those in the lower preference categories. The plaintiffs assert that by premising the application of section 202(e) upon demand rather than actual availability, the objectives of the statute are better furthered in that its application is not made contingent upon fluctuations in worldwide visa availability which may have little or nothing to do with visa demand in an oversubscribed country.

 Even assuming that the plaintiffs' interpretation would provide a more flexible means of achieving section 202(e)"s objectives, *fn15" this would not permit me to adopt that construction of the statute as a matter of law. As has been illustrated, the defendant's position is supported by the plain terms of the statute and by its legislative history. Further, I cannot say that it is inconsistent with Congress' express desire to prevent the exhaustion of visa applications in the higher preference categories in those countries having a high demand for visas. By tying the applicability of section 202(e) into a country's reaching its annual allotment of 20,000 visas, Congress sought to assure that the ameliorative provisions of that statute will normally control visa distribution in those countries most in need of them, i. e., those in which the number of visas annually made available reaches the statutory maximum. For me to adopt the plaintiffs' proffered interpretation simply because it arguably better furthers these purposes would be tantamount to an amendment of the statute. This I cannot do.

 For all of the foregoing reasons, summary judgment will be entered in favor of the defendant.


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