Rafael Castillo-Magallon and Martha Ismelda Naranjo De Castillo v. Immigration and Naturalization Service

Petitioners Rafael Castillo-Magallon and his wife Martha Ismelda Naranjo de Castillo seek review of a Board of Immigration Appeals (“BIA”) decision dismissing their appeal from a decision of the Immigration Judge (“U”) ordering them excluded from the United States pursuant to section 212(a)(20) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182 (a)(20). Petitioners contend that the IJ erred in refusing to consider their application for suspension of deportation under section 244(a)(1) of the INA, 8 U.S.C. § 1254 (a)(1). The INS contends that this appeal must be dismissed on the ground that this court lacks jurisdiction to review exclusion proceedings.

FACTS

Both petitioners entered the United States from Mexico without inspection, she in June, 1973, and he in February, 1974. Apparently they were subjected to deportation proceedings at some point. The IJ’s decision mentions only that “[o]n August 27, 1977, both applicants were notified that due to the court order in Silva v. Levi, ... no action would be taken in their cases until further action by the Court.” The Silva case had been brought to “recapture” Western Hemisphere visa numbers previously given to Cuban…