MEMORANDUM ORDER Re: Cross-Motions for Summary Judgment and Dismissal of Plaintiff's Complaint as Moot

MARILYN PATEL, Chief Judge, District

Plaintiff Lorraine Lavelle, an alien and a citizen of Ireland, filed this complaint for writ of mandamus against United States Department of Homeland Security, its secretary, Tom Ridge, the United States Citizenship and Immigration Services ("CIS"), and David Still, the Northern California District Director of CIS (collectively "defendants"). Lavelle seeks to compel defendants to process her application for adjustment of status to lawful permanent resident of the United States. Lavelle now moves for summary judgment that defendants have a nondiscretionary duty to take all remaining steps necessary to process Lavelle's status adjustment application. Defendants cross-move for summary judgment that the court lacks statutory authority to order the sought-after relief. Defendants also contend that Lavelle's complaint should be dismissed as moot. Having considered the arguments presented and for the reasons stated below, the court enters the following memorandum and order. BACKGROUND

I. The Diversity Immigrant Visa Program

The Diversity Immigration Visa Lottery makes available a limited number of immigrant visas to individuals from countries that have had historically low rates of immigration to the United States. 8 U.S.C. § 1153(c); 22 C.F.R. § 42.33(a)(1). The program is administered by the State Department's National Visa Center. The State Department has established a lottery-like process for selecting eligible individuals at random with the goal of ensuring that, to the extent possible, all diversity visas authorized for issuance are made available. 22 C.F.R. § 42.33(c);Nyaga v. Ashcroft, 323 F.3d 906, 908 (11th Cir.), cert. denied, ___ U.S. ___, 124 S. Ct. 577 (2003). Lottery winners must then submit a diversity visa application to CIS and qualify for permanent resident status before the end of the fiscal year in which the applicants were selected. 8 U.S.C. § 1154(a)(1)(I)(ii)(II); 22 C.F.R. § 42.33(a)(1). The application process includes an extensive investigation of the applicant's background, including a Central Intelligence Agency ("CIA") clearance ("I-181 Hold"), a Federal Bureau of Investigation ("FBI") fingerprint screening, an FBI name clearance, and an Interagency Border Inspection System ("IBIS") check. Memorandum from William C. Ramos, Section Chief, Adjustment of Status, to Kelli Duehning, Associate Area Counsel (July 19, 2004).

Under the Immigration and Nationalization Service ("INS") policy in place prior to November 2002, change of status officers were authorized to approve an application for an immigrant visa even if the investigation of the applicant's background had not yet been completed, provided that the officer completed an interview with the applicant and received the results of the FBI fingerprint check. Second Byrne Decl. ¶ 4;see also Holasek v. United States Dept. of Justice, 123 F. Supp. 2d 1126, 1128 (N.D. Ill. 2000) (describing the pre-November 2002 INS policy). If the pending background checks subsequently revealed any disqualifying information, the INS would withdraw the visa and reverse its earlier decision granting lawful permanent resident status to the applicant. Byrne Decl., Exh. B. However, in November 2002, the INS amended its change of status application procedures, requiring that change of status officers refrain from issuing immigrant visas until all security clearances are complete and final. Id., Exh. C. With respect to the security clearance at issue in this action, the CIA I-181 Hold, the new CIS policy prohibits field officers from approving an adjustment of status application during the 60-day period in which it takes to complete the CIA check. Ramos Memo at 2.

II. Facts

Lavelle is a citizen of Ireland. On April 16, 2002, the State Department notified Lavelle that she had been randomly selected in the Diversity Immigrant Visa Lottery for fiscal year 2003 (commencing on October 1, 2002 and ending on September 30, 2003). A.R. at 63. On August 26, 2003, Lavelle filed an application for adjustment of status with CIS's San Francisco, California office and scheduled an interview with an adjustment of status officer on September 17, 2003. See id. at 38-41. When she appeared at her interview at the scheduled time, Lavelle was required to file a second status adjustment application because she had left the country without the permission of CIS. Id. at 37, 54-56. Lavelle's August 26 application was subsequently withdrawn. Id. at 37.

By September 30, 2003, Lavelle had completed the interview process, and CIS had received the results of Lavelle's FBI background checks and IBSIS clearance. Id. at 0-1. However, the CIA did not complete the I-181 Hold check by that date. After the end of fiscal year 2003, CIS took no further action until December 5, 2003, when it denied Lavelle's application for adjustment of status, citing the failure to complete all required background checks before the September 30 deadline. Id. at 21.

On February 9, 2004, Lavelle filed this complaint for writ of mandamus pursuant to 28 U.S.C. § 1361. Lavelle now moves for summary judgment that defendants must take all necessary steps to complete the processing of her application. Defendants cross-move for summary judgment that CIS presently lacks statutory authority to process Lavelle's status adjustment application or, alternatively, that defendants did not act unreasonably in failing to process Lavelle's diversity visa application by September 30, 2003. However, before addressing the merits of the parties' claims, the court must address the threshold issue of mootness that defendants raise in their summary judgment motion. LEGAL STANDARD

Mootness is a jurisdictional issue; "federal courts have no jurisdiction to hear a case that is moot, that is, where no actual or live controversy exists." Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003) (quoting Cook Inlet Treaty Tribes v. Shalala, 166 F.3d 986, 989 (9th Cir. 1999)). "If there is no longer a possibility that an appellant can obtain relief for his claim, that claim is moot and must be dismissed for lack of jurisdiction." Foster, 347 F.3d at 745 (quoting Ruvalcaba v. City of Los Angeles., 167 F.3d 514, 521 (9th Cir. 1999)). To avoid dismissal on mootness grounds, the court must determine that the parties continue to have a "legally cognizable interest in the outcome throughout the proceeding." Southern Oreg. Barter Fair v. Jackson County, 372 F.3d 1128, 1133 (9th Cir. 2004). The party asserting mootness bears the burden of establishing that there is no "effective relief" remaining that the court could provide. Id. at 1134.

DISCUSSION

The parties agree that CIS did not issue a diversity visa to Lavelle before September 30, 2003, the last day of fiscal year 2003. However, Lavelle argues that under the present circumstances, defendants must continue processing her change of status application, notwithstanding the fact that she is not eligible to receive a diversity immigrant visa for the current fiscal year. In cross moving for summary judgment, defendants contend that they presently have no statutory authority to issue a visa to Lavelle. Because defendants' motion also raises the jurisdictional question of mootness, the court must determine whether the case must be dismissed on that basis. See Sea-Land Serv., Inc. v. International Longshoremen's Warehousemen's Union Locals 13, 63 94, 939 F.2d 866, 870 (9th Cir. 1991).

I. Defendants' Statutory Authority to Issue Diversity Immigrant Visa

Defendants argue that Lavelle ceased to be eligible to receive an immigrant visa after September 30, 2003, thereby rending futile any further steps that defendants might take to process Lavelle's change of status application. Thus, according to defendants, the action is moot because the court no longer has jurisdiction to grant the relief that Lavelle requests.

In determining whether Lavelle presently has any remedy for defendants' alleged violation of the diversity visa statute, the court first looks to the requirements of 8 U.S.C. § 1255(a). Section 1255(a) grants the Attorney General the authority to adjust the immigration status of an alien to lawful permanent resident "if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigration visa is immediately available to him at the time his application is filed." Id. Applicants who qualify for a visa through the Diversity Visa Lottery "remain eligible to receive such visa only through the end of the specific fiscal year for which they were selected." 8 U.S.C. § 1154(a)(1)(I)(ii)(II); see also 22 C.F.R. § 42.33(a)(1) ("Under no circumstances may a consular office issue a visa or other documentation to an alien after the end of the fiscal year during which an alien possesses diversity visa eligibility.").

In interpreting these statutory provisions, courts of appeals have uniformly concluded that "[t]he phrase `only through the end of the specific fiscal year' unambiguously indicates Congress' intent to impose a time deadline on an applicant's eligibility to receive a visa." Coraggioso v. Ashcroft, 355 F.3d 730, 734 (3d Cir.), cert. denied, ___ U.S. ___, 124 S. Ct. 2884 (2004); see also Carrillo-Gonzalez v. INS, 353 F.3d 1077, 1079 (9th Cir. 2003); Nyaga, 323 F.3d at 914; Iddir v. INS, 301 F.3d 492, 500-01 (7th Cir. 2002). Based on this statutory deadline, CIS has no authority to award a diversity visa after the end of the fiscal year in which the applicant was selected. Carrillo Gonzales, 353 F.3d at 1079; Iddir, 301 F.3d at 500-01. Thus, any court order compelling CIS to adjudicate Lavelle's diversity visa application after the end of the relevant fiscal year "would be a futile act." Nyaga, 323 F.3d at 916 (quoting Zapata v. INS, 93 F. Supp. 2d 355, 358 (S.D.N.Y. 2000)).

Despite the unambiguous language in the diversity visa statute, Lavelle maintains that CIS erred in applying its post-November 2002 security policies to her status adjustment application. Lavelle observes that prior to fiscal year 2002, the INS would have issued her visa while her CIA I-181 background check was still pending. Thus, under the INS's former policy, Lavelle would have completed all necessary steps in the application process before the September 30, 2003 deadline.

As noted above, CIS reversed this policy in a November 2002 memorandum to all field adjudicators, and thereafter required that all security checks be completed before issuing an immigrant visa. Lavelle contends that in doing so, CIS ignored the congressional mandate to ensure that all available diversity visas are issued during a given year. Lavelle relies primarily on 8 U.S.C. § 1153(c)(1)(E)(iv), which directs the Secretary of State to adjust the allocation of diversity visa numbers among countries of origin to ensure that any excess visa numbers are made available to applicants from other countries. Similarly, 22 C.F.R. § 42.33(c) states that in each fiscal year, the number of applicants selected in the Diversity Visa Lottery "shall . . . be sufficient to ensure, to the extent possible, usage of all [diversity] immigrant visas." Id. Based on these provisions, Lavelle argues that the CIS should disregard the deadline set forth in 8 U.S.C. § 1154(a)(1)(I)(ii)(II) and continue to process her visa application after the end of fiscal year 2003.

The court finds that these are arguments without merit. Although it is true that CIS has a duty to adjudicate Lavelle's application within a reasonable period of time, see Iddir, 301 F.3d at 500, the court must give effect to the unambiguous terms of the diversity visa statute. Carrillo-Gonzalez, 353 F.3d at 1079-80 (citing Singh-Bhathal v. INS, 170 F.3d 943, 946 (9th Cir. 1999)). Section 1154(a)(1)(I)(ii)(II) "unequivocally states" that an applicant ceases to be eligible for a diversity visa at the end of the specific fiscal year in which she is selected. Iddir, 30 F.3d at 501. Moreover, nothing in 8 U.S.C. § 1153(c)(1)(E)(iv) or 22 C.F.R. § 42.33(c) constrains the authority of CIS to impose reasonable procedural requirements on applicants for permanent resident status, or to make reasonable modifications to existing procedures. Thus, the fact that Lavelle's diversity visa application would have been approved under the INS's pre-November 2002 security policy has no bearing on the outcome of this action.

Lavelle also argues that her interpretation of the diversity visa statute is supported by section 424 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("USA PATRIOT Act"), Pub.L. No. 107-56, 115 Stat. 272 (2001). Section 424 of the PATRIOT Act extended the deadline for issuing diversity immigrant visas for fiscal year 2001 from September 30, 2001 to April 1, 2002. Lavelle contends that this deadline extension demonstrates Congress' intent to preserve the ability of diversity visa applicants to immigrate to the United States in the wake of the September 11, 2001 attacks.

Lavelle may be correct in suggesting that section 424 was motivated by Congress' attempt to limit the impact of post-September 11, 2001 disruptions in government services on individuals seeking lawful permanent resident status. However, she fails to explain why the court should infer an intent to extend permanently the deadline for issuance of diversity visas from a statute that is plainly intended as a one-time response to an extraordinary event. Indeed, in enacting section 424, Congress declined to amend the statutory deadline set forth in 8 U.S.C. § 1154(a)(1)(I)(ii)(II) for subsequent fiscal years. Thus, section 424 of the PATRIOT Act has no effect on Lavelle's fiscal year 2003 application for change of status. The court therefore concludes that CIS has no statutory authority to issue Lavelle a diversity immigrant visa after her eligibility to receive such a visa expired on September 30, 2003.

II. Equitable Tolling of Statutory Deadline

In light of these statutory obstacles, Lavelle is left with little choice but to appeal to the court's inherent power to grant equitable relief to prevent the unfair consequences resulting from defendants' strict adherence to the September 30, 2003 deadline. However, the Ninth Circuit rejected such a claim in Carrillo-Gonzalez, holding that "the doctrine of equitable tolling has no application in cases involving the Congressionally-mandated, one-year deadline of the [Diversity Visa] Lottery Program." 353 F.3d at 1079. As the court observed, "the power to make someone a citizen of the United States has not been conferred upon the federal courts, like mandamus or injunction, as one of the generally applicable equitable powers."Id. (citing INS v. Pangilinan, 486 U.S. 875, 883-84 (1988)) (alterations in original omitted). The court therefore concluded that an INS immigration judge lacks power to equitably toll the September 30 deadline established by the diversity visa statute, despite the applicant's claim that she missed the deadline because she was defrauded by a notary. Id. at 1079-80. The same limitations apply to the equitable power of this court. Accordingly, the court may not order the defendants to continue processing Lavelle's change of status application after the September 30, 2003 deadline for visa issuance.

The decision in Paunescu v. INS, 76 F. Supp. 2d 896 (N.D. Ill. 1999) is not to the contrary. In Paunescu, the court, acting pursuant to its mandamus jurisdiction, ordered the INS to continue processing the plaintiff's diversity visa application after September 30, 1998, the end of the fiscal year in which the applicant was eligible to receive a visa. Id. at 902-03. However, Paunescu sought and obtained a preliminary injunction ordering the INS to complete processing his application before the September 30 deadline. Id. at 898. Under these circumstances, the court properly retained jurisdiction over Paunescu's action for the purpose of enforcing its own preliminary injunction, which the INS had disregarded. See id. at 898-99. In contrast, Lavelle failed to file her complaint in this action until February 2004, long after fiscal year 2003 had ended.

Marcetic v. INS, No. 97 C 7018, 1998 WL 173129 (N.D. Ill. Apr. 6, 1998) is also distinguishable from the instant case. In that case, an immigration judge had granted the plaintiff's application for legal permanent resident status during the year in which he was eligible to receive a diversity immigrant visa.Id. at *1. Because of a ministerial error, the INS failed to issue the plaintiff's green card before September 30, 1996, his last day of eligibility. Id. at *1. In an action filed after the September 30 deadline, the court denied the defendants' motion to dismiss on mootness grounds and ordered the INS to comply with the immigration court order and to complete all remaining steps required to process the plaintiff's adjustment of status application. Id. at *2.

Although the Marcetic court granted the plaintiff's requested relief despite the fact that the complaint was filed after the end of the relevant fiscal year, Lavelle's claim differs in several significant respects from the facts of that case. InMarcetic, an immigration judge had ordered the INS to grant the plaintiff's change of status application more than seven months before his eligibility to receive an immigration visa expired. In contrast, Lavelle did not submit her application for change of status to CIS until thirteen days before the September 30 deadline, and CIS did not act on the application until November 2003, after Lavelle's eligibility to receive a diversity visa had expired. Moreover, unlike Marcetic, Lavelle has failed to present any evidence that CIS made a ministerial error in failing to adjudicate her application before September 30, 2003. Indeed, despite the fact that Lavelle received notice of her selection in the Diversity Visa Lottery in April 2002, she did not submit her first application for adjustment of status until August 26, 2003, leaving CIS with little time to complete the processing of her application. A.R. 38, 63.

In any event, Marcetic must be read in light of the Ninth Circuit's decision in Carrillo-Gonzalez and the plain meaning of the diversity immigration visa statute. Based on the holding of Carrillo-Gonzalez and the statutory deadline set forth in 8 U.S.C. § 1154(a)(1)(I)(ii), the court concludes that it has no inherent authority to grant the relief that Lavelle has requested.

III. Disposition

Where a decision of a federal court "cannot affect the rights of the litigants in the case before [the court]," the proper disposition is to dismiss the case as moot. Foster, 347 F.3d at 745; see also North Carolina v. Rice, 404 U.S. 244, 246 (1971). Here, even if the court orders defendants to complete the processing of Lavelle's application for adjustment of status, the Attorney General would be required to reject her application because she is no longer "eligible to receive an immigrant visa" within the meaning of 8 U.S.C. § 1255(a).Accord Carrillo-Gonzales, 353 F.3d at 1079 (holding that immigration judge was without authority to make status adjustment after the last day of the fiscal year in which the applicant was eligible to receive a visa). Thus, the court is unable to provide Lavelle with "meaningful relief," Nyaga, 323 F.3d at 916, and must dismiss Lavelle's action on mootness grounds. CONCLUSION

For the reasons stated above, this action is dismissed as moot. Plaintiff is not granted leave to amend her complaint because the court sees no indication that allowing any further amendment would cure the deficiency identified here.

IT IS SO ORDERED.