Opinion
99 Civ. 6110 (JSM)
July, 2000
Sandra P. Nichols, New York, New York, for plaintiff.
James Loprest, Jr., Special Assistant United States Attorney, New York, New York, for defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff was told by the Immigration and Naturalization Service ("INS") in 1997 that he was a winner of the diversity visa lottery. However, he was ultimately informed that, because the Federal Bureau of Investigation did not process his fingerprint record before the statutory time to issue the visa expired, he would not receive a visa. He then commenced this action seeking to compel the INS to process his application and to issue a visa to him.
While the Court is not unsympathetic to Plaintiff's situation, it lacks jurisdiction to provide him with a remedy. The Government has moved to dismiss this case as moot and that motion must be granted. The reason for this result was set forth in the thoughtful opinion of Judge Mukasey of this Court in Zapata v. INS:
The Zapatas' second request for injunctive relief is similarly moot. Pursuant to 8 U.S.C. § 1154 (a)(1)(G)(ii)(II) (1994 Supp. III 1997) ("§ 1154"), aliens whose applications are randomly selected by the State Department during a particular fiscal year's visa lottery "remain eligible to receive visas only through the end of the specific fiscal year for which they were selected." The plain meaning of § 1154 is that after the fiscal year has ended on September 30, no diversity visas may be issued nunc pro tunc based on the results of the previous fiscal year's visa lottery. Therefore, because September 30, 1998 has passed, 1998 diversity visas can no longer be issued to the Zapatas or to anyone else. Accordingly, I can not provide the Zapatas with "effectual relief" on either of their requests for injunctive relief, and their case therefore is moot.93 F. Supp.2d 355, 358 (S.D.N.Y. 2000) (footnote omitted).
Here, as in Zapata, the lottery year in which Plaintiff was selected has passed, and the Court has no power to order that a visa be issued to him. While Plaintiff claims that all he seeks is an order compelling the INS to perform the ministerial act of issuing him a visa, there are no visas to be issued.
While there are cases to the contrary, see Paunescu v. INS, 76 F. Supp.2d 896 (N.D.Ill. 1999), Judge Mukasey's reasoning is more persuasive.
For the foregoing reason, the complaint is dismissed as moot, and the plaintiff's motion for summary judgment is denied.
SO ORDERED.