Opinion
No. 99 CV 2717 (SJ).
July 20, 2004
DiRAIMONDO MASI, LLP, Melville, New York, Michael P. DiRaimondo, Esq., Attorneys for Plaintiffs.
ROSLYNN R. MAUSKOPF, ESQ., United States Attorney, Eastern District of New York, Brooklyn, New York, Steven J. Kim, Esq., Attorneys for Defendants.
MEMORANDUM AND ORDER
This case comes before the Court following a remand by the Second Circuit. Plaintiffs ("Plaintiffs") brought this action against Defendants John Ashcroft, United States Attorney General; Colin Powell, Secretary of State; United States Department of Justice, Immigration and Naturalization Service ("INS"); United States Department of State, National Visa Center; and the United States of America (collectively, "Defendants" or the "Government"), pursuant to the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. §§ 1101 et seq.; the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.; and the United States Constitution. Plaintiffs are citizens and nationals of various countries, each of whom sought to obtain one of a limited number of diversity visas made available through the INS's Diversity Visa Program ("DV Program") for the 1998 fiscal year. Plaintiffs were not awarded visas and sought injunctive, declaratory, and monetary relief in this Court.
Under the DV program, 55,000 immigrant visas are annually made available by the Attorney General to be awarded to natives of "low admission" regions, defined by the INA as those countries from which immigration through the traditional preference system has been lower than 50,000 persons over the previous five years.See 8 U.S.C. §§ 1153(c)(1)(B)(ii), 1153(c)(1)(E)(ii). DV program applicants are selected through a purely random lottery system established by the Secretary of State, and if chosen, become eligible to receive an immigrant visa. See 8 U.S.C. § 1153(e)(2); see generally, 22 C.F.R. § 42.33. Those chosen through the lottery system, however, are not guaranteed to receive visas.
Applicants selected for further consideration are informed, by letter, of the formal immigrant visa application process. Moreover, DV program applicants who are physically in the Unites States in lawful status, may apply to adjust their status to that of permanent resident, as Plaintiffs here have done, pursuant to 8 U.S.C. § 1255. See 8 C.F.R. § 245.2. The Attorney General may then, in his discretion, adjust the status of a diversity immigrant, provided; 1) the alien makes an application for adjustment; 2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and 3) an immigrant visa is immediately available to the alien at the time the application is filed. See INA § 245, 8 U.S.C. § 1255(a). A DV program participant seeking a diversity visa through an application for adjustment of status does not secure such a visa until the application for adjustment is granted.
On May 29, 2001, the Court dismissed this case for lack of subject matter jurisdiction, holding that 8 U.S.C. § 1252(a)(2)(B)(i) removed jurisdiction from the courts to review legal determinations underlying the denial of applications for adjustment of status. While the case was on appeal, the United States Solicitor General withdrew the same jurisdictional argument in an unrelated case before the Ninth Circuit. As a result, the Government moved to withdraw its jurisdictional argument. Although the Government urged the Second Circuit to dismiss the case on alternative jurisdictional grounds, the Second Circuit dismissed the appeal and remanded the case for this Court to reconsider whether subject matter jurisdiction exists in light of the Solicitor General's decision to withdraw the jurisdictional argument. The Government then filed the instant motion to dismiss the complaint on alternative grounds. For the reasons stated herein, the Government's motion to dismiss is GRANTED.
DISCUSSION
The Government asserts that this case is moot because Plaintiffs are no longer eligible to receive diversity visas, as the end of the fiscal year 1998 has already passed. Plaintiffs contend that the end of fiscal year 1998 does not render the case moot because they seek equitable relief. Specifically, Plaintiffs seek to be put in a position roughly equivalent to where they would be if the New York District Office of the INS ("NYDO") had not erroneously denied their applications for adjustment of status. Relying on Silva v. Bell, 605 F.2d 978 (7th Cir. 1970), Plaintiffs contend, at the very least, that staying their deportation and granting them work authorization would constitute a rough approximation to where they should have been had the law been properly followed. Plaintiffs also rely on Paunescu v. INS, 76 F. Supp. 2d 896 (N.D. Ill. 1999) and Marcetic v. INS, No. 97-7018, 1998 WL 173129 (N.D. Ill. Apr. 6, 1998) in support of their contention that the Government has the authority to approve DV adjustment applications even after the end of fiscal year 1998.
Plaintiffs were randomly selected to apply for diversity visas under the 1998 DV Program. All such diversity visas expired as of midnight on September 30, 1998. Congress was clear that "aliens who qualify, thorough random selection, for a visa [under the DV Program] shall remain eligible to receive such visa only through the end of the specific fiscal year for which they are selected. 8 U.S.C. § 1154(a)(1)(G)(ii)(II) (Supp. V. 1999).
The 1998 fiscal year ran from October 1, 1997 to September 30, 1998.
In Iddir, the Seventh Circuit rejected appellant's reliance on Paunescu and Marcetic, explaining that in those cases the district court ordered the INS to adjudicate the appellant's status while the INS maintained the statutory authority to issue the visas. 301 F.3d 492, 501 n. 2 (7th Cir. 2002). The Seventh Circuit noted that "in such a situation, the INS would be on notice to reserve visas and must complete the task, as ordered, before time expires." Id. The Seventh Circuit further noted that "allowing the INS to claim inability to issue visas at that point would impinge the authority of the court." Id. In this case, Plaintiffs brought suit after the end of fiscal year 1998, thus Paunescu and Marcetic are inapplicable.
Because the INS can no longer issue the requested diversity visas, Plaintiffs' case is moot. See Nyaga v. Aschroft, 323 F.3d 906, 916 (11th Cir. 2003) (holding that plaintiff's claim was moot where his eligibility for a diversity visa had expired at midnight on September 30, 1998); Zapata v. INS, 93 F. Supp. 2d 355, 357 (S.D.N.Y. 2003) ("The plain meaning of section 1154 is that no diversity may be issued nunc pro tunc based on the results of the previous fiscal year's lottery."); Vladagina v. Aschroft, No. 00-9456, 2002 WL 1162426, at *3 (S.D.N.Y. April 8, 2002) (dismissing diversity visa case as moot); El Hindi v. McElroy, No. 99-6110, 2000 WL 1053873, at *1 (S.D.N.Y. July 31, 2000) (same). Although this Court is sensitive to Plaintiffs' allegations regarding the NYDO's failures in processing their applications, as stated in Nyaga, "the INS's failure to process [Plaintiffs'] application does not extend [Plaintiffs'] statutorily-limited period of eligibility for diversity visas." 323 F.3d at 914.
Plaintiffs' reliance on Silva is misplaced, and thus, the Court rejects Plaintiffs' request for a stay of deportation and work authorization.
Although the Court is not obligated to reach this issue, the Court also finds that Plaintiffs have failed to set forth a valid mandamus claim. Mandamus relief will be granted if the plaintiff can demonstrate that the three enumerated conditions are present: (1) a clear right to the relief sought; (2) that the defendant has a duty to do the act in question; and (3) no other adequate remedy is available. See Hussein v. Ashcroft, No. 01-1239, 2002 WL 31027604, at *3 (E.D.N.Y. Sept. 12, 2002). Because the INS has no duty to adjudicate Plaintiffs' applications, Plaintiffs' claim for mandamus relief is denied.See Iddir, 301 F.3d at 500-01. Moreover, Plaintiffs have failed to state colorable due process, equal protection, APA, and equitable estoppel claims.
There is no doubt that Plaintiffs were "victims of a bureaucratic nightmare." Paunescu, 76 F.Supp. 2d at 902. Plaintiffs allege that in some instances the NYDO failed to provide Plaintiffs with a decision on their adjustment of status applications, or lost files in their entirety. Plaintiffs further allege that in other cases, the NYDO verbally informed Plaintiffs that their applications had been approved, only to later deny the same applications. To penalize Plaintiffs' for the NYDO's misfeasance is very unfortunate. Id. Although the Court is obligated to follow the law, the Court hopes that Congress will extend the statutorily prescribed deadline, with respect to unissued visas during the fiscal year in question, for lottery winners who timely submitted their applications but were denied diversity visas due to the bureaucratic bungling and incompetence of the INS.
CONCLUSION
For the reasons stated herein, the Government's motion to dismiss Plaintiffs' complaint as moot is GRANTED. The Clerk of the Court is directed to close this case.
SO ORDERED.