Case Information
*2 Before F LAUM Chief Judge , B AUER and R IPPLE , Circuit Judges .
B AUER , Circuit Judge
. After winning the immigration lottery, the appellants were given the opportunity to apply for immigrant visas and thereby a chance to become citi- zens, if they could meet certain requirements within one year’s time. The appellants promptly filled out all the nec- essary forms and jumped through all the applicable hoops the Immigration and Naturalization Service (INS) put in front of them in order to complete their applications for the visas and adjustment of status. Once the forms were filled out, all that remained was for the INS to adjudicate the appellants’ status and either grant or deny the applica- tions. Instead, the INS did nothing, and once the year was up, the INS informed the appellants that their applica- tions were denied, not on the merits; rather they were denied simply because they were not heard within the applicable time period. Afterwards, the INS informed the appellants that they would have to reapply and hope to win the lottery a second time to gain citizenship.
Frustrated, the appellants sought writs of mandamus
in two district courts to require the INS to adjudicate their
status. The
Iddir
case was heard by Judge Gottschall,
and the
Kudina
case was heard by Judge Guzman. The
judges dismissed both cases, but for different reasons.
Judge Gottschall found the plaintiffs’ claims moot,
Iddir
et al. v. INS et al.
, 166 F. Supp. 2d 1250, 1259 (N.D. Ill.
2001), while Judge Guzman found that he lacked jurisdic-
tion to review the claims due to 8 U.S.C. § 1252(a)(2)(B),
Kudina et al. v. INS et al.
,
BACKGROUND
The appellants applied for permanent resident visas through the Diversity Visa Lottery Program (DV Program). This program was instituted by Congress to distribute visas to persons from countries that historically have low rates of immigration to the United States. 8 U.S.C. § 1153(c)(1). The statute directs the Attorney General to calculate immigration rates for the past five years and identify low-admission states and regions. 8 U.S.C. §§ 1151(a), 1153(c). The diversity visas are then allotted, based on formula, to persons from the low-admission states or regions. 8 U.S.C. § 1153(c). The program oper- ates on a fiscal year, whereby only a certain number of visas are available to the immigrants from the low-admis- sion states or regions. Id . For the fiscal years 1996, 1998, 1999, and 2000 (running generally from October of the specified year through September of the next year), 55,000 visas were made available in each period. 59 Fed. Reg. 61918; 61 Fed. Reg. 58730; 62 Fed. Reg. 45004; 63 Fed. Reg. 41315. Applications far exceeded allotments. For ex- ample, in fiscal year 1998 there were 97,391 applications for 55,000 available visas.
The eligible immigrants must submit an application for the lottery during a specified time period, usually thirty days. See , e.g. , 59 Fed. Reg. 61918. A computer randomly selects the set number of applicants from the pool, hence the term “lottery”. 22 C.F.R. § 42.33(c). The lottery win- ners are notified in the summer and are instructed on how to apply for an immigrant visa. See e.g. , 61 Fed. Reg. 58730, 58731. The lottery visa offer is only good until the last day of the fiscal year in which the application was submitted. 22 C.F.R. §§ 42.33(e), (g). Thus, a 1995 appli- cant, notified in the summer of 1995, had from Octo- ber 1995 until September 30, 1996 to complete the ap- plication process. 59 Fed. Reg. 61918, 61919-20. Persons selected for DV Program visas, who reside in the United States, may petition for an adjustment of status under 8 U.S.C. § 1255(a). The caveat is that the applicant must complete the process, application and adjudication, before time expires because a visa can only be issued during the relevant fiscal year. 8 U.S.C. § 1151(a)(3); 8 U.S.C. § 1153(c)(1), 8 U.S.C. § 1154(a)(1)(I)(ii).
The Iddir appellants, Hakim & Hadjira Iddir, and Juan A. Llivi, were selected for the DV Program lottery in 1998. In the 1998 lottery, there were 97,319 entries for 55,000 available diversity visas, however, only 51,000 of those visas were actually distributed. The 1998 DV pro- gram fiscal year ran from October 1, 1997 through Sep- tember 30, 1998. After being selected in the lottery, the appellants applied for adjustment of status. In Septem- ber 1997, the INS informed Llivi that there was a signifi- cant wait for interviews. Llivi was not contacted again un- til December 4, 1998—after the fiscal year ended on Sept. 30, 1998—when he received notice of an interview to be conducted on December 24, 1998. It was not until January 26, 1999, that the INS district director informed Llivi that he could not grant the petition because time had expired.
The Iddirs’ story is very similar to Llivi’s; they too received a letter informing them of the wait for interviews in September 1997 and were not contacted again until October 29, 1999. The INS contacted the Iddirs to request re-submission of their fingerprints. Finally, they received an interview on May 3, 2000—again after the fiscal year ended on Sept. 30, 1998—and heard the same excuse as Llivi, time had expired. The Iddirs also claimed that the hearing officer explained the delay was caused by some- one misplacing their file.
The Kudina appellants applied for various DV Program lotteries from 1996 through 1998. The lead plaintiff-appel- lant, Tatiana Kudina, entered the 1999 DV Program lot- tery and was selected. Kudina applied in December 1998, and in September 1999 received notice from the INS that she needed to submit another set of fingerprints. Kudina did not hear from the INS again until February 9, 2000, when the INS informed her that her application had ex- pired.
The Malukas entered and were selected for the 1998 DV Program lottery, but their status was not adjudicated in 1998.
The Sanchezes entered and were selected in the 1999 lot- tery, but they too did not have their status adjudicated in the applicable time period.
The Niculescus entered the 1998 DV Program lottery and were selected. Maria Niculescu’s application was proc- essed and she was interviewed on the last day of the fiscal year, September 30, 1999. Maria was awarded perma- nent resident status the same day. However, her children, Radu-Liviu and Silviu-Vlad, currently residing in Roma- nia, were denied adjustment of status because their inter- views were not held until August 1998 at the Embassy in Bucharest.
The Ogunkoyas entered and were selected for the 1996 lottery. They received interviews in March of 1996, but on September 30, 1996 they were informed that the INS had requested additional documents on April 22, 1996. The Ogunkoyas submitted the necessary documents the same day. On February 27, 1997, they were informed that time had expired and their applications denied.
Mario Romanovic entered and was selected under the 1998 program, along with his wife Marija. The Romanovics received interviews on July 14, 1999, and their applica- tions were denied the same day.
Nelly Victoria Suyo participated in the 1997 lottery, was selected, and submitted an application in January 1997. Suyo’s application was denied on February 19, 1999.
ANALYSIS
The INS, which is no stranger to administrative problems, waited until after the prescribed time period to hear the plaintiffs’ petitions for adjustment of status. Then the INS summarily rejected the petitions, not on the merits, but on the grounds that time within which the petitions had to be heard expired. See Peter H. Schuck, Reform That Leads to Chaos N.Y. T IMES , May 23, 2002, at A31 (noting “[w]ith the possible exception of the I.R.S., the Immigration and Naturalization Service is the least popular agency in the federal government.”); Farewell to the I.N.S. , N.Y. T IMES , April 27, 2002, at A16; Eric Schmitt, Vote in House Strongly Backs An End to I.N.S. , N.Y. Times, April 26, 2002, at A1. The INS has had serious problems with backlogs of applications before. See Eric Schmitt, Backlog and Wait for Green Card Decline , N.Y. T IMES , Jan. 19, 2002, at A12. However, the key difference here is that the DV Program applicants had time sensitive applications that needed to be processed expeditiously, yet, the INS specifically told these applicants not to contact the INS because doing so would delay their applications further. Meanwhile, the INS did not take a single step toward processing any of the applications, and, in one situation, may have even lost the application for a period of time.
A. Standard of Review
We review a district court’s dismissal for lack of jurisdic-
tion
de novo
.
United States v. Bank of Farmington
, 166 F.3d
853, 859 (7th Cir. 1999). In the context of a motion to
dismiss for lack of subject matter jurisdiction, we accept
as true the well pleaded factual allegations, drawing all
reasonable inferences in favor of the plaintiff.
Capitol
Leasing Co. v. FDIC
,
Section 1252(a)(2)(B) provides: “Notwithstanding any other provision of law, no court shall have jurisdiction to review—(i) any judgment regarding the granting of relief under section . . . 1255 of this title, or (ii) any other deci- sion or action of the Attorney General the authority for which is specified under this subchapter to be in the dis- cretion of the Attorney General . . . .” In the district courts, and in federal courts throughout the United States, the INS argued that 8 U.S.C. § 1252(a)(2)(B)(i) precluded any federal court from having jurisdiction over a suit involv- ing the DV Program and denials of adjustment of status due to expiration of the time period. Upon further reflec- tion, the Solicitor General has now reversed that position and concedes that we do have jurisdiction to hear immigra- tion cases in which the INS wholly fails to adjudicate an applicant’s status and either grant or deny relief. Defen- dants-Appellees’ Brief at 29. Nevertheless, the agreement of the parties as to the inapplicability of the jurisdiction- al bar does not end our inquiry since we are the first circuit to address the issue in this context.
The jurisdiction prohibition in 8 U.S.C. § 1252(a)(2)(B), is
construed using longstanding principles of statutory con-
struction. First, congressional intent to limit federal juris-
diction, generally, must be clear and convincing in order
to preclude judicial review.
See Board of Governors of
the Federal Reserve System v. Mcorp. Financial Inc.
, 502
U.S. 32, 44 (1991);
Traynor v. Turnage
,
The term “judgment” is used more than twelve times
throughout the Immigration and Naturalization Act
(INA), and eight of those references denote “judgments”
as court orders.
See
8 U.S.C. § 1101(a)(48)(A); 8 U.S.C.
§ 1158(b)(2)(A)(ii); 8 U.S.C. § 1227(a)(2)(D); 8 U.S.C.
§ 1229a(c)(3)(B); 8 U.S.C. § 1231(b)(3)(B)(ii); 8 U.S.C.
§ 1324b(i)(2); 8 U.S.C. § 1451(f); 8 U.S.C. § 1503(a);
see also
Atlantic Cleaners & Dryers, Inc. v. United States
, 286 U.S.
427, 433 (1932) (holding that a word that appears in a
statutory section is generally considered to have the same
meaning throughout the section);
Montero-Martinez v.
Ashcroft
,
Applying these principles to the facts at hand, we find
section 1252(a)(2)(B)(i), by its use of the terms “judgment”
and “decision or action”, only bars review of actual discre-
tionary decisions to grant or deny relief under the enumer-
ated sections, including section 1255.
See Paunescu v. INS
,
This situation is distinguishable from one in which the INS does award or deny relief. If the appellants had their applications heard and were denied adjustment of status under section 1255 on the merits, that would be a “judg- ment” or “decision or action” likely covered by section 1252(a)(2)(B). See McBrearty v. Perryman , 212 F.3d 985, 986-87 (7th Cir. 2000) (concluding that section 1252(a)(2)(B) barred review of the district director’s decision to deny the plaintiffs’ applications for adjustment of status). In contrast, if a DV Program lottery winner timely and prop- erly applies for adjustment of status and the application is simply never heard, the subsequent denial of the ap- plication on grounds of expiration is neither a “judgment” nor a discretionary “decision or action” precluding review. C. Exhaustion
Generally, an immigration plaintiff is required to pursue
and exhaust all administrative remedies before seeking
relief in federal court because there are explicit statutory
requirements in certain sections of the INA and a compre-
hensive administrative review scheme exists.
See e.g.
,
8 U.S.C. § 1252(d) (providing for judicial review of
final
orders
where the alien has exhausted administrative
remedies);
Singh v. Reno
,
The appellants need only show that one of the four exceptions outlined above applies. It appears that at least three apply. The government acknowledged that it has no idea when, if ever, the INS may institute removal proceedings against the appellants. This is the quintessen- tial example of an “indefinite timeframe for administra- tive action”. McCarthy , 503 U.S. at 147. The government asserts that “any claims arising out of the consideration of their applications, [can be challenged] in administra- tive removal proceedings when and if the INS commences such proceedings.” Defendants-Appellees’ Brief at 22-23 (citing 8 C.F.R. § 245.2(a)(5)(ii) as support). Yet, in sup- port of other arguments, the government states that it wholly lacks the ability to grant visas to the appellants regardless of the merits of their applications. Thus, re- newing the applications under section 245.2(a)(5)(ii) would be futile, as the INS is unable to grant the relief re- quested because the DV Program visa numbers have ex- pired. The appellants need not have pursued and ex- hausted their claims at some distant future time through an administrative process that could accord them no relief. D. Mandamus
District courts have mandamus jurisdiction to “compel
an officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.” 28 U.S.C.
§ 1361. 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.
Scalise v. Thorn-
burgh
,
1. clear right to have their cases adjudicated
To determine if the appellants have a right to the adjudi-
cation of their cases, we look to the statute in question
to determine what Congress directed.
See United States
v. Markgraf
, 736 F.2d 1179 (7th Cir. 1984) (noting that
when determining Congressional intent courts look to “the
language of the statute; the legislative history; and the
interpretation given by the administrative agency charged
with enforcing the statute.”). The section on diversity im-
migration visas repeatedly commands the Attorney Gen-
eral, in nondiscretionary language, to do a variety of tasks
related to the DV Program. 8 U.S.C. §§ 1153(c)(1)(A),
(c)(1)(B)(i), (c)(1)(B)(ii), (c)(1)(C), (c)(1)(D), (c)(1)(E)(iv), (e).
Congress selected the term “shall” to describe the Attorney
General’s various duties in administering the DV Pro-
gram. 8 U.S.C. § 1153(e)(2) (“Immigrant visa numbers
made available under subsection (c) of this section (relat-
ing to diversity immigrants)
shall be issued
to eligible
qualified immigrants strictly in a random order established
by the Secretary of State for the fiscal year involved.”)
(emphasis added). The term “shall” denotes a clear direc-
tive, a command, as opposed to the terms “may” or “in his
discretion” used in a statute such as 8 U.S.C. § 1255(a).
E.g.
,
Miller v. French
,
The INS asserted that the appellants, and, for that mat-
ter, any DV Program applicant, have no right to have their
applications adjudicated. We disagree. Based upon the di-
rective language Congress chose to employ in the statute
and the applicable regulations, it is evident that the ap-
pellants have a right to have their cases adjudicated.
See
Nyaga
,
2. the INS has a duty to adjudicate
Whether the INS has a duty to adjudicate these applica-
tions is a more complex question. The INS claims that
the visas expired at the end of the fiscal year, thus, the
INS cannot issue the visas regardless of the outcome of
any adjudication. The appellants counter by pointing out
that the INS has, in the past, adjudicated the status of
DV Program participants after the end of the fiscal year of
the program and issued visas.
See Paunescu
, 76 F. Supp. 2d
at 902;
Marcetic v. INS
,
The power to confer citizenship upon aliens rests solely
with Congress, as delegated to the Executive branch to
administer.
See e.g.
,
INS v. Pangilinan
,
Nevertheless, the relief the appellants currently seek is illusory, because even if the INS adjudicated the applica- tions today, visas could not be issued. See Iddir , 166 F. Supp. 2d at 1259. Despite past practices of the agency, the statute unequivocally states that the applicants only remain eligible “through the end of the specific fiscal year for which they were selected.” [2] 8 U.S.C. § 1154(a)(1)(I)(ii); 8 U.S.C. § 1153(c)(1); 22 C.F.R. § 42.43(e). Based on the statutory deadline set by Congress, the INS lacks the statutory authority to award the relief sought by the plaintiffs. Thus, here the mandamus remedy is not appropriate because one of the conditions for such extraordinary relief—the clear duty to adjudicate the petitions—is not present. Cf . Scalise , 891 F.2d at 647-48; Save the Dunes Council v. Alexander , 584 F.2d 158, 162 (7th Cir. 1978).
The INS points out that a number of avenues for the
appellants to gain citizenship remain. That other poten-
tial methods of relief exist is beside the point and does not
mitigate and cannot countenance the INS’ misfeasance
in this case. “This Court has frequently articulated the
‘great principle of public policy, applicable to all govern-
ments alike, which forbids that the public interests
should be prejudiced by the negligence of the officers or
agents to whose care they are confided.’ ”
Brock v. Pierce
County
, 476 U.S. 253, 260 (1986) (quoting
United States
v. Nashville, C. & St. L.R. Co.
,
CONCLUSION
Because we conclude that the district courts lack manda- mus jurisdiction to order the requested relief, the dismiss- als of the appellants’ cases are A FFIRMED , for the reasons stated herein. Duro lex , sed lex . 17
F LAUM Chief Judge . I join in the majority’s ultimate judgment. I agree that no statutory bar to jurisdiction ex- ists and that the plaintiffs’ failure to exhaust administra- tive remedies would be excused due to the futility of any further administrative appeal. Further, I agree that be- cause the plaintiffs are no longer eligible to receive visas, we must, regrettably, affirm the district courts’ decisions. However, because I believe that the cases must be analyzed and affirmed on mootness grounds, I write separately.
The majority did not employ the mootness doctrine, but instead found that, because the INS no longer owed plain- tiffs a clear duty to adjudicate their visa applications, the district court lacked mandamus jurisdiction to compel the INS to adjudicate plaintiffs’ claims.
I believe that because the INS lacks the capability
to issue visas to DV lottery winners after the fiscal year
for which they were selected to apply ends, no viable rem-
edy is available to plaintiffs and, therefore, their claims are
moot.
North Carolina v. Rice
, 404 U.S. 244, 246 (1971)
(“[F]ederal courts are without power to decide questions
that cannot affect the rights of the litigants in the case
before them.”);
McKinney v. Indiana Michigan Power Co.
,
Individuals selected through the DV program during a particular fiscal year “remain eligible to receive visas only through the end of the specific fiscal year for which they were selected.” 8 U.S.C. §1154(a)(1)(I)(ii)(II). As the majority correctly suggests, although the INS had a duty to adjudicate plaintiffs’ claims during their term of eligi- bility, its failure to do so does not extend the statutorily limited period for which they were eligible. However, I believe that it is not the agency’s duty to the plaintiffs that was cut short when the relevant fiscal years ended, as the majority seems to indicate, but the plaintiffs’ stat- utory eligibility to receive the relief that they request. See Sadowski v. INS , 107 F. Supp.2d 451, 454 (S.D.N.Y. 2000) (“When a relevant deadline for adjustment of sta- tus has passed, a request for relief is deemed plainly moot, depriving district courts of subject matter jurisdiction.”). INS regulations provide explicitly that the “the eligibility for a [diversity] visa . . . ceases at the end of the fiscal year in question. Under no circumstances may a consular officer issue a visa or other documentation to an alien after the end of the fiscal year during which an alien possesses diversity visa eligibility.” 22 C.F.R. §42.33.
Because the plaintiffs in the two cases below did not present to the district court a live case or controversy, see Stotts v. Community Unit School Dist. No. I , 230 F.3d 989, 991 (7th Cir. 2000), I would affirm the decisions to deny relief on mootness grounds.
A true Copy:
Teste:
________________________________ Clerk of the United States Court of Appeals for the Seventh Circuit USCA-97-C-006—8-6-02
Notes
[1] A number of district courts have concluded that the designation
of section 1252 as “Judicial orders of removal” confines the sub-
sequent limitations in the subsections to removal proceedings.
See
Talwar v. INS
,
[2] It would be a different case had the district court ordered
the INS to adjudicate the appellants’ status
while
the INS main-
tained the statutory authority to issue the visas.
See Paunescu
, 76
F. Supp. 2d at 902-03;
Marcetic
,
[1] “The district courts shall have original jurisdiction of any ac- tion in the nature of mandamus to compel an officer or employee of the United States or an agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. §1361.