In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-3799 & 01-3802
HAKIM IDDIR, HADJIRA IDDIR, and JUAN A.
LLIVI; LENOAS MALUKAS, ALFONSA MALUKIENNE,
MARIA NICULESCU, RADU-LIVIU NICULESCU,
TATIANA KUDINA, SILVIU-VLAD NICULESCU,
MARIO ROMANOVIC, MARIJA ROMANOVIC,
NORA MORETTI-SANCHEZ, GIANNA A. SANCHEZ,
IVANNA A. SANCHEZ, FUNMI I. OWOLABI,
DAVID OGUNKOYA, and NELLY V. SUYO,
Plaintiffs-Appellants,
v.
IMMIGRATION AND NATURALIZATION SERVICE; BRIAN R.
PERRYMAN, District Director, Chicago INS; COLIN L.
POWELL, in his official capacity as United States
Secretary of State; UNITED STATES DEPARTMENT
OF STATE; and the UNITED STATES OF AMERICA,
Defendants-Appellees.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 3401—Joan B. Gottschall, Judge and
No. 99 C 6689—Ronald A. Guzman, Judge.
____________
ARGUED MAY 15, 2002—DECIDED AUGUST 6, 2002
____________
2 Nos. 01-3799 & 01-3802
Before FLAUM, Chief Judge, BAUER and RIPPLE, Circuit
Judges.
BAUER, 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., 2001 WL 1064789, at *3 (N.D.
Ill. Sept. 10, 2001). The plaintiffs appeal, and we affirm the
dismissals, although on grounds different than those
articulated by the district courts.
Nos. 01-3799 & 01-3802 3
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
4 Nos. 01-3799 & 01-3802
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,
Nos. 01-3799 & 01-3802 5
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.
6 Nos. 01-3799 & 01-3802
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. TIMES, 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. TIMES, 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. TIMES, 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, 999 F.2d 188, 191 (7th Cir. 1993). To
determine if subject matter jurisdiction exists, we look
Nos. 01-3799 & 01-3802 7
beyond the allegations in the complaint to any evidence
that has been submitted regarding jurisdiction. Id.
B. Statutory Bar to Jurisdiction: 8 U.S.C. § 1252(a)(2)(B)
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, 485 U.S. 535, 542
(1988) (plurality opinion); Block v. Community Nutrition
Institute, 467 U.S. 340, 349-51 (1984); Abbott Labora-
tories v. Gardner, 387 U.S. 136, 141 (1967). Second, there
is a general presumption in favor of judicial review of ad-
8 Nos. 01-3799 & 01-3802
ministrative acts. See INS v. St. Cyr, 533 U.S. 289, 289-90
(2001); McNary v. Haitian Refugee Center, Inc., 498 U.S.
479, 498 (1991); Bowen v. Michigan Academy of Family
Physicians, 476 U.S. 667, 670 (1986); Dunlop v. Bachow-
ski, 421 U.S. 560, 567 (1975); Barlow v. Collins, 397 U.S.
159, 166-67 (1970). Lastly, we ordinarily resolve ambigu-
ities in favor of the aliens and find jurisdiction to hear the
grievance. See INS v. Cardoza-Fonseca, 480 U.S. 421, 449
(1987); INS v. Errico, 385 U.S. 214, 225 (1966); Costello v.
INS, 376 U.S. 120, 128 (1964); Fong Haw Tan v. Phelan,
333 U.S. 6, 10 (1948).
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, 277 F.3d 1137, 1141-43 (9th Cir. 2002) (“This sug-
gests that Congress similarly intended the word ‘judg-
ment’ in § 1252(a)(2)(B)(i) to refer only to discretionary
determinations.”); Prado v. Reno, 198 F.3d 286, 288-91 (1st
Cir. 1999) (holding “the section [1252(a)(2)(B)] bars the ex-
ercise of jurisdiction only where the BIA decision as to
which review is sought is a ‘judgment regarding the grant-
ing of relief under’ one of the enumerated sections”). The
section headings in 1252 also demonstrate that Con-
gress sought only to preclude review of orders or judg-
ments, pertaining to actual discretionary decisions. 8 U.S.C.
Nos. 01-3799 & 01-3802 9
§ 1252 (denoted as “Judicial review of orders of removal”)1;
8 U.S.C. § 1252(a)(2)(B) (pertaining to “Denials of discre-
tionary relief”); see also Trainmen v. Baltimore & Ohio R.
Co., 331 U.S. 519, 528-29 (1947) (stating that it is useful
to look at the title of a statute for interpretive purposes, but
the title “cannot limit the plain meaning of the text”).
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,
76 F. Supp. 2d 896, 899-902 (N.D. Ill. 1999) (outlining the
difference between discretionary action or decision, such as
a denial of relief or decision to defer, and complete inac-
tion and failure to make any decision). Although, the INS
used the term “denial” in its notice to the appellants, the
“denial” of their applications was not a decision on the
merits. See Nyaga v. Ashcroft, 186 F. Supp. 2d 1244, 1250-
53 (N.D. Ga. 2002) (“Plaintiff is not seeking a review of a
decision or action, which would be barred, but is seeking
remediation of the lack of action, which is not barred.”). The
INS never held a hearing or made any determinations
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, 2001 WL 767018, at *3-5 (S.D.N.Y. July 9, 2001);
Mart v. Beebe, 94 F. Supp. 2d 1120, 1124 (D. Or. 2000); Shanti,
Inc. v. Reno, 36 F. Supp. 2d 1151, 1158 (D. Minn. 1999); Burger v.
McElroy, 1999 WL 203353, at *4 (S.D.N.Y. April 12, 1999) cf.
Abboud v. INS, 140 F.3d 843, 846-47 (9th Cir. 1998); but see, CDI
Information Services Inc. v. Reno, 278 F.3d 616 (6th Cir. 2002)
(concluding that “section 1252(a)(2)(B)(ii) is not limited to dis-
cretionary decisions made within the context of removal proceed-
ings.”); Van Dinh v. Reno, 197 F.3d 427, 432 (10th Cir. 1999). That
issue is beyond the scope of our narrow inquiry, as the result in
this case would be the same either way.
10 Nos. 01-3799 & 01-3802
regarding the appellants’ eligibility or qualifications for
adjustment of status. According to the INS, the decision to
“deny” the applications was not discretionary; once time
had elapsed, the INS claims it could not issue the visas
regardless of the merits of the petitions. See Iddir, 166 F.
Supp. 2d at 1255-56 (“The jurisdictional language in Sec-
tion 242 does not divest this court of jurisdiction in the
case of an administrative oversight or delay, which causes
the INS, in essence, to lose the power to adjudicate the
application.”).
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, 182 F.3d 504, 511 (7th Cir. 1999);
Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir. 1998);
Nos. 01-3799 & 01-3802 11
Castaneda-Suarez v. INS, 993 F.2d 142, 144-45 (7th Cir.
1993); see also Coit Independence Joint Venture v. FSLIC,
489 U.S. 561, 579 (1989); Myers v. Bethlehem Shipbuild-
ing Corp., 303 U.S. 41, 50-51 (1938). However, exhaustion
may be excused if: (1) requiring exhaustion of administra-
tive remedies causes prejudice, due to unreasonable de-
lay or an “indefinite timeframe for administrative action”;
(2) the agency lacks the ability or competence to resolve the
issue or grant the relief requested; (3) appealing through
the administrative process would be futile because the
agency is biased or has predetermined the issue; or (4)
where substantial constitutional questions are raised.
McCarthy v. Madigan, 503 U.S. 140, 146-48 (1992); Bowen
v. City of New York, 476 U.S. 467, 483 (1986); Mathews v.
Diaz, 426 U.S. 67, 76 (1976); Gibson v. Berryhill, 411 U.S.
564, 575 n.14 (1973); Houghton v. Shafer, 392 U.S. 639, 640
(1968); McNeese v. Board of Ed. for Community School
Dist., 187, 373 U.S. 668, 675 (1963).
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-
12 Nos. 01-3799 & 01-3802
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, 891 F.2d 640, 648 (7th Cir. 1989).
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
Nos. 01-3799 & 01-3802 13
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, 530 U.S. 327, 337 (2000) (“The stay
is ‘automatic’ once a state defendant has filed a § 3626(b)
motion, and the statutory command that such a motion
‘shall operate as a stay during the [specified time] period’
indicates that the stay is mandatory throughout that per-
iod of time.”) (emphasis in original); Kuhlmann v. Wil-
son, 477 U.S. 436, 449 n.11 (1986) (“Sensitivity to the
interests implicated by federal habeas corpus review is
implicit in the statutory command that the federal courts
‘shall . . . dispose of the matter as law and justice re-
quire.’ ”) (emphasis in original); Griffin v. Oceanic Contrac-
tors, Inc., 458 U.S. 564, 570 (1982) (“The words chosen by
Congress [“ ‘shall pay to the seaman’ the sums specified ‘for
each and every day during which payment is delayed’ ”],
given their plain meaning, leave no room for the exercise of
discretion either in deciding whether to exact payment or
in choosing the period of days by which the payment is to
be calculated.”) (emphasis in original); Tennessee Valley
Authority v. Hill, 437 U.S. 153, 168-72 (1978); Parker Pen
Co. v. Federal Trade Commission, 159 F.2d 509, 510 (7th
Cir. 1946) (“ ‘The findings of the Commission as to the facts,
if supported by evidence, shall be conclusive.’ Precedent
sustains this statutory command.”); cf. Ayers v. Coughlin,
530 N.E.2d 373, 374 (N.Y. 1988) (construing the statu-
tory term “forthwith” to mean immediately). Additionally,
the applicable regulations provide that the INS shall proc-
ess and select immigrants from the petitions submit-
ted. 22 C.F.R. § 42.33 (“Envelopes selected pursuant to
paragraph (c) of this section shall be opened and reviewed.
Petitions which are legible and contain the information
specified in paragraph (b) of this section shall be approved
for further consideration.”) (emphasis added).
14 Nos. 01-3799 & 01-3802
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, 186 F. Supp. 2d at 1252-53; Iddir, 166 F. Supp. 2d
at 1258; Paunescu, 76 F. Supp. 2d at 900-01.
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, 1998 WL 173129, at *2 (N.D. Ill.
April 6, 1998). The district court in Nyaga recognized
that the issues of duty and potential relief are entangled
in this unique statutory situation. Nyaga, 186 F. Supp. 2d
at 1252-53. The district court in Iddir also flagged this
issue, but analyzed it under the mootness doctrine.
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, 486 U.S. 875, 883-
84 (1988). While a federal court does not have the author-
ity to make someone a citizen, it does have the power to re-
quire the Executive to carry out Congress’ commands.
Congress gave the Attorney General, and thereby his dele-
gatee the INS, the power to administer the DV Program
and the duty to adjudicate the applications of the par-
ticipants. See 8 U.S.C. § 1153(c); 8 U.S.C. § 1154(a)(1)(I);
22 C.F.R. § 42.33. The relevant statutes and regulations
Nos. 01-3799 & 01-3802 15
confirm that the INS did have the duty to adjudicate the
appellants’ applications in a reasonable period of time. See
Nyaga, 186 F. Supp. 2d at 1252-53; Iddir, 166 F. Supp. 2d
at 1258; Paunescu, 76 F. Supp. 2d at 900-01. The reason the
appellants are before this court is because the INS never
managed to fulfill the duty Congress placed upon it.
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
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, 1998 WL 173129, at *2-3. In such
a situation, the INS would be on notice to reserve visas and must
complete the task, as ordered, before time expires. Allowing the
INS to claim inability to issue visas at that point would impinge
the authority of the court. See Paunescu, 76 F. Supp. 2d at 902-03;
Marcetic, 1998 WL 173129, at *2-3.
16 Nos. 01-3799 & 01-3802
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., 118 U.S. 120, 125 (1886)).
Indeed, the appellants may all, once again, apply for DV
Program visas, win the lottery, and hope their applica-
tions will actually be adjudicated by the INS before the
statutory deadline passes. The appellants may also peti-
tion Congress for a private bill, which would direct the
INS to grant them the relief they seek. See, e.g., H.R.
4863, 107th Cong. (2002) (“For the relief of Rodney Allan
Green and Wendy Sharon Green”); H.R. 4829, 107th Cong.
(2002) (“For the relief of Olivera Goronja”); H.R. 4713,
107th Cong. (2002) (“For the relief of Laura Maldonado
Caetani”); S. 2472, 107th Cong. (2002) (“For the relief
of Rosemary Bichage”). Finally, the appellants, or other
groups focused on immigration, can lobby Congress to
alter the statutory scheme in 8 U.S.C. §§ 1153(c) and
1154(a)(1)(I) to allow visas to be issued to qualifying
DV Program lottery winners after the fiscal year ends,
if the INS fails to timely adjudicate their applications.
Cf. H.R. 3894, 107th Cong. (2002) (“To amend the Im-
migration and Nationality Act to restore fairness to im-
migration law, and for other purposes.”).
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 AFFIRMED, for the reasons
stated herein. Duro lex, sed lex.
Nos. 01-3799 & 01-3802 17
FLAUM, 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.1
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.,
113 F.3d 770, 772 (7th Cir. 1997) (a case is moot if “there
is no possible relief which the court could order that would
benefit the party seeking it.”) (internal citations omitted).
Although the line I draw between lack of mandamus
jurisdiction and mootness is fine—I stand but a hair’s
breadth away from the majority—I think that it is the
INS’s lack of power to grant effectual relief—not its lack of
duty—that makes the claims nonjusticiable. Therefore,
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.
18 Nos. 01-3799 & 01-3802
I conclude that the cases should be dismissed for moot-
ness, not for lack of mandamus jurisdiction. Moreover,
because the “case or controversy” requirement of Art-
icle III of the United States Constitution prohibits fed-
eral courts from deciding moot cases, U.S. Const. art. III,
§2, in my view the district court did not have jurisdiction
under Article III to decide whether it had statutory juris-
diction under the mandamus jurisdiction statute. See
Rosetti v. Shalala, 12 F.3d 1216, 1232 (3d Cir. 1993).
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.
Nos. 01-3799 & 01-3802 19
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-6-02