Case: 20-20370 Document: 00515728030 Page: 1 Date Filed: 02/01/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 1, 2021
No. 20-20370 Lyle W. Cayce
Summary Calendar Clerk
Anastasiia Ermuraki; Aurel Ermuraki,
Plaintiffs—Appellants,
versus
Kenneth T. Cuccinelli, USCIS Director; David Pekoske,
DHS Secretary; Tony L. Bryson, USCIS District
Director; Wallace L. Carroll, Houston USCIS,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-4169
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Plaintiffs-Appellants Anastasiia and Aurel Ermuraki filed suit in the
district court to challenge the United States Citizenship and Immigration
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-20370 Document: 00515728030 Page: 2 Date Filed: 02/01/2021
No. 20-20370
Services’ (“USCIS”) denial of their application to adjust their immigration
status to lawful permanent residents under the diversity visa program. Upon
the motion of Defendants-Appellees (“the Government”), the district court
dismissed the case with prejudice pursuant to Federal Rule of Civil
Procedure 12(b)(6). Because we hold this case was moot prior to the entry of
the district court’s final judgment, we VACATE the judgment and
DISMISS the case.
I
As part of USCIS’ selection process, the Ermurakis—who are
husband and wife—were randomly invited to apply to the diversity visa
lottery program for the fiscal year ending on September 30, 2019. See 8
U.S.C. § 1153(c), (e)(2). They submitted their status adjustment application
on October 9, 2018. On April 17, 2019, USCIS denied their application
because it found the Ermurakis did not have lawful immigration status at the
time they submitted their application, as required by statute. See 8 U.S.C. §
1255(c)(2).
On May 20, 2019, the Ermurakis filed what they describe as a motion
to reconsider 1 with USCIS. On September 23, 2019, USCIS denied the
motion. Counsel for the Ermurakis received notice of this denial three days
later, on September 26, 2019. Approximately one month later, on October
24, 2019, the Ermurakis filed their initial underlying complaint in the district
court, beginning this action.
After the Ermurakis filed an amended complaint, the Government
moved to dismiss for failure to state a claim pursuant to Federal Rule of Civil
1
USCIS treated the motion as a motion to reopen. Because we dismiss this case on
jurisdictional grounds, we need not decide whether the motion was properly treated as a
motion to reopen.
2
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No. 20-20370
Procedure 12(b)(6). In its motion, the Government also asserted what the
district court understood to be an argument that the case was moot. By law,
diversity visas must be awarded before midnight on the last day of the fiscal
year for which an applicant was selected to apply. 8 U.S.C.
§ 1154(a)(1)(I)(ii)(II); 22 C.F.R. § 42.33(f). Because the fiscal year for the
Ermurakis’ application ended on September 30, 2019, and because they did
not file their complaint until October 24, 2019, the Government argued that
the Ermurakis’ requested relief was no longer available.
In its decision granting the Government’s motion, the district court
acknowledged the mootness argument but stated that it “need not rule on
this basis as it finds the Government’s position on the substantive issues to
be meritorious.”
II
Generally speaking, a court cannot assume that it has jurisdiction and
proceed to resolve a case on the merits. Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 93-94 (1998); see Cook v. Reno, 74 F.3d 97, 99 (5th Cir. 1996)
(“Before ruling on the merits of the case, it is imperative that the court first
determine whether it has jurisdiction to hear the suit; if jurisdiction is lacking,
then the court has no authority to consider the merits.”); but cf. Montez v.
Dep’t of Navy, 392 F.3d 147, 150 (5th Cir. 2004) (describing that in certain
circumstances where disputed issues of fact are central both to a
jurisdictional attack and the claim on the merits, courts should assume
jurisdiction and resolve the factual issue on the merits in a 12(b)(6) or Rule
56 posture, rather than a 12(b)(1) posture). And “[i]t is well-settled, that
mootness is a threshold jurisdictional inquiry.” La. Env’t Action Network v.
U.S. E.P.A., 382 F.3d 575, 580 (5th Cir. 2004). Thus, “[a]lthough the
district court did not address its jurisdiction, this court must consider the
basis of the district court’s jurisdiction sua sponte if necessary.” United
3
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States v. Boutte, 627 F. App’x 378, 378 (5th Cir. 2015) (per curiam)
(unpublished) (citing EEOC v. Agro Distrib., LLC, 555 F.3d 462, 467 (5th
Cir. 2009)).
“In general, a claim becomes moot ‘when the issues presented are no
longer “live” or the parties lack a legally cognizable interest in the
outcome.’” La. Env’t, 382 F.3d at 581 (quoting Murphy v. Hunt, 455 U.S.
478, 481 (1982) (per curiam)). Therefore, “[m]ootness applies when
intervening circumstances render the court no longer capable of providing
meaningful relief to the plaintiff.” Ctr. for Biological Diversity, Inc. v. BP Am.
Prod. Co., 704 F.3d 413, 425 (5th Cir 2013).
This court has not yet addressed whether a claim challenging the
denial of a diversity visa status adjustment application becomes moot after
the relevant fiscal year expires. Our sister circuits, however, have
overwhelmingly concluded that such a circumstance does moot the claim.
See, e.g., Nyaga v. Ashcroft, 323 F.3d 906, 916 (11th Cir. 2003) (holding that
the plaintiff’s claim challenging the denial of his diversity visa application was
moot after the fiscal year expired because the district court could no longer
provide meaningful relief); Coraggioso v. Ashcroft, 355 F.3d 730, 734 (3d Cir.
2004) (same); Mohamed v. Gonzales, 436 F.3d 79, 80-81 (2d Cir. 2006)
(same); Mwasaru v. Napolitano, 619 F.3d 545, 551 (6th Cir. 2010) (same); see
also Zixiang Li v. Kerry, 710 F.3d 995, 1002 (9th Cir. 2013) (reaching the same
conclusion in dicta); Iddir v. INS, 301 F.3d 492, 501 (7th Cir. 2002) (Flaum,
J., concurring) (same). 2
2
The D.C. Circuit has applied a limited exception to the generally agreed upon
mootness framework for diversity visas. It has held that when a plaintiff files suit and the
district court grants some relief—but not the visa—before the end of the fiscal year, the
claim is not moot. Almaqrami v. Pompeo, 933 F.3d 774, 780 (D.C. Cir. 2019). That situation
is not presented here and thus we do not weigh in on the validity of this exception.
4
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The Ermurakis have not responded to the Government’s mootness
argument. We find the reasoning of our sister circuits persuasive and are
satisfied that under the facts of this particular case, the Ermurakis’ claim was
moot at the time they filed their initial complaint.
III
Because the Ermurakis’ claim was moot prior to the entry of the
district court’s final judgment, we VACATE the judgment and direct that
this case be DISMISSED. Goldin v. Bartholow, 166 F.3d 710, 718 (5th Cir.
1999) (“If mootness occurred prior to the rendering of final judgment by the
district court, vacatur and dismissal is automatic. The district court would
not have had Article III jurisdiction to render the judgment, and we cannot
leave undisturbed a decision that lacked jurisdiction.” (citing Iron Arrow
Honor Soc. v. Heckler, 464 U.S. 67, 72-73 (1983))).
5