[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
MARCH 5, 2003
THOMAS K. KAHN
No. 02-12265 CLERK
________________________
D. C. Docket No. 01-01249 CV-ODE-1
CHARLES KIBAARA NYAGA,
DOIN KAINYU KIBAARA,
Plaintiffs-Appellees,
versus
JOHN ASHCROFT,
as Attorney General of the United States,
ROSEMARY MELVILLE,
District Director, Atlanta Division of the
Immigration and Naturalization Service,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 5, 2003)
Before EDMONDSON, Chief Judge, BARKETT and COX, Circuit Judges.
PER CURIAM:
The Defendants – John Ashcroft, Attorney General of the United States, and
Rosemary Langley Melville, District Director of the Atlanta Division of the
Immigration and Naturalization Service (INS) – appeal from the district court’s order
granting mandamus relief to the Plaintiffs, Charles Kibaara Nyaga (Nyaga) and his
wife, Doin Kainyu Kibarra (Kibarra).1 Nyaga, a resident alien, qualified for a
diversity immigrant visa through the Fiscal Year 1998 Diversity Visa Program’s
random selection process. He submitted an application to adjust his status pursuant
to 8 U.S.C. § 1255(a), but the INS did not adjudicate his application before fiscal year
1998 ended. In 2001, the Plaintiffs sought an order to compel the Defendants to
adjudicate Nyaga’s adjustment application. Invoking its mandamus jurisdiction, the
district court concluded that the INS has a clear, non-discretionary duty to process
Nyaga’s application and ordered the Defendants to process Nyaga’s application as
though fiscal year 1998 had not ended. We conclude that even if the INS has a non-
discretionary duty to process Nyaga’s adjustment application, Nyaga’s case was moot
because as of midnight on September 30, 1998, he was no longer eligible to receive
a diversity immigrant visa. We vacate the district court’s order and remand with
instructions to dismiss as moot.
1
The parties apparently agree that Nyaga’s wife’s name is “Kibarra”
notwithstanding the fact that her name was spelled “Kibaara” in the complaint.
2
I. BACKGROUND
A. The Diversity Visa Program
Through the diversity visa program, a limited number of immigrant visas are
made available to individuals from countries that historically have had low rates of
immigration to the United States. 8 U.S.C. § 1153(c) (2002). Under the program, the
Attorney General identifies “low-admission states” and allocates diversity visas
(immigrant visas made available through the diversity visa program) to natives of
these states according to a formula established by statute. 8 U.S.C. § 1153(c)(1). A
diversity visa enables the recipient to move to the United States as a lawful permanent
resident (or, alternatively, to remain in the United States as a lawful permanent
resident if the recipient is already lawfully within the United States and if the
Attorney General adjusts the recipient’s status) under the Immigration and Nationality
Act. To be eligible for a diversity visa, an alien must have a high school education
or have, within five years of the date of application for the visa, at least two years of
work experience in an occupation that requires at least two years of training or
experience. 8 U.S.C. § 1153(c)(2). If an alien is entitled to receive a visa under the
diversity visa program, the alien’s spouse and minor children are entitled to the same
status. 8 U.S.C. § 1153(d).
3
The United States Department of State administers the diversity visa program.
Eligible applicants must file a petition to be considered for a diversity visa, and after
the filing period has ended, a computer randomly orders the petitions. 22 C.F.R. §
42.33(c) (2003). The State Department then selects, in rank order, a quantity of
petitions estimated to be sufficient to ensure, to the extent possible, that all diversity
visas authorized for issuance are issued. Id. These selected applicants – commonly
referred to as diversity visa program “lottery winners” – are notified of their selection
and receive instructions on how to apply for a diversity visa. See Notice of
Registration Period and Requirements for the Fourth Year of the Diversity Immigrant
Visa Program, 61 Fed. Reg. 58730, 58731 (November 18, 1996).
Selection as a “lottery winner” does not ensure that an applicant will receive
a diversity visa. The total number of lottery winners exceeds the number of diversity
visas available under the diversity visa program. See id. (“Being selected as a winner
. . . does not automatically guarantee being issued a visa even if the applicant is
qualified, because the number of entries selected and registered is greater than the
number of immigrant visas available. Those selected will, therefore, need to
complete and file their immigrant visa applications quickly.”). The process to obtain
a visa is lengthy: the applicant must submit numerous documents to the National Visa
Office (including a passport, a birth certificate, police certificates, court records,
4
prison records, military records, and evidence of either education or work experience)
and attend a visa interview. 8 U.S.C. § 1202.
Diversity visa lottery winners who reside abroad must travel to a United States
embassy to complete the visa eligibility process. If a lottery winner is lawfully
present in the United States, however, the alien may remain in the United States and
apply to the INS to adjust his status to that of a lawful permanent resident. 8 U.S.C.
§ 1255(a). This adjustment procedure enables a lottery winner lawfully residing in
the United States, such as an alien with a student visa, to receive an immigrant visa
without returning to his native country. The Attorney General, at his discretion, may
adjust an applicant’s status to that of an alien lawfully admitted for permanent
residence if (1) the alien makes an application for adjustment of status, (2) the alien
is eligible to receive an immigrant visa and is admissible for permanent residence,
and (3) a visa is immediately available to the alien at the time the application is filed.
8 U.S.C. § 1255(a).
According to statute, “[a]liens who qualify, through random selection, for a
visa under [the diversity visa program] shall remain eligible to receive such visa only
through the end of the specific fiscal year for which they were selected.” 8 U.S.C. §
1154(a)(1)(I)(ii)(II). The State Department has promulgated regulatory provisions
that automatically revoke diversity visa petitions and prevent the issuance of visas
5
and the allotment of visa numbers after midnight of the final day of the relevant fiscal
year. See 22 C.F.R. § 42.33(a)(1) (“The eligibility for a 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(e) (“A petition . . .
shall be valid until Midnight of the last day of the fiscal year for which the petition
was submitted. At that time, the petition is automatically revoked . . . and no
diversity visa numbers can be allotted after that date.”); 22 C.F.R. § 42.33(g)
(Diversity immigrant visa numbers “shall be allotted only during the fiscal year for
which a petition to accord diversity immigrant status was submitted and approved.
Under no circumstances shall immigrant visa numbers be allotted after Midnight of
the last day of the fiscal year for which the petition was submitted and approved.”).
B. Nyaga’s and Kibarra’s Applications for Adjustment of Status
Nyaga, a native of Kenya, entered the United States in May 1996 on a student
visa. In July 1996, Kibarra, Nyaga’s wife, entered the United States on a visitor visa.
Nyaga filed a petition in February or March 1997 to enter the Fiscal Year 19982
Diversity Visa Program lottery. In a letter dated July 1, 1997, Nyaga was notified that
2
Fiscal year 1998 began on October 1, 1997, and ended at midnight on
September 30, 1998.
6
he had been selected as a lottery winner. The letter informed him that 100,000
petitions had been selected for further processing, and that only 55,000 diversity visas
were available under the Fiscal Year 1998 Diversity Visa Program. Nyaga was also
informed, in a subsequent letter, that the INS would not accept applications to adjust
status based on the Fiscal Year 1998 Diversity Visa Program until October 1, 1997,
the first day of fiscal year 1998.
In October 1997, Nyaga submitted an application to adjust his status. Kibarra
simultaneously submitted a derivative application to adjust her status based on her
husband’s eligibility to receive a diversity visa. Although Nyaga’s and Kibarra’s
applications for adjustment of status were submitted in October 1997, their
applications were not complete until the INS received their processing fees on
February 2, 1998. After an applicant has submitted a complete application, other
agencies assist with a background investigation that includes an FBI fingerprint
check, a CIA name check, and a records check with the Bureau of Consular Affairs
in the applicant’s native country. On February 20, 1998, the INS forwarded Nyaga’s
and Kibarra’s fingerprint cards to the FBI. The INS took no further action to process
Nyaga’s or Kibarra’s adjustment applications before September 30, 1998, the final
day of fiscal year 1998.
7
Under the Fiscal Year 1998 Diversity Visa Program, 97,319 applicants were
designated as lottery winners eligible to receive a visa and 55,000 diversity visas were
available. Only 51,565 diversity visas were actually issued under the program; almost
3,500 authorized diversity visas were not issued. Neither Nyaga’s nor Kibarra’s
adjustment applications were processed before the end of fiscal year 1998, and neither
Nyaga nor Kibarra received a visa.
From February 1998, when their applications were completed, until September
30, 1998, the end of the fiscal year, Nyaga and Kibarra did not formally inquire
regarding the status of their applications because they were advised that they should
not make such inquiries.3 During fiscal year 1998, Nyaga attended at least two work
authorization interviews, and he claims that he informally inquired about the status
of his adjustment application during these interviews and was told that there was
nothing he could do but wait. The INS does not have any record of these
conversations.
3
When Nyaga received the adjustment of status application forms, he
also received a cover letter that instructed: “While your application is pending
before the interview, please DO NOT make inquiry as to the status of your case,
since it will result in further delay.” (R.1-1 Ex. G at 1.) Morever, the Plaintiffs
allege that the Atlanta District Office of the INS instituted a policy that prevented
direct contact with the INS and that a prominent sign in the Atlanta District Office
directs anyone with an inquiry to leave the INS building because person-to-person
inquiries were not permitted.
8
On January 23, 2001, almost three years after their applications were
completed, the INS interviewed Kibarra regarding her adjustment application. The
INS denied Kibarra’s application on February 28, 2001, on the grounds that Kibarra’s
derivative application was based on Nyaga’s eligibility for a diversity visa and Nyaga
was no longer eligible to receive a visa because fiscal year 1998 had ended. The INS
did not issue a final decision on Nyaga’s application before the Plaintiffs filed the
complaint in this case.
II. PROCEDURAL HISTORY
On May 15, 2001, Nyaga and Kibarra filed a complaint in the district court
against Ashcroft and Melville, seeking to compel the Defendants to process Nyaga’s
application for adjustment of status under the Fiscal Year 1998 Diversity Visa
Program and to grant Nyaga and Kibarra legal permanent resident status. The
Plaintiffs assert jurisdiction under 28 U.S.C. § 1361 (mandamus jurisdiction), 28
U.S.C. § 1331 (federal question jurisdiction), 8 U.S.C. § 1329 (the Immigration and
Nationality Act), and 5 U.S.C. § 704 (the Administrative Procedure Act). They allege
that: (1) Melville is obligated to issue documents and take all necessary action to
process Nyaga’s application under the Fiscal Year 1998 Diversity Visa Program; (2)
Melville lacks the authority to deprive the Plaintiffs of legal permanent resident status
after the Plaintiffs submitted all necessary information and fees no later than February
9
2, 1998; and (3) the processing of Nyaga’s application for adjustment of status is a
purely ministerial, non-discretionary act which Melville was obligated to complete
in a timely manner. Nyaga and Kibarra asked the district court to compel the
Defendants to process Nyaga’s application to adjust status4 and declare that there are
no just grounds to suspend the issuance of permanent residency documents to Nyaga
and Kibarra.
The Defendants filed a motion to dismiss the complaint for lack of subject
matter jurisdiction and for failure to state a claim and asked the district court, in the
alternative, to consider the motion as a motion for summary judgment. The Plaintiffs
opposed the Defendants’ motion and filed a cross-motion for summary judgment.
The district court denied the Defendants’ motion and granted the Plaintiffs’ motion.
The district court concluded that 8 U.S.C. § 1252 did not preclude the court
from exercising jurisdiction, and further concluded that it could exercise mandamus
jurisdiction under 28 U.S.C. § 1361. Nyaga v. Ashcroft, 186 F. Supp. 2d 1244, 1252-
54 (N.D. Ga. 2002). Mandamus is proper if (1) the Plaintiffs can show a clear right
4
On the same day that the complaint was filed, the Plaintiffs also filed
an emergency motion for a preliminary injunction. The motion sought, in part, to
prohibit the INS from summarily denying Nyaga’s adjustment application during
the pendency of the litigation. The Defendants agreed that they would not take
any action in connection with Nyaga’s adjustment application until the district
court issued a final ruling, and the court issued a consent order to that effect.
Accordingly, the INS has not taken any action on Nyaga’s application.
10
to the relief sought; (2) the Defendants have a clear, non-discretionary duty to act;
and (3) no other remedy is available. Heckler v. Ringer, 466 U.S. 602, 617, 104 S.
Ct. 2013, 2022 (1984). In reaching its conclusion, the court held that (1) Nyaga “has
a right for the visa application to be processed and a final, thorough decision made”;
(2) the INS “has a non-discretionary duty to make diligent efforts in furtherance of
adjudicating diversity visa applications”; and (3) the Plaintiffs had no alternative
remedy to mandamus. Nyaga, 186 F. Supp. 2d at 1253-54.
The court then examined the merits of the case and concluded that there were
no genuine issues of material fact. Id. at 1254. Having already ruled that Nyaga had
a right to adjudication of his application, the court devoted its attention to the “hotly
contested” issue of whether the court could provide a meaningful remedy. Id.
Although the Defendants contended that the INS and the Attorney General lack the
authority to issue a visa to Nyaga or Kibarra because fiscal year 1998 has ended, the
court concluded that 8 U.S.C. § 1154(a)(1)(I)(ii)(II) did not plainly prohibit the INS
from processing Nyaga’s application. Id. at 1255. Because the statute did not plainly
prohibit the adjudication of Nyaga’s application, the court turned to congressional
intent and concluded that “Congress could not have intended for aliens to lose their
eligibility to be considered for diversity visas due solely to government inaction.” Id.
at 1256. Although the court acknowledged that the State Department’s regulations
11
“come close to providing explicitly that the Government does not have the power to
issue visas after the end of the fiscal year,” the court concluded that “the central
inquiry” in the regulations is whether Nyaga “is still eligible for the visa,” and that
“Nyaga effectively retains his eligibility because the Government did not diligently
act to process the visa.” Id. at 1256 n.13.
In granting the Plaintiffs’ motion for summary judgment, the court ordered the
Defendants to adjudicate Nyaga’s diversity visa application as if fiscal year 1998 had
not ended. Id. at 1256-57 (“The court hereby orders Defendants to conduct a
thorough review of Charles Nyaga’s diversity visa application and application to
adjust status on the merits as if fiscal year 1998 had not yet expired.”). The court
acknowledged that it lacked the jurisdiction to order the Defendants to issue diversity
visas to the Plaintiffs; it could order the INS to adjudicate Nyaga’s application but it
could not mandate a certain outcome in that adjudication. Id. at 1253, 1256. The
Defendants appeal.
III. ISSUES ON APPEAL
We are presented with three issues on appeal: (1) whether the Plaintiffs’ claim
is moot; (2) whether the district court had subject matter jurisdiction to consider
Plaintiffs’ claim; and (3) whether the district court properly concluded that there were
no genuine issues of material fact and that the Plaintiffs were entitled to judgment as
12
a matter of law. Because we conclude that the Plaintiffs’ claim is moot, however, we
do not address any other issues.
IV. STANDARD OF REVIEW
We review questions of mootness under a plenary standard of review. Ala.
Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 97 F.3d 492,
496 (11th Cir. 1996).
V. CONTENTIONS OF THE PARTIES
The Defendants contend that the district court erred when it concluded that the
court was capable of providing meaningful relief to the Plaintiffs.5 The Defendants
argue that the plain language of 8 U.S.C. § 1154(a)(1)(I)(ii)(II), when read in
conjunction with 8 U.S.C. § 1255(a), compels the conclusion that Nyaga is no longer
eligible to receive a diversity visa because fiscal year 1998 has ended, and thus he
cannot satisfy the statutory requirements for adjustment of status under § 1255(a).
The Defendants further contend that congressional intent, reflected in Congress’s
prior efforts in passing ameliorative legislation related to the diversity visa program,
evinces the clear understanding that Nyaga is no longer eligible to receive a diversity
visa. Moreover, the Defendants argue that even if the statute is ambiguous, the State
5
Because we decide this case on mootness grounds, we limit our
discussion to the parties’ contentions related to this issue.
13
Department has issued reasonable regulations that interpret the statute in a manner
that renders Nyaga no longer eligible to receive a visa and this interpretation is
entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense
Council, 467 U.S. 837, 104 S. Ct. 2778 (1984). On these grounds, the Defendants
contend that the court is unable to accord meaningful relief to the Plaintiffs because,
even if Nyaga’s application to adjust status is processed, the Attorney General lacks
the authority under § 1255(a) to adjust Nyaga’s status because Nyaga is no longer
eligible to receive a visa.
The Plaintiffs argue that if the INS processes Nyaga’s application and
concludes that Nyaga meets the education and background check requirements,
Nyaga would be eligible to receive a visa. The Plaintiffs contend that the plain
meaning of § 1154(a)(1)(I)(ii)(II), when interpreted in the context of the entire
diversity visa program statute, does not establish that a lottery winner is no longer
eligible to receive a visa after the relevant fiscal year ends; in Plaintiffs’ view, the
statute establishes that a lottery winner must submit a complete application by the end
of the fiscal year. The Plaintiffs also contend that congressional intent supports their
interpretation, arguing that Congress intended that the INS process all applications
and that Congress could not have intended for a lottery winner to become ineligible
for a visa due solely to the INS’s inaction. The Plaintiffs argue that the State
14
Department’s interpretation of § 1154(a)(1)(I)(ii)(II) is unreasonable and not entitled
to Chevron deference because it is inconsistent with specific provisions of the
diversity visa statute. Lastly, the Plaintiffs contend that, in prior years, the INS has
instructed applicants to appear to obtain a visa even after the applicable fiscal year
has ended. Accordingly, the Plaintiffs argue that Nyaga remains eligible to receive
a diversity visa, and as a consequence, the case is not moot because this court is
capable of providing meaningful relief.
VI. DISCUSSION
Article III of the Constitution limits the jurisdiction of federal courts to the
consideration of “Cases” or “Controversies.” U.S. Const. art. III, § 2. The “case or
controversy” requirement imposes justiciability limitations on federal courts, and
these limitations include mootness. See Soliman v. United States ex. rel. INS, 296
F.3d 1237, 1242 (11th Cir. 2002). The doctrine of mootness is derived from Article
III’s “case or controversy” requirement because “an action that is moot cannot be
characterized as an active case or controversy.” Adler v. Duval County Sch. Bd., 112
F.3d 1475, 1477 (11th Cir. 1997). The question of mootness is a threshold inquiry
in every case; as the Supreme Court has noted, “the question of mootness is . . . one
which a federal court must resolve before it assumes jurisdiction.” North Carolina
v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402, 404 (1971). If the district court is presented
15
with a moot case, the case must be dismissed because any decision on the merits
would constitute an impermissible advisory opinion. Al Najjar v. Ashcroft, 273 F.3d
1330, 1336 (11th Cir. 2001); Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of
Health & Rehab. Servs., 225 F.3d 1208, 1217 (11th Cir. 2000).
A district court lacks the power, on mootness grounds, to decide a case if its
decision cannot affect the rights of the litigants in the case. Rice, 404 U.S. at 246, 92
S. Ct. at 404; see also Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951
(1969) (“[A] case is moot when . . . the parties lack a legally cognizable interest in the
outcome.”). This court has concluded that a case must be dismissed as moot if the
court can no longer provide “meaningful relief.” Fla. Ass’n of Rehab. Facilities, 225
F.3d at 1216-17. Before we can address the merits of this case, we must determine
whether the district court could give meaningful relief to Nyaga and Kibarra.
The Plaintiffs requested two types of relief: (1) to “[c]ompel Defendants and
those acting under them to immediately perform their legal duty to complete all
remaining process of Plaintiff, Charles Kibaara Nyaga’s, Adjustment of Status” and
(2) to “[d]eclare that there are no just grounds to suspend issuance of all appropriate
permanent residency documents to both Plaintiffs.”6 (R.1-1 at 15.) We view the first
6
We acknowledge that, with respect to Kibarra, this request presents
(1) a potential jurisdictional problem under 8 U.S.C. § 1252(a)(2)(B)(i) because
Kibarra’s derivative adjustment application was denied in 2001 and (2) a
16
request for relief (that the INS process Nyaga’s application) as merely a means to the
second request for relief (that the Attorney General adjust Nyaga’s status and
Kibarra’s status to that of lawful permanent residents). If Nyaga is no longer eligible
to receive a diversity visa, we conclude that an order requiring the INS to process his
application on the merits – only to have their adjustment applications denied by the
Attorney General because Nyaga does not meet the “eligible to receive an immigrant
visa” requirement of § 1255(a) – would not constitute meaningful relief.
Accordingly, the question of whether the district court could provide meaningful
relief to the Plaintiffs reduces to a single inquiry: would Nyaga be “eligible to receive
an immigrant visa” if the INS were to process his application on the merits and
conclude that he would otherwise be admissible for legal permanent residence?
To answer this question, we must interpret the diversity visa statute, and our
analysis begins with the language of the statute. Hughes Aircraft Co. v. Jacobson,
525 U.S. 432, 438, 119 S. Ct. 755, 760 (1999). “[U]nless there is some ambiguity in
the language of a statute, a court’s analysis must end with the statute’s plain
language.” Coggin Automotive Corp. v. Comm’r of Internal Revenue, 292 F.3d 1326,
pragmatic concern because she does not have a pending application that could be
granted under § 1255(a). Nonetheless, we do not address these issues because we
conclude that Nyaga is not eligible to receive a visa. Because he is not eligible to
receive a visa, it necessarily follows that Kibarra is not eligible to receive a visa as
his spouse.
17
1332 (11th Cir. 2002). When we examine the meaning of statutory words or phrases,
however, we cannot examine statutory provisions in isolation. FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S. Ct. 1291, 1300-01 (2000). “It
is a fundamental canon of statutory construction that the words of a statute must be
read in their context and with a view to their place in the overall statutory scheme.”
Davis v. Mich. Dep’t of Treas., 489 U.S. 803, 809, 109 S. Ct. 1500, 1504 (1989).
Nyaga and Kibarra have asked the Attorney General to adjust their status to
that of a lawful permanent resident pursuant to 8 U.S.C. § 1255(a). Section 1255(a)
states:
The status of an alien who was inspected and admitted or paroled into
the United States may be adjusted by the Attorney General, in his
discretion and under such regulations as he may prescribe, to that of an
alien lawfully admitted for permanent residence if (1) the alien makes
an application for such 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 him at
the time his application is filed.
8 U.S.C. § 1255(a) (emphasis added). According to § 1255(a), the Attorney General
may adjust Nyaga’s status only if Nyaga is “eligible to receive an immigrant visa.”
But 8 U.S.C. § 1154(a)(1)(I)(ii)(II), a provision that relates to the procedures for
filing petitions pursuant to the diversity visa program, states in full:
Aliens who qualify, through random selection, for a visa under section
1153(c) of this title [the diversity visa program] shall remain eligible to
18
receive such visa only through the end of the specific fiscal year for
which they were selected.
8 U.S.C. § 1154(a)(1)(I)(ii)(II) (emphasis added). If this section, when properly
interpreted, means that Nyaga is no longer eligible to receive an immigrant visa
because fiscal year 1998 has ended, then the Attorney General lacks the power to
adjust Nyaga’s status under § 1255(a). Therefore, the resolution of the mootness
issue hinges upon this court’s interpretation of the phrase “shall remain eligible to
receive such visa” in § 1154(a)(1)(I)(ii)(II).
We agree with the Defendants that the phrase “shall remain eligible to receive
such visa” plainly means that aliens, like Nyaga, who have been randomly selected
to qualify for a visa under the diversity visa program cannot be issued a visa after
midnight of the final day of the fiscal year for which they were selected. As of
midnight on September 30, 1998, Nyaga was no longer eligible to receive an
immigrant visa. The INS’s failure to process Nyaga’s application does not extend
Nyaga’s statutorily-limited period of eligibility for a diversity visa. “Eligible to
receive such visa” is unambiguous, and because the phrase is unambiguous, our
inquiry must end with the statute’s plain language. In reaching this conclusion based
on the statute’s plain meaning, we are not alone. See Iddir v. INS, 301 F.3d 492, 500-
01 (7th Cir. 2002) (concluding that even if the INS were to adjudicate applications
19
after the fiscal year ended, visas could not be issued); id. at 502 (Flaum, J.,
concurring) (concluding that the plaintiffs are no longer eligible to receive visas);
Fornalik v. Perryman, 223 F.3d 523, 526 (7th Cir. 2000); Vladagina v. Ashcroft,
unpublished at __ (S.D.N.Y. Apr. 8, 2002); Iddir v. INS, 166 F. Supp. 2d 1250, 1259
(N.D. Ill. 2001) (holding that “[t]he end of fiscal year 1998 was September 30, 1998,
which means that plaintiffs are no longer eligible to receive visas”), aff’d on other
grounds, 301 F.3d 492 (7th Cir. 2002); Zapata v. INS, 93 F. Supp. 2d 355, 358
(S.D.N.Y. 2000) (“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.”); Diallo v. Reno, 61 F. Supp. 2d 1361, 1368
(N.D. Ga. 1999).7
The Plaintiffs contend that when the phrase “shall remain eligible to receive
such visa” is construed in light of its context, the phrase actually means “shall remain
eligible to apply for such visa.” The Plaintiffs rely on the fact that §
1154(a)(1)(I)(ii)(II) sets forth the procedure for applying for a diversity visa; the
Plaintiffs contend that when this section is read as a whole, it is clear that a lottery
7
The Plaintiffs cite cases that, while arguably distinguishable from this
case, could be read to support the proposition that the INS can issue visas after the
fiscal year has ended. Paunescu v. INS, 76 F. Supp. 2d 896, 903 (N.D. Ill. 1999);
Marcetic v. INS, unpublished at __ (N.D. Ill. Apr. 6, 1998).
20
winner “has until the end of the fiscal year to be eligible to apply for such visa.”
(Pls.’ Br. at 29.) We disagree. Although § 1154(a)(1)(I) establishes the procedure
for submitting a diversity visa petition, there is nothing in this section, when read in
its entirety, that leads us to believe that the phrase “shall remain eligible to receive
such visa” actually means “shall remain eligible to apply for such visa.” Although
the Plaintiffs argue that this section necessarily was intended to establish a deadline
for submitting a visa application, we believe that it is just as likely that Congress
intended to place an ultimate deadline on visa eligibility in order to bring closure to
each fiscal year’s diversity visa program. We conclude that even when the phrase
“shall remain eligible to receive such visa” is read within the context of the entire
procedural framework established in § 1154(a)(1)(I), the plain meaning of “shall
remain eligible to receive such visa” does not change, nor is it rendered ambiguous.8
8
The Plaintiffs also argue that our interpretation of §
1154(a)(1)(I)(ii)(II) undermines Congress’s intent. The Plaintiffs present three
arguments related to congressional intent: (1) Congress could not have intended
for an alien to lose visa eligibility due solely to the INS’s inaction; (2) Congress
authorized the Secretary of State to establish a processing fee that will allow the
State Department to recover the costs of processing all diversity visa applications;
and (3) Congress’s enactment of § 1153(c)(1)(E)(iv), which permits the
redistribution of visa numbers among regions, reflects Congress’s intent that all
55,000 available visas be issued.
While we rest our decision upon the plain meaning of § 1154(a)(1)(I)(ii)(II),
it is not at all clear that our understanding of the plain meaning of the statute
undermines Congress’s intent. As we noted above, § 1154(a)(1)(I)(ii)(II) brings
closure to each fiscal year’s diversity visa program by declaring that lottery
21
Because we conclude that Nyaga is no longer eligible to receive a visa, the
district court could not provide meaningful relief to the Plaintiffs and the court was
compelled to dismiss this case as moot. In instructing the district court to dismiss on
mootness grounds, we join several other courts that have addressed similar cases.
winners are no longer eligible to receive a visa after midnight on the last day of the
fiscal year for which they were selected. Even if Congress intended for all
applications to be processed and all authorized visas to be issued, and even if
Congress did not intend for lottery winners to lose their eligibility due to the INS’s
inaction, it does not necessarily follow that Congress did not intend to establish an
ultimate deadline for the issuance of visas under each fiscal year’s diversity visa
program.
Congress’s prior legislative enactments related to the diversity visa program
demonstrate that our understanding of the statute’s plain meaning conforms to
Congress’s understanding of the statute. In 1996, Congress passed legislation
which permitted Fiscal Year 1995 Diversity Visa Program applicants from Poland
to receive diversity visas from the fiscal year 1997 visa numbers. Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, § 637, Pub. L.
104-208, 110 Stat. 3009. In 1998, Congress enacted ameliorative legislation that
authorized Fiscal Year 1998 Diversity Visa Program applicants from Kenya and
Tanzania (whose visa interviews could not be conducted on time because the
United States embassy in Kenya had been bombed) to receive visas from the fiscal
year 1999 visa numbers. Act of November 10, 1998, § 1, Pub. L. 105-360, 112
Stat. 3276. While neither situation involved the INS’s failure to process a lottery
winner’s application, this distinction is irrelevant; Congress’s action clearly
evinces its understanding that an applicant is no longer eligible to receive a visa,
absent legislative action, after the relevant fiscal year has ended even if there are
unissued visa numbers remaining from the relevant fiscal year.
Additionally, because we conclude that the statute’s plain meaning is clear,
we need not address the Defendants’ argument that we must accord Chevron
deference to State Department regulations that interpret § 1154(a)(1)(I)(ii)(II) in a
manner that renders applicants no longer eligible to receive visas after the
applicable fiscal year has ended.
22
Vladagina, unpublished at __ (S.D.N.Y. Apr. 8, 2002); Iddir, 166 F. Supp. 2d at 1260
(concluding that the case should be dismissed as moot because “[a]ny order by this
court compelling the INS to adjudicate plaintiffs’ applications would be a futile act”);
Zapata, 93 F. Supp. 2d at 358 (concluding that the court could not provide effectual
relief to the plaintiffs because fiscal year 1998 had ended and fiscal year 1998 visas
could not be issued “to anyone”); see also Iddir, 301 F.3d at 502 (Flaum, J.,
concurring) (departing from the majority and stating that the case is moot because “it
is the INS’s lack of power to grant effectual relief – not its lack of duty – that makes
the claims nonjusticiable”).9
VII. CONCLUSION
The plain meaning of 8 U.S.C. § 1154(a)(1)(I)(ii)(II) establishes that Nyaga’s
eligibility for a diversity visa expired at midnight on September 30, 1998. Therefore,
Nyaga is not “eligible to receive an immigrant visa” and the Attorney General lacks
the authority to adjust Nyaga’s status to that of a lawful permanent resident under §
1255(a). As a consequence, the district court could not provide meaningful relief to
9
Nyaga and Kibarra may once again submit petitions to enter the
diversity visa program lottery with the hopes that one of them will be selected and
that this time, unlike the last, the Defendants will process and adjudicate their
applications before the fiscal year ends. They may also petition Congress for a
private bill of relief. See, e.g., H.R. 509, 108th Cong. (2003) (“For the relief of
Lindita Idrizi Heath”); H.R. 392, 108th Cong. (2003) (“For the relief of Natasha
Oligovna Russo and Anya Oligovna”).
23
the Plaintiffs, and should have dismissed the action as moot. We vacate the district
court’s order and remand the action with instructions that the district court dismiss
the action as moot.
VACATED AND REMANDED WITH INSTRUCTIONS TO DISMISS AS
MOOT.
24
BARKETT, Circuit Judge, dissenting:
I would affirm the district court’s grant of mandamus ordering the Immigration
and Naturalization Service (“INS”) to do that which was required of it by Congress:
process Nyaga’s application for a diversity immigrant visa. See Armstrong v. Martin
Marietta Corp., 138 F.3d 1374, 1378 (11th Cir. 1998) (en banc) (recognizing that the
writ of mandamus is an appropriate remedy to correct the failure to carry out a
ministerial task) (citing In re Estelle, 516 F.2d 480, 483 (5th Cir. 1975)).1 The INS
takes the position that it is free to completely disregard a Congressional directive.
This view is problematic in the abstract, to say the least, but in this case the INS’
stance renders nugatory an entire section of the Immigration and Nationality Act
(“INA”). See 8 U.S.C. § 1153(c).
Section 1153(c) of the INA is comprised of three subsections that, together,
establish the diversity immigrant visa program. As the majority notes, the diversity
visa program is designed to provide permanent residence visas to individuals from
countries with historically low rates of immigration to the United States. In the first
subsection of § 1153(c), entitled “In General,” Congress details the bulk of the
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions
handed down prior to the close of business on September 30, 1981.
25
program.2 See id. In the introductory paragraph to § 1153(c)(1), Congress states that
“[e]xcept as provided in paragraph (2), aliens subject to the worldwide level specified
in section 1151(e) of this title for diversity immigrants shall be allotted visas each
fiscal year as follows . . . .” Id. (emphasis added).
Although the Department of State generally administers the diversity visa
program, the INS is responsible for adjudicating and issuing diversity visas to
applicants who reside in the United States at the time of their selection. Once an alien
receives notice of his selection in the diversity visa program, he is eligible to apply
for an adjustment to permanent resident status.3 See 8 U.S.C. § 1255. To receive a
status adjustment, the alien must meet three criteria: 1) the applicant must apply for
the adjustment; 2) the applicant must be statutorily eligible for the adjustment; and
3) the INS must have a visa number available when the alien’s application is
approved. See § 1255(a). While the ultimate decision whether to adjust an alien’s
status is discretionary, diversity visa applicants who are selected to participate in the
2
The other two subsections of § 1153 are short, and of little relevance to Nyaga’s claims.
Specifically, § 1153(c)(2) is an eligibility provision that dictates aliens must have at least a high
school education and two years of work experience “in an occupation which requires at least two
years of training” in order to receive a visa. § 1153(c)(2). Section 1153(c)(3) dictates that the
Secretary of State maintain information on all immigrants issued visas. See § 1153(c)(3).
3
An “adjustment of status” is a procedure for becoming an “alien lawfully
admitted for permanent residence.” See 8 U.S.C. § 1255(a). It allows resident
aliens to remain in the United States during the application process rather than
requiring them to leave the country in order to apply.
26
program (the “lottery winners”) satisfy § 1255(a)’s criteria simply by applying for the
adjustment and meeting § 1153(c)’s eligibility requirements. And, as the INS
concedes in its brief, an otherwise eligible immigrant4 who has complied with these
requirements would ordinarily face no impediment to a status adjustment, save the
possibility that all of the available visas under the diversity program had already been
issued to other applicants.
Throughout § 1153(c)(1) Congress chose to employ authoritative language that
affirmatively directs action. The term “shall” pervades § 1153(c). In addition to its
use in the introductory phrase “diversity immigrants shall be allotted visas,” §
1153(c)(1), Congress repeated the term eleven times in § 1153(c), stating that the
INS, the Attorney General, or the Secretary of State “shall” perform certain functions.
See § 1153(c)(1)(A) (“[t]he Attorney General shall determine”), (B)(i) (“[t]he
Attorney General shall identify”), (B)(ii) (“[t]he Attorney General shall identify”), (C)
(“[t]he Attorney General shall determine”), (D) (“[t]he Attorney General shall
determine”), (E)(iv) (“excess visa numbers shall be made available”) (emphases
added).
4
As part of the application process, the INS must also interview the
applicant and conduct a complete background investigation, including an FBI
fingerprint check, a CIA name check, and a records check through the Bureau of
Consular Affairs in the applicant’s native country. See 22 C.F.R. § 42.67; Iddir v.
INS, 166 F. Supp. 2d 1250, 1253 (N.D. Ill. 2001).
27
Section 1153(c) also contains clear language directing the INS to distribute all
available diversity immigrant visas for a given fiscal year. Most notably, §
1153(c)(1)(E)(iv) gives the Secretary of State the following command:
If the Secretary of State estimates that the number of immigrant visas to be
issued to natives in any region for a fiscal year under this paragraph is less than
the number of immigrant visas made available to such natives under this
paragraph for the fiscal year, subject to clause (v), the excess visa numbers
shall be made available to natives (other than natives of a high-admission state)
of the other regions in proportion to the percentages otherwise specified in
clauses (ii) and (iii).
§ 1153(c)(1)(E)(iv) (emphasis added). By its plain language, § 1153(c)(1)(E)(iv)
directs the Secretary of State (and the INS in the course of processing adjustment of
status applications) to distribute all available diversity immigrant visas each year.
See id. If the Secretary determines that the immigrant visas allocated to one region
will not be fully distributed, then those visas must be made available to applicants
from other regions. See id. Section 1153(c)(1)(E)(iv)’s clear mandate is that all of
the diversity immigrant visas that Congress sets aside be distributed to eligible
applicants (i.e. applicants who satisfy § 1153(c)(2)).
Each year the Department of State receives several million applications for the
diversity immigrant visa program. In 1997, Nyaga was one of these applicants and
on July 1, 1997, he received notification of his selection as one of the 100,000 lucky
28
“winners” chosen to participate in the program.5 This notification letter made it clear
that Nyaga was not automatically entitled to a visa, but did indicate that he was
among the “100,000 DV-98 entries [that] were randomly selected” to apply for one
of the 55,000 available visas. The letter also instructed Nyaga of the necessary forms
that he must file with the National Visa Center6 and cautioned him to “carefully
follow these instructions to increase your chances of possible visa issuance.” A
subsequent letter dated September 26, 1997, informed Nyaga that “the 1998 Diversity
Lottery Program requires a $75.00 diversity visa processing fee, per person.”7 This
letter notified Nyaga that, as an applicant residing in the United States, he must also
apply for an “adjustment of status” directly with the INS, which he did. The INS’
“adjustment of status” application required Nyaga to complete several forms, attach
numerous supporting documents “including pictures and [a] medical examination
5
The common reference to aliens selected to apply for an immigrant visa
under the diversity program as “lottery winners” is something of a misnomer: in
reality the alien simply becomes eligible to apply for a permanent visa under the
program. “Winning” aliens do not necessarily receive a visa. Typically, the INS
selects around 100,000 “winners” for the 55,000 visas that are available each year.
See 8 U.S.C. § 1151(e). The INS uses this system because it has found that only
around one-half of the aliens selected to apply for diversity visas are both qualified
to receive the visa and actually file an application. See Diallo v. Reno, 61 F. Supp.
2d 1361, 1363 n.3 (N.D. Ga. 1999).
6
The National Visa Center was established and is directed by the
Department of State.
7
Nyaga paid an application fee of $300.00.
29
report,” and pay a fee of “$130.00 for applicants 14 years of age or older and $100.00
for applicants under the age of 14.”8
It is not disputed that Nyaga properly completed both the diversity visa
application and the “adjustment of status” application on or before February 2, 1998.
This left the INS just under eight full months to adjudicate his petition before the end
of fiscal year 1998. However, other than forwarding his fingerprint cards to the FBI
on February 20, 1998, the INS did not act upon Nyaga’s petition prior to the end of
the fiscal year.9 Nyaga now quite reasonably argues that, at the very least, his timely
completion of the diversity visa program’s procedural and fiscal requirements should
have entitled him to an equally timely adjudication of his application. According to
the INS, this is not so.
Incredibly, the INS relies upon its own inaction during fiscal year 1998 as the
justification for its current impotence to issue Nyaga a visa. Since under 8 U.S.C. §
1154(a)(1)(I)(ii)(II) eligibility for the diversity program is limited to the fiscal year
in which the alien was selected to participate, the INS argues that its failure to act
8
Nyaga’s application included a payment to the INS of $1,200.00 which
included a $130.00 filing fee for his adjustment of status application (I-485), a
$1,000.00 “other fee,” and a $70.00 fee for his employment authorization
application (I-765).
9
This failure by the INS to act was not due to the unavailability of diversity
visas that year. When the fiscal year 1998 ended, more than 3,000 diversity visas
were left undistributed.
30
upon Nyaga’s application during the 1998 fiscal year renders him statutorily
ineligible to receive a diversity visa.10 See § 1154(a)(1)(I)(ii)(II). To be clear, the
INS failed to adjudicate Nyaga’s application during the fiscal year in which he
applied and, based on this failure, now contends that Nyaga is no longer eligible for
a 1998 diversity visa. The majority reluctantly accepts this argument and, as a
consequence, deems Nyaga’s claim for relief moot under § 1154(a)(1)(I)(ii)(II).
I question the propriety of this judgment because, under the majority’s reading
of the statute, Nyaga faces an intractable conundrum. Nyaga was rendered
technically ineligible for relief under § 1154(a)(1)(I)(ii)(II), not due to any error of
his own, but rather as the result of the INS’ unilateral failure to comply with the
directives of the INA. Such a result is particularly offensive because it is clear from
the statute that Congress expected the INS to perform the ministerial duties required
by the program (i.e. to assure the distribution of the allotted visas) and, thus, under
§ 1153(c), Nyaga was entitled to have the INS adjudicate his timely-filed diversity
visa application.11 See Iddir v. INS, 301 F.3d 492, 500 (7th Cir. 2002); Paunescu v.
10
The INS generously points out that though ineligible for a 1998 diversity
visa, Nyaga can reapply to the program each year. As Nyaga must literally “win
the lottery” to regain his eligibility, this is hardly a constructive suggestion.
11
The INS all but concedes this point in its brief, stating that “Nyaga is
arguably entitled to an adjudication of his diversity visa based adjustment
application.” INS Br. p. 29.
31
INS, 76 F. Supp. 2d 896, 900 (N.D. Ill. 1999).
Because, in my view, § 1153(c) of the INA requires the INS to act on diversity
visa applications, I believe the district court properly found that mandamus is the
appropriate remedy to compel the INS to perform its ministerial role under the INA
and adjudicate Nyaga’s application. See Armstrong, 138 F.3d at 1378.
32