Yung–Kai Lu v. Tillerson

• Decision Date: 15 February 2018
• Docket Number: Civil Action No. 17–1028 (JEB)
• Citation: 292 F.Supp.3d 276
• Court: U.S. District Court — District of Columbia
• Parties: YUNG–KAI LU, Plaintiff, v. Rex W. TILLERSON, Defendant.

292 F.Supp.3d 276

YUNG–KAI LU, Plaintiff,

v.Rex W. TILLERSON, Defendant.

Civil Action No. 17–1028 (JEB)

United States District Court, District of Columbia.

Signed February 15, 2018

Yung–Kai Lu, New Taipei City, Taiwan, pro se.

Benton Gregory Peterson, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Plaintiff Yung–Kai Lu, proceeding pro se , is a citizen and resident of Taiwan. In 2015, Lu was the lucky winner of the "visa lottery" for lawful admission to the United States. Yet his victory proved hollow, as he was never granted a visa. Lu then brought this suit alleging that this 2015 visa deprivation was based on unreasonable delays on the part of the State Department, as well as on other unconnected events. As relief, Plaintiff asked this Court to compel Defendant Secretary of State to extend the time for a visa interview for his 2015 application. In now moving to dismiss, the Government asserts that it can do no such thing. According to Defendant, once the 2015 fiscal year expired, so too did the statutory authority for the issuance of Lu's Diversity Visa. State argues both that Plaintiff's claims are thus moot, thereby depriving this Court of subject-matter jurisdiction, and that his statutory causes of action fail to adequately state a claim for relief. As the case is indeed moot, the Court will dismiss it.

I. Background

According to the Complaint, which the Court must credit at this stage, Plaintiff entered the Department of State's Diversity Visa (DV) program for fiscal year 2015. See ECF No. 1, ¶¶ 19–20. Fiscal year 2015 ran from October 1, 2014, to September 30, 2015. Id., Exh. 1. Lu had previously resided in the United States and had applied (to no avail) for a Diversity Visa since 2002. His 2015 application, however, proved auspicious. Although there is an apparent inconsistency between the Complaint and the record evidence as to when Lu was notified that his application had been chosen, see Compl., ¶ 20 (stating that Lu was notified in "early October 2015" that he was selected); but see ECF No. 1–2, Exh. 1 (Notification Letter) (letter notifying Lu of selection dated May 1, 2014), there is no dispute that he was in fact an FY 2015 selectee.

In any event, the State Department notification letter informed Plaintiff that he had been selected out of the FY 2015 applicant pool for "further processing," but cautioned that "selection [did] not guarantee that [he would] receive a visa." Notification Letter. The letter went on to provide a series of instructions for Lu to follow "to increase [his] chances of possible visa issuance," which included registering with the online DS–260 Immigrant Visa and Registration Application. Id. Finally, the Department informed Lu that his case would "not be scheduled for an interview appointment until a visa number is available," and that, were an interview to be scheduled, Lu would receive notification. Id. Lu submitted his DS–260, but never received notification of an interview. (The Court notes that, although both Plaintiff and Defendant state that Lu submitted the DS–260 visa application form in October 2015, see Compl., ¶ 20; MTD at 3, the record suggests that it was in fact submitted on October 30, 2014. See ECF No. 1–2 (DS–290 Application).)

A year later, between the fall of 2015 and June 2016, Lu wrote to the U.S. Attorney General and the State Department alleging that he had been unfairly treated and unlawfully deprived of his 2015 visa. Specifically, he claimed that he had been denied a Diversity Visa for the 2015 fiscal year because of "technical" issues and "computer system glitches." Compl., ¶ 22. In response to his inquiries, Lu received a July 2016 letter from the State Department stating that the "DV program for fiscal year 2015 is closed, and winning entries from that year are no longer eligible for processing." ECF No. 1–2, Exh. 2 (State Dept. Letter).

On May 24, 2017, Lu filed suit in this Court, alleging that he had "suffered the loss of his permanent visa interview to obtain [a] green card" because Defendant "did not appropriately and lawfully take [its] mandatory duties to execute and process applications under the 2015 Diversity Immigration Visa Program." Compl., ¶¶ 1–2. His Complaint attributes the 2015 delay to, inter alia , "cyber terrorist attacks or other computer glitches," "the earthquake in Nepal in 2014," and the State Department's "new computing systems to operate [the] visa lottery interview." Id., ¶¶ 15, 28; see ECF No. 1–2, Exh. 3 (assortment of news articles discussing 2015 technical issues with State Department visa processing). Construing Lu's Complaint liberally, as it must, the Court can discern three possible statutory bases for his claims. It appears that Plaintiff is alleging that, in failing to promptly process his application and grant an interview, the Government violated the requirements of the Administrative Procedure Act, 5 U.S.C. § 551, and the Immigration and Nationality Act, 8 U.S.C. § 1101. See Compl., ¶¶ 5, 8, 29, 37. He additionally asserts that the Court has jurisdiction to grant relief under the Mandamus Act, 28 U.S.C. § 1361. Id., ¶ 6.

Plaintiff requests that, in light of these alleged violations, the Court compel State to grant him an extension "to finalize the interview" and to add him "on the winning list in future visa lottery." Id., ¶ 46. He also asks for $60,000 as compensation for "government neglect." Id. In December 2017, Defendant filed a Motion to Dismiss under Rules 12(b)(1) and 12(b)(6), to which Lu filed an opposition in January. See ECF Nos. 16, 18.

II. Legal Standard

As the Court essentially relies on the question of subject-matter jurisdiction, it articulates solely the standard under Rule 12(b)(1) below.

When a defendant brings a Rule 12(b)(1) motion to dismiss, the plaintiff must demonstrate that the Court indeed has subject-matter jurisdiction to hear his claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; U.S. Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). "Because subject-matter jurisdiction focuses on the court's power to hear the plaintiff's claim, a Rule 12(b)(1) motion [also] imposes on the court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). For this reason, and although pleadings by pro se plaintiffs are held "to less stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), " ‘the [p]laintiff's factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F.Supp.2d at 13–14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 1350 (2d ed. 1987) ) (alteration in original). In policing its jurisdictional borders, the Court must scrutinize the complaint, treating its factual allegations as true and granting the plaintiff the benefit of all reasonable inferences that can be derived from the alleged facts. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The Court need not rely "on the complaint standing alone," however, but may also look to undisputed facts in the record or resolve disputed ones. See Herbert v. Nat'l Acad. of Sci., 974 F.2d 192, 197 (D.C. Cir. 1992).

III. Discussion

The Court first gives a brief overview of the Diversity Visa program before turning separately to the question of its jurisdiction over Lu's claims and his request for other relief, including money damages.

A. Diversity Visa Program

The Diversity Visa program provides a limited number of visas to individuals from countries that historically have had low rates of immigration to the United States. See 8 U.S.C. § 1153(c). A visa granted under the system enables the recipient to move to the United States as a lawful permanent resident, and thus to live and work legally in this county. To be eligible for these visas, applicants must have at least a high-school education or two years' work experience in an occupation that requires at least two years of training or experience. Id., § 1153(c)(2). To apply, eligible individuals must complete a DV petition before a specified filing deadline. Once that date passes, the petitions are numbered according to the order in which they are received and are then randomly re-ordered by a computer. Id., § 1153(e)(2) ; 22 C.F.R. § 42.33(c). The State Department then selects a quantity of petitions estimated to result, after a winnowing process, in the issuance of all authorized Diversity Visas. See 22 C.F.R. § 42.33(c). These initially selected applicants—often referred to as "lottery winners"—are in turn notified of their selection. See Smirnov v. Clinton, 806 F.Supp.2d 1, 6 (D.D.C. 2011) (discussing details of "three-step process in administering the DV lottery: numbering, random re-ordering, and selection"), aff'd, 487 Fed.Appx. 582 (D.C. Cir. 2012).

Yet the moniker "lottery winner" is a bit misleading. Selection of an applicant's petition does not ensure that he will in fact receive a visa, as the total number of lottery winners exceeds the number of Diversity Visas available under the program. Id. at 7 (stating that "nearly half of the original 100,000 lottery winners do not receive a visa"). A lottery winner thus obtains not the right to a visa, but "only the right to apply to receive a visa through the DV program." Coraggioso v. Ashcroft, 355 F.3d 730, 732 (3d Cir. 2004), as amended (Jan. 29, 2004) (emphasis added). The path from selectee to visa-holder, moreover, is lengthy and rife with bureaucratic brambles. Applicants must submit numerous documents to the National Visa Office (including, among others, a passport, a birth certificate,...