Ahmed v. Department of Homeland Security, 02-1467.

• Decision Date: 09 May 2003
• Docket Number: No. 02-1467.,02-1467.
• Parties: Farah Naz AHMED, Plaintiff-Appellant, v. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

328 F.3d 383

Farah Naz AHMED, Plaintiff-Appellant, v. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants-Appellees.

No. 02-1467.

United States Court of Appeals, Seventh Circuit.

Argued November 14, 2002.

Decided May 9, 2003.

James V. Noonan (argued), Noonan & Lieberman, Chicago, IL, for Plaintiff-Appellant.

Jeffery J. Bernstein (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, D.C., Defendant-Appellee.

Before RIPPLE, ROVNER, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Farah Ahmed, a native and resident of Pakistan, thought that she had secured the right to live in the United States when she "won" the diversity visa lottery, which is a program that seeks to encourage immigration to the United States from certain underrepresented countries. But, as we explain below, "winning" the lottery meant only winning a chance to secure a visa, and that chance had an expiration date and time. Unfortunately for Ahmed, bureaucratic delays and difficulties beyond her control prevented her from completing her application before that expiration date. She brought an action under the mandamus statute, 28 U.S.C. § 1361, and under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06, seeking to compel the federal government to process her application for a visa.¹ The district court dismissed both claims for lack of subject-matter jurisdiction. Because we can find no meaningful distinction between Ahmed's case and our recent decision in Iddir v. INS, 301 F.3d 492 (7th Cir.2002), we agree that dismissal was the proper outcome, although not because the court lacked subject-matter jurisdiction to adjudicate the claims.

I

The sequence of events that led up to Ahmed's lawsuit bears an unfortunate resemblance to the experience in the past of recipients of large envelopes from organizations like Publishers Clearinghouse announcing in huge letters that the person is ALREADY A WINNER, but containing a disclaimer buried in the middle of the packet that explains that the only thing that has been won is a chance at the big prize. Ahmed, who at all relevant times has lived in Pakistan, was told in March 1998 that she was among those randomly selected for further consideration for the fiscal year 1999 diversity visa program. The letter she received began with the word "Congratulations!" Congress established the diversity visa program as a way of encouraging immigration to the United States from countries with historically low rates, by making permanent residence visas available to eligible applicants. See 8 U.S.C. § 1153(c). The opportunity to secure a diversity visa lasts for only one fiscal year. Id. §§ 1151(a)(3), 1153(c)(1), 1154(a)(1)(I)(ii). This meant, in Ahmed's case, that she had to complete the application process and obtain her visa before September 30, 1999.

Six months before the deadline, the National Visa Center informed Ahmed that her application would be processed through the United States Embassy in Islamabad, Pakistan, and that she should go to the embassy on May 26 for an interview. The month before the interview, however, Ahmed gave birth to a baby girl. She informed the officials at the embassy that she wanted to include her newborn daughter as a derivative dependent on her application. Two days before the interview Ahmed sent a letter to the embassy by express mail asking to reschedule the interview, because she had not yet been able to gather together all the documents she needed, including a birth certificate for her daughter.

This request was greeted with silence from the embassy. After waiting for a response for many weeks, Ahmed traveled in August to the embassy, where an official told her to go home and await further word. She obeyed. But, by early September she had still heard nothing. She wrote again to the embassy and also to the U.S. Ambassador on September 13, asking again for a new interview date. Four days later, she returned in person to the embassy. There she saw a sign announcing that the "[diversity visa] program is finished" and that "no further interviews will be held." At that point, unbeknownst to her, she made a fatal mistake by not arranging immediately for a lawsuit to be brought on her behalf in the United States prior to September 30. Instead, she went back home, where she eventually received a "tough luck" form letter from the embassy explaining that the diversity visa program is a "finite program" that ends every year on September 30, and that her chance for a visa was thus dead.

Almost two years later, Ahmed filed this action in the Northern District of Illinois seeking to compel the government to process her application. The court decided the case on the basis of a joint statement of stipulated facts. As it had done in an earlier case, it decided that there was no subject-matter jurisdiction over her claim and it dismissed on that basis.

II

A

Before addressing the merits of Ahmed's claim, we must address the question whether the district court had subject-matter jurisdiction over her case. No one has suggested that her APA claim seeking to compel a federal agency — the INS, she claimed, even though it would have been more accurate to identify the State Department (of which the U.S. Embassy in Islamabad is a part) — did not fall under the general federal-question jurisdiction conferred in 28 U.S.C. § 1331. It is the mandamus claim that gives rise to more questions.

The district court thought that because Ahmed had not shown that she was entitled to mandamus relief, it did not have subject-matter jurisdiction over her claim. It cited several reasons for this holding: first, it noted that consular visa determinations are discretionary and not subject to judicial review under 8 U.S.C. § 1252(a)(2)(B)(i) (barring review of adjustment-of-status determinations); second, it thought that mandamus was unavailable because Ahmed had the right to renew a request for adjustment of status upon the commencement of removal proceedings, and third, it noted that her request for relief was barred because the INS did not have the power to grant relief because of the expiration of that year's program. Each of these reasons has its problems, as we explain briefly below.

As the government concedes, the statute on which the district court relied first, 8 U.S.C. § 1252(a)(2)(B)(i), has no bearing whatever on Ahmed's case, for the simple reason that she was not in the United States at the relevant time and thus could not possibly have received an adjustment of status. The court's second reason was also based on the mistaken assumption that Ahmed was in this country and had remedies available that would prevent her removal. We thus put those two reasons aside for now, and focus on the third point made by the court: whether mandamus was unavailable because no effective relief could be granted. (We return briefly at the end of this opinion to the government's argument that the action of the Embassy in Islamabad was unreviewable on other grounds.)

Our earlier decisions have not been entirely clear on the question whether an inability to grant effective relief goes to the court's subject-matter jurisdiction under the mandamus statute or if it addresses merely whether the party should prevail on her petition. See, e.g., City of Milwaukee v. Saxbe, 546 F.2d 693, 700 (7th Cir. 1976) (referring to the "merger" of the questions of jurisdiction and failure to state a claim in the mandamus context), cited in Cook v. Arentzen, 582 F.2d 870, 877 (4th Cir.1978) (explaining that the "jurisdiction spoken of in [City of Milwaukee v. Saxbe] refers to the power of any court to grant the relief prayed for," as opposed to "that of a federal court to entertain a question authorized by statute"). Language in our later decision in Iddir points both ways.

In our view, it is necessary to distinguish between the court's power to adjudicate the petition and the court's authority to grant relief. Only the former necessarily implicates the subject-matter jurisdiction of the court; the latter will depend on whether the statute on which the plaintiff is relying imposes a clear duty on the officer or employee of the United States. See 13th Reg'l Corp. v. U.S. Dep't of Interior, 654 F.2d 758, 760 (D.C.Cir.1980) ("The requirement that a duty be `clearly defined' to warrant issuance of a writ does not rule out mandamus actions in situations where the interpretation of the controlling statute is in doubt."). See also Am. Cetacean Soc'y v. Baldrige, 768 F.2d 426, 433 (D.C.Cir.1985), rev'd on other grounds by Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). This is not to say that there is no jurisdictional dimension here; it is only to indicate that the usual standards announced in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946) apply. The Tenth Circuit recognized as much in Carpet, Linoleum & Resilient Tile Layers, Local Union No. 419 v. Brown, 656 F.2d 564 (10th Cir.1981), in which it said:

In resolving whether section 1361 jurisdiction is present, allegations of the complaint, unless patently frivolous, are taken as true to avoid tackling the merits under the ruse of assessing jurisdiction.

Id. at 567 (internal quotations omitted). Unfortunately, just after saying that, the court went on to say "[t]he test for jurisdiction is whether mandamus would be an appropriate means of relief." Id. (internal quotations omitted). To complicate matters more, the Fourth Circuit appears to have followed the former statement from Carpet, Linoleum in cases such as First Fed. Sav. & Loan Ass'n v. Baker, 860 F.2d 135, 140 (4th Cir.1988), and Michael v. Lullo, 173 F.3d 503, 505 n. 3 (4th Cir.1999), without mentioning any inconsistency in the Tenth Circuit's position.

Other courts have given comparably conflicting signals in this complex area. The Sixth Circuit, for example, was not entirely clear in Coal Operators & Assocs., Inc....