Diallo v. Reno, 1:99-CV-378-CAM.

• Citation: 61 F.Supp.2d 1361
• Decision Date: 29 July 1999
• Docket Number: No. 1:99-CV-378-CAM.,1:99-CV-378-CAM.
• Parties: Mamadou Saliou DIALLO and Mariama Diallo, Plaintiffs, v. Janet RENO, as Attorney General of the United States; Doris Meissner, as Commissioner of the Immigration and Naturalization Service; Thomas P. Fischer, District Director of the Immigration and naturalization Service; Dwight Faulkner, Assistant District Director, Examinations Section, Defendants.
• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia

61 F.Supp.2d 1361

Mamadou Saliou DIALLO and Mariama Diallo, Plaintiffs, v. Janet RENO, as Attorney General of the United States; Doris Meissner, as Commissioner of the Immigration and Naturalization Service; Thomas P. Fischer, District Director of the Immigration and naturalization Service; Dwight Faulkner, Assistant District Director, Examinations Section, Defendants.

No. 1:99-CV-378-CAM.

United States District Court, N.D. Georgia, Atlanta Division.

July 29, 1999.

COPYRIGHT MATERIAL OMITTED

H. Glenn Fogle, Jr., Office of H. Glenn Fogle, Jr., Atlanta, GA, for plaintiffs.

Julia B. Anderson, Office of United States Attorney, Northern District of Georgia, Atlanta, GA, for Defendants.

ORDER

MOYE, District Judge.

The above-styled action is before the court on 1) defendants' motion to dismiss or in the alternative motion for summary judgment [# 8]; and 2) plaintiffs' motion to stay removal proceedings [# 2].

FACTS

Plaintiffs, Mamadou Saliou Diallo and Mariama Diallo, were admitted to the United States on approximately October 31, 1995 as nonimmigrant visitors with authorization to remain in the United States until January 30, 1996.¹ (Faulkner Declaration, ¶ 3). On approximately July 18, 1996, Mr. Diallo was notified of his selection pursuant to the Fiscal Year 1997 ("FY 97") Diversity Immigrant Visa Program.² (Defendants' Exhibit 1). The Diversity Immigrant Visa Program was created to allow a certain limited number of diversity immigrant visas to be issued to individuals from countries that have had low rates of immigration into the United States. 8 U.S.C. § 1153(c); 22 C.F.R. § 42.33. In FY 97, Guinea, Mr. Diallo's country of birth, was granted 337 of the 55,000 possible visas to be issued under the program. (Faulkner Declaration, ¶ 5).

Notification of selection in the Diversity Immigrant Visa Program does not automatically guarantee receipt of a visa even if the applicant is fully qualified to receive a visa. See 61 Fed.Reg. 58730. Indeed, approximately twice as many applicants for diversity visas are notified each year as there are available visas. (Faulkner Declaration, ¶¶ 4 and 5). Mr. Diallo was advised of this fact when he received his notice of selection.³ (Defendants' Exhibit 1).

Once an alien receives notice of his selection in the Diversity Visa Immigrant Program, he is then eligible to apply for an adjustment to permanent resident status pursuant to 8 U.S.C. § 1255. On November 25, 1996, Mr. Diallo applied for an adjustment of status. (Defendants' Exhibit 1). Mr. And Mrs. Diallo each paid the INS the $130.00 filing fee for the adjustment of status application (I-485), plus the $650.00 penalty for being out of status when filing (I-485A), plus the $70.00 fee for the employment authorization application (I-765), the total for each being $850.00. (Plaintiffs' Exhibit B).

On January 21, 1997, Mr. Diallo's brother, Abdourahmane Diallo died in Grady Memorial Hospital in Atlanta, Georgia from a severe asthma attack. (Diallo Aff., Exhibit A). On January 29, 1997, Mr. and Mrs. Diallo went to the Atlanta District Office with his brother's death certificate to apply for permission to leave the United States ("Advance Parole") and take his brother's body back to Africa. While Mr. and Mrs. Diallo were filing their applications for Advance Parole with one of the information officers, the INS arrested Mr. Diallo and took him into custody because the INS records indicated an outstanding deportation order for a Mamadou Diallo also from Guinea. (Id). Applications for Advance Parole require a background investigation of the INS records and criminal records to assure that the applicant is in fact eligible to return to the United States.

Mr. Diallo was taken to the Deportation division of the Atlanta INS Office for further investigation. He was questioned as to whether he was Mamadou Mouctar Diallo (though his passport indicated otherwise) and he told the officers that he was Mamadou Saliou Diallo, not Mamadou Mouctar Diallo. (Id). The officers did not believe Mr. Diallo and showed him a computer screen with the names of Mamadou Mouctar Diallo's parents and his birth date. They questioned Mr. Diallo regarding whether these people were his parents and whether this was his date of birth. Mr. Diallo answered in the negative. The INS Deportation officers still did not believe Mr. Diallo, took his fingerprints and put him in a holding cell. (Id.). After a few hours, Mr. Diallo was let out of the holding cell and informed by the Deportation officers that he was lucky because they had obtained a copy of Mamadou Mouctar Diallo's fingerprints from the INS office in New York. After comparing those fingerprints to Mr. Diallo's, the INS confirmed that Mr. Diallo was not in actuality Mamadou Mouctar Diallo. (Id.).

That same day, the INS approved Mr. and Mrs. Diallo's requests for Advance Parole and their applications were signed by Dwight Faulkner on behalf of Thomas Fischer. (Plaintiffs' Exhibit C and D). Thus, plaintiffs point out that, on January 29, 1998, the INS had full and complete knowledge that Mr. Diallo was not the same person as Mamadou Mouctar Diallo and had confirmed it to their own satisfaction by arresting him for several hours and making a fingerprint comparison.

Prior to approving Mr. Diallo's application for a diversity immigrant visa, the INS was required to 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 Guinea, Mr. Diallo's native country. (Faulkner Declaration, ¶¶ 8, 11). As part of the application process, Mr. Diallo was also required to appear for an interview, which was conducted on May 7, 1997. (Faulkner Declaration, ¶ 9). Plaintiffs point out that the background investigation is usually completed before the interview is scheduled.

Prior to Mr. Diallo's interview on May 7, 1997, the INS had located records on a Mamadou Mouctar Diallo, also born in Guinea, who had been ordered deported in 1995. (Faulkner Declaration, ¶ 9). Defendants failed to recall or discover the fingerprint comparisons conducted on January 29, 1997. Based on Mr. Diallo's interview,⁴ the INS was unable to confirm that Mamadou Saliou Diallo and Mamadou Mouctar Diallo were in fact two different people. (Id.). This necessitated a further investigation before it could approve Mr. Diallo's application for adjustment of status. Upon investigation, the INS concluded that Mr. Diallo was the same Mamadou Diallo who had been ordered deported and on November 26, 1997, the INS issued a decision denying Mr. Diallo's application for adjustment of status based on that assumption. (Faulkner Declaration, ¶ 13; Defendants' Exhibit 2). The INS has since determined that it was incorrect in its conclusion that Mamadou Saliou Diallo and Mamadou Mouctar Diallo are one and the same person. (Faulkner Declaration, ¶ 16).

Defendants assert that a copy of the District Director's November 26, 1997 decision was mailed to Mr. Diallo and to his attorney, Glenn Fogle. (Faulkner Declaration, ¶ 16). According to the INS records, neither of these letters were returned as undeliverable. (Faulkner Declaration, ¶ 13). The only written record the INS has of any inquiry by plaintiffs or their attorney following the District Director's November 26, 1997 decision denying Mr. Diallo's application for adjustment of status is a letter dated May 14, 1998, from Glenn Fogle addressed to District Counsel Terry Bird. (Defendants' Exhibit 3). Further, the INS records do not reflect any contact by Mr. Diallo or his attorney with the INS between the date of Mr. Diallo's interview on May 7, 1997 and September 30, 1997, the date Mr. Diallo's eligibility for a FY 97 Diversity Visa expired. (Faulkner Declaration, ¶¶ 12-14).

In opposition, plaintiffs assert that the November 26, 1997 decision was not mailed out to Mr. Diallo and his attorney until his attorney met with Mr. Faulkner and Mildred Ellis in early April, 1998. Plaintiffs point out that Ellis, after locating plaintiffs' files, remarked to plaintiffs' counsel that the decision and copy to counsel (which are to be sent via certified mail) were still in the file and had not been sent. It was not until that time that Mr. Diallo or his counsel were even made aware of the INS's decision which prompted the letter of May 14, 1998 from Mr. Diallo's counsel to the INS District Counsel. (Defendants' Exhibit 3).

Entitlement to immigrant status in the Diversity Immigrant Visa Program lasts only through the end of the fiscal year for which the applicant is selected, which ends September 30. (Faulkner Declaration, ¶ 6). After that date, no diversity immigrant visas can be issued for that fiscal year. (Faulkner Declaration, ¶ 6). See also 22 C.F.R. § 42.33. Therefore, even if Mr. Diallo or his attorney had contacted the INS immediately after the November 26, 1997 denial of Mr. Diallo's application for adjustment in status, the outcome would have been the same since the last day any visas could be issued under the 1997 Diversity Immigrant Visa Program was September 30, 1997. (Faulkner Declaration, ¶ 6).

On January 10, 1998, the INS issued a Notice to Appear for removal hearing to Mariama Diallo, apparently based on the assumption that she was the wife of Mamadou Mouctar Diallo, who had been ordered deported. However, the Notice to Appear was issued in error before the INS discovered its mistake regarding Mr. Diallo's identity. Plaintiffs state that they did not receive the Notice to Appear dated November 24, 1997 until April 1998. (Diallo Aff., Exhibit 1). The Notice to Appear was never filed with the Immigration Court and therefore removal proceedings have never been formally commenced against Mrs. Diallo. 8 C.F.R. § 3.14(a). (Faulkner Declaration, ¶ 15).

Plaintiffs are currently deportable pursuant to 8 U.S.C. § 1227(a)(1)(C) based upon the fact that they have remained in the United States illegally since January 30,...