Nyaga v. Ashcroft

• Decision Date: 20 February 2002
• Docket Number: No. CIV.1:01-CV-1249-ODE.,CIV.1:01-CV-1249-ODE.
• Parties: Charles Kibaara NYAGA and Doin Kainyu Kibarra, Plaintiffs v. John ASHCROFT, as Attorney General of the United States; and Rosemary Langley Melville, as District Director, Atlanta Division of the Immigration and Naturalization Service, Defendants
• Court: U.S. District Court — Northern District of Georgia

186 F.Supp.2d 1244

Charles Kibaara NYAGA and Doin Kainyu Kibarra, Plaintiffs v. John ASHCROFT, as Attorney General of the United States; and Rosemary Langley Melville, as District Director, Atlanta Division of the Immigration and Naturalization Service, Defendants

No. CIV.1:01-CV-1249-ODE.

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

February 20, 2002.

James V. Noonan, Noonan & Lieberman, Chicago, IL, Madeline S. Wirt, Whelchel & Dunlap, Gainesville, GA, Plaintiff's Attorney.

Julia B. Anderson, Office of the United States Attorney, Northern District of

Georgia, Atlanta, GA, Defendants' Attorney.

ORDER

EVANS, District Judge.

This civil immigration case is presently before the court on Defendants' Motion to Dismiss or in the alternative for Summary Judgment and Plaintiffs' cross motion for summary judgment. Plaintiffs seek mandamus relief, pursuant to 28 U.S.C. § 1361, in the form of an order compelling Defendants immediately to "perform their legal duty to complete all remaining process of Plaintiff Charles Kibaara Nyaga's Adjustment of Status." [Pl. Compl. at 15]. For the reasons set forth below, Defendants' motion is DENIED and Plaintiffs' motion for summary judgment is GRANTED.

In the instant matter, Charles Nygaga, a citizen of Kenya, was selected to participate in the 1998 Diversity Visa Lottery Program, which permits aliens from under-represented areas of the world to apply for immigrant visas. 8 U.S.C. § 1153(c)(1)(A). As he already resided in the United States, he applied for an Adjustment of Status pursuant to the Diversity Program, through which he could attain legal permanent residency. 8 U.S.C. § 1154.

Diversity Visa Lottery Program

Section 203 of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1153(c)(1)(A), constitutes the relevant statute governing the Diversity Visa Program. That statute requires the Attorney General to determine "for the most recent previous 5-fiscal-year period for which data are available," the total number of aliens by country of origin who were admitted to the United States or granted lawful permanent residency under the worldwide quota system in 8 U.S.C. § 1151(a) or as immediate relatives under 8 U.S.C. § 1151(b)(2). On the basis of these numbers, the Attorney General must divide 55,000 lottery visa openings among "low-admission regions." This provision was designed to enhance immigration from under-represented countries.

An alien from a "low-admission region" who otherwise meets the program's qualifications may apply once yearly to the Department of State to register for a diversity visa. Based upon the Attorney General's regional allocations for a given year, "[i]mmigrant visa numbers made available [under the diversity program] shall be issued to eligible qualified immigrants strictly in a random order established by the Secretary of State." 8 U.S.C. § 1153(e)(2). The program has been described as a "visa lottery" because of the random order of the State Department's assignment of visa eligibility. The relevant regulation refers to the application to be considered eligible to participate in the diversity visa "lottery" as a petition. 22 C.F.R. § 42.33(b).

Because the INS selects approximately 100,000 "winners" in each lottery, not every visa applicant actually receives a visa. Once an individual "wins" the lottery, and becomes eligible for consideration in the diversity visa program, the alien must then file an immigrant visa application.¹ See 22 C.F.R. § 42.33(h); Notices, Department of State Bureau of Consular Affairs; Registration for the Diversity Immigrant (DV-98) Visa Program, 61 Fed.Reg. 58730 (Nov. 18, 1996). This diversity visa application is the application upon which the decision whether or not to grant the immigrant visa is based, and lottery winners are encouraged to file quickly. See Notices, Department of State Bureau of Consular Affairs; Registration for the Diversity Immigrant (DV-98) Visa Program, 61 Fed.Reg. 58730 (Nov. 18, 1996). In reviewing the diversity visa application, the Government is required to conduct a background check, including an FBI fingerprint check, a CIA name check and a records check.

Under the laws and regulations implementing the Diversity Immigrant Visa program, a person who: presently resides in the United States, is selected, and then submits a fee may receive an adjustment of status to permanent resident provided that (1) the applicant applies for adjustment, (2) the applicant is statutorily eligible for adjustment and (3) a visa number is available at the time that person's application is approved. See 8 U.S.C. § 1255(a). In addition, a spouse of a diversity lottery winner may also apply derivatively to adjust status, without impacting the number of diversity visas available to other lottery winners. 8 U.S.C. § 1153(d). A grant of adjustment of status is discretionary, even if an applicant satisfies the three requirements for eligibility. Because of the special benefit it confers upon an alien who would otherwise be required to depart the United States to apply for an immigrant visa, and then return, section 245 adjustment is considered to be "extraordinary relief." Randall v. Meese, 854 F.2d 472, 474 (D.C.Cir.1988).

The 1998 Diversity Visa program ran during fiscal year 1998, i.e., October 1, 1997 to September 30, 1998. In the 1998 program, 55,000 diversity visas were available, of which approximately 51,000 were issued.

Plaintiffs and the 1998 Diversity Visa Program

Plaintiff Charles Nyaga ("Nyaga" or "Plaintiff Nyaga") is a citizen of Kenya who entered the United States in May 1996 as a student at Chattahoochee Technical College in Marietta Georgia. He graduated in June 1999. Plaintiff Doin Kibaara ("Kibaara" or "Plaintiff Kibaara"), Plaintiff Nyaga's wife, entered the United States on July 17, 1996 on a visitor visa.

On July 1, 1997, Plaintiff Nyaga was notified that he was one of 100,000 individuals selected to participate in the fiscal year 1998 diversity visa program, and was directed to submit an application for the visa and apply to adjust status. Nyaga submitted his status adjustment application in October, 1997, and provided all required documentation and information, including the processing fee, to the Immigration and Naturalization Service ("INS") by February 2, 1998, seven months before the end of fiscal year 1998. Contemporaneously, Kibaara submitted a derivative application to adjust status as Nyaga's wife.² Because Kibaara's entitlement to adjust status is derivative and based upon her husband's eligibility for a diversity visa, the focus in the instant case is on Plaintiff Nyaga's applications and eligibility for permanent resident status under the 1998 diversity visa program.

After the INS received all of Plaintiffs' application materials in February 1998, Plaintiffs received no further communications from the Government regarding the diversity visa or the adjustment of status. At no time did the Government schedule the interview required for adjustment of status, request additional information, or indicate that there was any problem with his application. Although Plaintiffs did not themselves inquire as to the status of their applications, the instructions from the INS included with the adjustment of status materials read: "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." [See Pl. Exh. G]. This same correspondence states that adjustment of status applicants will be notified of their interview dates within twelve to eighteen months of receipt of the application. Thus, Plaintiffs would have been justified in not inquiring early into the status of their applications.

The INS sent Plaintiffs' fingerprint cards to the FBI for processing on February 20, 1998. There is no evidence, however, of any other action by the INS to process Plaintiff Nyaga's diversity visa application since that time, nor is there evidence that the INS even tried to follow up on the fingerprint check. Defendants admit that the INS took no further action on Plaintiffs' applications after sending the fingerprints to the FBI on February 20, 1998.

In February or March, 1998, Plaintiff Nyaga attended an interview at the INS for a temporary twelve-month work permit, at which time he asked the INS representative about the status of his diversity visa. Nyaga states that the INS representative indicated that there was nothing to do about the visa except wait. Plaintiff Kibaara had a similar work permit interview in May or June of 1998, which Plaintiff Nyaga also attended. According to Plaintiffs they again asked about the diversity visa, and again were told there was nothing they could do but wait. Approximately three months before these work permits expired, each Plaintiff had a renewal interview with the INS, and again Plaintiffs contend that, when they inquired, the INS representatives told them there was nothing they could do about the diversity visas but wait. According to Plaintiffs, this same sequence of events occurred once again when their work permits were renewed for a second time. Defendants do not have records of such conversations taking place.

In the interim, Plaintiffs received no correspondence from the Government concerning the diversity visa application or applications to adjust status until Plaintiff Kibaara was notified to appear at the Atlanta INS office on January 23, 2001, for her adjustment of status interview, which both she and Plaintiff Nyaga attended. According to Plaintiffs, at that interview, the INS representative indicated that the diversity visa lottery information could not be located and that Kibaara's derivative application would have to be denied because Nyaga had no diversity visa. The Atlanta District Director of the INS sent a formal denial of Kibaara's application on February 28, 2001, explaining that since the diversity visa program for 1998...