Nyaga v. Ashcroft

• Decision Date: 05 March 2003
• Docket Number: No. 02-12265.,02-12265.
• Citation: 323 F.3d 906
• Parties: Charles Kibaara NYAGA, Doin Kainyu Kibaara, Plaintiffs-Appellees, v. John ASHCROFT, as Attorney General of the United States, Rosemary Melville, District Director, Atlanta Division of the Immigration and Naturalization Service, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 906

323 F.3d 906

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

No. 02-12265.

United States Court of Appeals, Eleventh Circuit.

March 5, 2003.

Julia B. Anderson, Atlanta, GA, Linda S. Wernery, Washington, DC, for Defendants-Appellants.

James V. Noonan, Noonan & Lieberman, Chicago, IL, Madeline S. Wirt, Whelchel & Dunlap, LLP, Gainesville, GA, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON, Chief Judge, and 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.

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).

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, 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 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 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.

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...