The opinion of the court was delivered by: Mukasey, District Judge.
Limber and Margarita Zapata sue the Immigration and Naturalization
Service and its District Director, and move for an injunction compelling
defendants to reserve two immigration visas for plaintiffs and to rule
promptly on plaintiffs' applications for adjustment of status. Defendants
cross-move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1)
and 12(b)(6), or for judgment on the pleadings pursuant to Rule 12(c).
For the reasons stated below, defendants' Rule 12(b)(1) motion is
granted, and the case is dismissed.
An alien living in the United States may become a lawful permanent
resident by applying for an adjustment of status.See 8 U.S.C. § 1255(a)
(1994). In order to receive such an adjustment, the alien must be
eligible to receive an immediately available immigration visa. See id.*fn1
Of the several ways to become eligible to receive such a visa, only one
is relevant to this case: each fiscal year, 55,000 visas are made
available to natives of regions of the world from which immigration to
the United States has historically been low.See 8 U.S.C. § 1153
(c)(1) (1994). These 55,000 visas are typically referred to as "diversity
visas." Eligibility for these visas is allocated through a program
colloquially known as the "visa lottery,"which takes place once every
year. To enter the visa lottery, natives of "low-admission regions" apply
to the State Department. From the applications it receives, the State
Department randomly selects some people and notifies them that they are
eligible to apply for diversity visas.See generally 22 C.F.R. § 42.33
(describing the visa lottery); Rahman v. McElroy, 884 F. Supp. 782, 784
In February 1997, Limber Zapata, a Peruvian citizen living in the
United States, entered the 1998 visa lottery by mailing a form to the
State Department. (Loprest Decl. Ex. A at 34) In August 1997, the State
Department notified Zapata that his form had been selected and that he
was therefore eligible to apply for a 1998 diversity visa.(Id. at 33)
On October 31, 1997, Zapata applied to adjust his status to permanent
resident on the basis of his eligibility for a 1998 diversity visa.(Id.
at 4,8) Zapata's wife, Margarita Zapata, also sought to adjust her
status, based on her husband's application. (Id. at 5) As part of their
applications, the Zapatas allege, they mailed a copy of their fingerprints
to the INS. (Compl. ¶ 15)*fn2On March 5, 1998, the INS requested
that Limber Zapata appear at a March 30, 1998 interview. (Loprest Decl.
Ex. A at 3) At the interview, the Zapatas were told that their
applications for adjustment of status could not be completed until after
their fingerprints "clear[ed]." (Compl. ¶ 14) After the interview,
the Zapatas did not hear further from the INS.(Id. at ¶¶ 15-17)
The Zapatas brought this action on August 26, 1998. They noted that the
1998 visa lottery program would expire at the end of the fiscal year, on
September 30, 1998.(Id. at ¶ 16) Moreover, the Zapatas stated that if
Limber Zapata did not receive a 1998 diversity visa, their application
for adjustment of status would fail because they had no basis for
securing an immigration visa other than through the visa lottery.(Id. at
¶ 18; Torres Aff. ¶ 22) The Zapatas thus sought an injunction
requiring the INS (1) to rule upon their application for an adjustment of
status before September 30, 1998 and (2) to reserve for them two of the
55,000 diversity visas allocated for 1998. (Compl. ¶¶ 23, 26) The
Zapatas also sought attorney's fees and costs.(Id. at ¶ 26(c)) On
September 1, 1998, the Zapatas sought an Order to Show Cause why that the
injunction sought in their complaint should not be issued as a
preliminary injunction. (Order to Show Cause at 1)
On September 10, 1998, defendants filed a memorandum of law in
opposition to the Zapatas' request for a preliminary injunction, and
cross-moved to dismiss the complaint or for judgment on the pleadings.
(Gov't Mem. Opp'n at 1) At my request (8/23/99 Order), defendants filed
an additional memorandum of law on October 8, 1999, addressing whether
this case had become moot. (Gov't Supp. Mem. Further Opp'n at 3-7)
Plaintiffs were given an opportunity to respond, but declined to do so.
(Letter from Torres to the Court of 10/25/99)
In Browning-Ferris Indus. v. Muszynski, 899 F.2d 151, 154-59 (2d Cir.
1990), the Second Circuit held that in some circumstances a federal court
may assume subject matter jurisdictionarguendo in order to decide a case
on the merits. In adjustment of status cases such as this one, the
standard practice underBrowning-Ferris was to assume the existence of
subject matter jurisdiction and proceed to the merits.See, e.g., Kodza
v. McElroy, No. 96 Civ, 7417 (LMM), 1996 WL 737201, at *4 (S.D.N.Y. Dec.
24, 1996);Maldonado-Coronel v. McElroy, 943 F. Supp. 376, 379-80
(S.D.N.Y. 1996);Zheng v. Immigration and Naturalization Serv.,
933 F. Supp. 338, 339-40 (S.D.N.Y. 1996). However, the Supreme Court has
recently held that a federal court may not hypothesize subjectmatter
jurisdiction for the purpose of deciding the merits.See Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 93-95, 118 S.Ct. 1003,
140 L.Ed.2d 210 (1998). Therefore, I may reach the merits of this case
only if I have first determined that the court has subject matter
jurisdiction over it.
Federal district courts do not have subject matter jurisdiction over
moot cases.See In re Kurtzman, 194 F.3d 54, 58 (2d Cir. 1999). "[A] case
becomes moot . . . when it is impossible for the court to grant any
effectual relief whatever to a prevailing party."Id. (internal quotation
marks and citations omitted);accord Cook v. Colgate Univ., 992 F.2d 17,
19 (2d Cir. 1993) ("[A] case that is live at the outset may become moot
when it becomes impossible for ...