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January 3, 2000


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.


A. Legal Background

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 (S.D.N.Y. 1995)(same).

B. Relevant Facts

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 ...

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