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 the courts, through the exercise of their
remedial powers, to do anything to redress the injury.") (citation
In this case, the Zapatas seek an injunction compelling the INS (1) to
rule upon their application for an adjustment of status before September
30, 1998 and (2) to refrain from issuing two of the 55,000 diversity
visas allocated for 1998.See supra.
Because September 30, 1998 has passed, the INS can not now be required
to rule by that date on the Zapatas' application for adjustment of
status. Accordingly, the Zapatas' first request for injunctive relief is
plainly moot, and this court may not exercise subject matter jurisdiction
The Zapatas' second request for injunctive relief is similarly moot.
Pursuant to 8 U.S.C. § 1154 (a)(1)(G)(ii)(II)(1994 & Supp. III 1997)
("§ 1154"), aliens whose applications are randomly selected by the
State Department during a particular fiscal year's visa lottery "remain
eligible to receive visas only through the end of the specific fiscal
year for which they were selected." The plain meaning of § 1154 is
that after the fiscal year has ended on September 30, no diversity visas
may be issuednunc pro tunc based on the results of the previous fiscal
year's visa lottery.*fn3 Therefore, because September 30, 1998 has
passed, 1998 diversity visas can no longer be issued to the Zapatas or to
anyone else. Accordingly, I can not provide the Zapatas with "effectual
relief" on either of their requests for injunctive relief, and their case
therefore is moot.
This conclusion is not altered by the Zapatas' demand for attorney's
fees and costs.See Lewis v. Continental Bank Corp., 494 U.S. 472, 480,
110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (holding that an "interest in
attorney's fees is . . . insufficient to create a . . . case or
controversy where none exists on the merits of the
underlying claim") (citation omitted); Cook, 992 F.2d at 19 (applying
this rule in the context of a mootness challenge to subject matter
Similarly, none of the four exceptions to the mootness doctrine applies
to this case.*fn4First, the exception for class actions,see Sosna v.
Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), is
irrelevant-this case was not brought as a class action. Second, the
exception for cases that have become moot because the defendants have
voluntarily ceased their injury-causing conduct,see United States v.
W.T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), does
not apply. This case is moot because a deadline has passed, not because
of any change in defendants' policies or practices.
Third, the exception for wrongs capable of repetition yet evading
review applies only when "there [is] a reasonable expectation that the
same complaining party [will] be subject to the same action
again."Lewis, 494 U.S. at 481, 110 S.Ct. 1249 (internal quotation marks
and citations omitted). In this case, there can be no such expectation.
For the Zapatas to be "subject to the same action again,"one of them
would have to be selected in a future visa lottery. This is an
extraordinarily remote possibility.See, e.g., 74 Interpreter Releases
1389, 1392 (September 15, 1997) (noting that 4.7 million people applied
for the 55,000 1998 diversity visas); Mark Krikorian,Lucky Visas,
Washington Post, March 14, 1996 (noting that 6.5 million people applied
for the 55,000 1995 diversity visas).
Fourth, the collateral consequences exception does not apply to this
case. Under this exception, mootness does not bar the exercise of
jurisdiction over a claim when the conduct that forms the basis of the
claim has left the plaintiff with two distinct injuries, one of which
(the primary injury) can no longer be remedied, and one of which (the
collateral injury) can still be remedied.See generally Erwin
Chemerinsky, Federal Jurisdiction § 2.5.2 (3d ed. 1999). However, the
Supreme Court has held that the collateral consequences exception does
not apply when a convicted felon challenges the constitutionality of his
parole after it has been revoked and he has finished serving his prison
sentence for violating its terms.See Lane v. Williams, 455 U.S. 624,
632-33, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982). The Court reasoned that
the exception was inapplicable because
[n]o civil disabilities . . . result from a finding
that an individual has violated parole. At most,
certain non-statutory consequences may occur;
employment prospects, or the sentence imposed in a
future criminal proceeding, could be affected. The
discretionary decisions that are made by an employer
or a sentencing judge, however, are not governed by
the mere presence or absence of a recorded violation
of parole;. . . .
Id. (citations omitted);see also Spencer v. Kemna 523 U.S. 1, 118 S.Ct.
978, 986, 140 L.Ed.2d 43 (1998) (describingLane as holding that "[i]t was
not enough that the parole violations found by the revocation decision
wouldenable the parole board to deny respondents' parole in the
future. . . . For such violations [did] notrender an individual
ineligible for parole. . . .") (emphases added and citations omitted)
(brackets in original).
In this case, defendants' failure to process Limber Zapata's visa
application in a timely fashion prevented him from receiving a 1998
diversity visa. Because September 30, 1998 has already passed, this
injury-his primary injury-can no longer be remedied.See supra. To be
sure, the Zapatas, may eventually suffer another harm on account of
defendants' slow processing
of the visa application: they may not be able to obtain the adjustments
of status that they want. However, an alien's lack of a diversity visa
does notrequire the INS. to reject his application for an adjustment of
status. Instead, the lack of a diversity visa simply increases the
likelihood of an INS. rejection by denying the alien a possible basis
upon which his adjustment of status could be granted.
The Zapatas also state that they may be deported. (Compl. ¶ 18)
However, neither does an alien's failure to obtain a diversity visa
compel his deportation. Instead, failure to acquire a diversity visa only
makes deportation more likely by eliminating one possible means of
securing legal permanent residence. Moreover, if the Zapatas are
eventually deported, it will only be because they choose to remain in the
United States without a lawful basis for doing so. If a defendant's
conduct will eventually cause collateral injuries to a plaintiff, but
will do so only if the plaintiff violates the law, the collateral
consequences exception does not apply.See Spencer; 118 S.Ct. at
987;Lane, 455 U.S. at 632, 102 S.Ct. 1322;cf O'Shea. v. Littleton,
414 U.S. 488, 497, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (holding that "the
case-or-controversy requirement is [not] satisfied by general assertions
or inferences that in the coarse of their activities [a party] . . . will
be prosecuted for violating valid criminal laws").
Therefore, the collateral consequences exception to the mootness
doctrine also does not apply. Accordingly, this ease is moot,and this
court may not exercise jurisdiction over it.*fn5
For the reasons stated above, defendants' motion to dismiss is granted
and the complaint is dismissed.*fn6