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PRZHEBELSKAYA v. UNITED STATES BUREAU OF CIT. AND IMM. SER.

September 30, 2004.

MARIANNA PRZHEBELSKAYA, VLADIMIR PRZHEBELSKAYA, and YEVGENIA PRZHEBELSKAYA, Plaintiffs,
v.
UNITED STATES BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES, JOHN ASHCROFT, Attorney General of the United States, EDUARDO AGGUAIRE, JR., Commissioner of the Bureau of Citizenship and Immigration Services, and EDWARD McELROY, District Director of the Bureau of Citizenship and Immigration Services, Defendants.



The opinion of the court was delivered by: NINA GERSHON, District Judge

OPINION AND ORDER

Plaintiffs applied to become lawful permanent residents of the United States after Marianna Przhebelskaya won the diversity visa lottery in 2003. Plaintiffs brought this action for mandamus relief when their applications for adjustment of status were denied. Defendants voluntarily reopened plaintiffs' cases, but took no action on them for months. As the statutory deadline approached, this court ordered defendants to complete adjudication of plaintiffs' applications. Defendants failed to do so before the limited number of visas allocated for use in 2003 were distributed. Ultimately, they did issue a visa to Marianna, but, as a result of the delay, Vladimyr and Yevgenia Przhebelskaya were unable to attain lawful permanent resident status. Plaintiffs now ask the court to hold defendants in contempt, and for an order compelling defendants to adjust the status of Vladimyr and Yevgenia to that of lawful permanent residents. For the reasons set forth below, the plaintiffs' motion to compel is granted.

BACKGROUND

  The DV Lottery

  An alien living in the United States may become a lawful permanent resident by applying for an adjustment of status. 8 U.S.C. § 1255(a). To obtain such an adjustment, the applicant must be eligible to receive an immediately available immigration visa. Id.*fn1 Eligibility for a "diversity visa" is one basis on which an application for adjustment of status may be granted. The diversity visa program was created by Congress in 1990 to facilitate immigration from countries with historically low rates of immigration to the United States. See Immigration Act of 1990 § 131, Pub.L. 101-649, 104 Stat. 4978. Through its operation, each year, the Department of State randomly selects approximately 100,000 individuals, from a pre-qualified group of millions, to be eligible to apply for diversity visas.*fn2 The selection process, authorized by Section 203(c) of the Immigration and Naturalization Act ("INA"), is commonly known as the diversity visa lottery ("DV Lottery"). 8 U.S.C. § 1153(c). Spouses and minor children of lottery winners are entitled to submit derivative applications for diversity visas. 8 U.S.C. § 1153(d). A derivative application will not be granted unless the primary application is granted. See Decl. of John Isoldi, Temporary Supervisory District Adjudications Officer, United States Customs and Immigration Services ("Isoldi Decl.") ¶ 6.

  Winning the lottery, however, does not guarantee the issuance of a visa and corresponding adjustment of status, even if the applicant is fully qualified and completes all application requirements. A maximum of 55,000 diversity visas are issued annually, 5,000 of which are reserved for use pursuant to the Nicaraguan and Central American Relief Act, Pub.L. No. 105-100, 111 Stat. 2193 (1997), leaving 50,000 diversity visas available to the general applicant pool. See 8 U.S.C. §§ 1151(a)(3), 1151(e), 1153(c)(1). Thus, there are typically twice as many lottery winners as there are diversity visas available in a given year. For this reason, one court has likened the DV Lottery to the Publishers Clearinghouse Sweepstakes, in that participants receive large envelopes "announcing in huge letters that the person is ALREADY A WINNER, but containing a disclaimer buried in the middle of the packet that explains that the only thing that has been won is a chance at the big prize." Ahmed v. Dept. of Homeland Security, 328 F.3d 383, 384 (7th Cir. 2003) (emphasis in original).

  Although the Department of State administers the DV Lottery generally, the United States Citizenship and Immigration Services (the "Agency"), successor to the Immigration and Naturalization Service ("INS"),*fn3 is responsible for adjudicating the diversity visa applications of applicants who reside in the United States at the time of their selection. To obtain a diversity visa, a lottery winner residing in the United States must complete a rigorous application process and receive approval from the Agency by the end of the fiscal year in which the lottery is held. The application process requires the completion of numerous forms, the submission of fingerprints, an interview, and background checks by both the Federal Bureau of Investigation ("FBI") and the Central Intelligence Agency ("CIA"). If a visa is not granted by midnight on the last day of the relevant fiscal year, the applicant's lottery ticket expires. 8 U.S.C. § 1154(a)(1)(G)(ii)(II); 8 C.F.R. §§ 42.33(a)(1), (d), (f).

  The Underlying Mandamus Action

  Marianna Przhebelskaya ("Marianna") was selected as a DV Lottery winner in fiscal year 2003, spanning October 1, 2002 to September 30, 2003. On April 14, 2003, Marianna submitted an application to the Agency for the issuance of a diversity visa and an adjustment of status to that of lawful permanent resident. Vladimyr Przhebelskaya ("Vladimyr"), her husband, and Yevgenia Przhebelskaya ("Yevgenia"), her daughter, filed derivative applications on the same day. On April 24, 2003, the Agency denied Marianna's application and, on May 8, 2003, it denied her motion for reconsideration. As a result, the derivative applications of Vladimyr and Yevgenia were also denied.

  After plaintiffs commenced an action for mandamus relief in this court on July 8, 2003, the Agency voluntarily reopened their cases. By September 24, 2003, however, six days before the end of the fiscal year, the Agency still had not adjudicated the applications because the FBI had failed to complete Marianna's background check. The applications were otherwise complete and Marianna's background check was the sole issue that prevented them from being granted. Following a conference, this court issued an Order on September 24, 2003 compelling defendants to "complete adjudication of plaintiffs' application for status adjustment immediately and, in any event, no later than September 30, 2003."

  Following nearly six weeks of inaction, the FBI was able to complete Marianna's background check within forty-eight hours. Marianna cleared the background check on the morning of Friday, September 26, 2003. On the same day, seemingly unaware of the Agency's representations to the court that the only open issue concerning plaintiffs' applications had been the FBI background check of Marianna, the Temporary Supervisory District Adjudications Officer (the "Supervisor"), who was the Agency official responsible for plaintiffs' applications, "examined plaintiffs' administrative files to determine whether they included all of the required elements for adjustment of status. During [his] initial examination on this day, [he] observed that Marianna's file did not include the required proof of a successfully completed background investigation by the [FBI]." Isoldi Decl. ¶ 5. The Supervisor did not obtain "sufficient proof" that the FBI background check was complete until "late in the day on Friday." Isoldi Decl. ¶¶ 5, 7. At that time, the Supervisor concluded that plaintiffs' applications should be granted, but did not complete the paperwork necessary to adjudicate and grant them. Rather, he set the applications aside to be dealt with on Monday morning. Id. On the morning of Monday, September 29, 2003, before the paperwork was completed, the Department of State issued a memorandum declaring, in relevant part, that "no DV-2003 numbers [are] available for allocation as a result of all 50,000 numbers provided to this category having already been made available. Therefore, any case which has not received DV-2003 visa authorization as of 10:00 am (edt) Monday, September 29 will not be processed." Isoldi Decl. Ex. A.

  After receiving the memorandum, the Supervisor conducted a "nationwide search" for diversity visas that had been issued to applicants during fiscal 2003 but were returned to the Department of State.*fn4 He was able to "find" one such visa and used it to adjudicate and grant Marianna's application on September 30, 2004. Isoldi Decl. ¶ 10, Ex. B. He held the applications of Vladimyr and Yevgenia open until October 27, 2003, nearly a month past the statutory deadline. On that date, he concluded that "no other visa numbers under the 2003 Diversity Visa Program would become available," and denied the applications. Isoldi Decl. ¶ 12, Exs. C and D.

  Plaintiffs made the instant motion on February 6, 2004, seeking that this court (1) hold defendants in contempt of its September 24, 2003 Order, and (2) compel defendants to adjust the status ...


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