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