The opinion of the court was delivered by: DAVID TRAGER, District Judge
Plaintiffs in this action were selected as candidates for the
2003 Diversity Immigrant Visa Lottery ("2003 DV") program. They
allege that their applications for adjustment of status were
denied because defendants the New York District Office of the United States Citizenship & Immigration Services (the "Bureau of
Citizenship & Immigration Services");*fn1 the Department of
State ("State Department"); the Federal Bureau of Investigation
("FBI"); and the Central Intelligence Agency ("CIA") failed to
timely process their applications. They bring this action to
compel defendants to grant their requests for visas and
accompanying adjustments of status. Defendants have moved to
The "diversity visa" program was instituted in 1990 to
facilitate immigration by individuals from countries with
historically low rates of immigration to the United States. See
generally 8 U.S.C. § 1153(c)(1). Each year, 100,000 candidates,
selected from a pool of millions, receive the right to apply for
one of 55,000 diversity visas allocated by the State Department.
The State Department selects 100,000 candidates "to ensure, to the extent possible, usage of all immigrant visas authorized."
22 C.F.R. § 42.33(c). Thus, the 100,000 candidates are not
automatically guaranteed a visa; rather, they enjoy only the
right to apply for a visa, which, if granted, qualifies them for
an adjustment of status and, accordingly, the opportunity to
become a lawful permanent resident. Spouses and children of
lottery winners may submit derivative applications for diversity
visas as well. 8 U.S.C. § 1153(d).
The State Department administers the diversity visa program.
The Bureau of Citizenship & Immigration Services adjudicates
diversity visa applicants for those applicants living within the
United States at the time of their selection. The application
process requires the completion of numerous forms, the submission
of fingerprints and an interview, as well as background checks by
the FBI and CIA. In order for an applicant to receive a visa, his
or her application must be granted before midnight on the last
day of the relevant fiscal year.
8 U.S.C. § 1154(a)(1)(I)(ii)(II); 8 C.F.R. §§ 42.33(a)(1), (d), (f). That
deadline, September 30, represents a crucial cut-off date in the
litigation surrounding the DV program.
Plaintiffs allege that they were selected from the initial
lottery, were eligible to receive an adjustment of immigration
status after promptly filing applications for visas and
adjustments of status, but were denied visas and adjustments of status due to delay by the various defendant agencies. In all
cases, plaintiffs were notified after the September 30 deadline
that no visas could be issued after that date and, as a
consequence, their applications would be denied.
This action was brought in two waves. On September 26, 2003,
four days before the close of the statutory period, two of the
plaintiffs in this action, Maria Basova and Andrei Basov (the
"Basova plaintiffs"), brought an initial action to compel
defendants to process their applications before the September 30,
2003 fiscal year deadline. They alleged that they were selected
from the DV lottery and that they promptly filed applications for
adjustment of status. The applications were accepted for filing
by the New York District Office of the Bureau of Citizenship &
Immigration Services, which cashed their filing fees and began
processing their applications. In a letter dated May 1, 2003, the
Basova plaintiffs were notified that they would be interviewed
for their adjustment applications at 10:30 am on June 4, 2003.
During the interview, they were told that their fingerprint check
had cleared the FBI but that their security clearances were still
pending and their application could not be approved until those
checks were complete. The Basova plaintiffs, through prior
counsel, continued to inquire into the status of their
applications. They also submitted a request under the Freedom of Information Act ("FOIA") for information
regarding the dates their name checks were initiated and cleared.
On February 23, 2004, an amended complaint was filed, adding
additional individuals who had applied for principal or
derivative applications for adjustment of status: Nina Anichina,
Miroslav Arendac, Nurjahan Begum, Renata Gorczowski, Zdzislaw
Gorczowski, Mohmmad Haq, Muhammad T. Islam, Dorota Krupska, Lukas
Paulo, Emilia Paulova, Leszek Pietrzak, Ashrafur Rahman, Mohammed
Rahman, Rokeya Rahman, Sharmin Rahman, Zinia Rahman, Irena
Safonova, Mingma Sherpa, Andrey Smirnov, Iwona Sniadowski, and
Timour Temindarov. These plaintiffs, not unlike the Basova
plaintiffs, filed applications on time, received notifications of
an interview and provided fingerprint information. However, their
applications were denied because their cases could not be
approved by the September 30, 2003 cut-off date or because, they
were told, no remaining visas were available.
Hearings before this court took place immediately before and
after the September 30, 2003, statutory deadline for the FY 2003
year. During those hearings, defendants were directed to inquire
into the status of the Basova plaintiffs' background
checks.*fn2 Defendants attempted to coordinate the clearing
of the background checks and place the Basova plaintiffs on any available wait
lists for visas. However, in a letter dated September 29, 2003,
defendants represented to the court that, although plaintiffs'
background checks had cleared, no more visas were available under
the DV 2003 program because all had been used up. See Appendix
of Exhibits to Plaintiffs' Memorandum of Law ("Pl. Ex.") A.
Defendants also furnished a declaration from Charles W.
Oppenheim, a consular officer at the State Department, which
confirmed defendants' representation that no visas remained.
See Pl. Ex. B ("At this time 50,000 DV numbers have been
used. . . . No waiting list can be established this year, because
there is no expectation that unused numbers will become available
for allocation before the end of the fiscal year."). Although it
appears that the Bureau of Citizenship & Immigration Services
agreed to place the Basova plaintiffs on a temporary wait list,
the State Department refused to create one, making it unclear
what effect, if any, the Bureau of Citizenship & Immigration
Services wait list would have. In any event, the wait list was
scheduled to expire at midnight on September 30, 2003, the very
same day the list was created. See Pl. Ex. B (Memorandum from
Ronald A. Atkinson, Section Chief, Adjustment of Status Unit,
U.S. Dep't of Homeland Security dated September 30, 2003).
Although defendants claim that no visas remain for the 2003
program, plaintiffs cite government statistics showing that less than 50,000 visas were actually issued that year. See Pl. Ex. C
(Yearbook of Immigration Statistics) (indicating that only 46,347
visas were used for 2003); see also Pl. Ex. D. (FY-2003
Diversity Visa Statistical and Trend Analysis) (48,115 visas used
for 2003).*fn3 Consequently, they argue that visas remained
available from the 2003 program and that defendants' contrary
representations made to this court were inaccurate. The Basova
plaintiffs also cite documents provided by the FBI in response to
their FOIA request, which demonstrate that their security
clearances were not actually sought from the FBI until September
29, 2003 one day before the close of the statutory period
even though their interview had taken place in June and the FBI