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BASOVA v. ASHCROFT

June 22, 2005.

Maria BASOVA and Andrei BASOV; Muhammad T. ISLAM; Emilia PAULOVA and Miroslav ARENDAC; Lukas PAULO; Irena SAFONOVA and Andrey SMIRNOV; Dorota KRUPSKA; Iwona SNIADOWSKI; Zdzislaw GORCZOWSKI and Renata GORCZOWSKI; Mohammed RAHMAN, Rokeya RAHMAN, Sharmin RAHMAN, Zinia RAHMAN and Ashrafur RAHMAN; Mohmmad HAQ and Nurjahan BEGUM; Leszek PIETRZAK; Nina ANICHINA and Timour TEMINDAROV; and Mingma SHERPA, Plaintiffs,
v.
John ASHCROFT, Attorney General; UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, Eduardo AGUIRRE, Director, United States Citizenship & Immigration Services; Mary Ann GARTNER, District Director, New York District Office, United States Citizenship and Immigration Services; Colin POWELL, Secretary of State; DEPARTMENT OF STATE; FEDERAL BUREAU OF INVESTIGATIONS; CENTRAL INTELLIGENCE AGENCY; and the UNITED STATES OF AMERICA, Defendants.



The opinion of the court was delivered by: DAVID TRAGER, District Judge

MEMORANDUM AND ORDER

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 dismiss.

Background

  (1)

  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.

  (2)

  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.

  (3)

  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 fingerprint ...


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