The opinion of the court was delivered by: DAVID TRAGER, District Judge
Defendants move for reconsideration of a ruling denying their
motion to dismiss under Rule 12(b)(1) and 12(b)(6) with respect
to Maria Basova and Andrei Basov. For the following reasons,
defendants' motion is granted. Background
The facts of this case are set out in a June 22, 2005
Memorandum and Opinion, familiarity with which is presumed.
The plaintiffs in this action were selected as candidates for
the 2003 Diversity Immigrant Visa Lottery ("DV") program. They
alleged 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"); the Department of State
("State Department"); the Federal Bureau of Investigation
("FBI"); and the Central Intelligence Agency ("CIA") failed to
timely process their applications.
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
action to compel defendants to process their applications before
the deadline of September 30, 2003 for the 2003 fiscal year ("FY
2003"). On February 23, 2004, an amended complaint was filed,
adding additional plaintiffs (together with the Basova
plaintiffs, "plaintiffs") who had applied for principal or
derivative applications for adjustment of status.
Defendants argued, inter alia, that the case was moot
because under the DV program, no visas can be issued after
midnight on September 30, the last day of the DV program for a given fiscal year and that, in any event, all 50,000 diversity
visas were given out for FY 2003. This opinion accepted the
former argument for those plaintiffs who brought their claims
after the close of the deadline but held that claims brought
prior to the September 30 deadline would not be dismissed on
mootness grounds. With respect to the latter argument, plaintiffs
provided statistics appearing to seriously undermine defendants'
contention that all visas had been distributed for the FY 2003
year. Based upon those statistics, defendants' motion to dismiss
the action was denied with respect to the Basova plaintiffs who
filed their action before the expiration of the statutory
deadline and granted with respect to the remaining plaintiffs
who appeared after the expiration of that date. Basova v.
Ashcroft, 373 F. Supp. 2d 192 (E.D.N.Y. 2005).
Defendants move for consideration under Fed.R.Civ.P. 59(e)
and Local Rule 6.3.*fn1 Whether or not to grant the motion
remains "within the sound discretion of the district court."
E.E.O.C. v. Fed. Express Corp., 268 F.Supp.2d 192, 195
(E.D.N.Y. 2003). Although defendants claim that "the Court misconstrued the government
statistical reports submitted by the plaintiffs and overlooked material
facts which demonstrate unequivocally that all the DV visas for fiscal year
2003 were, in fact, already used up," Def. Mem. In Supp. Of Reconsideration
at 3, they did not, in briefing their motion, put forward any statistics
supporting their argument that the ceiling of 50,000 visas had been reached
or dispute those submitted by plaintiffs. Instead, they submitted affidavits
of Chalres Oppenheim that were rather conclusory in nature and made no
mention of the accuracy of the plaintiffs' statistics. See, e.g.,
Declaration of Charles Oppenheim dated January 31, 2005. This counseled
against granting defendants' dismissal motion.
In support of this reconsideration motion, defendants now provide
statistics from the Report of the Visa Office 2003, which indicates that
50,812 visas were issued in FY 2003. Moreover, defendants provide an
explanation of plaintiffs' statistics that sheds important light on the
veracity of those figures in so far as they were used to advance plaintiffs'
Plaintiffs originally relied on statistics from the Yearbook of
Immigration Statistics ("Yearbook"), which indicated that only 46,347
visas were issued in 2003. However, defendants now point out that the
Yearbook statistics do not accurately reflect the number of DV visas issued
in FY 2003, because they do not include (1) DV visas that were allocated to aliens during FY 2003 but
never actually used by those particular aliens; (2) DV visas that
were allotted for use in FY 2003 where the alien, who is granted
six months to effect entry to the United States, did not do so
until FY 2004; and (3) DV visas issued to aliens who were
subsequently denied admission to the United States. Defendants
also point out that the Diversity Visa Statistical and Trend
Analysis, also cited by plaintiffs, according to which 48,115
visas were issued in 2003, is underinclusive because it excludes
those individuals who adjusted their status while in the United
States. See Def. Mem. In Supp. Of Reconsideration at 6-7.
Plaintiffs argue that this motion cannot be used to advance
arguments or theories that could have been raised during briefing
of the underlying motion. See Pl. Mem. in Opp. at 3. Regardless
of whether this is always the case, defendants are not presenting
new evidence based on a new theory, but are simply clarifying the
basis for their argument that all 50,000 DV visas were
distributed for FY 2003, and offering explanatory proof in
support of that contention made in their motion to dismiss.
Plaintiffs, for their part, do not convincingly rebut those
statistics. Instead, they rely on procedural and prudential
issues regarding proper standards governing motions to
reconsider. They also argue that the distribution of additional
visas for FY 2003 proves either that the program is mismanaged, or that more visas still can be allocated, or both. Those
arguments, while not irrelevant, leave untouched defendants'
argument that, having reached (or exceeded) the limit of 50,000
visas for FY 2003, the basis of this action is moot.
Defendants' rebuttal of the accuracy of the statistics provided
by plaintiffs, combined with the statistics defendants now cite
as evidence that all available visas for FY 2003 were in fact
given out, persuasively demonstrates that, indeed, all visas for
FY 2003 were distributed. Consequently, in accordance with this
court's prior opinion, see Basova, 373 F. Supp. 2d at 197,
defendants have demonstrated that this action is moot.
Accordingly, the June 22, 2005 Memorandum and Order is vacated,
and defendants' motion to dismiss all plaintiffs' claims is
hereby granted.*fn2 Conclusion
For the reasons cited above, defendants' motion to dismiss is
granted with respect to all plaintiffs, and the complaint is
dismissed with prejudice. The ...