The opinion of the court was delivered by: MIRIAM CEDARBAUM, Senior District Judge
Georgina Kracun, a native of the former Yugoslavia, filed this
action to compel the government to issue her a visa and adjust
her status in the United States to lawful permanent resident. The
government has moved to dismiss the complaint pursuant to
Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and
pursuant to Fed.R.Civ.P. 12(b)(7) for failure to join as an
indispensable party the Department of State, which has the
exclusive power to issue visas. For the following reasons, the
government's motion to dismiss is granted.
Kracun was randomly selected for the diversity immigrant visa
program ("DV program") for fiscal year 2001, and submitted to the
New York District Office of the former Immigration and
Naturalization Service ("INS") an application to adjust her
status in the United States to lawful permanent resident. As part
of the application process, Kracun was fingerprinted in the New
York District Office on September 25, 2001 and interviewed by an
immigration officer on September 27, 2001. The fiscal year ended
on September 30, 2001.
By letter dated October 4, 2001, the INS informed Kracun that
her application to adjust her status had been denied not on the
merits, but on the ground that she was ineligible to receive an immigrant visa because her fingerprints had not
cleared before the September 30, 2001 deadline for adjudicating
cases under the 2001 DV program. Following the denial, Kracun's
attorneys wrote to the INS in attempts to revive her application.
They argued that Section 422 of the USA PATRIOT Act, Pub.L. No.
107-56, 115 Stat. 272 (2001) (the "Patriot Act"), extended the
time to adjudicate her application to April 1, 2002.
Kracun alleges that over the course of the next two years, the
INS mishandled her application and misled her into believing that
the application was, in fact, still pending. In a letter dated
April 27, 2004, however, in response to an inquiry from Kracun's
counsel, the government pointed out that Kracun's application had
been denied on October 4, 2001, and further stated that "[t]he
decision taken in this matter was appropriate and will not be
reversed." On July 12, 2004, Kracun filed this lawsuit to compel
the government to issue her a visa and adjust her status to
lawful permanent resident. Although she also seeks to enjoin the
government from removing her from the United States, there is no
allegation in the complaint or any indication in the record that
the government has initiated, or even contemplates, removal
proceedings against her. DISCUSSION
The government has moved to dismiss the complaint on a number
of grounds, the most compelling of which is that Congress has
precluded the only relief Kracun seeks: an immigrant visa. The
unambiguous language of 8 U.S.C. § 1154(a)(1)(I)(ii)(II)
provides: "Aliens who qualify, through random selection, for a
visa under [the DV program, 8 U.S.C. § 1153(c)] shall remain
eligible to receive such visa only through the end of the
specific fiscal year for which they were selected." Thus, even if
the government were to adjudicate Kracun's application on the
merits, the statute makes clear that she is no longer eligible to
receive a visa under the 2001 DV program.
This is a harsh result, because it appears that it was the
dilatory and confused conduct of government agencies that
prevented the issuance of a visa within the statutory period, and
because a number of the 55,000 visas available under the 2001 DV
program were never issued. Nevertheless, the weight of authority
supports the conclusion that where a plaintiff files suit after
the expiration of the DV program for which the plaintiff was
selected, a court lacks power to direct the issuance of a visa
under that expired program. See, e.g., Coraggioso v.
Ashcroft, 355 F.3d 730, 733-34 (3d Cir. 2004); Ahmed v. Dep't
of Homeland Sec., 328 F.3d 383, 384, 387-88 (7th Cir. 2003);
Nyaga v. Ashcroft, 323 F.3d 906, 914-16 (11th Cir. 2003); Iddir v. Immigration and Naturalization Serv.,
301 F.3d 492, 494, 500-01 (7th Cir. 2002); Vladagina v. Ashcroft, No. 00
Civ. 9456 (DAB), 2002 WL 1162426, at *2-3 (S.D.N.Y. Apr. 8,
2002), appeal dismissed, Vladagina v. Reno, No. 02-6120, 2004
WL 1638248 (2d Cir. Apr. 21, 2004); El Hindi v. McElroy, No. 99
Civ. 6110 (JSM), 2000 WL 1053873, at *1 (S.D.N.Y. July 31, 2000);
see also Carrillo-Gonzalez v. Immigration and Naturalization
Serv., 353 F.3d 1077, 1079 (9th Cir. 2003).
Kracun has offered no argument that permits a different result.
The Patriot Act did not extend the time for INS to adjudicate her
application for adjustment of status. Section 422(c)(1) of the
Patriot Act provides:
WAIVER OF FISCAL YEAR LIMITATION. Notwithstanding
section 203(e)(2) of the Immigration and Nationality
Act (8 U.S.C. 1153(e)(2)), an immigrant visa number
issued to an alien under [8 U.S.C. § 1153(c)] for
fiscal year 2001 may be used by the alien during the
period beginning on October 1, 2001, and ending on
April 1, 2002, if the alien establishes that the
alien was prevented from using it during fiscal year
2001 as a direct result of a specified terrorist
activity.
Kracun was never "issued" an immigrant visa number under the 2001
DV program. She points to an internal INS document that shows a
visa package was requested on her behalf on September 26, 2001,
but the visa was returned unused and she was denied an adjustment
of status on October 4, 2001. In fact, Kracun received the denial
letter before the Patriot Act was signed into law on October 26,
2001. Even assuming the Patriot Act applied to Kracun's application, however, the extension provided
by the statute expired on April 1, 2002 more than two years
before she filed this action.
After oral argument on September 13, 2005, Kracun submitted an
alternative request for relief, a declaration by the court that
she be "deem[ed] . . in `lawful status.'" According to Kracun,
such a declaration will enable her to apply to adjust her status
in the future through an offer of employment or through another
DV program, and will avoid the imposition of a three or ten year
bar to re-entry into the United States under
8 U.S.C. § 1182(a)(9)(B)(i).
In support of her request, Kracun relies on a single case from
the District of Oregon, Mart v. Beebe, No. 99 Civ. 1391, 2001
WL 13624 (D. Or. Jan. 5, 2001), in which Veronica Mart and her
family, who were randomly selected to participate in the 1999 DV
program, sought, among other things, review of the INS's decision
to deny her application for an adjustment of status, and a
declaration that they were not statutorily ineligible to adjust
in the event they were randomly selected in the future for
another DV program. Id. at *1, *2. Specifically, the Marts
challenged the INS's interpretation of 8 U.S.C. § 1255(c)(2),
id. at *1, *4, which provides in relevant part that an
adjustment under 8 U.S.C. § 1255(a) the same provision under
which Kracun seeks to adjust here "shall not be applicable to . . . an alien . . . who has failed (other than through no fault
of his own or for technical reasons) to maintain continuously a
lawful status since entry into the United States." The court
agreed with the plaintiffs that, contrary to the INS's finding,
the lapse in their lawful status was excusable as a mere
technical violation because they "were unaware of their duty to
keep their non-immigrant visas current while awaiting the INS'[s]
decision on their [earlier] request for asylum." Mart, 2001 WL
13624, at *5. The court held that the INS had abused its
discretion in finding the plaintiffs ineligible for adjustment
because of the lapse. Id.
Unlike the plaintiffs in Mart, however, Kracun was not denied
adjustment because of a failure to maintain a lawful status in
the United States. Should she apply again for adjustment and be
denied on that ground in the future, there is nothing to prevent
her from arguing, as she does here, that the lapse occurred
through no fault of her own. To the extent that she seeks to
preclude such a possible denial in advance, the opinion she
requests is advisory and beyond the power of a federal court.
For the foregoing reasons, the government's motion to ...