Charles Kibaara Nyaga, Doin Kainyu Kibaara v. Joh Ashcroft, Rosemary Melville

323 F.3d 906, 2003 U.S. App. LEXIS 3913, 2003 WL 732777
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 5, 2003
Docket02-12265
StatusPublished
Cited by85 cases

This text of 323 F.3d 906 (Charles Kibaara Nyaga, Doin Kainyu Kibaara v. Joh Ashcroft, Rosemary Melville) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Charles Kibaara Nyaga, Doin Kainyu Kibaara v. Joh Ashcroft, Rosemary Melville, 323 F.3d 906, 2003 U.S. App. LEXIS 3913, 2003 WL 732777 (11th Cir. 2003).

Opinions

PER CURIAM:

The Defendants — John Ashcroft, Attorney General of the United States, and Rosemary Langley Melville, District Director of the Atlanta Division of the Immigration and Naturalization Service (INS)— appeal from the district court’s order granting mandamus relief to the Plaintiffs, Charles Kibaara Nyaga (Nyaga) and his wife, Doin Kainyu Kibarra (Kibarra).1 Nyaga, a resident alien, qualified for a diversity immigrant visa through the Fiscal Year 1998 Diversity Visa Program’s random selection process. He submitted an application to adjust his status pursuant to 8 U.S.C. § 1255(a), but the INS did not adjudicate his application before fiscal year 1998 ended. In 2001, the Plaintiffs sought an order to compel the Defendants to adjudicate Nyaga’s adjustment application. Invoking its mandamus jurisdiction, the district court concluded that the INS has a clear, non-discretionary duty to process Nyaga’s application and ordered the Defendants to process Nyaga’s application as though fiscal year 1998 Rad not ended. We conclude that even if the INS has a non-discretionary duty to process Nyaga’s adjustment application, Nyaga’s case was moot because as of midnight on September 30, 1998, he was no longer eligible to receive a diversity immigrant visa. We vacate the district court’s order and remand with instructions to dismiss as moot.

I. BACKGROUND

A. The Diversity Visa Program

Through the diversity visa program, a limited number of immigrant visas are made available to individuals from countries that historically have had low rates of immigration to the United States. 8 U.S.C. § 1153(c) (2002). Under the program, the Attorney General identifies “low-admission states” and allocates diversity visas (immigrant visas made available [908]*908through the diversity visa program) to natives of these states according to a formula established by statute. 8 U.S.C. § 1153(c)(1). A diversity visa enables the recipient to move to the United States as a lawful permanent resident (or, alternatively, to remain in the United States as a lawful permanent resident if the recipient is already lawfully within the United States and if the Attorney General adjusts the recipient’s status) under the Immigration and Nationality Act. To be eligible for a diversity visa, an alien must have a high school education or have, within five years of the date of application for the visa, at least two years of work experience in an occupation that requires at least two years of training or experience. 8 U.S.C. § 1153(c)(2). If an alien is entitled to receive a visa under the diversity visa program, the alien’s spouse and minor children are entitled to the same status. 8 U.S.C. § 1153(d).

The United States Department of State administers the diversity visa program. Eligible applicants must file a petition to be considered for a diversity .visa, and after the filing period has ended, a computer randomly orders the petitions. 22 C.F.R. § 42.33(c) (2003). The State Department then selects, in rank order, a quantity of petitions estimated to be sufficient to ensure, to the extent possible, that all diversity visas authorized for issuance are issued. Id. These selected applicants — commonly referred to as diversity visa program “lottery winners” — are notified of their selection and receive instructions on how to apply for a diversity visa. See Notice of Registration Period and Requirements for the Fourth Year of the Diversity Immigrant Visa Program, 61 Fed.Reg. 58730, 58731 (November 18, 1996).

Selection as a “lottery winner” does not ensure that an applicant will receive a diversity visa. The total number of lottery winners exceeds the number of diversity visas available under the diversity visa program. See id. (“Being selected as a winner ... does not automatically guarantee being issued a visa even if the applicant is qualified, because the number of entries selected and registered is greater than the number of immigrant visas available. Those selected will, therefore, need to complete and file their immigrant visa applications quickly.”). The process to obtain a visa is lengthy: the applicant must submit numerous documents to the National Visa Office (including a passport, a birth certificate, police certificates, court records, prison records, military records, and evidence of either education or work experience) and attend a visa interview. 8 U.S.C. § 1202.

Diversity visa lottery winners who reside abroad must travel to a United States embassy to complete the visa eligibility process. If a lottery winner is lawfully present in the United States, however, the alien may remain in the United States and apply to the INS to adjust his status to that of a lawful permanent resident. 8 U.S.C. § 1255(a). This adjustment procedure enables a lottery winner lawfully residing in the United States, such as an alien with a student visa, to receive an immigrant visa without returning to his native country. The Attorney General, at his discretion, may adjust an applicant’s status to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for adjustment of status, (2) the alien is eligible to receive an immigrant visa and is admissible for permanent residence, and (3) a visa is immediately available to the alien at the time the application is filed. 8 U.S.C. § 1255(a).

According to statute, “[ajliens who qualify, through random selection, for a visa under [the diversity visa program] shall [909]*909remain eligible to receive such visa only through the end of the specific fiscal year for which they were selected.” 8 U.S.C. § 1154(a)(l)(I)(ii)(II). The State Department has promulgated regulatory provisions that automatically revoke diversity visa petitions and prevent the issuance of visas and the allotment of visa numbers after midnight of the final day of the relevant fiscal year. See 22 C.F.R. § 42.83(a)(1) (“The eligibility for a visa ... ceases at the end of the fiscal year in question. Under no circumstances may a consular officer issue a visa or other documentation to an alien after the end of the fiscal year dining which an alien possesses diversity visa eligibility.”); 22 C.F.R. § 42.33(e) (“A petition ... shall be valid until Midnight of the last day of the fiscal year for which the petition was submitted. At that time, the petition is automatically revoked ... and no diversity visa numbers can be allotted after that date.”); 22 C.F.R.

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323 F.3d 906, 2003 U.S. App. LEXIS 3913, 2003 WL 732777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charles-kibaara-nyaga-doin-kainyu-kibaara-v-joh-ashcroft-rosemary-ca11-2003.