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December 2, 1999


The opinion of the court was delivered by: Gettleman, District Judge.

                             MEMORANDUM OPINION
                                 AND ORDER

On September 23, 1998, plaintiffs Teodor and Lelia Paunescu filed a complaint for mandamus and declaratory judgment against the Immigration & Naturalization Service, District Director Brian Perryman and the United States of America seeking to compel defendants to immediately issue all appropriate documents and take all appropriate action to execute and process plaintiffs' applications under the 1998 Diversity Immigrant Visa Program, and to grant plaintiffs legal permanent residence through an adjustment of status. The parties have filed cross-motions for summary judgment.


Teodor entered the United States in August 1995 on an F-1 Student Visa as a student at the University of Illinois. On August 19, 1997, he was appointed to the position of Graduate Teaching Assistant for the 1997-98 term. Lelia entered the United States on July 10, 1997, as a derivative spouse of Teodor. On July 29, 1997, Teodor was selected as a winner under the Fiscal Year 1998 Diversity Visa Lottery Program. Pursuant to instructions with the notification, plaintiffs applied for visas. Enclosed with those applications were the required fingerprint cards. The Department of Justice received plaintiffs applications on November 5, 1997. The INS then scheduled plaintiffs visa interviews on February 23, 1998. At that interview Teodor was told that his fingerprint card had been rejected by the FBI and that he was to go to an INS application support center to resubmit his fingerprints. He alleges that he was also told that absent the fingerprint problem his application would have been approved. That very same day Teodor delivered a new set of fingerprints via express mail to the interviewing officer. Five months later, on July 24, 1998, Teodor received a form letter informing him that his fingerprints had not yet cleared, without specifying any reason. The form letter contained the box to check if new fingerprints were required to be submitted. That box was not checked.

On September 18, 1998, just twelve days before the fiscal year ended, the INS directed plaintiffs to go to its office in Chicago. Teodor did so on September 21, 1998, and was informed that he had to submit a third set of prints. He immediately traveled to the INS support site in Hammond, Indiana and submitted his third set of fingerprints.

By September 23, 1998, plaintiffs, still without visa numbers, filed the instant action and moved for preliminary injunctive relief. On September 25, 1998, after a hearing, the court ordered defendants to "immediately complete adjudication of the applications for adjustment status" for both plaintiffs, without delay and by no later than September 30, 1998. The court order acknowledged, however, that the INS's ability to comply was contingent upon a favorable return of Teodor's fingerprints from the FBI and the final processing and issuance of visa numbers to plaintiffs by the Department of State on or before September 30, 1998.

The parties subsequently filed cross-motions for summary judgment. Plaintiffs once again ask the court to order defendants to complete the processing of plaintiffs' adjustment of status. Plaintiffs also argue in their motion that the court has the authority to direct defendants to adjust their status and issue them visas. Defendants renew their argument that the court does not have jurisdiction over the instant matter, and also contend that plaintiffs have not sustained their burden to invoke mandamus jurisdiction.


[1] Plaintiffs assert in their complaint that this action arises under 8 U.S.C. § 1329, 28 U.S.C. § 1331, and 28 U.S.C. § 1361.*fn1 In their cross-motion for summary judgment, defendants argue that the court does not have jurisdiction over the instant case. Defendants reiterate the argument they made in their motion to vacate that various sections of the INA, specifically 8 U.S.C. § 1252 (g) and § 1252(a)(2)(B), deprive the court of jurisdiction. Defendants also argue that plaintiffs have not made a showing sufficient to allow the court to assume jurisdiction under the mandamus statute, 28 U.S.C. § 1361.

A. Section 1252(g)

[2] The court once again rejects defendants argument that § 1252(g) applies in the instant case. As the court explained in its order denying defendants motion to vacate, the Supreme Court in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ("AADC"), held that § 1252(g) applies narrowly to the Attorney General's decision to "commence proceedings, adjudicate cases, or execute removal orders." If "[i]t is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings," id. 525 U.S. 471, 119 S.Ct. at 943, it is even less plausible that the mention of these discrete events was a shorthand way of referring to all claims brought in immigration matters. Because this case does not involve any of the "specific steps in the deportation process," id. 525 U.S. 471, 119 S.Ct. at 944 n. 9, or any aspect of the deportation process at all, § 1252(g) does not apply. See Russell v. INS, 1999 WL 675255, at *2 (N.D.Ill. Aug. 24, 1999) ("This case challenges denial of a visa petition, and the INS is not trying to deport Plaintiff; thus, this case does not fall under the ambit of the IIRIRA.").

B. Section 1252(a)(2)(B)

[3] The remainder of defendants jurisdictional arguments rest primarily
on an issue the court has already decided in plaintiffs favor. In its
March 15, 1999, order, the court held that plaintiffs request a
ministerial, rather than a discretionary, decision. Defendants continue
to contend, however, that the relief requested in the instant case
implicates the Attorney General's discretion. Defendants argue that
plaintiffs are complaining about the Attorney General's "decision" not to
adjudicate an application for adjustment of status. Defendants suggest
that this "decision" was made pursuant to 8 ...

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