In 1990, Congress promulgated a Diversity Immigrant Visa
Program ("Diversity Program"), under which a limited number of
immigrant visas were made available to individuals from countries
with historically low immigration admissions into the United
States. For each fiscal year from 1995 to 1998, Congress made
55,000 visas available to diversity immigrants and their family
members. Individuals wishing to be considered for the Diversity
Program were required to first submit a petition. At the close of
the application period, a computer randomly selected applicants
who were eligible to apply for a diversity visa. The selected
applicants were then instructed to apply for a diversity
immigrant visa for that particular fiscal year. Being selected to
apply, however, by no means guaranteed the applicant a visa.
Rather, the number of applicants selected by the so-called "visa
lottery" far exceeded the number of diversity visas available for
the particular fiscal year, so in the end, some selected
applicants were not able to secure a visa.
Pursuant to the Immigration and Nationality Act ("INA") § 235,
8 U.S.C. § 1225 (1994), applicants who were present in the United
States in lawful status were qualified to apply to the INS to
adjust their status. The Attorney General was given the
discretion to adjust the status of a diversity immigrant to an
alien lawfully admitted for permanent residence if the alien
qualified under the relevant provision. See INA § 235,
8 U.S.C. § 1225(a)(1994). An applicant for a diversity immigrant visa,
however, was not eligible for an adjustment of status until she
had been approved by the INS after an interview, and by the
Federal Bureau of Investigations after a fingerprint clearance.
Only after these prerequisites were satisfied was a visa number
be issued, if available for the applicable fiscal year.
Approved diversity visa petitions were valid only until the
midnight of the last day of the fiscal year for which the
application was submitted. Accordingly, selected diversity visa
applicants who sought to adjust their status were required to
have their adjustment applications completed and adjudicated upon
while their visa number was still valid; that is, prior to the
expiration of the fiscal year for which their application was
On February 1, 1997, Amoakowaa entered the United States
without being inspected by an immigration officer. On October 28,
1997, Amoakowaa filed an Application to Register Permanent
Residence or Adjust Status, Form I-485. She was selected to apply
for a diversity immigrant visa for the fiscal year 1998 ("FY98").
Amoakowaa's interview was scheduled for September 22, 1998, eight
days before the end of FY98. According to Amoakowaa, the INS
informed her at the interview that her fingerprints had expired
and that she needed to obtain new fingerprints. Amoakowaa states
that she submitted two fingerprints to the INS, once with her
initial application and then again when requested by the INS at
her interview. In a letter dated September 30, 1998, the FBI
informed the INS that Amoakowaa's fingerprints had not been
received. On January 26, 1999, the INS denied Amoakowaa's
adjustment application because it was not adjudicated and
completed during FY98.
II. Standard of Review
Unlike the state courts, the federal courts are courts of
limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d
391 (1994). Federal courts are conferred jurisdiction to review a
case if authorized by the Constitution or by statute. Id. The
presumption is that a cause of action lies outside this limited
scope of jurisdiction. Id. The burden of establishing a
jurisdictional basis rests upon the party asserting jurisdiction.
Id. Rule 12(b)(1) of the Federal Rules of Civil Procedure
permits the court to dismiss a case for lack of subject matter
The standard of review for a Rule 12(b)(1) motion to dismiss
for lack of subject matter jurisdiction depends upon the
purpose of the motion. See Freiburger v. Emery Air Charter,
Inc., 795 F. Supp. 253, 256 (N.D.Ill. 1992). Where the motion
simply challenges the sufficiency of the allegations of subject
matter jurisdiction, the court must accept as true all well-plead
factual allegations and draw all reasonable inferences in favor
of the plaintiff. United Transp. Union v. Gateway Western Ry.
Co., 78 F.3d 1208 (7th Cir. 1996). If, on the other hand, the
motion denies the truth of the allegations, the court may "look
beyond the jurisdictional allegations of the complaint and view
whatever evidence has been submitted on the issue to determine
whether in fact subject matter jurisdiction exists." Capitol
Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993).
Dismissal is proper is it appears beyond doubt that the plaintiff
cannot prove any set of facts consistent with the pleadings that
would entitle her to the relief requested. Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
The Supreme Court has declared that Congressional authority to
"prescribe the terms and conditions upon which [aliens] may come
to this country, and to have its declared policy in that regard
enforced exclusively through executive officers, without judicial
intervention, is settled by our previous adjudications."
Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 33
L.Ed.2d 683 (1972). See also INS v. Aguirre-Aguirre,
526 U.S. 415, 119 S.Ct. 1439, 1445, 143 L.Ed.2d 590 (1999) ("[J]udicial
deference to the Executive Branch is especially appropriate in
the immigration context. . . .") The Court is mindful of the
well-settled principle that the judiciary should "not interfere
with the visa issuing process." Wan Shih Hsieh v. Kiley,
569 F.2d 1179, 1181 (2d Cir. 1978). That said, this case must be
dismissed because this Court lacks subject matter jurisdiction.
First of all, § 242(a)(2)(B)(i) of the INA,
8 U.S.C. § 1252(a)(2)(B)(i) (Supp. III 1997) ("§ 242(a)(2)(B)(i)") precludes
this Court from reviewing Amoakowaa's claim. In addition,
Amoakowaa fails to articulate a colorable constitutional claim
over which this Court may exercise jurisdiction. Lastly, the
Declaratory Judgment Act ("DJA") does not save this action from
Section 242(a)(2)(B)(i) expressly divests this Court of
jurisdiction to review a denial of an application for adjustment
of status. See Diallo v. Reno, No. 1:99-CV-378-CAM, 1999 WL
652097, at *5 (N.D.Ga. July 29, 1999) (dismissing claim for
review of denial of adjustment status); Zheng v. McElroy, No.
98-1772, 1998 WL 702318, at *5 (S.D.N.Y. Oct. 7, 1998). That
section provides, in relevant part, "[n]otwithstanding any other
provision of law, no court shall have jurisdiction to review any
judgment regarding the granting of relief under section . . . 245
[governing adjustment of status]." INA § 242(a)(2)(B)(i).
Although Amoakowaa argues that the above provision is only
applicable to judgments rendered by immigration judges and
conversely, inapplicable to the decisions of immigrations
officials, the Court finds that this contention is without legal
In the alternative, Amoakowaa asserts that this Court may
exercise jurisdiction over her claim pursuant to INA § 106(a),
8 U.S.C. § 1105a(a) (1994) (repealed) ("§ 106"). Section 106,
repealed on September 30, 1996, was replaced by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
("IIRIRA"). Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996).
Under the transitional rules established by the IIRIRA, 106(a)
applies to aliens who were placed in deportation proceedings
prior to April 1, 1997, and whose deportation orders became
administratively final on or after October 31, 1996. IIRIRA §
309(c), 110 Stat. at 3009-625, 626; Sofinet v. INS,
188 F.3d 703, 705 (7th Cir. 1999). Because Amoakowaa does not qualify
under § 106(a), § 242(a)(2)(B)(i) governs, thereby removing this
case from the scope of this Court's review. Similarly, the cases
to which Amoakowaa cites to assert a right to bring her action
before this Court arose under the now-repealed regime of laws. As
such, the cited cases
are no longer applicable. See, e.g., Cheng Fan Kwok v. INS,
392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968); Jaa v. United
States, 779 F.2d 569 (9th Cir. 1986); Reid v. INS, No. 91 Civ.
6535, 1993 WL 267278 (S.D.N.Y. Nov.7, 1993).
Furthermore, Amoakowaa attempts to invoke this Court's
jurisdiction by claiming a violation of Constitutional rights.
She alleges that Defendants violated the Fifth Amendment Due
Process clause by depriving her of the "right to be given fair
treatment when she applies for a benefit provided by Congress."
(Pl. Resp. at 6). This asserted interest, however, is not
cognizable under the Constitution. The Fifth Amendment provides
that "[n]o person shall be deprived of life, liberty, property
without due process of law." This protection extends to all
persons, including aliens, within the borders of the United
States. Knoetze v. United States, 634 F.2d 207, 211 (5th Cir.
Unit B 1981). For a plaintiff to seek redress for a due process
violation, then, she must first assert a property or liberty
interest. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33
L.Ed.2d 570 (1972).
The courts have made clear that alien-plaintiffs have no
constitutionally-protected interest in immigrant visas or the
procedures by which such visas are obtained. De Avilia v.
Civiletti, 643 F.2d 471, 477 (7th Cir. 1981) ("Visa applicants
have no vested right in the issuance of visas"); Azizi v.
Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990) ("[Plaintiffs]
cannot succeed on their due process challenge because they do not
have an inherent property right in an immigrant visa."); Legal
Assistance for Vietnamese Asylum Seekers v. Dept. of State,
Bureau of Consular Affairs, 104 F.3d 1349, 1353 (D.C.Cir. 1997)
("[Plaintiffs] may not assert a Fifth Amendment right in
challenging the procedures for granting immigrant visas.");
Rahman v. McElroy, 884 F. Supp. 782, 786 (S.D.N.Y. 1995)
("Simply put, plaintiffs do not have a constitutionally-protected
interest in an immigrant visa-let alone in a particular
adjustment interview date"). See also Landon v. Plasencia,
459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982) ("This
Court has long held that an alien seeking initial admission to
the United States requests a privilege and has no constitutional
right regarding his application, for the power to admit or
exclude aliens is a sovereign prerogative.") As with her due
process claim, Amoakowaa fails to present a colorable equal
protection claim. Accordingly, Amoakowaa is precluded from
proceeding on her constitutional claims.
In addition, to the extent that Amoakowaa relies on the
Declaratory Judgment Act to establish this Court's jurisdiction,
her reliance is misplaced. The DJA "does not confer jurisdiction
but rather, provides an additional remedy where jurisdiction
already exists." Balanyi v. Local 1031, Int'l Brotherhood of
Elec. Workers AFL-CIO, 374 F.2d 723, 725 (7th Cir. 1967). See
also Schilling v. Rogers, 363 U.S. 666, 677, 80 S.Ct. 1288,
1295, 4 L.Ed.2d 1478 (1960) (citing Skelly Oil Co. v. Phillips
Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 879, 94 L.Ed.
1194 (1950)); Pabst Brewing Co., Inc. v. Corrao, 161 F.3d 434,
438 (7th Cir. 1998); Chicago Truck Drivers, Helpers and
Warehouse Workers Union v. Nat'l Mediation Bd., 670 F.2d 665,
670 n. 7 (7th Cir. 1981). As discussed above, there is no
independent jurisdictional base for this claim. Therefore,
Amoakowaa's complaint is dismissed for lack of jurisdiction.
Defendants also argue that Amoakowaa's complaint fails to state
a claim upon which relief can be granted. At this point, that
discussion is rendered moot. On a final note, the Court is not
unsympathetic to Amoakowaa's situation. This Court's hands,
however, are tied to the extent that we may only exercise
jurisdiction where it is granted us.
For the foregoing reasons, Amoakowaa's complaint is dismissed
12(b)(1) for lack of subject matter jurisdiction. This case is
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