The opinion of the court was delivered by: Darrah, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs, Radomir Holasek, Miriam Holaskova (husband and
wife), Nikola Holaskova (Radomir and Miriam's minor daughter),
and Lucyna Grzenda filed a complaint for mandamus and declaratory
relief against defendants, the Department of Justice, the
Immigration and Naturalization Service (INS), District Director
Brian Perryman, and United States Attorney General Janet Reno
seeking: to compel defendants to adjudicate their applications
for adjustment of status; to declare defendants' failure to
timely adjudicate and complete their applications for adjustment
of status as arbitrary, capricious, and an abuse of discretion;
to restrain defendants from further deportation and/or removal
proceedings; and attorney fees and necessary compensation for the
wrongful refusal to adjudicate plaintiffs' applications for
adjustment of status. Before this Court is defendants' Motion to
Dismiss under the Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) for lack of subject matter jurisdiction, failure to
exhaust administrative remedies, and failure to state a claim.
On July 26, 1995, Ms. Grzenda was selected to participate in
the Diversity Immigrant Visa Program (DIVP) for fiscal year 1996,
— October 1, 1995 to September 30, 1996. Based on her selection,
she filed an application for permanent residence in the United
States on May 8, 1996. On January 26, 1999, the INS notified Ms.
Grzenda that her application for adjustment of status had been
denied under 8 U.S .C. § 1255(a)(3) because an immigrant visa was
not available to her to support her application for adjustment of
On October 28, 1997, Ms. Holaskova filed an application for
permanent residence seeking adjustment as a diversity visa
applicant based on her derivative classification as the spouse of
the principal agent, Mr. Holasek. On December 7, 1998, the INS
notified Ms. Holaskova that she was subject to removal from the
United States because she had remained in the United States
longer than permitted. On January 13, 1999, the INS notified Ms.
Holaskova that her application for permanent residence seeking an
adjustment of status was denied because an immigrant visa was not
available to her under 8 U.S.C. § 1255(a)(3).
The DIVP makes available a limited number of immigrant visas to
individuals from countries with historically low immigration
admissions into the United States. For each fiscal year from 1995
to 1998, 55,000 visas are available to diversity immigrants and
their family members. Under the program, individuals seeking a
visa are required to submit a petition. At the close of the
application period, a computer randomly selects applicants who
are eligible to apply for a diversity visa. The selected
applicants then apply for a diversity immigrant visa for that
particular fiscal year. Being selected to apply does not mean the
applicant is guaranteed a visa. The number of applicants selected
by the computer far exceeds the number of diversity visas
available for that particular fiscal year so some selected
applicants are not able to secure a visa. See Amoakowaa v.
Reno, 94 F. Supp.2d 903, 904 (N.D.Ill. 2000) (summarizing
Pursuant to the Immigration and Nationality Act (INA),
8 U.S.C. § 1255, the Attorney General is given discretion to adjust the
status of a diversity immigrant to an alien lawfully admitted for
permanent residence if the alien is qualified under the relevant
provision. However, an applicant is not eligible for an
adjustment of status until after he or she had been approved by
the INS after an interview and a fingerprint clearance by the
Federal Bureau of Investigation. If these prerequisites are
satisfied, a visa can be issued, if available, for the applicable
In reviewing a Rule 12(b)(1) motion to dismiss that challenges
the sufficiency of the courts of subject matter jurisdiction,
this Court accepts as true all well-plead factual allegations and
draws all reasonable inferences in favor of the plaintiff.
United Transp. Union v. Gateway Western Ry., Co., 78 F.3d 1208,
1210 (7th Cir. 1996). Dismissal is proper if it appears beyond
doubt that the plaintiff cannot prove any set of facts consistent
with the pleadings that would entitle him or her to the relief
requested. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957).
Plaintiffs first seek to compel defendants to adjudicate their
applications for adjustment of status. The undisputed facts
establish that plaintiffs' applications have been adjudicated and
denied. Therefore, plaintiffs' claim that mandamus should issue
to compel adjudication of their applications is dismissed.
Section 1252(a)(2)(B)(i) of the INA,
8 U.S.C. § 1252(a)(2)(B)(i), expressly divests this Court of jurisdiction to
review a denial of an application for adjustment of status. See
McBrearty v. Perryman, 212 F.3d 985, 987 (7th Cir. 2000);
Amoakowaa, 94 F. Supp.2d at 905; Sadowski v. United States
Immigration & Naturalization Service, 107 F. Supp.2d 451, 453-54
(S.D.N.Y. 2000); Diallo v. Reno, 61 F. Supp.2d 1361, 1366-367
(N.D.Ga.); Cf. Paunescu v. INS, 76 F. Supp.2d 896, 900 (N.D.Ill.
1999) ("[b]ecause plaintiffs have neither been denied nor granted
relief, § 1252(a)(2)(B)(i) does not bar jurisdiction"). In
relevant part, that section provides: "[n]otwithstanding any
other provision of law, no court shall have jurisdiction to
review any judgment regarding the granting of relief under
section . . . 1255 [governing adjustment of status]."
8 U.S.C. § 1252(a)(2)(B)(i).
In the instant case, the plaintiffs' application of adjustment
of status has been denied, and this Court is without jurisdiction
to grant any relief. See McBrearty, 212 F.3d at 987;
Amoakowaa, 94 F. Supp.2d at 905; Sadowski, 107 F. Supp.2d at
453-54; Diallo, 61 F. Supp.2d at 1366-367.
In addition, as a matter of jurisdiction, a court may not
review the administrative decisions of the INS unless the
appellant has exhausted all administrative remedies available.
8 U.S.C. § 1252(d)(1); McBrearty, 212 F.3d at 987; Cardoso v.
Reno, 216 F.3d 512, 518 (5th Cir. 2000); Sadowski, 107
F. Supp.2d at 454-55. An individual denied an adjustment of status
has the right to renew his or her request for adjustment of
status upon the commencement of removal proceedings. See
8 C.F.R. § 245.2(a)(5)(ii) (1999); see also McBrearty, 212 F.3d at 987.
Here, plaintiffs have failed to exhaust their administrative
remedies because they may renew their request for adjustment of
status upon the commencement of removal proceedings. See
McBrearty, 212 F.3d at 987; Cardoso, 216 F.3d at 518;
Sadowski, 107 F. Supp.2d at 454-55.
Plaintiff also argues this Court has mandamus jurisdiction
pursuant to 28 U.S.C. § 1361. As discussed above, mandamus is
precluded by 8 U.S.C. § 1252(a)(2)(B)(i), which provides that no
court may exercise jurisdiction over a claim relating to relief
under section 1255, "notwithstanding any other provision of law."
The language "notwithstanding any other provision of law" would
also include the independent ground of § 1361 conferring
jurisdiction. See Diallo, 61 F. Supp.2d at 1367-368 (rejecting
mandamus jurisdiction as an independent ground conferring
jurisdiction given § 1252(a)(2)(B)(i)'s language); see also Rusu
v. Reno, 999 F. Supp. 1204, 1210 (N.D.Ill. 1998) (holding that
the INA precluded the court's jurisdiction under 28 U.S.C. § 1651
[All Writs Act]; finding that "only through a contorted reading
of the provision [notwithstanding any other provision of law, no
court shall have jurisdiction to hear] could a court conclude
that `any other provision of law' does not include . . .
jurisdiction pursuant to . . . § 1651").
Even if mandamus jurisdiction were not precluded by the
provisions of the INA, this Court could not invoke mandamus
jurisdiction because, at the minimum, plaintiffs have another
adequate remedy available. Mandamus jurisdiction can be invoked
when: (1) the plaintiffs have a clear right to the relief sought;
(2) the defendants have a clear duty to perform; and (3) no other
adequate remedy is available. Blaney v. United States,
34 F.3d 509, 513 (7th Cir. 1994). This Court need not address the first
two factors because plaintiffs can raise their claims ...