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IDDIR v. IMMIGRATION AND NATURALIZATION SERVICE

September 27, 2001

HAKIM IDDIR, HADJIRA IDDIR, AND JUAN ARCENIO LLIVI, PLAINTIFFS,
v.
IMMIGRATION AND NATURALIZATION SERVICE, BRIAN PERRYMAN, DISTRICT DIRECTOR, CHICAGO INS, MADELEINE K. ALBRIGHT, IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE, UNITED STATES DEPARTMENT OF STATE, UNITED STATES DEPARTMENT OF STATE, AND UNITED STATES OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Gottschall, States District Judge

  MEMORANDUM OPINION AND ORDER

Plaintiffs, Hakim and Hadjira Iddir ("Iddirs"), a married couple, and Juan Arcenio Llivi ("Llivi"), have filed this suit for mandamus, declaratory judgment, and other relief against defendants, the Immigration and Naturalization Service ("INS"); Brian Perryman, the District Director of the Chicago INS; Madeleine K. Albright,*fn1 Secretary of State; the United States Department of State; and the United States of America. Plaintiffs seek to compel defendants to complete the adjudication of their applications for adjustment of status under the Diversity Immigrant Visa Program ("Diversity Program") of the Immigration and Nationality Act ("INA"), as well as a declaration by this court that there are no just grounds to suspend issuance of a visa to the plaintiffs. Defendants move to dismiss the complaint pursuant to both Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons set forth below, defendants' motion is granted.

Background

The Diversity Program was created to distribute permanent resident visa numbers to individuals from countries which have had low rates of immigration into the United States. See INA § 242, 8 U.S.C. § 1153 (c). Potential diversity immigrant visa recipients who are in the United States in lawful status may apply to the INS to adjust their status to that of lawful permanent resident under INA § 245, 8 U.S.C. § 1255. The Attorney General may, in his or her discretion, adjust a "nommmigrant" alien's status to that of an "alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed." INA § 245(a), 8 U.S.C. § 1255 (a). In addition, the INS must conduct a fingerprint check by the Federal Bureau of Investigation ("FBI") and an interview of the applicant before adjudicating adjustment of status applications. Individuals are selected through the Diversity Program to apply for a particular fiscal year. Pursuant to 8 U.S.C. § 1154 (a)(1)(I)(ii)(II), aliens who are selected through the Diversity Program during a particular fiscal year "remain eligible to receive visas only through the end of the specific fiscal year for which they were selected." If their application is not adjudicated by the end of that fiscal year (September 30, 1998 for fiscal year 1998), then a visa is no longer immediately available, and their application will be denied.

The Iddirs and Llivi were among the 97,319 entries randomly selected through the Diversity Program to apply for fiscal year 1998 (October 1, 1997 to September 30, 1998). However, only 55,000 diversity visas were available for that year. In fact, only about 51,000 numbers were actually issued. Plaintiffs claim that each of them submitted their applications for adjustment of status after being informed of their selection. Llivi received a letter dated September, 1997 informing him that there was a year-long wait for interviews. He did not receive farther correspondence until December 4, 1998, when the INS requested in a letter that he appear on December 24, 1998. On or about January 26, 1999, the INS district director denied Llivi's application for adjustment of status because the deadline for fiscal year 1998 had passed and the application was no longer valid.

The Iddirs received a letter dated June 30, 1998 informing them that there was a year-long wait for interviews. They did not receive any more correspondence until October 27, 1999, when the INS requested in a letter that they resubmit their fingerprints. They complied, and later appeared for their final interview for adjustment of status on May 3, 2000. During the interview, however, the Iddirs claim that the INS hearing officer told them that their applications were in order but were invalid because the deadline for fiscal year 1998 had passed. "The Iddirs claim that the hearing officer `indicated that someone in the INS office had misplaced their file but `there was nothing to do about it, and the case was closed.'" (Compl. ¶ 28.) Plaintiffs filed this suit on June 6, 2000. On or about December 6, 2000, the INS district director denied the Iddir's applications for adjustment of status because there was no visa immediately available to them.

Plaintiffs claim that defendants "unreasonably delayed and failed to process" their applications for adjustment of status. (Compl. ¶¶ I-30, III-30.) They claim that defendants' delays have "deprived Plaintiffs of their lawful, legal permanent residence status to which Plaintiffs are entitled under the immigration and nationality laws." (Compl. ¶ I-32.) In Counts I and III, plaintiffs seek an order of mandamus, pursuant to 28 U.S.C. § 1361, compelling defendants to adjudicate their applications. Plaintiffs also seek a declaratory judgment from this court pursuant to 28 U.S.C. § 2201. In Counts II and IV, plaintiffs ask the court to declare that "there are no just grounds to suspend issuance of all appropriate documents, including the issuance of a visa," to the plaintiffs. (Compl. ¶¶ II-31B, IV-31B.)

Before the court is defendants' motion to dismiss pursuant to Rules 12 (b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim. Plaintiffs claim that jurisdiction is conferred by the mandamus statute, 8 U.S.C. § 1361; by federal question jurisdiction pursuant to 8 U.S.C. § 1331; and by the Administrative Procedure Act ("APA"), 5 U.S.C. § 704.

Discussion

In ruling on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993). However, the court is not required to accept as true those allegations in the complaint "which tend to establish jurisdiction where a party properly raises a factual question concerning the jurisdiction of the district court to proceed with the action." Grafon Corp. v. Hauserman, 602 F.2d 781, 783 (7th Cir. 1979). In such a situation, "[t]he district court may properly 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, 999 F.2d at 191; Grafon, 602 F.2d at 783. "In cases where the jurisdiction of the court is challenged as a factual matter, the party invoking jurisdiction has the burden of supporting the allegations of jurisdictional facts by competent proof" Grafon, 602 F.2d at 783. In this case defendants have raised the question of the court's jurisdiction by moving to dismiss the complaint for lack of subject matter jurisdiction. See id. at 783, n.3.

A. INA § 242(a)(2)(B)(i)

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009, which contained both temporary and permanent provisions that amended the jurisdictional provisions of the INA. Defendants argue that one of those amendments, INA § 242(a)(2)(B)(i) ("Section 242"), 8 U.S.C. § 1252 (a)(2)(B)(i), divests this court of jurisdiction to review a denial of an application for adjustment of status. That section provides, in relevant part, "Notwithstanding any other provisions of law, no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under section . . . 1255 [governing adjustment of status] of this title . . . ." 8 U.S.C. § 1252 (a)(2)(B)(i). Defendants argue that whether or not the INS was at fault for the delay in processing plaintiffs' applications for adjustment of status, it in fact denied those applications, and that constitutes a "judgment regarding the granting of relief" Plaintiffs argue that they do not seek "review [of] any judgment" by the INS; rather, they seek to compel the INS to adjudicate their applications in the first place, which it has failed to do altogether.

"`[O]nly upon a showing of `clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review.'" Board of Governors of the Federal Reserve System v. McCorp Financial Inc., 502 U.S. 32, 44 (1991) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967)). "[T]he presumption favoring judicial review of administrative action may be overcome by inferences of intent drawn from the statutory scheme as a whole." Block v. Community Nutrition Institute, 467 U.S. 340, 349 (1984). However, "where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling." Id.

When courts interpret immigration statutes, ambiguities in the law are interpreted in favor of the alien. INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987); Mart v. Beebe, 94 F. Supp.2d 1120, 1123 (D. Or. 2000). In addition, restrictions on jurisdiction are construed narrowly, and courts will not assume that jurisdiction has been repealed unless the statute says so explicitly. See McNary v. Haitian Refugee ...


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