remedies, then the court may dismiss
the action because subject matter jurisdiction does not exist." Id.
However, there are exceptions to the exhaustion rule. Exhaustion of
administrative remedies may not be required when: (1) the requirement
would subject an individual to an unreasonable or indefinite time frame
for administrative action; (2) the administrative agency lacks the
competence to resolve the particular issue; or (3) administrative appeal
would be futile. See Yanez, 149 F. Supp. 2d at 489 (citing McCarthy, 503
U.S. at 146-48). Other exceptions have been recognized by courts as
well, such as when the available remedies provide no genuine opportunity
for adequate relief and in certain situations where a plaintiff has
raised a substantial constitutional question. See Guitard v. United
States Secretary of Navy, 967 F.2d 737, 740 (2d Cir. 1992).
Defendants once again cite McBrearty, in which the plaintiffs'
applications for adjustment of status under the Diversity Program were
denied because the plaintiffs failed to properly file their
applications. 212 F.3d. The plaintiffs sought review of that denial, but
the Seventh Circuit held that their suit was "premature, since, as the
plaintiffs acknowledge, they could obtain review of the district
director's decision by the Board of Immigration Appeals if and when the
immigration service institutes removal (i.e., deportation) proceedings
against them." Id. at 987 (citing 8 U.S.C. § 1252 (a)(1);
8 C.F.R. § 240.15; 245.2(a)(5)(ii)). "They thus have failed to
exhaust their administrative remedies." Id.
Once again, McBrearty is distinguishable, because it involved a denial
of applications as a result of the plaintiffs' error, not the INS'. In
the present case, plaintiffs complied with every requirement imposed on
them by the Diversity Program in order to have their applications
processed in a timely fashion. But for the INS' delay in scheduling their
interviews, their applications would have been adjudicated before the end
of fiscal year 1998. This renders applicable the exceptions to the
administrative remedies exhaustion requirement. First, an administrative
appeal would be futile. Defendants in this case have argued that the INS
is unable to grant visas to plaintiffs because fiscal year 1998 has come
and gone, thereby extinguishing any available visa numbers. Thus, it is
quite apparent that any appeal made by plaintiffs during removal
proceedings would be summarily rejected. For this same reason, the
available remedies also provide no genuine opportunity for adequate
relief. As the court stated in Marcetic v. INS, 1998 WL 173129, *2
(N.D.Ill. April 6, 1998), albeit in a different context: "Can plaintiff
be . . . ordered deported . . . because of [an] administrative error? We
think not." Thus, the exceptions to the exhaustion requirement apply and
plaintiffs have no recourse other than the courts to realize their
rights. See Paunescu, 76 F. Supp. 2d at 901 (holding that plaintiffs need
not wait for removal proceedings where the INS had not adjudicated their
applications); see also Fu v. Reno, 2000 WL 1644490, *3 (N.D. Tex. Nov.
1, 2000) (holding that waiting for an agency to process applications is
not an administrative remedy). But see Kudina, 2001 WL 1064789, at *4;
Dansowaa, No. 99-7223; Holasek, 2000 WL 1761082, at *2, Defendants'
argument based on exhaustion of administrative remedies fails.
C. Jurisdictional Basis
The court further finds that it has mandamus jurisdiction to compel the
INS to adjudicate plaintiffs' claims. Pursuant to 28 U.S.C. § 1361,
courts shall have original jurisdiction of any action in
the nature of mandamus to compel an officer or employee of the United
States or any agency therefor to perform a duty owed to the plaintiff" In
order to qualify for mandamus relief a plaintiff must show that: (1) he
has a clear right to the relief sought; (2) the defendant has a clear
duty to perform; and (3) no other adequate remedy is available. Blaney
v. U.S., 34 F.3d 509, 513 (7th Cir. 1994).
The relief sought in this case is the adjudication of plaintiffs'
applications for adjustment of status. Courts in this district have
already held that "a petitioner has a right to adjudication of . . . [an]
adjustment of status application and that INS has a corresponding duty
to adjudicate these applications." Setharatsomphou v. Reno, 1999 WL
755292, *4 (N.D. Ill. Sept. 27, 1999) (citing Agbemaple v. INS, 1998 WL
292441, *1-2 (N.D.Ill. 1998)). This duty is mandatory, not
discretionary. See Paunescu, 76 F. Supp. 2d at 901. The court finds their
reasoning persuasive. Although the statute does not specify a time by
which an adjudication should be made, courts have found that "the
adjudication must occur within a reasonable time. A contrary position
would permit the INS to delay indefinitely." Agbemaple, 1998 WL 292441,
at *2; see also Jaffer v. Reno, 2000 WL 86652, *7 (N.D. Ill. Jan. 19,
2000); Paunescu, 76 F. Supp. 2d at 901 ("Defendants . . . had a
non-discretionary duty to issue a decision on plaintiffs' applications
[for adjustment of status] within a reasonable time.").
Finally, no other adequate remedy is available to plaintiffs.
Defendants contend that plaintiffs can wait until the government
institutes removal proceedings against them and raise their claims before
an Immigration Judge. However, any administrative remedy would be
futile, as the court has already noted. Furthermore, it is not an
adequate remedy to merely wait for the INS to adjudicate plaintiffs'
applications, because fiscal year 1998 has ended. Id; see also Fu, 2000 WL
1644490, at *3 ("Waiting for an agency to act cannot logically be an
adequate alternative to an order compelling the agency to act.").
2. Declaratory Judgment Act
Because the court has mandamus jurisdiction, it also has jurisdiction
under the Declaratory Judgment Act, which "provides an additional remedy
where jurisdiction already exists." Balanyi v. Local 1031, Int'l
Brotherhood of Elec. Workers AFL-CIO, 374 F.2d 723, 726 (7th Cir. 1967);
Amoakowaa, 94 F. Supp. 2d at 906; Holasek, 2000 WL 1761082, at *3. The
act provides in relevant part that "any court of the United States, upon
the filing of an appropriate pleading, may declare the rights and other
legal relations of any interested party seeking such declaration."
28 U.S.C. § 2201 (a). Notwithstanding other reasons that would
preclude subject matter jurisdiction, the court has jurisdiction to hear
plaintiffs' claims under the mandamus statute and the Declaratory Judgment
Although the court's jurisdiction is not precluded by the INA or by
plaintiffs' failure to exhaust administrative remedies, this case presents
a more troubling issue — whether the INS has any power to issue
visas to plaintiffs now that the fiscal year has expired. "The United
States Constitution limits this Court's jurisdiction to live cases and
controversies." Stotts v. Community Unit School Dist. No. 1, 230 F.3d 989,
991 (7th Cir. 2000) (citing U.S. CONST. art. III, § 2). "`A case is
moot when the issues presented are no longer `live' or the parties lack a
legally cognizable interest in the outcome.'"
Id. (citation omitted).
"When a case is moot, it must be dismissed as non-justiciable." Id.
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." The end of fiscal year 1998
was September 30, 1998, which means that plaintiffs are no longer
eligible to receive visas. This renders the case moot, because the INS
cannot issue visa numbers that do not exist to plaintiffs. See Zapata v.
INS, 93 F. Supp.2d 355, 358 (S.D. N.Y. 2000) ("The plain meaning of
§ 1154 is that after the fiscal year has ended on September 30, no
diversity visas may be issued nunc pro tunc based on the results of the
previous fiscal year's visa lottery."); El Hindi v. McElroy, 2000 WL
1053873 (S.D. N.Y. July 31, 2000); Sadowski v. INS, 107 F. Supp.2d 451,
454 (S.D. N Y 2000) ("When a relevant deadline for adjustment of status
has passed, a request for relief is deemed plainly moot, depriving
district courts of subject matter jurisdiction.").
Plaintiffs cite Paunescu and Marcetic for the proposition that the
court can order the INS to issue visa numbers after the fiscal year has
ended. However, plaintiffs' reliance on these cases appears to be
misplaced. In Paunescu, after the INS had failed to process the
plaintiffs' applications for adjustment of status before the end of the
fiscal year, the court ordered the 1145 to "grant plaintiffs all relief
to which they would have been entitled had defendants processed their
applications in a timely fashion." Id. However, the court in Paunescu
relied on two important facts which are not present in this case. First,
the plaintiff in Paunescu was told at his INS interview that his
application would be approved; plaintiffs in this case were told no such
thing. Second, the court in Paunesca had issued a preliminary injunction
ordering the INS to adjudicate the plaintiffs application before
September 30, 1998, which the INS failed to do. There has been no court
order issued in the present case.
Marcetic appears to be equally distinguishable. In that case, the
plaintiff had already been granted legal permanent residence. However,
because of a "bureaucratic error by either the [State] Department or the
INS," the plaintiff never received his green card before the end of the
fiscal year. Marcetic, 1998 WL 173129, at *1. The INS argued that there
was no longer a visa number available, and it was therefore without power
to issue the plaintiff a green card. Nevertheless, the court ordered the
INS "to complete all remaining process of plaintiffs adjustment of
status, including issuing a resident alien card." Id. at *2. The
Paunescu court noted the similarities between those two cases:
"Plaintiffs are in the same position as the plaintiff in Marcetic: Their
applications would have been complete and they would have received visas
but for defendants' error." Paunescu, 76 F. Supp. 2d at 903 (emphasis
added). In the present case, however, plaintiffs were never granted any
determination in their favor by either the INS or any court before
September 30, 1998; they would not have necessarily received visas had
the INS adjudicated their applications. Thus, these cases do not apply.
Finally, plaintiffs point to Silva it Bell, 605 F.2d 978 (7th Cir.
1979), in which the INS erroneously charged over 100,000 visa numbers
from a limited supply of 120,000 per fiscal year to Cuban applicants.
This meant that deserving applicants were injured because their visa
applications were delayed. The Seventh Circuit required the government to
recapture and reissue
the wrongfully issued visa numbers. However,
plaintiffs in Silva were not statutorily ineligible to benefit from the
INS' recapture program, while plaintiffs in the present case are indeed
ineligible to receive visas because the statutory deadline has passed.
Although the court has the jurisdiction to hear the case and the court
has the authority through mandamus to compel the INS to adjudicate
plaintiffs' applications, it appears that the INS does not have the power
to grant effectual relief. Any order by this court compelling the INS to
adjudicate plaintiffs' applications would be a futile act. Regrettably,
this case must be dismissed as moot.
For the foregoing reasons, defendants' motion to dismiss for lack of
subject matter jurisdiction is granted.