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Iddir v. Immigration and Naturalization Service

August 06, 2002

HAKIM IDDIR, HADJIRA IDDIR, AND JUAN A. LLIVI; LENOAS MALUKAS, ALFONSA MALUKIENNE, MARIA NICULESCU, RADU-LIVIU NICULESCU, TATIANA KUDINA, SILVIU-VLAD NICULESCU, MARIO ROMANOVIC, MARIJA ROMANOVIC, NORA MORETTI-SANCHEZ, GIANNA A. SANCHEZ, IVANNA A. SANCHEZ, FUNMI I. OWOLABI, DAVID OGUNKOYA, AND NELLY V. SUYO, PLAINTIFFS-APPELLANTS,
v.
IMMIGRATION AND NATURALIZATION SERVICE; BRIAN R. PERRYMAN, DISTRICT DIRECTOR, CHICAGO INS; COLIN L. POWELL, IN HIS OFFICIAL CAPACITY AS UNITED STATES SECRETARY OF STATE; UNITED STATES DEPARTMENT OF STATE; AND THE UNITED STATES OF AMERICA, DEFENDANTS-APPELLEES.



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 C 3401--Joan B. Gottschall, Judge and No. 99 C 6689--Ronald A. Guzman, Judge.

Before Flaum, Chief Judge, Bauer and Ripple, Circuit Judges.

The opinion of the court was delivered by: Bauer, Circuit Judge.

ARGUED MAY 15, 2002

After winning the immigration lottery, the appellants were given the opportunity to apply for immigrant visas and thereby a chance to become citizens, if they could meet certain requirements within one year's time. The appellants promptly filled out all the necessary forms and jumped through all the applicable hoops the Immigration and Naturalization Service (INS) put in front of them in order to complete their applications for the visas and adjustment of status. Once the forms were filled out, all that remained was for the INS to adjudicate the appellants' status and either grant or deny the applications. Instead, the INS did nothing, and once the year was up, the INS informed the appellants that their applications were denied, not on the merits; rather they were denied simply because they were not heard within the applicable time period. Afterwards, the INS informed the appellants that they would have to reapply and hope to win the lottery a second time to gain citizenship.

Frustrated, the appellants sought writs of mandamus in two district courts to require the INS to adjudicate their status. The Iddir case was heard by Judge Gottschall, and the Kudina case was heard by Judge Guzman. The judges dismissed both cases, but for different reasons. Judge Gottschall found the plaintiffs' claims moot, Iddir et al. v. INS et al., 166 F. Supp. 2d 1250, 1259 (N.D. Ill. 2001), while Judge Guzman found that he lacked jurisdiction to review the claims due to 8 U.S.C. § 1252(a)(2)(B), Kudina et al. v. INS et al., 2001 WL 1064789, at *3 (N.D. Ill. Sept. 10, 2001). The plaintiffs appeal, and we affirm the dismissals, although on grounds different than those articulated by the district courts.

BACKGROUND

The appellants applied for permanent resident visas through the Diversity Visa Lottery Program (DV Program). This program was instituted by Congress to distribute visas to persons from countries that historically have low rates of immigration to the United States. 8 U.S.C. § 1153(c)(1). The statute directs the Attorney General to calculate immigration rates for the past five years and identify low-admission states and regions. 8 U.S.C. §§ 1151(a), 1153(c). The diversity visas are then allotted, based on formula, to persons from the low-admission states or regions. 8 U.S.C. § 1153(c). The program operates on a fiscal year, whereby only a certain number of visas are available to the immigrants from the low-admission states or regions. Id. For the fiscal years 1996, 1998, 1999, and 2000 (running generally from October of the specified year through September of the next year), 55,000 visas were made available in each period. 59 Fed. Reg. 61918; 61 Fed. Reg. 58730; 62 Fed. Reg. 45004; 63 Fed. Reg. 41315. Applications far exceeded allotments. For example, in fiscal year 1998 there were 97,391 applications for 55,000 available visas.

The eligible immigrants must submit an application for the lottery during a specified time period, usually thirty days. See, e.g., 59 Fed. Reg. 61918. A computer randomly selects the set number of applicants from the pool, hence the term "lottery". 22 C.F.R. § 42.33(c). The lottery winners are notified in the summer and are instructed on how to apply for an immigrant visa. See, e.g., 61 Fed. Reg. 58730, 58731. The lottery visa offer is only good until the last day of the fiscal year in which the application was submitted. 22 C.F.R. §§ 42.33(e), (g). Thus, a 1995 applicant, notified in the summer of 1995, had from October 1995 until September 30, 1996 to complete the application process. 59 Fed. Reg. 61918, 61919-20. Persons selected for DV Program visas, who reside in the United States, may petition for an adjustment of status under 8 U.S.C. § 1255(a). The caveat is that the applicant must complete the process, application and adjudication, before time expires because a visa can only be issued during the relevant fiscal year. 8 U.S.C. § 1151(a)(3); 8 U.S.C. § 1153(c)(1), 8 U.S.C. § 1154(a)(1)(I)(ii).

The Iddir appellants, Hakim & Hadjira Iddir, and Juan A. Llivi, were selected for the DV Program lottery in 1998. In the 1998 lottery, there were 97,319 entries for 55,000 available diversity visas, however, only 51,000 of those visas were actually distributed. The 1998 DV program fiscal year ran from October 1, 1997 through September 30, 1998. After being selected in the lottery, the appellants applied for adjustment of status. In September 1997, the INS informed Llivi that there was a significant wait for interviews. Llivi was not contacted again until December 4, 1998--after the fiscal year ended on Sept. 30, 1998--when he received notice of an interview to be conducted on December 24, 1998. It was not until January 26, 1999, that the INS district director informed Llivi that he could not grant the petition because time had expired.

The Iddirs' story is very similar to Llivi's; they too received a letter informing them of the wait for interviews in September 1997 and were not contacted again until October 29, 1999. The INS contacted the Iddirs to request re-submission of their fingerprints. Finally, they received an interview on May 3, 2000--again after the fiscal year ended on Sept. 30, 1998--and heard the same excuse as Llivi, time had expired. The Iddirs also claimed that the hearing officer explained the delay was caused by someone misplacing their file.

The Kudina appellants applied for various DV Program lotteries from 1996 through 1998. The lead plaintiff-appellant, Tatiana Kudina, entered the 1999 DV Program lottery and was selected. Kudina applied in December 1998, and in September 1999 received notice from the INS that she needed to submit another set of fingerprints. Kudina did not hear from the INS again until February 9, 2000, when the INS informed her that her application had expired.

The Malukas entered and were selected for the 1998 DV Program lottery, but their status was not adjudicated in 1998.

The Sanchezes entered and were selected in the 1999 lottery, but they too did not have their status adjudicated in the applicable time period.

The Niculescus entered the 1998 DV Program lottery and were selected. Maria Niculescu's application was processed and she was interviewed on the last day of the fiscal year, September 30, 1999. Maria was awarded permanent resident status the same day. However, her children, Radu-Liviu and Silviu-Vlad, currently residing in Romania, were denied adjustment of ...


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