In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-1467

FARAH NAZ AHMED,

Plaintiff-Appellant,

v.

DEPARTMENT OF HOMELAND SECURITY, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 C 6542—Ronald A. Guzmán, Judge.

____________

ARGUED NOVEMBER 14, 2002—DECIDED MAY 9, 2003

____________

Before RIPPLE, ROVNER, and DIANE P. WOOD, Circuit

Judges.

DIANE P. WOOD, Circuit Judge. Farah Ahmed, a native

and resident of Pakistan, thought that she had secured

the right to live in the United States when she “won” the

diversity visa lottery, which is a program that seeks to

encourage immigration to the United States from certain underrepresented countries. But, as we explain

below, “winning” the lottery meant only winning a chance

to secure a visa, and that chance had an expiration date

and time. Unfortunately for Ahmed, bureaucratic delays

and difficulties beyond her control prevented her from

completing her application before that expiration date. She
2 No. 02-1467

1 The original lead respondent was the Immigration and Naturalization Service (INS). On March 1, 2003, however, the INS

ceased to exist as an independent agency under the umbrella of

the U.S. Department of Justice, and its functions were transferred

to the new Department of Homeland Security. See Homeland

Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25,

2002). We have changed the caption of this case accordingly.

brought an action under the mandamus statute, 28 U.S.C.

§ 1361, and under the Administrative Procedure Act (APA),

5 U.S.C. §§ 701-06, seeking to compel the federal government to process her application for a visa.1

 The district

court dismissed both claims for lack of subject-matter

jurisdiction. Because we can find no meaningful distinction between Ahmed’s case and our recent decision in

Iddir v. INS, 301 F.3d 492 (7th Cir. 2002), we agree that

dismissal was the proper outcome, although not because the court lacked subject-matter jurisdiction to

adjudicate the claims.

I

The sequence of events that led up to Ahmed’s lawsuit

bears an unfortunate resemblance to the experience in

the past of recipients of large envelopes from organizations like Publishers Clearinghouse announcing in huge

letters that the person is ALREADY A WINNER, but

containing a disclaimer buried in the middle of the packet

that explains that the only thing that has been won is a

chance at the big prize. Ahmed, who at all relevant times

has lived in Pakistan, was told in March 1998 that she

was among those randomly selected for further consideration for the fiscal year 1999 diversity visa program. The

letter she received began with the word “Congratulations!”

Congress established the diversity visa program as a

way of encouraging immigration to the United States from
No. 02-1467 3

countries with historically low rates, by making permanent residence visas available to eligible applicants. See

8 U.S.C. § 1153(c). The opportunity to secure a diversity visa lasts for only one fiscal year. Id. §§ 1151(a)(3),

1153(c)(1), 1154 (a)(1)(I)(ii). This meant, in Ahmed’s case,

that she had to complete the application process and obtain her visa before September 30, 1999.

Six months before the deadline, the National Visa Center

informed Ahmed that her application would be processed

through the United States Embassy in Islamabad, Pakistan, and that she should go to the embassy on May 26

for an interview. The month before the interview, however, Ahmed gave birth to a baby girl. She informed the

officials at the embassy that she wanted to include her

newborn daughter as a derivative dependent on her application. Two days before the interview, Ahmed sent

a letter to the embassy by express mail asking to reschedule the interview, because she had not yet been able

to gather together all the documents she needed, including a birth certificate for her daughter.

This request was greeted with silence from the embassy.

After waiting for a response for many weeks, Ahmed

traveled in August to the embassy, where an official told

her to go home and await further word. She obeyed. But,

by early September she had still heard nothing. She wrote

again to the embassy and also to the U.S. Ambassador

on September 13, asking again for a new interview date.

Four days later, she returned in person to the embassy.

There she saw a sign announcing that the “[diversity

visa] program is finished” and that “no further interviews will be held.” At that point, unbeknownst to her,

she made a fatal mistake by not arranging immediately

for a lawsuit to be brought on her behalf in the United

States prior to September 30. Instead, she went back

home, where she eventually received a “tough luck” form

letter from the embassy explaining that the diversity
4 No. 02-1467

visa program is a “finite program” that ends every year

on September 30, and that her chance for a visa was

thus dead.

Almost two years later, Ahmed filed this action in the

Northern District of Illinois seeking to compel the government to process her application. The court decided

the case on the basis of a joint statement of stipulated

facts. As it had done in an earlier case, it decided that

there was no subject-matter jurisdiction over her claim

and it dismissed on that basis.

II

A

Before addressing the merits of Ahmed’s claim, we

must address the question whether the district court

had subject-matter jurisdiction over her case. No one

has suggested that her APA claim seeking to compel a federal agency—the INS, she claimed, even though it would

have been more accurate to identify the State Department (of which the U.S. Embassy in Islamabad is a

part)—did not fall under the general federal-question

jurisdiction conferred in 28 U.S.C. § 1331. It is the mandamus claim that gives rise to more questions.

The district court thought that because Ahmed had not

shown that she was entitled to mandamus relief, it

did not have subject-matter jurisdiction over her claim.

It cited several reasons for this holding: first, it noted

that consular visa determinations are discretionary and

not subject to judicial review under 8 U.S.C. § 1252(a)(2)-

(B)(i) (barring review of adjustment-of-status determinations); second, it thought that mandamus was unavailable because Ahmed had the right to renew a request

for adjustment of status upon the commencement of

removal proceedings, and third, it noted that her request
No. 02-1467 5

for relief was barred because the INS did not have the

power to grant relief because of the expiration of that

year’s program. Each of these reasons has its problems,

as we explain briefly below.

As the government concedes, the statute on which the

district court relied first, 8 U.S.C. § 1252(a)(2)(B)(i), has

no bearing whatever on Ahmed’s case, for the simple reason that she was not in the United States at the relevant time and thus could not possibly have received an

adjustment of status. The court’s second reason was

also based on the mistaken assumption that Ahmed was

in this country and had remedies available that would prevent her removal. We thus put those two reasons aside

for now, and focus on the third point made by the court:

whether mandamus was unavailable because no effective relief could be granted. (We return briefly at the

end of this opinion to the government’s argument that

the action of the Embassy in Islamabad was unreviewable on other grounds.)

Our earlier decisions have not been entirely clear on the

question whether an inability to grant effective relief

goes to the court’s subject-matter jurisdiction under the

mandamus statute or if it addresses merely whether the

party should prevail on her petition. See, e.g., City of

Milwaukee v. Saxbe, 546 F.2d 693, 700 (7th Cir. 1976)

(referring to the “merger” of the questions of jurisdiction

and failure to state a claim in the mandamus context), cited

in Cook v. Arentzen, 582 F.2d 870, 877 (4th Cir. 1978)

(explaining that the “jurisdiction spoken of in [City of

Milwaukee v. Saxbe] refers to the power of any court to

grant the relief prayed for,” as opposed to “that of a federal court to entertain a question authorized by statute”).

Language in our later decision in Iddir points both ways.

In our view, it is necessary to distinguish between the

court’s power to adjudicate the petition and the court’s
6 No. 02-1467

authority to grant relief. Only the former necessarily

implicates the subject-matter jurisdiction of the court; the

latter will depend on whether the statute on which the

plaintiff is relying imposes a clear duty on the officer

or employee of the United States. See 13th Reg’l Corp. v.

U.S. Dep’t of Interior, 654 F.2d 758, 760 (D.C. Cir. 1980)

(“The requirement that a duty be ‘clearly defined’ to

warrant issuance of a writ does not rule out mandamus

actions in situations where the interpretation of the

controlling statute is in doubt.”). See also Am. Cetacean

Soc’y v. Baldrige, 768 F.2d 426, 433 (D.C. Cir. 1985), rev’d

on other grounds by Japan Whaling Ass’n v. Am. Cetacean

Soc’y, 478 U.S. 221 (1986). This is not to say that there

is no jurisdictional dimension here; it is only to indicate

that the usual standards announced in Bell v. Hood, 327

U.S. 678 (1946) apply. The Tenth Circuit recognized

as much in Carpet, Linoleum & Resilient Tile Layers,

Local Union No. 419 v. Brown, 656 F.2d 564 (10th Cir.

1981), in which it said:

In resolving whether section 1361 jurisdiction is present, allegations of the complaint, unless patently

frivolous, are taken as true to avoid tackling the

merits under the ruse of assessing jurisdiction.

Id. at 567 (internal quotations omitted). Unfortunately,

just after saying that, the court went on to say “[t]he test

for jurisdiction is whether mandamus would be an appropriate means of relief.” Id. (internal quotations omitted). To complicate matters more, the Fourth Circuit

appears to have followed the former statement from Carpet,

Linoleum in cases such as First Fed. Sav. & Loan Ass’n

v. Baker, 860 F.2d 135, 140 (4th Cir. 1988), and Michael

v. Lullo, 173 F.3d 503, 505 n.3 (4th Cir. 1999), without

mentioning any inconsistency in the Tenth Circuit’s

position.

Other courts have given comparably conflicting signals

in this complex area. The Sixth Circuit, for example, was
No. 02-1467 7

not entirely clear in Coal Operators & Assocs., Inc. v.

Babbitt, 291 F.3d 912 (6th Cir. 2002), whether it was

following a strict jurisdictional approach or a merits

approach. It announced, however, that “[f]or jurisdictional purposes it is not necessary that the duty be clear

before the analysis begins; in other words, we take jurisdiction to determine whether there is a duty owed.” Id.

at 915 (internal quotations omitted).

We agree with the Coal Operators court that unless

the claim is so frivolous that it fails the Bell v. Hood test,

the district court has jurisdiction under § 1361 to determine whether the prerequisites for mandamus relief

have been satisfied: does the plaintiff have a clear right

to the relief sought; does the defendant have a duty

to perform the act in question; and is there no other

adequate remedy available. See Iddir, 301 F.3d at 499. A

conclusion that any one of those prerequisites is missing

should lead the district court to deny the petition, not

because it now realizes that it had no power to be thinking about the case in the first place, but because the

plaintiff has not demonstrated an entitlement to this

form of extraordinary relief.

B

We are satisfied that Ahmed’s claim is plausible enough

to engage the court’s jurisdiction; we therefore turn to

the question whether the district court reached the

correct result on her request for relief. We conclude that

she cannot prevail, because the differences between her

situation and the one we faced in Iddir do not affect

the fundamental basis of our earlier case.

Because Iddir is so central here, we begin with a brief

description of its holding. In that case, which actually

presented the consolidated appeals of a number of immigration lottery “winners,” many of the appellants were
8 No. 02-1467

frustrated by bureaucratic delays within the INS, just

as Ahmed was frustrated by her experience at the Embassy

in Islamabad. They filled out all the forms they were

given, but sheer inaction on the part of the INS resulted

in the agency’s failure to make a decision before the visa

year expired. Indeed, again as in Ahmed’s case, the situation was even worse. The INS specifically told applicants for the visas not to contact the agency, because

doing so would only lead to further delays. It rendered

this advice while at the same time it was doing nothing

at all to process the applications. The applicants sought

writs of mandamus in the district court; their petitions

were denied. 301 F.3d at 493-95.

This court held that 8 U.S.C. § 1252(a)(2)(B) did not

bar appellate review, because that statute applies only

if there has been an actual discretionary decision

either to grant or to deny the visa. Id. at 497-98. The

problem in these cases was that no decision of any kind

had been rendered. We also held that the applicants had

met whatever exhaustion of remedies requirement exists

under the statute. Nevertheless, the majority, reaching

the merits of the mandamus petition, held (1) that the

applicants had a clear right to have their cases adjudicated, (2) that the INS had a duty to adjudicate the applications in a reasonable period of time, but (3) that

mandamus had to be denied because the expiration of the

time for issuing the visas meant that the agency was

powerless to implement any relief. Chief Judge Flaum

concurred. He agreed that there was no statutory bar

to jurisdiction and that there was no fatal failure to exhaust, because of the futility of any further administrative appeal. He would have found that the cases had become moot after the end of the fiscal year, and would

have affirmed the dismissal on that basis. Id. at 502. Both

the majority and the concurring opinion recognized that

the case would have been different if it had been filed be-
No. 02-1467 9

fore the end of the visa year, while the INS still had

statutory authority to issue the visa, and if the district

court had acted within that time period. Id. at 501 n.2, 502.

As our account of the facts above makes clear, Ahmed

did not file any action in the district court until long

after the time for issuing the 1999 diversity visas had

expired. Just as in Iddir, therefore, the district court had

no choice but to deny her petition for a writ of mandamus,

because any relief ordered by the court could not be implemented without violating the substantive limitations

of the statute creating the diversity visa program. The

fact that Ahmed was a person living abroad seeking

such a visa, and the parties in Iddir appear to have been

in the United States on other grounds, is immaterial to

this aspect of the case. The key question pertains to

the limited extent of the authority to grant these kinds

of visas. Here, as in Iddir, that statutory authorization

had expired, and that precludes mandamus relief. (We

recognize that a panel of the Eleventh Circuit has recently come to the same result, but under the mootness

theory preferred by Chief Judge Flaum. See Nyaga v.

Ashcroft, 323 F.3d 906, 916 (11th Cir. 2003). We are not

inclined at this point, however, to revisit the theory used

in Iddir to resolve the matter.)

Ahmed’s effort to find a claim under the Administrative

Procedure Act is equally unavailing. She relies only on

a single district court case, Hu v. Reno, No. 3-99-CV1136-BD, 2000 WL 425174 (N.D. Tex. Apr. 18, 2000), in

which the court ruled that APA sections 702 and 706(1), in

conjunction with the federal-question statute, 28 U.S.C.

§ 1331, permit review where the INS refuses to process

an adjustment-of-status application in a reasonable time.

Id. at *3. But Hu did not involve a case in which the

responsible agency no longer had power to do anything

about the application, and thus, even if we were inclined

to accept its reasoning, it does not help here.
10 No. 02-1467

Because Iddir so clearly controls, we have no need to

address the government’s alternative argument that

the doctrine of consular nonreviewability bars Ahmed’s

suit. We note, however, that it is possible to imagine

arguments on both sides of this point. On the one hand,

as the government urges, it is generally true that courts

do not review judgments regarding alien admissibility

made by executive officers outside the United States. See

Saavedra Bruno v. Albright, 197 F.3d 1153, 1159-60

(D.C. Cir. 1999); Doan v. INS, 160 F.3d 508, 509 (8th Cir.

1999); Centeno v. Shultz, 817 F.2d 1212, 1213-14 (5th Cir.

1987) (per curiam); Ventura-Escamilla v. INS, 647 F.2d

28, 30 (9th Cir. 1981); Burrafato v. U.S. Dep’t of State, 523

F.2d 554, 556-57 (2d Cir. 1975). But none of those cases

dealt with the diversity visa program, under which the

responsibilities of the embassies abroad are equivalent

to those of the INS (now, the Department of Homeland

Security) inside the United States. We would prefer not

to resolve the question whether the doctrine of consular

nonreviewability provides an alternate ground for our

decision here and instead to await a case in which its

existence and scope must be addressed squarely. Nor

need we consider whether there is any problem with the

fact that Ahmed’s suit was brought in the Northern District of Illinois, which seems to be a district that has

absolutely nothing to do with Ahmed’s situation. It appears from the record, notwithstanding a boilerplate

allegation in the complaint, that Ahmed does not live in

Illinois (and perhaps has never even been to Illinois), and

there is no indication that any U.S. government official

in Illinois handled her case. This is only a venue problem that does not affect this court’s jurisdiction, which

means that we can lay aside any issues relating to her

choice of district.
No. 02-1467 11

III

As in Iddir, therefore, we find that the district court was

empowered to adjudicate the mandamus petition and

the APA claims before it, but that it correctly determined

on the merits that neither the petition for mandamus

nor the claim for relief under the APA could be granted.

We thus modify the judgment of the district court to reflect the fact that it is on the merits, not for a lack of subject-matter jurisdiction, and as so modified it is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-9-03