United States Court of Appeals

for the Fifth Circuit

No. 20-20370

Summary Calendar

Anastasiia Ermuraki; Aurel Ermuraki, 

Plaintiffs—Appellants,

versus

Tracy Renaud, Acting USCIS Director; Alejandro 

Mayorkas, DHS Secretary; Tony L. Bryson, USCIS 

District Director; Wallace L. Carroll, Houston USCIS, 

Defendants—Appellees.

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:19-CV-4169

Before Clement, Higginson, and Engelhardt, Circuit Judges.

Per Curiam:

Plaintiffs-Appellants Anastasiia and Aurel Ermuraki filed suit in the 

district court to challenge the United States Citizenship and Immigration 

Services’ (“USCIS”) denial of their application to adjust their immigration 

status to lawful permanent residents under the diversity visa program. Upon 

the motion of Defendants-Appellees (“the Government”), the district court 

dismissed the case with prejudice pursuant to Federal Rule of Civil 

United States Court of Appeals

Fifth Circuit

FILED

February 1, 2021

Lyle W. Cayce

Clerk
No. 20-20370

2

Procedure 12(b)(6). Because we hold this case was moot prior to the entry of 

the district court’s final judgment, we VACATE the judgment and 

DISMISS the case.

I

As part of USCIS’ selection process, the Ermurakis—who are 

husband and wife—were randomly invited to apply to the diversity visa 

lottery program for the fiscal year ending on September 30, 2019. See 8 

U.S.C. § 1153(c), (e)(2). They submitted their status adjustment application 

on October 9, 2018. On April 17, 2019, USCIS denied their application 

because it found the Ermurakis did not have lawful immigration status at the 

time they submitted their application, as required by statute. See 8 U.S.C. § 

1255(c)(2).

On May 20, 2019, the Ermurakis filed what they describe as a motion 

to reconsider1 with USCIS. On September 23, 2019, USCIS denied the 

motion. Counsel for the Ermurakis received notice of this denial three days 

later, on September 26, 2019. Approximately one month later, on October 

24, 2019, the Ermurakis filed their initial underlying complaint in the district 

court, beginning this action.

After the Ermurakis filed an amended complaint, the Government 

moved to dismiss for failure to state a claim pursuant to Federal Rule of Civil 

Procedure 12(b)(6). In its motion, the Government also asserted what the 

district court understood to be an argument that the case was moot. By law, 

diversity visas must be awarded before midnight on the last day of the fiscal 

year for which an applicant was selected to apply. 8 U.S.C. 

1 USCIS treated the motion as a motion to reopen. Because we dismiss this case on 

jurisdictional grounds, we need not decide whether the motion was properly treated as a 

motion to reopen.
No. 20-20370

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§ 1154(a)(1)(I)(ii)(II); 22 C.F.R. § 42.33(f). Because the fiscal year for the 

Ermurakis’ application ended on September 30, 2019, and because they did 

not file their complaint until October 24, 2019, the Government argued that 

the Ermurakis’ requested relief was no longer available.

In its decision granting the Government’s motion, the district court 

acknowledged the mootness argument but stated that it “need not rule on 

this basis as it finds the Government’s position on the substantive issues to 

be meritorious.”

II

Generally speaking, a court cannot assume that it has jurisdiction and 

proceed to resolve a case on the merits. Steel Co. v. Citizens for a Better Env’t, 

523 U.S. 83, 93-94 (1998); see Cook v. Reno, 74 F.3d 97, 99 (5th Cir. 1996) 

(“Before ruling on the merits of the case, it is imperative that the court first 

determine whether it has jurisdiction to hear the suit; if jurisdiction is lacking, 

then the court has no authority to consider the merits.”); but cf. Montez v. 

Dep’t of Navy, 392 F.3d 147, 150 (5th Cir. 2004) (describing that in certain 

circumstances where disputed issues of fact are central both to a 

jurisdictional attack and the claim on the merits, courts should assume 

jurisdiction and resolve the factual issue on the merits in a 12(b)(6) or Rule 

56 posture, rather than a 12(b)(1) posture). And “[i]t is well-settled, that 

mootness is a threshold jurisdictional inquiry.” La. Env’t Action Network v. 

U.S. E.P.A., 382 F.3d 575, 580 (5th Cir. 2004). Thus, “[a]lthough the 

district court did not address its jurisdiction, this court must consider the 

basis of the district court’s jurisdiction sua sponte if necessary.” United 

States v. Boutte, 627 F. App’x 378, 378 (5th Cir. 2015) (per curiam) 

(unpublished) (citing EEOC v. Agro Distrib., LLC, 555 F.3d 462, 467 (5th 

Cir. 2009)).
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“In general, a claim becomes moot ‘when the issues presented are no 

longer “live” or the parties lack a legally cognizable interest in the 

outcome.’” La. Env’t, 382 F.3d at 581 (quoting Murphy v. Hunt, 455 U.S. 

478, 481 (1982) (per curiam)). Therefore, “[m]ootness applies when 

intervening circumstances render the court no longer capable of providing 

meaningful relief to the plaintiff.” Ctr. for Biological Diversity, Inc. v. BP Am.

Prod. Co., 704 F.3d 413, 425 (5th Cir 2013).

This court has not yet addressed whether a claim challenging the 

denial of a diversity visa status adjustment application becomes moot after 

the relevant fiscal year expires. Our sister circuits, however, have 

overwhelmingly concluded that such a circumstance does moot the claim. 

See, e.g., Nyaga v. Ashcroft, 323 F.3d 906, 916 (11th Cir. 2003) (holding that 

the plaintiff’s claim challenging the denial of his diversity visa application was 

moot after the fiscal year expired because the district court could no longer 

provide meaningful relief); Coraggioso v. Ashcroft, 355 F.3d 730, 734 (3d Cir. 

2004) (same); Mohamed v. Gonzales, 436 F.3d 79, 80-81 (2d Cir. 2006) 

(same); Mwasaru v. Napolitano, 619 F.3d 545, 551 (6th Cir. 2010) (same); see 

also Zixiang Li v. Kerry, 710 F.3d 995, 1002 (9th Cir. 2013) (reaching the same 

conclusion in dicta); Iddir v. INS, 301 F.3d 492, 501 (7th Cir. 2002) (Flaum, 

J., concurring) (same).2

The Ermurakis have not responded to the Government’s mootness 

argument. We find the reasoning of our sister circuits persuasive and are 

2 The D.C. Circuit has applied a limited exception to the generally agreed upon 

mootness framework for diversity visas. It has held that when a plaintiff files suit and the 

district court grants some relief—but not the visa—before the end of the fiscal year, the 

claim is not moot. Almaqrami v. Pompeo, 933 F.3d 774, 780 (D.C. Cir. 2019). That situation 

is not presented here and thus we do not weigh in on the validity of this exception. 
No. 20-20370

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satisfied that under the facts of this particular case, the Ermurakis’ claim was 

moot at the time they filed their initial complaint.

III

Because the Ermurakis’ claim was moot prior to the entry of the 

district court’s final judgment, we VACATE the judgment and direct that 

this case be DISMISSED. Goldin v. Bartholow, 166 F.3d 710, 718 (5th Cir. 

1999) (“If mootness occurred prior to the rendering of final judgment by the 

district court, vacatur and dismissal is automatic. The district court would 

not have had Article III jurisdiction to render the judgment, and we cannot 

leave undisturbed a decision that lacked jurisdiction.” (citing Iron Arrow 

Honor Soc. v. Heckler, 464 U.S. 67, 72-73 (1983))).