FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 MARCH 5, 2003 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 02-12265

________________________

D. C. Docket No. 01-01249 CV-ODE-1

CHARLES KIBAARA NYAGA,

DOIN KAINYU KIBAARA,

Plaintiffs-Appellees,

versus

JOHN ASHCROFT,

as Attorney General of the United States,

ROSEMARY MELVILLE,

District Director, Atlanta Division of the

Immigration and Naturalization Service,

Defendants-Appellants.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(March 5, 2003)

Before EDMONDSON, Chief Judge, BARKETT and COX, Circuit Judges.

PER CURIAM:
1 The parties apparently agree that Nyaga’s wife’s name is “Kibarra”

notwithstanding the fact that her name was spelled “Kibaara” in the complaint. 

2

The Defendants – John Ashcroft, Attorney General of the United States, and

Rosemary Langley Melville, District Director of the Atlanta Division of the

Immigration and Naturalization Service (INS) – appeal from the district court’s order

granting mandamus relief to the Plaintiffs, Charles Kibaara Nyaga (Nyaga) and his

wife, Doin Kainyu Kibarra (Kibarra).

1

 Nyaga, a resident alien, qualified for a

diversity immigrant visa through the Fiscal Year 1998 Diversity Visa Program’s

random selection process. He submitted an application to adjust his status pursuant

to 8 U.S.C. § 1255(a), but the INS did not adjudicate his application before fiscal year

1998 ended. In 2001, the Plaintiffs sought an order to compel the Defendants to

adjudicate Nyaga’s adjustment application. Invoking its mandamus jurisdiction, the

district court concluded that the INS has a clear, non-discretionary duty to process

Nyaga’s application and ordered the Defendants to process Nyaga’s application as

though fiscal year 1998 had not ended. We conclude that even if the INS has a nondiscretionary duty to process Nyaga’s adjustment application, Nyaga’s case was moot

because as of midnight on September 30, 1998, he was no longer eligible to receive

a diversity immigrant visa. We vacate the district court’s order and remand with

instructions to dismiss as moot. 
3

I. BACKGROUND

A. The Diversity Visa Program

Through the diversity visa program, a limited number of immigrant visas are

made available to individuals from countries that historically have had low rates of

immigration to the United States. 8 U.S.C. § 1153(c) (2002). Under the program, the

Attorney General identifies “low-admission states” and allocates diversity visas

(immigrant visas made available through the diversity visa program) to natives of

these states according to a formula established by statute. 8 U.S.C. § 1153(c)(1). A

diversity visa enables the recipient to move to the United States as a lawful permanent

resident (or, alternatively, to remain in the United States as a lawful permanent

resident if the recipient is already lawfully within the United States and if the

Attorney General adjuststhe recipient’sstatus)under the Immigration and Nationality

Act. To be eligible for a diversity visa, an alien must have a high school education

or have, within five years of the date of application for the visa, at least two years of

work experience in an occupation that requires at least two years of training or

experience. 8 U.S.C. § 1153(c)(2). If an alien is entitled to receive a visa under the

diversity visa program, the alien’s spouse and minor children are entitled to the same

status. 8 U.S.C. § 1153(d).
4

 The United States Department of State administers the diversity visa program.

Eligible applicants must file a petition to be considered for a diversity visa, and after

the filing period has ended, a computer randomly orders the petitions. 22 C.F.R. §

42.33(c) (2003). The State Department then selects, in rank order, a quantity of

petitions estimated to be sufficient to ensure, to the extent possible, that all diversity

visas authorized for issuance are issued. Id. These selected applicants – commonly

referred to as diversity visa program “lottery winners” – are notified of their selection

and receive instructions on how to apply for a diversity visa. See Notice of

Registration Period and Requirements for the Fourth Year of the Diversity Immigrant

Visa Program, 61 Fed. Reg. 58730, 58731 (November 18, 1996). 

Selection as a “lottery winner” does not ensure that an applicant will receive

a diversity visa. The total number of lottery winners exceeds the number of diversity

visas available under the diversity visa program. See id. (“Being selected as a winner

. . . does not automatically guarantee being issued a visa even if the applicant is

qualified, because the number of entries selected and registered is greater than the

number of immigrant visas available. Those selected will, therefore, need to

complete and file their immigrant visa applications quickly.”). The process to obtain

a visa is lengthy: the applicant must submit numerous documents to the National Visa

Office (including a passport, a birth certificate, police certificates, court records,
5

prison records, military records, and evidence of either education or work experience)

and attend a visa interview. 8 U.S.C. § 1202.

Diversity visa lottery winners who reside abroad must travel to a United States

embassy to complete the visa eligibility process. If a lottery winner is lawfully

present in the United States, however, the alien may remain in the United States and

apply to the INS to adjust his status to that of a lawful permanent resident. 8 U.S.C.

§ 1255(a). This adjustment procedure enables a lottery winner lawfully residing in

the United States, such as an alien with a student visa, to receive an immigrant visa

without returning to his native country. The Attorney General, at his discretion, may

adjust an applicant’s status to that of an alien lawfully admitted for permanent

residence if (1) the alien makes an application for adjustment of status, (2) the alien

is eligible to receive an immigrant visa and is admissible for permanent residence,

and (3) a visa is immediately available to the alien at the time the application is filed.

8 U.S.C. § 1255(a).

According to statute, “[a]liens who qualify, through random selection, for a

visa under [the diversity visa program] shall remain eligible to receive such visa only

through the end of the specific fiscal year for which they were selected.” 8 U.S.C. §

1154(a)(1)(I)(ii)(II). The State Department has promulgated regulatory provisions

that automatically revoke diversity visa petitions and prevent the issuance of visas
2 Fiscal year 1998 began on October 1, 1997, and ended at midnight on

September 30, 1998.

6

and the allotment of visa numbers after midnight of the final day of the relevant fiscal

year. See 22 C.F.R. § 42.33(a)(1) (“The eligibility for a visa . . . ceases at the end of

the fiscal year in question. Under no circumstances may a consular officer issue a

visa or other documentation to an alien after the end of the fiscal year during which

an alien possesses diversity visa eligibility.”); 22 C.F.R. § 42.33(e) (“A petition . . .

shall be valid until Midnight of the last day of the fiscal year for which the petition

was submitted. At that time, the petition is automatically revoked . . . and no

diversity visa numbers can be allotted after that date.”); 22 C.F.R. § 42.33(g)

(Diversity immigrant visa numbers “shall be allotted only during the fiscal year for

which a petition to accord diversity immigrant status was submitted and approved.

Under no circumstances shall immigrant visa numbers be allotted after Midnight of

the last day of the fiscal year for which the petition was submitted and approved.”).

B. Nyaga’s and Kibarra’s Applications for Adjustment of Status

Nyaga, a native of Kenya, entered the United States in May 1996 on a student

visa. In July 1996, Kibarra, Nyaga’s wife, entered the United States on a visitor visa.

Nyaga filed a petition in February or March 1997 to enter the Fiscal Year 19982

Diversity Visa Program lottery. In a letter dated July 1, 1997, Nyaga was notified that
7

he had been selected as a lottery winner. The letter informed him that 100,000

petitions had been selected for further processing, and that only 55,000 diversity visas

were available under the Fiscal Year 1998 Diversity Visa Program. Nyaga was also

informed, in a subsequent letter, that the INS would not accept applications to adjust

status based on the Fiscal Year 1998 Diversity Visa Program until October 1, 1997,

the first day of fiscal year 1998. 

In October 1997, Nyaga submitted an application to adjust his status. Kibarra

simultaneously submitted a derivative application to adjust her status based on her

husband’s eligibility to receive a diversity visa. Although Nyaga’s and Kibarra’s

applications for adjustment of status were submitted in October 1997, their

applications were not complete until the INS received their processing fees on

February 2, 1998. After an applicant has submitted a complete application, other

agencies assist with a background investigation that includes an FBI fingerprint

check, a CIA name check, and a records check with the Bureau of Consular Affairs

in the applicant’s native country. On February 20, 1998, the INS forwarded Nyaga’s

and Kibarra’s fingerprint cards to the FBI. The INS took no further action to process

Nyaga’s or Kibarra’s adjustment applications before September 30, 1998, the final

day of fiscal year 1998.
3 When Nyaga received the adjustment of status application forms, he

also received a cover letter that instructed: “While your application is pending

before the interview, please DO NOT make inquiry as to the status of your case,

since it will result in further delay.” (R.1-1 Ex. G at 1.) Morever, the Plaintiffs

allege that the Atlanta District Office of the INS instituted a policy that prevented

direct contact with the INS and that a prominent sign in the Atlanta District Office

directs anyone with an inquiry to leave the INS building because person-to-person

inquiries were not permitted.

8

Under the Fiscal Year 1998 Diversity Visa Program, 97,319 applicants were

designated as lottery winners eligible to receive a visa and 55,000 diversity visas were

available. Only 51,565 diversity visas were actuallyissued under the program; almost

3,500 authorized diversity visas were not issued. Neither Nyaga’s nor Kibarra’s

adjustment applications were processed before the end of fiscal year 1998, and neither

Nyaga nor Kibarra received a visa. 

From February 1998, when their applications were completed, until September

30, 1998, the end of the fiscal year, Nyaga and Kibarra did not formally inquire

regarding the status of their applications because they were advised that they should

not make such inquiries.3

 During fiscal year 1998, Nyaga attended at least two work

authorization interviews, and he claims that he informally inquired about the status

of his adjustment application during these interviews and was told that there was

nothing he could do but wait. The INS does not have any record of these

conversations. 
9

 On January 23, 2001, almost three years after their applications were

completed, the INS interviewed Kibarra regarding her adjustment application. The

INS denied Kibarra’s application on February 28, 2001, on the grounds that Kibarra’s

derivative application was based on Nyaga’s eligibility for a diversity visa and Nyaga

was no longer eligible to receive a visa because fiscal year 1998 had ended. The INS

did not issue a final decision on Nyaga’s application before the Plaintiffs filed the

complaint in this case.

II. PROCEDURAL HISTORY

On May 15, 2001, Nyaga and Kibarra filed a complaint in the district court

against Ashcroft and Melville, seeking to compel the Defendants to process Nyaga’s

application for adjustment of status under the Fiscal Year 1998 Diversity Visa

Program and to grant Nyaga and Kibarra legal permanent resident status. The

Plaintiffs assert jurisdiction under 28 U.S.C. § 1361 (mandamus jurisdiction), 28

U.S.C. § 1331 (federal question jurisdiction), 8 U.S.C. § 1329 (the Immigration and

Nationality Act), and 5 U.S.C. § 704 (the Administrative Procedure Act). They allege

that: (1) Melville is obligated to issue documents and take all necessary action to

process Nyaga’s application under the Fiscal Year 1998 Diversity Visa Program; (2)

Melville lacks the authority to deprive the Plaintiffs of legal permanent resident status

after the Plaintiffs submitted all necessary information and fees no later than February
4 On the same day that the complaint was filed, the Plaintiffs also filed

an emergency motion for a preliminary injunction. The motion sought, in part, to

prohibit the INS from summarily denying Nyaga’s adjustment application during

the pendency of the litigation. The Defendants agreed that they would not take

any action in connection with Nyaga’s adjustment application until the district

court issued a final ruling, and the court issued a consent order to that effect. 

Accordingly, the INS has not taken any action on Nyaga’s application.

10

2, 1998; and (3) the processing of Nyaga’s application for adjustment of status is a

purely ministerial, non-discretionary act which Melville was obligated to complete

in a timely manner. Nyaga and Kibarra asked the district court to compel the

Defendants to process Nyaga’s application to adjust status4

 and declare that there are

no just grounds to suspend the issuance of permanent residency documents to Nyaga

and Kibarra. 

The Defendants filed a motion to dismiss the complaint for lack of subject

matter jurisdiction and for failure to state a claim and asked the district court, in the

alternative, to consider the motion as a motion for summary judgment. The Plaintiffs

opposed the Defendants’ motion and filed a cross-motion for summary judgment.

The district court denied the Defendants’ motion and granted the Plaintiffs’ motion.

 The district court concluded that 8 U.S.C. § 1252 did not preclude the court

from exercising jurisdiction, and further concluded that it could exercise mandamus

jurisdiction under 28 U.S.C. § 1361. Nyaga v. Ashcroft, 186 F. Supp. 2d 1244, 1252-

54 (N.D. Ga. 2002). Mandamus is proper if (1) the Plaintiffs can show a clear right
11

to the relief sought; (2) the Defendants have a clear, non-discretionary duty to act;

and (3) no other remedy is available. Heckler v. Ringer, 466 U.S. 602, 617, 104 S.

Ct. 2013, 2022 (1984). In reaching its conclusion, the court held that (1) Nyaga “has

a right for the visa application to be processed and a final, thorough decision made”;

(2) the INS “has a non-discretionary duty to make diligent efforts in furtherance of

adjudicating diversity visa applications”; and (3) the Plaintiffs had no alternative

remedy to mandamus. Nyaga, 186 F. Supp. 2d at 1253-54.

The court then examined the merits of the case and concluded that there were

no genuine issues of material fact. Id. at 1254. Having already ruled that Nyaga had

a right to adjudication of his application, the court devoted its attention to the “hotly

contested” issue of whether the court could provide a meaningful remedy. Id.

Although the Defendants contended that the INS and the Attorney General lack the

authority to issue a visa to Nyaga or Kibarra because fiscal year 1998 has ended, the

court concluded that 8 U.S.C. § 1154(a)(1)(I)(ii)(II) did not plainly prohibit the INS

from processing Nyaga’s application. Id. at 1255. Because the statute did not plainly

prohibit the adjudication of Nyaga’s application, the court turned to congressional

intent and concluded that “Congress could not have intended for aliens to lose their

eligibility to be considered for diversity visas due solely to government inaction.” Id.

at 1256. Although the court acknowledged that the State Department’s regulations
12

“come close to providing explicitly that the Government does not have the power to

issue visas after the end of the fiscal year,” the court concluded that “the central

inquiry” in the regulations is whether Nyaga “is still eligible for the visa,” and that

“Nyaga effectively retains his eligibility because the Government did not diligently

act to process the visa.” Id. at 1256 n.13. 

In granting the Plaintiffs’ motion for summary judgment, the court ordered the

Defendants to adjudicate Nyaga’s diversity visa application as if fiscal year 1998 had

not ended. Id. at 1256-57 (“The court hereby orders Defendants to conduct a

thorough review of Charles Nyaga’s diversity visa application and application to

adjust status on the merits as if fiscal year 1998 had not yet expired.”). The court

acknowledged that it lacked the jurisdiction to order the Defendants to issue diversity

visas to the Plaintiffs; it could order the INS to adjudicate Nyaga’s application but it

could not mandate a certain outcome in that adjudication. Id. at 1253, 1256. The

Defendants appeal. 

III. ISSUES ON APPEAL

We are presented with three issues on appeal: (1) whether the Plaintiffs’ claim

is moot; (2) whether the district court had subject matter jurisdiction to consider

Plaintiffs’ claim; and (3) whether the district court properly concluded that there were

no genuine issues of material fact and that the Plaintiffs were entitled to judgment as
5 Because we decide this case on mootness grounds, we limit our

discussion to the parties’ contentions related to this issue.

13

a matter of law. Because we conclude that the Plaintiffs’ claim is moot, however, we

do not address any other issues.

IV. STANDARD OF REVIEW

We review questions of mootness under a plenary standard of review. Ala.

Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 97 F.3d 492,

496 (11th Cir. 1996). 

V. CONTENTIONS OF THE PARTIES

The Defendants contend that the district court erred when it concluded that the

court was capable of providing meaningful relief to the Plaintiffs.5

 The Defendants

argue that the plain language of 8 U.S.C. § 1154(a)(1)(I)(ii)(II), when read in

conjunction with 8 U.S.C. § 1255(a), compels the conclusion that Nyaga is no longer

eligible to receive a diversity visa because fiscal year 1998 has ended, and thus he

cannot satisfy the statutory requirements for adjustment of status under § 1255(a).

The Defendants further contend that congressional intent, reflected in Congress’s

prior efforts in passing ameliorative legislation related to the diversity visa program,

evinces the clear understanding that Nyaga is no longer eligible to receive a diversity

visa. Moreover, the Defendants argue that even if the statute is ambiguous, the State
14

Department has issued reasonable regulations that interpret the statute in a manner

that renders Nyaga no longer eligible to receive a visa and this interpretation is

entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense

Council, 467 U.S. 837, 104 S. Ct. 2778 (1984). On these grounds, the Defendants

contend that the court is unable to accord meaningful relief to the Plaintiffs because,

even if Nyaga’s application to adjust status is processed, the Attorney General lacks

the authority under § 1255(a) to adjust Nyaga’s status because Nyaga is no longer

eligible to receive a visa. 

The Plaintiffs argue that if the INS processes Nyaga’s application and

concludes that Nyaga meets the education and background check requirements,

Nyaga would be eligible to receive a visa. The Plaintiffs contend that the plain

meaning of § 1154(a)(1)(I)(ii)(II), when interpreted in the context of the entire

diversity visa program statute, does not establish that a lottery winner is no longer

eligible to receive a visa after the relevant fiscal year ends; in Plaintiffs’ view, the

statute establishes that a lottery winner must submit a complete application by the end

of the fiscal year. The Plaintiffs also contend that congressional intent supports their

interpretation, arguing that Congress intended that the INS process all applications

and that Congress could not have intended for a lottery winner to become ineligible

for a visa due solely to the INS’s inaction. The Plaintiffs argue that the State
15

Department’s interpretation of § 1154(a)(1)(I)(ii)(II) is unreasonable and not entitled

to Chevron deference because it is inconsistent with specific provisions of the

diversity visa statute. Lastly, the Plaintiffs contend that, in prior years, the INS has

instructed applicants to appear to obtain a visa even after the applicable fiscal year

has ended. Accordingly, the Plaintiffs argue that Nyaga remains eligible to receive

a diversity visa, and as a consequence, the case is not moot because this court is

capable of providing meaningful relief. 

VI. DISCUSSION

Article III of the Constitution limits the jurisdiction of federal courts to the

consideration of “Cases” or “Controversies.” U.S. Const. art. III, § 2. The “case or

controversy” requirement imposes justiciability limitations on federal courts, and

these limitations include mootness. See Soliman v. United States ex. rel. INS, 296

F.3d 1237, 1242 (11th Cir. 2002). The doctrine of mootness is derived from Article

III’s “case or controversy” requirement because “an action that is moot cannot be

characterized as an active case or controversy.” Adler v. Duval County Sch. Bd., 112

F.3d 1475, 1477 (11th Cir. 1997). The question of mootness is a threshold inquiry

in every case; as the Supreme Court has noted, “the question of mootness is . . . one

which a federal court must resolve before it assumes jurisdiction.” North Carolina

v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402, 404 (1971). If the district court is presented
6 We acknowledge that, with respect to Kibarra, this request presents

(1) a potential jurisdictional problem under 8 U.S.C. § 1252(a)(2)(B)(i) because

Kibarra’s derivative adjustment application was denied in 2001 and (2) a

16

with a moot case, the case must be dismissed because any decision on the merits

would constitute an impermissible advisory opinion. Al Najjar v. Ashcroft, 273 F.3d

1330, 1336 (11th Cir. 2001); Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of

Health & Rehab. Servs., 225 F.3d 1208, 1217 (11th Cir. 2000).

A district court lacks the power, on mootness grounds, to decide a case if its

decision cannot affect the rights of the litigants in the case. Rice, 404 U.S. at 246, 92

S. Ct. at 404; see also Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951

(1969) (“[A] case is moot when . . . the parties lack a legally cognizable interest in the

outcome.”). This court has concluded that a case must be dismissed as moot if the

court can no longer provide “meaningful relief.” Fla. Ass’n of Rehab. Facilities, 225

F.3d at 1216-17. Before we can address the merits of this case, we must determine

whether the district court could give meaningful relief to Nyaga and Kibarra. 

The Plaintiffs requested two types of relief: (1) to “[c]ompel Defendants and

those acting under them to immediately perform their legal duty to complete all

remaining process of Plaintiff, Charles Kibaara Nyaga’s, Adjustment of Status” and

(2) to “[d]eclare that there are no just grounds to suspend issuance of all appropriate

permanent residency documents to both Plaintiffs.”6 (R.1-1 at 15.) We view the first
pragmatic concern because she does not have a pending application that could be

granted under § 1255(a). Nonetheless, we do not address these issues because we

conclude that Nyaga is not eligible to receive a visa. Because he is not eligible to

receive a visa, it necessarily follows that Kibarra is not eligible to receive a visa as

his spouse.

17

request for relief (that the INS process Nyaga’s application) as merely a means to the

second request for relief (that the Attorney General adjust Nyaga’s status and

Kibarra’s status to that of lawful permanent residents). If Nyaga is no longer eligible

to receive a diversity visa, we conclude that an order requiring the INS to process his

application on the merits – only to have their adjustment applications denied by the

Attorney General because Nyaga does not meet the “eligible to receive an immigrant

visa” requirement of § 1255(a) – would not constitute meaningful relief.

Accordingly, the question of whether the district court could provide meaningful

relief to the Plaintiffs reduces to a single inquiry: would Nyaga be “eligible to receive

an immigrant visa” if the INS were to process his application on the merits and

conclude that he would otherwise be admissible for legal permanent residence? 

To answer this question, we must interpret the diversity visa statute, and our

analysis begins with the language of the statute. Hughes Aircraft Co. v. Jacobson,

525 U.S. 432, 438, 119 S. Ct. 755, 760 (1999). “[U]nless there is some ambiguity in

the language of a statute, a court’s analysis must end with the statute’s plain

language.” Coggin Automotive Corp. v. Comm’r of Internal Revenue, 292 F.3d 1326,
18

1332 (11th Cir. 2002). When we examine the meaning of statutory words or phrases,

however, we cannot examine statutory provisions in isolation. FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S. Ct. 1291, 1300-01 (2000). “It

is a fundamental canon of statutory construction that the words of a statute must be

read in their context and with a view to their place in the overall statutory scheme.”

Davis v. Mich. Dep’t of Treas., 489 U.S. 803, 809, 109 S. Ct. 1500, 1504 (1989). 

Nyaga and Kibarra have asked the Attorney General to adjust their status to

that of a lawful permanent resident pursuant to 8 U.S.C. § 1255(a). Section 1255(a)

states:

The status of an alien who was inspected and admitted or paroled into

the United States may be adjusted by the Attorney General, in his

discretion and under such regulations as he may prescribe, 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.

8 U.S.C. § 1255(a) (emphasis added). According to § 1255(a), the Attorney General

may adjust Nyaga’s status only if Nyaga is “eligible to receive an immigrant visa.”

But 8 U.S.C. § 1154(a)(1)(I)(ii)(II), a provision that relates to the procedures for

filing petitions pursuant to the diversity visa program, states in full:

Aliens who qualify, through random selection, for a visa under section

1153(c) of this title [the diversity visa program]shall remain eligible to
19

receive such visa only through the end of the specific fiscal year for

which they were selected.

8 U.S.C. § 1154(a)(1)(I)(ii)(II) (emphasis added). If this section, when properly

interpreted, means that Nyaga is no longer eligible to receive an immigrant visa

because fiscal year 1998 has ended, then the Attorney General lacks the power to

adjust Nyaga’s status under § 1255(a). Therefore, the resolution of the mootness

issue hinges upon this court’s interpretation of the phrase “shall remain eligible to

receive such visa” in § 1154(a)(1)(I)(ii)(II).

We agree with the Defendants that the phrase “shall remain eligible to receive

such visa” plainly means that aliens, like Nyaga, who have been randomly selected

to qualify for a visa under the diversity visa program cannot be issued a visa after

midnight of the final day of the fiscal year for which they were selected. As of

midnight on September 30, 1998, Nyaga was no longer eligible to receive an

immigrant visa. The INS’s failure to process Nyaga’s application does not extend

Nyaga’s statutorily-limited period of eligibility for a diversity visa. “Eligible to

receive such visa” is unambiguous, and because the phrase is unambiguous, our

inquiry must end with the statute’s plain language. In reaching this conclusion based

on the statute’s plain meaning, we are not alone. See Iddir v. INS, 301 F.3d 492, 500-

01 (7th Cir. 2002) (concluding that even if the INS were to adjudicate applications
7 The Plaintiffs cite cases that, while arguably distinguishable from this

case, could be read to support the proposition that the INS can issue visas after the

fiscal year has ended. Paunescu v. INS, 76 F. Supp. 2d 896, 903 (N.D. Ill. 1999);

Marcetic v. INS, unpublished at __ (N.D. Ill. Apr. 6, 1998). 

20

after the fiscal year ended, visas could not be issued); id. at 502 (Flaum, J.,

concurring) (concluding that the plaintiffs are no longer eligible to receive visas);

Fornalik v. Perryman, 223 F.3d 523, 526 (7th Cir. 2000); Vladagina v. Ashcroft,

unpublished at __ (S.D.N.Y. Apr. 8, 2002); Iddir v. INS, 166 F. Supp. 2d 1250, 1259

(N.D. Ill. 2001) (holding that “[t]he end of fiscal year 1998 was September 30, 1998,

which means that plaintiffs are no longer eligible to receive visas”), aff’d on other

grounds, 301 F.3d 492 (7th Cir. 2002); 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.”); Diallo v. Reno, 61 F. Supp. 2d 1361, 1368

(N.D. Ga. 1999).7

The Plaintiffs contend that when the phrase “shall remain eligible to receive

such visa” is construed in light of its context, the phrase actually means “shall remain

eligible to apply for such visa.” The Plaintiffs rely on the fact that §

1154(a)(1)(I)(ii)(II) sets forth the procedure for applying for a diversity visa; the

Plaintiffs contend that when this section is read as a whole, it is clear that a lottery
8 The Plaintiffs also argue that our interpretation of §

1154(a)(1)(I)(ii)(II) undermines Congress’s intent. The Plaintiffs present three

arguments related to congressional intent: (1) Congress could not have intended

for an alien to lose visa eligibility due solely to the INS’s inaction; (2) Congress

authorized the Secretary of State to establish a processing fee that will allow the

State Department to recover the costs of processing all diversity visa applications;

and (3) Congress’s enactment of § 1153(c)(1)(E)(iv), which permits the

redistribution of visa numbers among regions, reflects Congress’s intent that all

55,000 available visas be issued. 

While we rest our decision upon the plain meaning of § 1154(a)(1)(I)(ii)(II),

it is not at all clear that our understanding of the plain meaning of the statute

undermines Congress’s intent. As we noted above, § 1154(a)(1)(I)(ii)(II) brings

closure to each fiscal year’s diversity visa program by declaring that lottery

21

winner “has until the end of the fiscal year to be eligible to apply for such visa.”

(Pls.’ Br. at 29.) We disagree. Although § 1154(a)(1)(I) establishes the procedure

for submitting a diversity visa petition, there is nothing in this section, when read in

its entirety, that leads us to believe that the phrase “shall remain eligible to receive

such visa” actually means “shall remain eligible to apply for such visa.” Although

the Plaintiffs argue that this section necessarily was intended to establish a deadline

for submitting a visa application, we believe that it is just as likely that Congress

intended to place an ultimate deadline on visa eligibility in order to bring closure to

each fiscal year’s diversity visa program. We conclude that even when the phrase

“shall remain eligible to receive such visa” is read within the context of the entire

procedural framework established in § 1154(a)(1)(I), the plain meaning of “shall

remain eligible to receive such visa” does not change, nor is it rendered ambiguous.8
winners are no longer eligible to receive a visa after midnight on the last day of the

fiscal year for which they were selected. Even if Congress intended for all

applications to be processed and all authorized visas to be issued, and even if

Congress did not intend for lottery winners to lose their eligibility due to the INS’s

inaction, it does not necessarily follow that Congress did not intend to establish an

ultimate deadline for the issuance of visas under each fiscal year’s diversity visa

program. 

Congress’s prior legislative enactments related to the diversity visa program

demonstrate that our understanding of the statute’s plain meaning conforms to

Congress’s understanding of the statute. In 1996, Congress passed legislation

which permitted Fiscal Year 1995 Diversity Visa Program applicants from Poland

to receive diversity visas from the fiscal year 1997 visa numbers. Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, § 637, Pub. L.

104-208, 110 Stat. 3009. In 1998, Congress enacted ameliorative legislation that

authorized Fiscal Year 1998 Diversity Visa Program applicants from Kenya and

Tanzania (whose visa interviews could not be conducted on time because the

United States embassy in Kenya had been bombed) to receive visas from the fiscal

year 1999 visa numbers. Act of November 10, 1998, § 1, Pub. L. 105-360, 112

Stat. 3276. While neither situation involved the INS’s failure to process a lottery

winner’s application, this distinction is irrelevant; Congress’s action clearly

evinces its understanding that an applicant is no longer eligible to receive a visa,

absent legislative action, after the relevant fiscal year has ended even if there are

unissued visa numbers remaining from the relevant fiscal year. 

Additionally, because we conclude that the statute’s plain meaning is clear,

we need not address the Defendants’ argument that we must accord Chevron

deference to State Department regulations that interpret § 1154(a)(1)(I)(ii)(II) in a

manner that renders applicants no longer eligible to receive visas after the

applicable fiscal year has ended.

22

Because we conclude that Nyaga is no longer eligible to receive a visa, the

district court could not provide meaningful relief to the Plaintiffs and the court was

compelled to dismiss this case as moot. In instructing the district court to dismiss on

mootness grounds, we join several other courts that have addressed similar cases.
9 Nyaga and Kibarra may once again submit petitions to enter the

diversity visa program lottery with the hopes that one of them will be selected and

that this time, unlike the last, the Defendants will process and adjudicate their

applications before the fiscal year ends. They may also petition Congress for a

private bill of relief. See, e.g., H.R. 509, 108th Cong. (2003) (“For the relief of

Lindita Idrizi Heath”); H.R. 392, 108th Cong. (2003) (“For the relief of Natasha

Oligovna Russo and Anya Oligovna”). 

23

Vladagina, unpublished at __ (S.D.N.Y. Apr. 8, 2002); Iddir, 166 F. Supp. 2d at 1260

(concluding that the case should be dismissed as moot because “[a]ny order by this

court compelling the INS to adjudicate plaintiffs’ applications would be a futile act”);

Zapata, 93 F. Supp. 2d at 358 (concluding that the court could not provide effectual

relief to the plaintiffs because fiscal year 1998 had ended and fiscal year 1998 visas

could not be issued “to anyone”); see also Iddir, 301 F.3d at 502 (Flaum, J.,

concurring) (departing from the majority and stating that the case is moot because “it

is the INS’s lack of power to grant effectual relief – not its lack of duty – that makes

the claims nonjusticiable”).9

VII. CONCLUSION

The plain meaning of 8 U.S.C. § 1154(a)(1)(I)(ii)(II) establishes that Nyaga’s

eligibility for a diversity visa expired at midnight on September 30, 1998. Therefore,

Nyaga is not “eligible to receive an immigrant visa” and the Attorney General lacks

the authority to adjust Nyaga’s status to that of a lawful permanent resident under §

1255(a). As a consequence, the district court could not provide meaningful relief to
24

the Plaintiffs, and should have dismissed the action as moot. We vacate the district

court’s order and remand the action with instructions that the district court dismiss

the action as moot.

VACATED AND REMANDED WITH INSTRUCTIONS TO DISMISS AS

MOOT.
1

 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en

banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions

handed down prior to the close of business on September 30, 1981.

25

BARKETT, Circuit Judge, dissenting: 

I would affirm the district court’s grant of mandamus ordering the Immigration

and Naturalization Service (“INS”) to do that which was required of it by Congress:

process Nyaga’s application for a diversity immigrant visa. See Armstrong v. Martin

Marietta Corp., 138 F.3d 1374, 1378 (11th Cir. 1998) (en banc) (recognizing that the

writ of mandamus is an appropriate remedy to correct the failure to carry out a

ministerial task) (citing In re Estelle, 516 F.2d 480, 483 (5th Cir. 1975)).1 The INS

takes the position that it is free to completely disregard a Congressional directive.

This view is problematic in the abstract, to say the least, but in this case the INS’

stance renders nugatory an entire section of the Immigration and Nationality Act

(“INA”). See 8 U.S.C. § 1153(c). 

Section 1153(c) of the INA is comprised of three subsections that, together,

establish the diversity immigrant visa program. As the majority notes, the diversity

visa program is designed to provide permanent residence visas to individuals from

countries with historically low rates of immigration to the United States. In the first

subsection of § 1153(c), entitled “In General,” Congress details the bulk of the
2 The other two subsections of § 1153 are short, and of little relevance to Nyaga’s claims. 

Specifically, § 1153(c)(2) is an eligibility provision that dictates aliens must have at least a high

school education and two years of work experience “in an occupation which requires at least two

years of training” in order to receive a visa. § 1153(c)(2). Section 1153(c)(3) dictates that the

Secretary of State maintain information on all immigrants issued visas. See § 1153(c)(3). 

3

 An “adjustment of status” is a procedure for becoming an “alien lawfully

admitted for permanent residence.” See 8 U.S.C. § 1255(a). It allows resident

aliens to remain in the United States during the application process rather than

requiring them to leave the country in order to apply.

26

program.2

 See id. In the introductory paragraph to § 1153(c)(1), Congress states that

“[e]xcept as provided in paragraph (2), aliens subject to the worldwide level specified

in section 1151(e) of this title for diversity immigrants shall be allotted visas each

fiscal year as follows . . . .” Id. (emphasis added).

Although the Department of State generally administers the diversity visa

program, the INS is responsible for adjudicating and issuing diversity visas to

applicants who reside in the United States at the time of their selection. Once an alien

receives notice of his selection in the diversity visa program, he is eligible to apply

for an adjustment to permanent resident status.3 See 8 U.S.C. § 1255. To receive a

status adjustment, the alien must meet three criteria: 1) the applicant must apply for

the adjustment; 2) the applicant must be statutorily eligible for the adjustment; and

3) the INS must have a visa number available when the alien’s application is

approved. See § 1255(a). While the ultimate decision whether to adjust an alien’s

status is discretionary, diversity visa applicants who are selected to participate in the
4

 As part of the application process, the INS must also interview the

applicant and conduct a complete background investigation, including an FBI

fingerprint check, a CIA name check, and a records check through the Bureau of

Consular Affairs in the applicant’s native country. See 22 C.F.R. § 42.67; Iddir v.

INS, 166 F. Supp. 2d 1250, 1253 (N.D. Ill. 2001).

27

program (the “lottery winners”) satisfy § 1255(a)’s criteria simply by applying for the

adjustment and meeting § 1153(c)’s eligibility requirements. And, as the INS

concedes in its brief, an otherwise eligible immigrant4

 who has complied with these

requirements would ordinarily face no impediment to a status adjustment, save the

possibility that all of the available visas under the diversity program had already been

issued to other applicants.

Throughout § 1153(c)(1) Congress chose to employ authoritative language that

affirmatively directs action. The term “shall” pervades § 1153(c). In addition to its

use in the introductory phrase “diversity immigrants shall be allotted visas,” §

1153(c)(1), Congress repeated the term eleven times in § 1153(c), stating that the

INS, the Attorney General, or the Secretary of State “shall” perform certain functions.

See § 1153(c)(1)(A) (“[t]he Attorney General shall determine”), (B)(i) (“[t]he

Attorney General shall identify”), (B)(ii) (“[t]he AttorneyGeneralshallidentify”),(C)

(“[t]he Attorney General shall determine”), (D) (“[t]he Attorney General shall

determine”), (E)(iv) (“excess visa numbers shall be made available”) (emphases

added). 
28

Section 1153(c) also contains clear language directing the INS to distribute all

available diversity immigrant visas for a given fiscal year. Most notably, §

1153(c)(1)(E)(iv) gives the Secretary of State the following command:

If the Secretary of State estimates that the number of immigrant visas to be

issued to natives in any region for a fiscal year under this paragraph is less than

the number of immigrant visas made available to such natives under this

paragraph for the fiscal year, subject to clause (v), the excess visa numbers

shall be made available to natives (other than natives of a high-admission state)

of the other regions in proportion to the percentages otherwise specified in

clauses (ii) and (iii). 

§ 1153(c)(1)(E)(iv) (emphasis added). By its plain language, § 1153(c)(1)(E)(iv)

directs the Secretary of State (and the INS in the course of processing adjustment of

status applications) to distribute all available diversity immigrant visas each year.

See id. If the Secretary determines that the immigrant visas allocated to one region

will not be fully distributed, then those visas must be made available to applicants

from other regions. See id. Section 1153(c)(1)(E)(iv)’s clear mandate is that all of

the diversity immigrant visas that Congress sets aside be distributed to eligible

applicants (i.e. applicants who satisfy § 1153(c)(2)). 

Each year the Department of State receives several million applications for the

diversity immigrant visa program. In 1997, Nyaga was one of these applicants and

on July 1, 1997, he received notification of his selection as one of the 100,000 lucky
5

 The common reference to aliens selected to apply for an immigrant visa

under the diversity program as “lottery winners” is something of a misnomer: in

reality the alien simply becomes eligible to apply for a permanent visa under the

program. “Winning” aliens do not necessarily receive a visa. Typically, the INS

selects around 100,000 “winners” for the 55,000 visas that are available each year. 

See 8 U.S.C. § 1151(e). The INS uses this system because it has found that only

around one-half of the aliens selected to apply for diversity visas are both qualified

to receive the visa and actually file an application. See Diallo v. Reno, 61 F. Supp.

2d 1361, 1363 n.3 (N.D. Ga. 1999). 

6

 The National Visa Center was established and is directed by the

Department of State.

7

 Nyaga paid an application fee of $300.00. 

29

“winners” chosen to participate in the program.5

 This notification letter made it clear

that Nyaga was not automatically entitled to a visa, but did indicate that he was

among the “100,000 DV-98 entries [that] were randomly selected” to apply for one

of the 55,000 available visas. The letter also instructed Nyaga of the necessary forms

that he must file with the National Visa Center6

 and cautioned him to “carefully

follow these instructions to increase your chances of possible visa issuance.” A

subsequent letter dated September 26, 1997, informed Nyaga that “the 1998 Diversity

Lottery Program requires a $75.00 diversity visa processing fee, per person.”7

 This

letter notified Nyaga that, as an applicant residing in the United States, he must also

apply for an “adjustment of status” directly with the INS, which he did. The INS’

“adjustment of status” application required Nyaga to complete several forms, attach

numerous supporting documents “including pictures and [a] medical examination
8

 Nyaga’s application included a payment to the INS of $1,200.00 which

included a $130.00 filing fee for his adjustment of status application (I-485), a

$1,000.00 “other fee,” and a $70.00 fee for his employment authorization

application (I-765). 

9

 This failure by the INS to act was not due to the unavailability of diversity

visas that year. When the fiscal year 1998 ended, more than 3,000 diversity visas

were left undistributed.

30

report,” and pay a fee of “$130.00 for applicants 14 years of age or older and $100.00

for applicants under the age of 14.”8 

It is not disputed that Nyaga properly completed both the diversity visa

application and the “adjustment of status” application on or before February 2, 1998.

This left the INS just under eight full months to adjudicate his petition before the end

of fiscal year 1998. However, other than forwarding his fingerprint cards to the FBI

on February 20, 1998, the INS did not act upon Nyaga’s petition prior to the end of

the fiscal year.9

 Nyaga now quite reasonably argues that, at the very least, his timely

completion of the diversity visa program’s procedural and fiscal requirements should

have entitled him to an equally timely adjudication of his application. According to

the INS, this is not so. 

Incredibly, the INS relies upon its own inaction during fiscal year 1998 as the

justification for its current impotence to issue Nyaga a visa. Since under 8 U.S.C. §

1154(a)(1)(I)(ii)(II) eligibility for the diversity program is limited to the fiscal year

in which the alien was selected to participate, the INS argues that its failure to act
10 The INS generously points out that though ineligible for a 1998 diversity

visa, Nyaga can reapply to the program each year. As Nyaga must literally “win

the lottery” to regain his eligibility, this is hardly a constructive suggestion. 

11 The INS all but concedes this point in its brief, stating that “Nyaga is

arguably entitled to an adjudication of his diversity visa based adjustment

application.” INS Br. p. 29.

31

upon Nyaga’s application during the 1998 fiscal year renders him statutorily

ineligible to receive a diversity visa.10 See § 1154(a)(1)(I)(ii)(II). To be clear, the

INS failed to adjudicate Nyaga’s application during the fiscal year in which he

applied and, based on this failure, now contends that Nyaga is no longer eligible for

a 1998 diversity visa. The majority reluctantly accepts this argument and, as a

consequence, deems Nyaga’s claim for relief moot under § 1154(a)(1)(I)(ii)(II). 

I question the propriety of this judgment because, under the majority’s reading

of the statute, Nyaga faces an intractable conundrum. Nyaga was rendered

technically ineligible for relief under § 1154(a)(1)(I)(ii)(II), not due to any error of

his own, but rather as the result of the INS’ unilateral failure to comply with the

directives of the INA. Such a result is particularly offensive because it is clear from

the statute that Congress expected the INS to perform the ministerial duties required

by the program (i.e. to assure the distribution of the allotted visas) and, thus, under

§ 1153(c), Nyaga was entitled to have the INS adjudicate his timely-filed diversity

visa application.11 See Iddir v. INS, 301 F.3d 492, 500 (7th Cir. 2002); Paunescu v.
32

INS, 76 F. Supp. 2d 896, 900 (N.D. Ill. 1999). 

Because, in my view, § 1153(c) of the INA requires the INS to act on diversity

visa applications, I believe the district court properly found that mandamus is the

appropriate remedy to compel the INS to perform its ministerial role under the INA

and adjudicate Nyaga’s application. See Armstrong, 138 F.3d at 1378.