### 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 EL EVENTH C IRCUIT

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_______ No. 02-12 265

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_______ D. C. Docket No. 01-01249 CV-O DE-1 CHARLES KIBAARA NYAGA, DOIN KAINYU KIBAARA, Plaintiff s-Appell ees,

versus JOHN ASHCROFT, as Attorn ey G eneral of

the Unite d States, ROSEMARY MELVILLE, District Direct or, Atl anta Divi sion of the Imm igration and Naturalization Service, Defenda nts-Appel lants.

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_______ Appeal from the United States D istrict Court for the N orthern D istrict of Georgia

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________ (March5, 2003) Before EDMOND SON, Chief Judge , BARK ETT a nd COX, Circuit J

udges. PER CURIAM:1 The parties apparently agree that N yaga’s wife ’s name is “

Kibarra” notwiths tanding the fact tha t her name was spell ed “Kibaara” in th e complaint. 2 The Defenda

nts – John Ash croft, Attorney General of

t he United

States, and Rosemary

Langle y Melv ille, D istrict D irector of the Atl anta Divi sion of the Imm igration and Naturalization Service (INS) – appeal fr om the district

court’s order granting mandam us relief to the Plaint

iffs, C harles K

ibaara N yaga ( Nyag a) and his wife, Doin Kainyu Kibarra (K ibarra)

. 1 Nyaga, a r

esident alien, qualified for a diversity imm igrant visa

th r ough the Fi scal Ye ar 199 8 Dive rsity Vi sa Pro gram’s random selection process. He subm

itted an application t o adjust hi s status pur suant to 8 U.S.C. § 1255(a), but the INS did not adjudicate his application before fiscal year 1998 ended. I

n 2001, the P laintiffs sought an ord er to com pe l the Defendants to adjudica te Nya ga’s ad

justm ent applicati on. Invoking its m andam us jurisdi ction, the district court co nclud ed that the INS has a clear , non-disc retionar y duty to process Nya ga’s application and ordered the Defendants to process Nyaga’s application as thoughfiscal year 1998 had not en ded. We con clude that even if the

INS has a nondiscretionary

duty to process Nyaga’ s adjustment applicat ion , Ny aga’s c ase was moot because as of m

idnight on

Septem ber 30, 199 8, he was no l onger eligi ble to rec eive

a diversity imm

igrant visa. We vacate the district court’s order and rem an d with instruct ions to d ismiss as moot.3 I. BACKGROUND A. The Diversity Visa Pr ogram Through the

diversity visa program, a lim ited num ber of im migra ntvisas are made available to individual s from

countries that histor

ically have had lo w rates of imm igration to the Unit ed States. 8 U.S.C. § 1153( c) (2002). Under the program , the Attorney General identifie s “low -admiss ion st ates” and allocates diversity visas (imm igrant visas m ade avail able throu gh the diversity visa program) to natives o f these states ac cordingto a formula estab lished b y statute. 8 U.S.C. § 11 53(c)(1). A diversity visa enables the recipient to move to the United States a s a lawf

ul perm anent resident (or, alternative ly, t o rem ain in the U ni ted Stat es as a la

wful per mane nt

res ident if the re cipient is a

lready lawfull y wit hin the Uni ted State s and if th e Attorney General adjust s the recip ient ’s status) unde r the Im migra tion and Na

tionality Act. T o be eligibl e for

a diversit

y visa, an alien m

ust have a high school

education

or have, w ithin five y

ears of t he date of applicati on for the visa, at least tw o year s of work experience in an occ upa tion that re quires at l east two y ears of t raining or experience. 8 U.S. C. § 1153(c )(2). I f an alie n is entitled to receive a visa unde r the diversity visa program, the alien’s spouse and m inor children are entitled to the same status. 8 U.S.C. § 1153(d).4

The United St ates Dep artm ent of Sta te adm inisters th e diversit

y visa pro gra m. Eligibleapplicant s must

file a petition to be considered for a diversity visa, and after the filing period has ended, a computer ran domly orders the pe titions . 22 C.F.R. § 42.33(c) (2003). T

he Sta t e Depar tment then selec ts, in ra

nk order, a quantity

of petitions estim ated to besufficie nt to ensure , to the e xtent possibl e, that all diversit y visas authorizedfor issuan ce are issued

. Id. These se lected applicants – c omm only referred to as diver sity vis a program “lott ery winners” – a

re notifie d of their selection and receive ins truction s on how to apply for a div ersity visa. See No tice of Registra tionPeriod an d Require ments for the F ourth Yea r of the Diver sity I mm

igrant Visa Program

, 61 Fed. Reg. 58 730, 587 31 (November 18 , 1996). Selectio n as a “ lottery

winner” does not ensu

re that a n applicant

will re ceive

a diversity visa. The total num ber of lottery

winners e xceeds the

numbe r of diver sity visas available

under the d

iversity visa program. See id. (“Being selected as a winner

. . . does not automatically guarante e being issue d a vis a ev en if the a pplicant is qualified, because t

h e nu mb er of ent

ries sele cted and registere d is greater than the number of im migra nt visas available. Those sel ected wi ll, therefore, need to compl ete and file t

heir im migra nt visa applicati ons quickly .”). T he proces s to obtain

a visa is lengthy : the applic ant mu st subm it numerous docum ents to the N ational V isa Office (including a passport, a birth certifica te , police certifi cates, c ourt reco rds,5

prison records, military

records, and evidence of either education or work experience) and attend a visa inte rview. 8 U.S. C. § 1202. Diversit y visa lottery winners who reside abroad m ust travel to a United States emba ssy to com plete the v isa eligibi lity pr ocess. I f a lotter

y winn er is law full y present in the United St ates, how ever, th e alien m ay re main i

n the United St ates and apply to the IN S to adjust hi s status to th at of a lawful permanent resident. 8 U.S.C. § 1255(a). This adj ustme nt procedur e enables alottery

winner la

wfully residing in the Unite d States, such as an alien w ith a studen t visa, to receive

an im migra nt visa without returning to his native

country. The Attorney

General, at his discretion, m ay adjust an appli cant’s st atus to that of an alien lawfull

y adm itted for perm anent residence if (1) the

alien makes an ap plication f or adjust ment o f status, (2) the alien is elig ible to re ceive an imm igrant visa and is admissible for permanent re sidence, and (3) a visa is im

media tely available to the alien at the tim

e the appli cation is f

iled. 8 U.S.C. § 1255(a). According to statute, “[a ]liens w ho qualify , through random se lection, 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 w hich they were selected.” 8 U.S.C. § 1154(a)(1)(I)(ii)(II). The State Departm ent has promulgated re gu latory provisions that autom atically

revoke diver sity visa petitions and prevent the issuance of visas2 Fiscal year 1998 be gan on Oct ober 1, 199 7, and ende d at m idnight on

Septem ber 30, 199 8. 6 and the allotm

ent of visa

numbe rs after

midnig ht of the final day of the relevant fiscal year. See 22 C.F. R. § 42.3 3(a)(1) (“T he eligibil ity fo r a visa . . . cea ses at the end of the fiscal year in qu estion. U nder no circumstances may a consular officer issue a visa or other documentation to an alien after the end of the fiscal y ear during which

an alien pos sesses di versity visa e ligibil ity.”); 22 C.F.R. § 42.33(e) (“A petition

. . . shall be valid until M idnight of the last day of the fiscal yea

r for wh ich the pet

ition

was submitted. At th at time, the petit ion is au tomatically revok ed . . . and no diversity visa numbers ca n be allot ted after th at date.”); 2 2 C.F.R . § 42.33(g) (Divers ity

imm igrant visa

numbe rs “s hall be allotted on ly during the fiscal year for which a petition to accord d iversity imm igrant st atus w as submitted and a pproved. Under no circum stances sha

ll imm igrant visa

numbe rs be allot

ted after Midnight of the last day

of the fis cal y ear for

which the petition was submitted and approved.”). B. Nyag a’s and

Kibarra’s Applications for Adj ustme nt of Stat us Nyaga, a native of Kenya, enter ed the United States in May 1996 on a

student visa. In July 1996, Kibarra, Ny aga’s wife, entered the U

nited States on a visitor visa. Nyag a filed a pe tition in Fe bruary or March

199 7 t o enter the

Fiscal Y ear 1998 2 Diversit y Visa Pr ogram lottery . In a

letter dated

July 1, 1997, Nya

ga was notified that7

he had been se lected as a l ottery winner. Th e letter in form ed him

that 100,00 0 petitions had been se lected fo r further processing , and that

only 55,000 dive rsity

visas

were available under

the Fiscal Year 1 998 Divers ity V isa Program. Nyagawas also inform ed, in a subsequent letter, thatthe INS would not a ccept app lications to adjust status based on the

Fiscal Y ear 1998 D iversity Visa Program until Octo ber 1, 1997 , the first d ay of fiscal year 1998

. In October

1997, Nyaga sub mitted an appl ication t o adjust hi s status
. Kibarra simult aneously

submitted a derivative application to adjust her status based on her husb and’s eligi bili ty to rec eive a dive rsity v isa. Al thou gh Nyaga ’s and K ibarr a’s applicati ons for adj us tme n t of status were sub mitte d in October 1997, the ir appl ications were not

compl ete until th e INS received t heir proc essing fees o n February 2, 1998. After an ap plicant has submitted a complete application, other agencies assist wi th a backgr ound inv estig ation that includes an F BI finger print check, a CIA na

me c heck, an da records check with the Bureau of Consular Affairs in the ap plic ant’s native cou ntry. On Febr

uary 2 0, 1998, th e INS for warded Nyaga’s and Kibarr a’s fin gerprint c ards to the FBI. The IN S took no further action to pr ocess Nyaga’s or Kibarra’s ad

jus tme nt applications before September 30, 1998, the final day of fiscal year 1998.3 When N yaga r eceived t he adjust ment o f status application f orms, he also rece ived a cover letter that instru cted: “ While y our applica

tion is pendin g before the interview, please DO NO T 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 O ffice directs a nyone w ith an inquir

y to le ave the IN S building be cause per son-to-per son inquiries w ere not pe rmit ted. 8 Unde r the Fiscal Year 1 998 Divers ity V isa Program, 97,319 appl icants wer e designated as lotter

y winn ers eligib le to rec eive a visa and 5 5,000 diversity visas were available. Only 51,565 diversity visas were actual ly issued

under the p rogram ; alm ost 3,500 authorize d diversi ty visas were not issued. Neither Ny aga’s n or Kib arra’s adjust ment applicati ons were

processe d before t

he end of f

iscal y ear 1998, and neit

he r Nyaga nor Kibarra rec eived a vis a. From February 1998, when their applications were completed, until Septem ber 30, 1998, the end of the fi scal year, Ny aga and Kibarra did not formally inquire regardin g the status of their applications because they were advised that they s hould not make such inquiri es. 3 During f iscal y ear 1998, Nya gaattended at least two work authoriza tion interv iews, and he claims tha t he informally inquired abo ut the statu s of his adjustment application during these interviews and was told that there was noth ing he could do but wait. The INS does not have any rec o rd of thes e conversat ions.9

On January 23, 2001, almost three years after their applications were completed, the INS interview edKibarra regard ing her adj ustme nt applica tion. The INS denied Ki

barra’ s applicat

ion on Febr

uary 2 8, 2001, on the

grou nds t hat Ki barra ’s derivative

applicati on was bas ed on Ny aga’s e ligibility for adiversity

visa and N

yaga

was no longer e ligible to receive a visa becau se fiscal year 19 98 had end ed. The INS did not issue a final decision on Nyaga’s ap plicat ion before the Plaint

iffs file d the complaint in this case. II. PROCEDU RAL HISTOR

Y On May 15, 2001, Ny aga an d Kibarra filed a complaint in the district court against Ashcrof t and Melville, seeking to compel the Def endan ts to proce ss Nyaga ’s applicati on for adj ustme nt of status under the F iscal Ye ar 1998 Di versi t y Vis a Pr ogram and to gran

t Nyaga and Kib arra le gal perm anent res ident sta

tus. Th e Plaintiffs assert jurisdiction under 28 U.S.C. § 1361 (m andam u s jurisdi ction), 2 8 U.S.C. § 1331 (federal question jurisdiction), 8 U.S.C. § 1329 (the Imm igration and National ity

Act), and 5 U.S .C. § 704 (the Adm inistrativ e Procedure Act). They allege that: (1) Melvi lle is obliga ted to issuedocum ents and ta ke all nec essary

action to process Nyaga’s application under the Fiscal Year

1998 Diver sity V isa Program; ( 2) Melvillelacks the a

uthority to deprive

the Plaint iffs of le gal perm

anent res ident statu s after the Plaintif

fs submitted all ne cessary information and f

ees no later than February4 On the same day that the complaint was filed, the Plaintiffs also filed an em ergency

motion for a pre limina

ry inj unction. T

he mot ion sought, in part, t o prohibit the

INS fr om sum mari ly deny

ing Ny aga’s adjustm ent applic ation during the pendenc y of th e litigatio n. The D efendants agreed th at they would not ta

ke any action in connection with Nyaga’ s adjustment application until the district court iss ued a final ruling, an d the court issued a co nsent ord er to that ef fect. Accordingly, the INS has not taken any a ction on Ny aga’s a pplication. 10 2, 1998; and (3) the proce ssing of Ny aga’s a pplic ation for

adjustm ent of stat us is a purely ministerial, non-d iscret ionary act whic h Melvillewas obliga ted to com

plete in a tim ely m

anner. N

yaga a nd Kibarr

a asked the

district c ourt to com

pel the Defenda nts to process Nya ga’s ap plication to adjust status 4 and declare that there are

no just groun ds to suspend t he issuance of permanent residency docum ents to Ny

aga and Kibarra. The Defendants filed a motion to dismiss the com plaint for lack of subjec t matter jurisdic tion and

for failure to state a

claim and asked t

he distric t court, in the alternative, to consider

the m otion

as a motion for summ

ary judgm ent. The Plaintiffs op posed th e Defe ndants’ m otion and fi led a cros s-mot ion for sum

mary judgm ent. The district court deni ed the De fendants’ motion and grante d the Plain

tiffs’ motion

. The district c ourt concluded that 8 U .S.C. § 1252 did not preclude the cour

t from exercising jurisdi ction, and further conclude d that it could exer

cise m andam

us jurisdic tionunder 28 U.S.C. § 1361. Nyaga v. Ashcroft , 186 F. Supp. 2d 124 4, 1252- 54 (N.D . Ga. 2002). Ma

ndamus is proper i f (1) the Plaint iffs can sh ow a clear r ight11

to the relief sought; (2) the Defe ndants have a cle ar, non- discretio nary d uty to a ct; and (3 ) no other remedy is avail able. 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 applic ation to be p rocessed and a final, thorough decision made”; (2) the INS “has a non-discr etionary duty to m

ake dil igent ef

forts in f urtheran ce of adjudica ting diversity visa applications”; and (3) the Plaintiffs had no al tern ative remedy to mandamus. Nyaga , 186 F. S upp. 2d at 12 53-54. The court then examined

the m erits of t

he case a ndconcluded that there were

no genuine i ssues of materia l 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 w

hether the

court coul d p rovid e a meaningful remedy. Id. Although the Defendants contended that the INS and the Attorney General lack the authority to issue a visa to N

yaga o r Kibarra because

fiscal year 1998 ha s ended, t he court concluded t

hat 8 U.S .C. § 115 4(a)(1) (I)(ii) (II) did not plainly

prohibit the

INS from processin g Nyaga’s applicat ion. Id. at1255. Because the statute

did not plainl

y prohibit the adju dicatio n of

Nyaga’s application, the court turned to congressional intent and concluded that “ Congress c ould not haveintended f or aliens to lose their eligibility to be consid ered for

diversity visas due solely to government inaction.” Id. at1256. Alt

hough the cour

t acknowl edged that the State Departm ent’s regulations12

“come close to pr

oviding explic itly th at the Gov ernm ent does not have the power

to issue visas after the end of the fiscal year, ” the court concluded that “the central inq uir y” in the regulations is whether Nyaga “ is still eligible for the visa,” and that “Ny aga effe ctively

retains hi s eligibilit

y beca use the Go vernm ent did not dil igently act to process the visa.” Id. at 1256 n .13. In granting th e Plaintiffs’ motion for sum mary judgm ent, the c ourt order ed the Defenda nts to adjudicate Nyaga’ s diversity visa application as if fiscal year 1998 had not ended. Id. at 1256-57 (“The co urt her eby or ders Def endants to c onduct a thorough review of Charle s Nyaga’s diversity visa applic ation and appl ication to adjust status on the merits as if f is cal year 1998 had not yet expired.” ). The court acknowledgedthat it lac ked the j urisdiction to order the

Defenda nts to issue d

iversity visas to the Plaintiffs; i t could order the IN S to adju dicate Nyaga’s applicati on but it could n ot mandate a certa in outco me in that adjudi cation. Id. at 1253, 125 6. The Defendants appeal. III. ISSUES ON APPEAL We are pre sented wi th three is sues on appe al: (1) whe ther the Plaintif fs’ cla im is moot; (2) whethe r the dist rict court had subje ct matter jurisdiction to consider Plaintiff s’ 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

as5 Becausewe deci de this cas e on mo otness groun ds, we l imit o ur

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 addre ss any o ther issue s. IV. STANDARD OF REVIEW We review ques tions of mootness u nder a plen ary standard of review. Ala. Disabilities Advocacy Program v. J. S. Tar water De velopme ntal Ctr. , 97 F.3d 492, 496 (11t h Cir. 1996 ).

V. CONTENTIONS OF THE PARTIES The Defendants contend that the district court erred when it concluded that the court was capa

ble of prov iding mea

ningful re lief to the

Plaintif fs. 5 The De fendants argue that the plain language of 8 U.S.C. § 1154(a)(1)(I)(ii)( II), w hen read in conjunction with 8 U. S.C. § 1255(a), compe ls the conclu sionthat Nyaga is no longer eligible to recei ve a diver sity vis a be cause fiscal year 1998 ha s ended, a nd thus he cannot satisfy the statutory req

uirem ents for adjustment of status under § 1255(a). The Defend ants furth er con tend that c ongr essi onal inten t, refl ected in Con gress ’s prior efforts in passing

ame liorative

legislatio n related

to the di ver si ty v is a pr og ram, evinces the clear understanding that Nya ga is no longe r eligible to recei ve a diversit

y visa. Moreover, the Defendants argue that even if the statute is ambig

uous, the S tate14

Departm ent has issued reasonable regulations that interpret the statut e in a manner that renders N

yaga n o longer el igible to re ceive a vi sa and this interpret ation is entitled to defe rence under Chevron U .S.A. , Inc. v. Natural

Resource

s Defense Council , 467 U.S. 837, 104 S. Ct. 2778 ( 1984). O n these groun ds, the D efendants contend that the c ourt is unabl e to accor d mea ningful re lief to the Plaintiffs because,

even if Ny aga’s a

pplication

to adjust status is pr

ocessed, the Attor

ney G eneral lacks the authorit y under § 1255 (a) to adju st Nya ga’s status because Nyaga is no longer eligibl e to receive a visa. T h e Plaintif

fs argue t

hat if the INS proc esses Ny aga’s a pplication a

nd concludes that Nyaga m eet s the educa tion and bac kground chec k require ments , Ny aga would be eligible to receive a visa. The Plaintiffs contend that the plai n

mean ing of § 1154(a

)(1)(I )(ii) (II), when interpreted in the context of the entire diversi tyvisa pro gram statute, does not establish that a lottery winner is no longer eligible to recei ve a visa a fte r the relevant fiscal year ends; in Plainti ffs’ vi ew, the statute establishe s that a

lottery winner m ust submit a co mplete ap

plication by the end of the fiscal year. T

he Plaintiffs also contend that congressional intent supports the ir interpre tation, arguing that Congress intended that the INS proce ss al l applicat ions and th at C on gre ss cou ld no t h ave in ten ded for a lo tt ery w in ner to bec ome ineligible for a v isa due sole ly to the INS’ s inaction. The Plaintiffs a rgue that t

he State15

Depart ment’s interpretation of § 1154(a)(1)(I)(ii)(II) is unreaso nable and not entitled to Chevron deferen ce becau se it is inc onsistent w ith specif ic provision s of the diversity visa statut e. Las tly, the Plaint iffs contend that, in

prior years, the IN S has instructed applicants to appear to obtain a visa even after the applicable fiscal year has ended. Accordingly, the Plaintiffs argue tha t Nyagarem ains eligib le to rec eive

a diversity

visa, and

as a conse quence, the case i s not mo ot because

this court i s capable of p rovidin g meaningful re lief. VI. DISCUSSION Article III of the Constitution limits the jurisdiction of fe der al courts to the considera tionof “Cases” or “Controv ersies.” U.S. Cons t. art. III, § 2. The “ case or

con tro ver sy” requirem

ent im pose s justicia

bility limit ations on fe deral cou rts, and these limitations include moot ness. See Soliman v. United States ex. rel. INS , 296 F.3d 1237, 1242 (11th Cir. 2002). The doctrine o f moot ness is der

ived from Article III’s “ca se orcontrover sy” requirement becau se “a n action tha

t is mo ot cannot be characterized

as an active case or controversy.” Adler v. Duval Cou nty Sch. B d. , 112 F.3d 14 75, 1477 (11th Cir. 1997). The question of mootness is a threshold inquiry in every case; as the Supreme Court has noted, “the que stion of mootness is . . . one which a federal court

must resolve before it assumes jurisdiction.” North Caroli na

v. Rice , 404 U. S. 244, 2 46, 92 S. Ct. 402, 404 (1971). If the district court is presented6 We ac knowledgethat, w ith respec t to Kibar ra, this request pr

esents (1) a pote ntial jur

isdictional

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, t he case m

ust be dism

issed be cause any

decision on the merits would constit ute an impermissib le adviso ry opinion. Al Najjar v. Ashcro ft , 273 F.3d 1330, 1336 (11th Cir. 2001); Fla. A ss’n of Re hab. Faci lities, I nc. v. Fla. D ep’t of Health & Rehab. S ervs. , 225 F.3d 1208, 1217 (11th Cir. 2000). A district court lacks the power, on mootness grounds, to decide a case if i ts decision cannot af fect the rights of th e 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, 8 9 S.Ct. 1944, 1951 (1969) (“[ A] ca se is m oot when . . . the p arties la ck a legal ly cogn izable interest in the outcome.”). This cour

t has concl

uded that a

case m ust be dism issed as m

oot if the court can no longe r provide “ mean ingful relief.” Fla. Ass’n of Rehab. Facilities , 225 F.3d at 1216-17. Beforewe can address the m erits of t his case, we m

ust determ ine whether the district court coul d give meaning ful relief to Nyaga and Kibarra. The Plaintif

fs reques ted two ty

pes of rel ief: (1) to “[c ]om pel Defendants and those acting unde r them to imm ediately perform their leg al duty

to com plete all

rema ining process of Plaintiff, Charles Kibaara Nya ga’s, Adjustm

ent of Status”

and (2) to “[d] eclare that there are no just groun ds to suspend i ssuance of all approp riate perm anent

residency docu ments to both Plaintiffs .” 6 (R.1-1 at 15.) W e view the

firstpragm atic conc ern beca use she does not have a p ending appli cation tha t could be granted u nder § 125 5(a). Nonethe less, we do no t address t hese issu es because we conclude th at Ny aga is not e ligible to receive a visa. Be cause he i s not eligibl e to receive a visa, it necessarily f ollows that Kibarra is not eligible to receive a visa as his spouse. 17 request for rel ief (t hat th e INS pr ocess Nyaga’s applicati on) as m erely a me ans to the second request f

or reli ef (that

t he Attorn ey G eneral a djust Ny aga’s s tatus and Kibar ra’s status to that of lawful permanent residents). If Nya gais no longer

eligible to receive a diversit y visa, w e conclude

that an ord er requir

ing the IN S to proce ss his applicati on on the m erits – only to have the ir adjus tment

applicati ons denied by

the Attorney General becauseNya gadoes not meet the “e ligible to receive an imm igrant

v isa” requirement of § 1255(a) – would not constitute meaningful relief. Acco rdi ngl y, the questio n o f whe ther the di strict cou rt could pr

ovide m eaningful relief to the Plaint

iffs red uces to a single inquiry : would Ny aga be “ eligible to recei ve

an imm igrant visa ” if the I

NS wer e to proce ss his applic ation on the meri ts and concl ude th at he would

other wisebe ad

mis siblefor l egal perm

anent resi dence ? To answer this question , we m ust interpr et the dive rsity visa statut e, and our analy sis begins with the languag e of the stat ute. Hughes A ircraft Co. v. Jacob son , 525 U.S. 432, 438, 1 19 S. Ct. 755, 760 (1999). “[U ]nless t here is some ambig

uity in the langua ge of a statute, a court’ s analy sis mus t end with t he statute ’s plain language .” Coggin Automotive Corp. v. Comm’r of Internal R evenue , 292 F.3 d 1326,18

1332 (11th Cir. 2002). When w e exam ine the m eaning of s tatutory words or p hrases, however, we canno t exam ine statuto ry provis ion s in isol ation. FDA v . Brown & Williamson Tobacco Corp. , 529 U. S. 120, 1 32, 120 S. Ct. 1291, 1300-01 (2000). “It is a fundam

ental can on of statut ory co nstruction t hat the wo rds of a st atute m ust be read in their context an d with

a view to the ir place in t he overall statuto ry scheme.” Davis v. Mic h. Dep’ t of Treas. , 489 U. S. 803, 8 09, 109 S. Ct. 1500, 1504 (1989). Nyag a and Kibarra have asked the Attor ney G eneral to adjust th eir status to that of a law ful perm

anent res ident pursua

nt to 8 U.S.C. § 1255(a). Section 1255(a) states: The st atu s o f an ali en w ho was in sp ect ed a nd admi tted or paroled in

to the United Stat es may be adjusted by the Att orney Ge neral, i n his discretio n and under such regulations as he may prescribe, to that of an alien lawful ly admitted for per manent residence if (1) the alien m akes an applicati on for

such adjustm

ent, (2) the alien is eligible to receive an imm i grant visa and is adm

issible to th e United S tates for perm anent residence, and (3) an im

migra nt visa is im

media tely a vailable t o him

at the tim e his applic ation is fil ed. 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 recei ve an immigrant vis a.” But 8 U.S.C. § 1154(a) (1)(I) (ii)(II ), a pro vision that r elates to t

he procedu

res for filing peti tions pursua

nt to the diversity visa progra m, s tates in f

ull: Aliens who qualif

y, thr ough random

selection, for a

visa under

section 1153(c) of this titl e [the diversity visa pro gra m] shall remai

n eligible t

o19

receive s uch visa only through the end of the specific fiscal year f o r which the y we re selec ted. 8 U.S.C. § 1154(a)(1)(I)(ii)(II) (em phasis added). If this section, when proper l y int erprete d, means that Ny aga is no longer eligible to receive an immigran t vis a because fiscal year 1998 has ended, th en the Attorney General lacks the

power to adjust Nya ga’s sta

tus under § 1 255( a). Th erefore , the re solution of th e moot ness issue hinges upon th is court’ s interpre tation of th e phrase “ shall rem ain eligibl e to receive such visa” in § 1154(a)(1)(I)(ii)(II). We agree w ith the De fendants that the phrase “shal l rem ain eligibl e to rece ive such visa” plainly

mea ns that aliens, like N

yaga, who have been randomly selec ted to qualify for a visa under the diversity visa p r ogram cannot be issued a visa after midnigh t of the fin al day

of the fis cal y ear for

which they were selected . As of midnigh t on Septem

be r 30, 199 8, Nyaga was no longer eligible to receive an imm igrant visa. The INS’ s failure

to process Nya ga’s ap plication do es not exte nd Nyaga’s statutoril

y-lim ited perio d of eligibi lity f or a diver sity vis a. “ Eligible to receive such visa”is unam

biguous, an d becausethe phra se is unam biguous, our inquirymust endwith t he st atut e’s plain language. In reaching this conclusion based

on the statu te’s plain meanin g, we are not alon e. See Iddir v. INS , 301 F.3 d 492, 500- 01 (7th Cir. 2002) (concluding that even if t he INS wer e to adju dicate applications7 The Plaintiffs c ite cases that, w hile argua

bly dist inguishablefrom

this case, c ould be rea d to support th e propositio n that the I NS can i ssue visas a fter the fiscal year has en ded. Paunescu v. INS , 76 F. Supp. 2d 896, 903 (N.D. Ill. 1999); Marcetic v. INS

, unpubli shed at __ (N.D. Ill. Apr. 6, 1998 ). 20 after the fiscal yea

r ended, visas could not be issued); id. at 502 (Fla um, J., concurring) (concludin g that the pl aintiffs are no lo n ger eligible to receive visas); Fornalik v. Per ryman , 223 F.3 d 523, 526 (7th Cir. 2000 ); Vladagina v . Ashcro ft , unpublished at__ (S.D.N.Y. Apr. 8, 2002); Iddir v. INS , 166 F. S upp. 2d 1250, 1259 (N.D. Ill. 2001) (holding that “[t]he end of fiscal year 1998 was Septem

ber 30, 199 8, which means that plaintiffs are no longer el igi ble to recei ve visas” ), aff’d on other grounds , 301 F.3d 492 (7th Cir. 20 02); Zapata v. INS , 93 F. S upp. 2d 355, 358 (S.D.N.Y. 2000) (“ The plain m eaning of § 1154 is that after the fiscal year has ended

on Septem

ber 30, no diversity

visas may

be issued nunc pro tunc

based on the

results of the previo us fiscal y

ear’s visa lotter

y.”) ; Diallo v. Reno , 61 F. Supp. 2d 1361, 1368 (N.D. Ga. 1999). 7 The Plainti ffs cont end that w hen the phra se “s hall rem ain eligibl e to rece ive such visa” is c onstrued in l ight of its context , the phra se actual ly means “ shall rem ain eligible to apply for

such visa.” The Plaintiffs rel y on t he fact t

hat § 1154(a)(1)(I)(ii)(II) sets fort h the proce dur e for

applying for a div ersity visa; the Plaintiffs contend tha

t when this section is r

ead a s a whol e, it is clear that a lottery8 The Plaintiffs also argue that our interpretation of §

1154(a)(1)(I)(ii)(II) underm ines Congress’s intent. The Plaintiffs present three arguments related to congressional intent: (1) Congress could not have intended for an al ien to lose v isa eligibi lity due solely to the IN S’s ina ction; (2) Congress authorize d the Secr

etary of State to establis h a proces sing fee th at will allow the State D epartment to rec over the c osts of proc essing all diversity visa applic ations; and (3) Co ngress’ s enactm ent of § 1153( c)(1)(E )(iv), which per mits t he redistrib ution of visa

numbe rs am ong regions, reflec ts Congress ’s inten t that all 55,000 av ailable vi sas be iss ued. While we rest our decision upon the plain meaning of § 1154(a)(1)(I)(ii)( II), it is not at all clear

that our und erstanding

of the plai

n mea ning of the s tatute underm ines Congre ss’s intent. As w e noted abov e, § 1154(a )(1)(I )(ii)(I I) brings closure to each fiscal year’ s diversity visa program by declaring that lottery 21 winner “has until the en d of the fi scal y ear to b e eligible to apply for such visa.” (Pls.’ Br. at 2 9.) W e disagre e. Alth ough § 1154(a) (1)(I) establishe s the proce dur e for submit ting a diver sity vis a petition, there is n othing in this sectio n, when r

ead in its entirety , that l eads us to be lieve that the phrase

“shal l rem ain eligibl e to rece ive such visa” actually

mea ns “shall rem ain eligibl e to apply for such vi sa.” A lthou g h the Plaintiffs argue that

this sectio n necessa

rily w as intended

to establis h adeadline for submit ting a visa a

pplication, we belie ve that it i s just a s likely thatCongress intended to place a

n ultim ate deadline o n visa eligibility

in order t o bring closu

re to each fisca l year’s diversity visa program. We con clude that even whe n the phras e “shal l remain eligible to receive s u ch visa” is read within the context of the entire procedural framework established in § 1154(a)(1)( I), the plain m eaning of “ shall

rema in eligible to receive

such visa”does not cha

nge, nor i s it render

ed am biguous. 8winners a

re no longer

eligible to receive

a visa af ter midnight on the

last day of the fiscal year for

which the y we re selec ted. Ev en if Congr ess intende d for all applicati ons to be proc essed and all authoriz ed visas to b e issued, and even if Cong ress d id no t int end fo r lott ery winn ers to lose their eligi bili ty due t o the INS’s inaction, it does not necessarily follow that Congress did not intend to establish an ultima te deadlin e for theissuance o f visas under each f iscal y ear’s diversity

visa program. Congress’s prior legislative enactments related to the diversity visa program demons trate tha

t our under standing of t

he statute ’s plain

mea ning confor

ms to Congress’ s understan ding of the s tatute. In 1996, Co ngress pass ed legisla tion which per

mitte d Fiscal Y ear 1995 D iversity Visa Pr ogram applicant s from

Poland to receive diversity visas from the fiscal year 1997 visa numbers. Illegal Immigration Reform and Immigrant Res ponsib ility Act of 199 6, § 637, Pub . L. 104-208, 110 Stat. 3009. In 1998, Congress enacted ameliorative legislation that authorize d Fiscal Y ear 1998 D iversity Visa Pr ogram applicant s from

Keny a and Tanzani a (whose

visa inter views coul d not be condu cted on tim e because the United States embassy

in Kenya had been bombed) to receive visas from the fiscal year 1999 visa num

bers. A ct of Nove mber

10, 1998, § 1, Pub. L . 105-360, 112 Stat. 3276. While neither situation involved the INS’s failure to process a lottery winner’ s applicat

ion, this di stinction is irrelev ant; Congre ss’s ac tion clear ly 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 unissu ed visa nu mbers remaining from the rel evant fisc al year. Additionally, because we conclude that the statute’s plain m eaning is clear, we need n ot address the Defendants’ a rgume nt that we must a ccord Chevron deferen ce to Sta

te Depar tment regulatio ns that inte rpret § 115 4(a)(1) (I)(ii) (II) in a manner that re nders appli cants no long er eligibl e to rece ive visas a fter the applicable

fiscal year has ended. 22 Becausewe concl

ude that N

yaga i s n o longer el igible to re ceive a vi sa, the district court coul d not provide mea ningful relief to the Plain tiffs and the court was compelled

to dismiss this case as moot. In instructing the district court to dismiss on mootne ss grounds, w e join seve ral other

courts tha

t have addressed sim

ilar cas es.9 Nyag a and Kiba rra m ay onc e again subm it petitions to enter t

he diversity visa program lot

tery with the ho pes that one of them will be se lected an d that this tim

e, unlikethe last, the Def endants wi ll process and adjud icate the ir applications before the fiscal year ends. They may also petition Congress for a private bi ll of relief. See, e. g. , H.R . 509, 108t h Cong. (20 03) (“ For the relief of Lindita I drizi He ath”); 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. S upp. 2d at 1260 (concludin g that the c ase should be dismis sed as moot because “[a ]ny order by this court compelling th e INS to adjudic ate plaint iffs’ applicati ons would be a futile act”); Zapata , 93 F. Supp. 2d at 358 (concluding that the court could not provide effectual relief to the plain

tiffs bec ause fisc al ye ar 1998 had ended and fiscal year 1998 visas could not be issue d “to a

nyone” ); see also Id

dir , 301 F.3d at

5 02 (Flaum, J., concurring) (departing from the m ajority

and stating

that the c ase is m

oot 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 m idnight on Septem

ber 30, 199 8. Therefore, Nyag a is not “eligible to receive an im migrant 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

consequenc e, the dis trict cour t could not pr

ovide mea

ningful re lief to24

the Plaintif

fs, and sh ould have dis misse d the action as moot. W e vacate the district court ’s order and

rem and the ac tion with in structions that the d istrict c ourt dism iss the action as mo ot. VACA TED AND REMAN DED WIT H INSTRUCT IONS TO DI SMISS A S MOOT.1 In Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) ( en

banc ), the E leventh Circuit adopt ed as binding precede nt all Fif

th Circuit decisions handed dow

n prior to th e close of

business on S eptem

ber 30, 198 1. 25 BARKE TT, C ircuit Judge , dissenting: I would affirm

the distric t court’ s grant of m andam us ordering

the Imm igration and Natural ization Service (“ INS”) to do that w hich was r

equired of

it by C ongress: process Nyaga’s application for a diversity imm igrant visa. See Ar

mstro ng v. Mar

tin Mar ietta Corp. , 138 F.3d 1374, 1378 (11th Cir. 1998) ( en banc ) (recogni zing that th e writ of mandam

us is an appropriate remedy to correct the failure to carr y out a minist erial ta sk) (citing In re Es telle , 516 F.2d 480, 483 (5th Cir. 1975)). 1 The INS tak es the position that it is f ree to com

pletely disregar d a Congre ssional directi ve . This view is pro blema

tic inthe abstract, to say the least, but in this case the INS ’ stance renders nugatory an entire section of the Imm igration and Nationality Act (“INA”). See 8 U.S.C. § 1153( c). Section 1153(c) of

the INA is com prised of t

hree subse ctions that , together , establish the diversit y immigrant visa progra m. As the m ajority notes, the

diversity visa progra m is d esigned to pr ovide perm

anent res idence visa s to individuals from countries with histor

ically low rate s of im

migra tion to the Unite d States. In the first subsection

of § 1153(c ), entitled “ In Gener al,” Con gress de ta ils the bulk o f the2 The other two subsections of § 1153 are short, and of little relevanc e to Nyag a’s claims.

Speci fical ly, § 115 3(c)(2 ) is an eligi bili ty provis ion t hat di ctate s alie ns mu st hav e at le ast a h igh school education and two years of work experience “in an occ upation 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 “ adjustm

ent of stat us” is a pro cedure f

or becom ing an “ alien law fully admitted for permanent residence.” See 8 U.S. C. § 1255(a ). It a llows res ident aliens to remain in the United States during the application process rather than req uir ing the m to le ave the cou ntr y in o rde r to app ly. 26 pro gra m. 2 See id. In the introductory paragraph to § 1153(c)(1), Congress states that “[e ]xcept as provide d in paragr

aph (2), aliens subject to the worldwide level specified in sec ti on 11 51 (e) of t hi s t it le f or d iv ers it y immi grants shall be allotted visas each fiscal year

as follows . . . .” Id. (emphasis added). Al though t he Depar

tment of State generall y adm inisters th e diversit

y visa pr og ram, the INS is responsi ble for a djudicat

ing and issuin g diversity visas t o applicants who resid e in the United States at the time of their selection. O nce an alien receives notice of h is selecti on in the dive rsity visa program, he is eligi

ble to apply for an adj ustme nt to perm anent res ident statu s. 3 See 8 U.S.C. § 1255. To rece ive a status adjustm

ent, the a lien m ust me et three criteri a: 1) the a pplicant m

ust apply for the adjustm

ent; 2) the

applicant must be statutoril y eligi bl e for th e adjust

ment; and 3) th e INS m

ust have a v isa num

ber avail able whe n the alien ’s appli cation i s approved. See § 1255(a). While the u ltimate decis ion wh ether to adj ust a n alie n’s status is discret

ionary , diversi ty visa

applicant s who are selected to partici pate in the4 As part o f the appli cation proc ess, the I NS m ust also interview the applicant and conduct a complete background investigation, including an FBI fingerpr int check, a CIA na

me c heck, an d a recor

ds check thr

ough the Bureau of Consular Affairs in th e applican t’s native co untry. See 22 C.F. R. § 42.6 7; Iddir v. INS , 166 F. Supp. 2d 1250, 1253 (N.D. Ill. 2001). 27 program (the “lott ery winners”) satisfy § 1255(a)’ s criter

ia sim ply by applying for the adjustm ent and me eting § 1153( c)’s e ligibil ity re qui rements. And, as the INS concedes in its brie f, an otherwise e ligible im migra nt 4 who has compl ied with th ese requirem ents would ordina rily face no impe dimen t to a statu s adjustm

ent, save the possibility

that all of the available visas under the diversity program had already been issued to other applica

nts. Through out

§ 1153(c)( 1) Congres s chose to e mploy authorita tive la nguage that affirm atively directs a ction. The term

“shal l” pervad es § 1153(c) . In addit ion to its

use in the introductory

phrase “ diversity

imm igrants shall be allotted visas,” § 115 3 (c)(1), Congress r

epeated t he term eleven tim

es in § 1153(c ), stating that the INS, the Attor

ney G eneral, or the Secret ary of State “ shall” perform

certain functions. See § 1153(c)( 1)(A) ( “[t] he Attorn ey G eneral shall determ ine”), ( B)(i) ( “[t] he Attorney General shall identify

”), (B )(ii) (“ [t]he A

ttorne y General shall identify”), (C ) (“[ t]he Attorney

General shall dete rmine” ), (D) (“[ t]he A ttorney General shall d etermine”), (E)(iv) (“ excess visa numbe rs shall be ma de availa ble”) (e mpha se s added).28

Section 1153(c) also contains clear language directing th e INS to distributeall available diversity imm

igrant visas for a g iven fiscal year. Most n otably, § 1153(c)(1 )(E)( iv) gives th e Secre tary of Statethe follow ing com mand: If the Secr etary

of State estim ates that t

he num ber of im migra nt visas to b e issued to natives in any region for a fiscal year under

this parag

raph is less than the num ber of im

migra nt visas made avail able to suc h natives und er this paragra ph for the fiscal year, subject to clause (v), the excess visa nu mb ers shall be ma de availa

ble to natives (other than natives of a high-admission state) of the other reg ions in propor tion to the percentage s otherwi se specif ied in clauses (i i) and (iii ). § 115 3(c )(1) (E)( iv) (emph asi s ad ded ). By i ts plai n language, § 1153(c)( 1)(E)( iv) directs the Secr

etary of State (and the INS in th e course o f process ing adjustm ent of statu s ap plications) to distribute all available diversity imm igrant visas each year. See id. If the Secretary

determines that the immigra nt visas allocate d to one reg ion will not be fu lly dist

rib uted, the n those visas must be made available to applica

nts from other regio ns. See id. Secti on 11 53(c) (1)(E) (iv)’s clear m andate is t

hat all of the diversity

imm igrant visa s that Congress sets as ide be distr ibuted to eligibl e applican ts (i.e. appl icants who satisfy § 115 3(c)(2)). Eachyear the Departm

ent of State receives several milli on applicat ions for the diversity immig ran t v is a pr og ram. In 1997, N yaga w as one of th ese applic ants and

on July 1, 1997, he received notificat ion of his select ion as one of

the 100,000 lucky5 The com mon re ference

to aliens se lected to a

pply fo r an im

migra nt visa under the diversity

program as “l ottery

winners” is some thing of a m

isnomer: in reality the alien simply

becom es eligible

to apply for a per mane nt visa under

the program. “Winning” alie ns do no t necessari ly receive a visa . Typically, the INS selects aro und 100 ,000 “winners” fo r the 55,00 0 visas th at are availa ble each year. See 8 U.S. C. § 1151(e ). The INS use s this sy stem because i t has found t hat only around one-half of the aliens selected to apply for diversity visas are both qualified to receive t he visa and actually file an applicati on. See Diallo v. Ren o , 61 F. S upp. 2d 1361 , 1363 n.3 (N.D. Ga. 19 99).

6 The Na tional Vis a Center

was esta blished and i s directe d by the Department of State.

7 Nyaga paid an app lication fee of $300 .00. 29 “winners” cho sen to par ti cip ate in th e pr og ram. 5 This notification letter made it clear that Nya ga was not

autom atically

entitled to a visa, bu

t did indicate that he was among the “ 100,000 DV -98 entrie s [that] were randoml y sele cted” to a

pply fo r one of the 55,000 a

vailablevisas. The let ter als o i ns tru cte d Nya ga o f th e ne ces sar y for ms that he mus t file with the National Visa Center 6 and cautio ned him to “c arefully follow these instructions to increase your chances of possible visa issuance.” A subsequent

letter dated Sep tember 26, 1997, inform ed Ny aga that “ the 1998 Div ersity Lottery Program requires a $75.00 d iversity vis a processi ng fee, per per son.” 7 This letter notified Nya ga that, a s an applic ant residing in the Un ited State s, he m ust also apply for an “adjustm

ent of status” directly with the INS, w hich he did. The INS’ “adj ustme ntof status” application required Nyaga to com plete several form s, attach

numer ous suppo rting docum

ents “ including pic tures and [ a] m edical ex amina tion8 Nyaga’s a pplication included a payment to the INS of $1,200.00 which included a $130.00 filing fee fo r his adjust ment of status applicati on (I-485 ), a $1,000.00 “ other fee ,” and a $70.00 fee for his em

ployment authori zation applicati on (I-765 ).

9 This fai lure by

the INS to act wa s not due to th e unavaila bility of diversi ty visas that year. W

hen the fiscal year 1998 ended, more than 3,000 diversity visas were le ft undistri

buted. 30 report,” and pay

a fee of “$130. 00 for appl icants 14 yea rs of age or

older and $ 100.00 for applic ants und er the age of 1 4.” 8 Itis not dispute d that Nyaga proper ly com pleted both t

he dive rsity visa applicati on and the “ adjustm ent of stat us” applica

tion on or be fore Fe

bruary 2, 1998. This left the I

NS just under eight full months to adjudic ate his pet ition before the end of fiscal year 1998. However, other than forwarding his fingerprint cards to the FBI on Februar

y 20, 1 998, the I

NS did not act upon

Nya ga’s pe tition prior

to the end of the fiscal year. 9 Nyaganow quite r easonably argues tha

t, at thevery least, hi s time ly compl etion

of the divers ity visa

program ’s proc edural an dfiscal requirements should have entitled him to an

equally time ly adj udication of

his applica

tion. Ac cording to the INS, this is not so

. Inc red ibl y, the INS re lies upon its own inaction during fisc al ye ar 1998 as t he justific ation

for its cu rrent im potence to issue Nyaga

a visa. Since unde r 8 U.S.C. § 1154(a)(1)(I)(ii)(II) eligibility for the di versity

program is li mi ted to the fiscal year in which the

alien wa s selecte d to partic ipate, th e INS a rgues that its failure t o act10 The IN S generous ly point s out that tho ugh ineligibl e for a 19 98 diversity

visa, Ny aga can reapply

to the progr

am e ach ye ar. As Nya ga mus t literal ly “ win the lotte ry” to regain hi s eligib ility, this is hardly a const ructive su ggestio n.

11 The IN S all but c oncedes thi s point in its b rief, s tating that “Ny aga is arguably entitled to an adjudi cation of h is diversit y visa based adj ustme nt applicati on.” IN S Br. p. 29. 31 upon Nya ga’s ap pl icati on during the 1998 fisca l yea

r render s him st atutorily ineligibleto receive a diversity visa. 10 See § 115 4( a)(1)(I )(ii)(I I). To be clear , the INS failed to adjudicate Nyaga’ s applica tion dur ing the fisc al ye ar in whic h he applied and, base d on this failur e, now c ontends that

Nya ga is no longer eli gible for

a 199 8 diversity

visa. The ma

jority reluctan tly ac cepts this a

rgument and, as a consequ ence, deems Nyaga’s claim for relie f moot under § 1 154(a)(1)( I)(ii)(II). I question the

propriety of this judgm ent becau se, under the m ajority ’s rea ding of the statute, Nya ga faces an intractable conundrum. Ny aga was rendered technica lly

ineligiblefor reli ef under § 1154(a)( 1)(I)( ii)(II) , not due to a ny error of his own, but r

ather as the result

of the IN S’ unila

teral fa ilure to co mply

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

t Congress expected the INS to perform the ministerial duties required by the program (i.e. to assure the distribution of the allotted visas) an d, thus, under § 1153(c), Nyaga wa s entitled to have the INS adjudicate his timel y-fi led divers ity visa applicati on. 11 See Iddir v. INS , 301 F.3d 492, 500 (7 th Cir. 2002 ); Paunescu v

.32

INS , 76 F. Supp. 2d 896, 900 ( N.D. Ill. 1999). Because, in my view, § 1153(c) o f the INA requires th e INS to act on div ersity visa applicati ons, I bel ieve th e distric t court pro perly found that m

andam us is the appropria te remedy to compel the INS to p erform its ministeri al role und er the INA and adjudi cate Nyaga’s applic ation. See Ar mstro ng , 138 F.3 d at 1378.