Przhebelskaya v. United States Bureau of Citizenship & Immigration Services

Citations: 338 F. Supp. 2d 399; 2004 U.S. Dist. LEXIS 20041; 2004 WL 2252086Docket: No. 03 CV 3303(NG)

Court: District Court, E.D. New York; September 30, 2004; Federal District Court

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Plaintiffs, Marianna Przhebelskaya and her family, sought lawful permanent residency after Marianna won the diversity visa lottery in 2003. Following the denial of their adjustment of status applications, plaintiffs filed for mandamus relief. Although defendants reopened the cases, they delayed action, leading to a court order compelling timely adjudication. As the statutory deadline neared, defendants failed to process the applications before the allocation of 2003 visas was exhausted. Consequently, while a visa was ultimately issued to Marianna, her relatives, Vladimyr and Yevgenia, were unable to secure lawful permanent resident status. The plaintiffs now request the court to hold defendants in contempt and compel the adjustment of Vladimyr and Yevgenia's status. The court granted the motion to compel.

The diversity visa program allows eligible individuals from countries with low immigration rates to apply for visas through a lottery system, established by the Immigration Act of 1990. The program randomly selects around 100,000 individuals annually; however, only 55,000 visas are issued, with 5,000 reserved for specific cases. Derivative applications from spouses and children depend on the primary applicant's success, but winning the lottery does not guarantee a visa. The system is competitive, often resulting in more winners than available visas.

The Department of State oversees the DV Lottery, while the United States Citizenship and Immigration Services (USCIS) adjudicates diversity visa applications for applicants residing in the U.S. at the time of selection. To secure a diversity visa, lottery winners must navigate a stringent application process, which includes completing various forms, fingerprinting, an interview, and background checks by the FBI and CIA. Failure to receive a visa by the end of the fiscal year results in the expiration of the lottery ticket.

Marianna Przhebelskaya was selected as a DV Lottery winner in fiscal year 2003 and submitted her application on April 14, 2003, alongside derivative applications from her husband and daughter. The Agency denied her application on April 24, 2003, and her motion for reconsideration on May 8, 2003, leading to the denial of the derivative applications. After the plaintiffs filed for mandamus relief on July 8, 2003, the Agency reopened their cases. By September 24, 2003, just days before the end of the fiscal year, the Agency had not adjudicated the applications due to an incomplete FBI background check for Marianna, despite the applications being otherwise complete.

The court ordered the Agency to finalize the adjudication by September 30, 2003. After a delay, the FBI completed Marianna’s background check on September 26, 2003. However, on the same day, the Temporary Supervisory District Adjudications Officer, responsible for the applications, found that Marianna’s file lacked proof of a completed background check. He did not obtain this proof until late on September 26 and concluded the applications should be granted but postponed completing the necessary adjudication paperwork until the following Monday.

On September 29, 2003, the Department of State issued a memorandum stating that all 50,000 Diversity Visa (DV) numbers for the DV-2003 program had been allocated, and any applications not authorized by 10:00 am (EDT) that day would not be processed. Following this, a Supervisor conducted a nationwide search for returned diversity visas from fiscal 2003 and managed to grant Marianna’s application using one such visa on September 30, 2004. Applications for Vladimyr and Yevgenia were held open until October 27, 2003, exceeding the statutory deadline, after which the Supervisor denied their applications, citing the unavailability of additional visa numbers. 

On February 6, 2004, the plaintiffs filed a motion seeking to hold the defendants in contempt of a previous court order and to compel the adjustment of Vladimyr and Yevgenia’s statuses to lawful permanent residents. The court has original jurisdiction under 28 U.S.C. § 1361 to compel federal officials to perform duties owed to plaintiffs. It emphasized that the Agency has an absolute duty to adjudicate applications for status adjustment based on eligibility for diversity visas, regardless of statutory deadlines or quotas. Allowing delays in adjudication would undermine the court's authority, as highlighted in related case law, including Iddir v. INS and Paunescu v. INS, where courts mandated timely adjudication despite procedural delays caused by the Agency.

The court characterized the plaintiffs' situation as a "bureaucratic nightmare," concluding that the Agency's failure to fulfill a non-discretionary duty within a reasonable timeframe resulted in the plaintiffs being deprived of their visas. Consequently, the court ordered the Agency to provide the plaintiffs with all relief they would have received had their applications been processed on time. This decision drew upon precedents, specifically Marcetic v. Immigration and Naturalization Service, where the court compelled the Agency to adjust the plaintiff's status to lawful permanent resident due to a ministerial error on the Agency's part, asserting that a plaintiff should not suffer adverse consequences due to such errors.

The Court of Appeals for the Seventh Circuit supported the outcomes of both Paunescu and Marcetic in Iddir v. Immigration and Naturalization Service. While noting that courts generally cannot compel the issuance of a diversity visa after the Agency's authority has lapsed, the court distinguished cases with prior court orders that required the Agency to adjudicate applications. It emphasized that had the district court ordered the Agency to act within its statutory authority, the Agency would be compelled to comply before the deadline.

The court referenced that both the majority and concurring opinions in Iddir acknowledged the case would differ had it been filed before the end of the visa year. Similarly, the Third Circuit in Coraggioso v. Ashcroft noted its inability to act after the fiscal year's end but indicated that relief might have been possible had the action been initiated earlier. In the current instance, the court intervened and granted relief before the end of fiscal 2003, ordering the defendants to adjudicate the plaintiffs’ applications by September 30, 2003. This order was deemed a valid exercise of the court’s mandamus jurisdiction due to the Agency's clear, non-discretionary duty to decide on the applications within a reasonable timeframe, consistent with statutory and regulatory obligations.

Defendants claim that the September 24, 2003 Order pertains solely to Marianna’s application, with their counsel asserting a misunderstanding of the case's scope. However, the court's Order explicitly grants relief for all three plaintiffs, as their applications were collectively addressed both in submissions and during the conference. Although the conference concentrated on Marianna's FBI background check, this was due to defendants indicating that her check was the only obstacle to processing all applications. Vladimyr and Yevgenia submitted complete diversity visa applications on time in fiscal year 2003, but the Agency's processing delays led to their denial.

A declaration from the Supervisor indicates that the plaintiffs’ cases were not ready for final adjudication until September 26, 2003, but they were actually ready that Friday morning after Marianna’s background check was completed. The Supervisor's lack of familiarity with the case contributed to an unreasonable delay in processing. The Assistant United States Attorney confirmed that the FBI check was completed by the morning of September 26, yet the Supervisor postponed adjudication until September 29, causing further delays. 

Due to these bureaucratic delays, which were deemed unreasonable given the limited availability of diversity visas, the court concluded that the Agency failed to fulfill its non-discretionary duty and deprived the plaintiffs of their visas. Consequently, the court orders defendants to grant Vladimyr and Yevgenia lawful permanent resident status under Section 245(a) of the INA. The court also addresses a motion for contempt but decides against ruling on it since the relief sought is identical to that of the motion to compel. Plaintiffs are permitted to renew their contempt motion if defendants do not comply with this Order.

Plaintiffs' motion to compel is granted, directing defendants to promptly adjust Vladimyr and Yevgenia Przhebelskaya’s status to lawful permanent residents. The case is ordered closed. Under Section 245(a) of the Immigration and Naturalization Act, the Attorney General may adjust an alien's status if an application is made, the alien is eligible for an immigrant visa, and one is available at the time of application. Diversity visas are allocated based on geographic region and immigration rates, with restrictions on countries exceeding 50,000 immigrants in the past five years. The INS was dissolved in 2003, with its functions transferred to the Department of Homeland Security and later to the USCIS.

Regulations state that an immigrant visa number must be returned for reallocation if certain conditions are met, including exclusion or failure to apply for admission before the visa expires. Defendants claimed limited court authority due to the fiscal year ending, but the court emphasized that they cannot avoid compliance by citing visa unavailability. Previous cases cited by defendants are not applicable, as they involved circumstances where the Agency lacked authority to issue visas, unlike the current situation where a court order exists while the Agency retains such authority.

The court maintained jurisdiction over Paunescu's case to enforce a preliminary injunction that the INS had ignored. Conversely, Lavelle did not file her complaint until February 2004, after the end of fiscal year 2003. The Supervisor declared no knowledge that all 50,000 diversity visa numbers would be exhausted before September 30, 2003. Despite this, the defendants should have recognized the likelihood of all visas being issued by year's end. During a September 24, 2003, hearing, the Agency's counsel indicated that the number of diversity visas issued is typically close to 50,000 annually and noted that they occasionally run out of visas. The AUSA further explained that both the Department of State and the Agency actively strive to utilize all available visas, which is why they notify twice as many applicants.