01-3799, 01-3802 Iddir, et al. v. INS

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“Congress gave the Attorney General, and thereby his delegatee the INS, the power to administer the DV Program and the duty to adjudicate the applications of the participants. See 8 U.S.C. § 1153(c); 8 U.S.C. § 1154(a)(1)(I); 22 C.F.R. § 42.33. The relevant statutes and regulations confirm that the INS did have the duty to adjudicate the appellants’ applications in a reasonable period of time. See Nyaga, 186 F. Supp. 2d at 1252-53; Iddir, 166 F. Supp. 2d at 1258; Paunescu, 76 F. Supp. 2d at 900-01. The reason the appellants are before this court is because the INS never managed to fulfill the duty Congress placed upon it. Nevertheless, the relief the appellants currently seek is illusory, because even if the INS adjudicated the applications today, visas could not be issued. See Iddir, 166 F. Supp. 2d at 1259. Despite past practices of the agency, the statute unequivocally states that the applicants only remain eligible ‘through the end of the specific fiscal year for which they were selected.’ 8 U.S.C. § 1154(a)(1)(I)(ii); 8 U.S.C. § 1153(c)(1); 22 C.F.R. § 42.43(e). Based on the statutory deadline set by Congress, the INS lacks the statutory authority to award the relief sought by the plaintiffs. Thus, here the mandamus remedy is not appropriate because one of the conditions for such extraordinary relief-the clear duty to adjudicate the petitions-is not present.

“The INS points out that a number of avenues for the appellants to gain citizenship remain. That other potential methods of relief exist is beside the point and does not mitigate and cannot countenance the INS’ misfeasance in this case. ‘This Court has frequently articulated the “great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided.”‘ Brock v. Pierce County, 476 U.S. 253, 260 (1986) (quoting United States v. Nashville, C. & St. L.R. Co., 118 U.S. 120, 125 (1886)). Indeed, the appellants may all, once again, apply for DV Program visas, win the lottery, and hope their applications will actually be adjudicated by the INS before the statutory deadline passes. The appellants may also petition Congress for a private bill, which would direct the INS to grant them the relief they seek. See, e.g., H.R. 4863, 107th Cong. (2002) (‘For the relief of Rodney Allan Green and Wendy Sharon Green’); H.R. 4829, 107th Cong. (2002) (‘For the relief of Olivera Goronja’); H.R. 4713, 107th Cong. (2002) (‘For the relief of Laura Maldonado Caetani’); S. 2472, 107th Cong. (2002) (‘For the relief of Rosemary Bichage’).”

Affirmed.

Appeals from the United States District Court for the Northern District of Illinois, Gottschall, J. & Guzman, J., Bauer, J.