Ahmed, Farah N. v. DHS ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1467
FARAH NAZ AHMED,
Plaintiff-Appellant,
v.
DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 6542—Ronald A. Guzmán, Judge.
____________
ARGUED NOVEMBER 14, 2002—DECIDED MAY 9, 2003
____________
Before RIPPLE, ROVNER, and DIANE P. WOOD, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. Farah Ahmed, a native
and resident of Pakistan, thought that she had secured
the right to live in the United States when she “won” the
diversity visa lottery, which is a program that seeks to
encourage immigration to the United States from cer-
tain underrepresented countries. But, as we explain
below, “winning” the lottery meant only winning a chance
to secure a visa, and that chance had an expiration date
and time. Unfortunately for Ahmed, bureaucratic delays
and difficulties beyond her control prevented her from
completing her application before that expiration date. She
2 No. 02-1467
brought an action under the mandamus statute, 28 U.S.C.
§ 1361, and under the Administrative Procedure Act (APA),
5 U.S.C. §§ 701-06, seeking to compel the federal govern-
ment to process her application for a visa.1 The district
court dismissed both claims for lack of subject-matter
jurisdiction. Because we can find no meaningful distinc-
tion between Ahmed’s case and our recent decision in
Iddir v. INS, 301 F.3d 492 (7th Cir. 2002), we agree that
dismissal was the proper outcome, although not be-
cause the court lacked subject-matter jurisdiction to
adjudicate the claims.
I
The sequence of events that led up to Ahmed’s lawsuit
bears an unfortunate resemblance to the experience in
the past of recipients of large envelopes from organiza-
tions like Publishers Clearinghouse announcing in huge
letters that the person is ALREADY A WINNER, but
containing a disclaimer buried in the middle of the packet
that explains that the only thing that has been won is a
chance at the big prize. Ahmed, who at all relevant times
has lived in Pakistan, was told in March 1998 that she
was among those randomly selected for further consider-
ation for the fiscal year 1999 diversity visa program. The
letter she received began with the word “Congratulations!”
Congress established the diversity visa program as a
way of encouraging immigration to the United States from
1
The original lead respondent was the Immigration and Nat-
uralization Service (INS). On March 1, 2003, however, the INS
ceased to exist as an independent agency under the umbrella of
the U.S. Department of Justice, and its functions were transferred
to the new Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25,
2002). We have changed the caption of this case accordingly.
No. 02-1467 3
countries with historically low rates, by making perman-
ent residence visas available to eligible applicants. See
8 U.S.C. § 1153(c). The opportunity to secure a diver-
sity visa lasts for only one fiscal year. Id. §§ 1151(a)(3),
1153(c)(1), 1154 (a)(1)(I)(ii). This meant, in Ahmed’s case,
that she had to complete the application process and ob-
tain her visa before September 30, 1999.
Six months before the deadline, the National Visa Center
informed Ahmed that her application would be processed
through the United States Embassy in Islamabad, Paki-
stan, and that she should go to the embassy on May 26
for an interview. The month before the interview, how-
ever, Ahmed gave birth to a baby girl. She informed the
officials at the embassy that she wanted to include her
newborn daughter as a derivative dependent on her ap-
plication. Two days before the interview, Ahmed sent
a letter to the embassy by express mail asking to resched-
ule the interview, because she had not yet been able
to gather together all the documents she needed, includ-
ing a birth certificate for her daughter.
This request was greeted with silence from the embassy.
After waiting for a response for many weeks, Ahmed
traveled in August to the embassy, where an official told
her to go home and await further word. She obeyed. But,
by early September she had still heard nothing. She wrote
again to the embassy and also to the U.S. Ambassador
on September 13, asking again for a new interview date.
Four days later, she returned in person to the embassy.
There she saw a sign announcing that the “[diversity
visa] program is finished” and that “no further inter-
views will be held.” At that point, unbeknownst to her,
she made a fatal mistake by not arranging immediately
for a lawsuit to be brought on her behalf in the United
States prior to September 30. Instead, she went back
home, where she eventually received a “tough luck” form
letter from the embassy explaining that the diversity
4 No. 02-1467
visa program is a “finite program” that ends every year
on September 30, and that her chance for a visa was
thus dead.
Almost two years later, Ahmed filed this action in the
Northern District of Illinois seeking to compel the gov-
ernment to process her application. The court decided
the case on the basis of a joint statement of stipulated
facts. As it had done in an earlier case, it decided that
there was no subject-matter jurisdiction over her claim
and it dismissed on that basis.
II
A
Before addressing the merits of Ahmed’s claim, we
must address the question whether the district court
had subject-matter jurisdiction over her case. No one
has suggested that her APA claim seeking to compel a fed-
eral agency—the INS, she claimed, even though it would
have been more accurate to identify the State Depart-
ment (of which the U.S. Embassy in Islamabad is a
part)—did not fall under the general federal-question
jurisdiction conferred in 28 U.S.C. § 1331. It is the manda-
mus claim that gives rise to more questions.
The district court thought that because Ahmed had not
shown that she was entitled to mandamus relief, it
did not have subject-matter jurisdiction over her claim.
It cited several reasons for this holding: first, it noted
that consular visa determinations are discretionary and
not subject to judicial review under 8 U.S.C. § 1252(a)(2)-
(B)(i) (barring review of adjustment-of-status determina-
tions); second, it thought that mandamus was unavail-
able because Ahmed had the right to renew a request
for adjustment of status upon the commencement of
removal proceedings, and third, it noted that her request
No. 02-1467 5
for relief was barred because the INS did not have the
power to grant relief because of the expiration of that
year’s program. Each of these reasons has its problems,
as we explain briefly below.
As the government concedes, the statute on which the
district court relied first, 8 U.S.C. § 1252(a)(2)(B)(i), has
no bearing whatever on Ahmed’s case, for the simple rea-
son that she was not in the United States at the rele-
vant time and thus could not possibly have received an
adjustment of status. The court’s second reason was
also based on the mistaken assumption that Ahmed was
in this country and had remedies available that would pre-
vent her removal. We thus put those two reasons aside
for now, and focus on the third point made by the court:
whether mandamus was unavailable because no effec-
tive relief could be granted. (We return briefly at the
end of this opinion to the government’s argument that
the action of the Embassy in Islamabad was unreview-
able on other grounds.)
Our earlier decisions have not been entirely clear on the
question whether an inability to grant effective relief
goes to the court’s subject-matter jurisdiction under the
mandamus statute or if it addresses merely whether the
party should prevail on her petition. See, e.g., City of
Milwaukee v. Saxbe, 546 F.2d 693, 700 (7th Cir. 1976)
(referring to the “merger” of the questions of jurisdiction
and failure to state a claim in the mandamus context), cited
in Cook v. Arentzen, 582 F.2d 870, 877 (4th Cir. 1978)
(explaining that the “jurisdiction spoken of in [City of
Milwaukee v. Saxbe] refers to the power of any court to
grant the relief prayed for,” as opposed to “that of a fed-
eral court to entertain a question authorized by statute”).
Language in our later decision in Iddir points both ways.
In our view, it is necessary to distinguish between the
court’s power to adjudicate the petition and the court’s
6 No. 02-1467
authority to grant relief. Only the former necessarily
implicates the subject-matter jurisdiction of the court; the
latter will depend on whether the statute on which the
plaintiff is relying imposes a clear duty on the officer
or employee of the United States. See 13th Reg’l Corp. v.
U.S. Dep’t of Interior, 654 F.2d 758, 760 (D.C. Cir. 1980)
(“The requirement that a duty be ‘clearly defined’ to
warrant issuance of a writ does not rule out mandamus
actions in situations where the interpretation of the
controlling statute is in doubt.”). See also Am. Cetacean
Soc’y v. Baldrige, 768 F.2d 426, 433 (D.C. Cir. 1985), rev’d
on other grounds by Japan Whaling Ass’n v. Am. Cetacean
Soc’y, 478 U.S. 221 (1986). This is not to say that there
is no jurisdictional dimension here; it is only to indicate
that the usual standards announced in Bell v. Hood, 327
U.S. 678 (1946) apply. The Tenth Circuit recognized
as much in Carpet, Linoleum & Resilient Tile Layers,
Local Union No. 419 v. Brown, 656 F.2d 564 (10th Cir.
1981), in which it said:
In resolving whether section 1361 jurisdiction is pres-
ent, allegations of the complaint, unless patently
frivolous, are taken as true to avoid tackling the
merits under the ruse of assessing jurisdiction.
Id. at 567 (internal quotations omitted). Unfortunately,
just after saying that, the court went on to say “[t]he test
for jurisdiction is whether mandamus would be an ap-
propriate means of relief.” Id. (internal quotations omit-
ted). To complicate matters more, the Fourth Circuit
appears to have followed the former statement from Carpet,
Linoleum in cases such as First Fed. Sav. & Loan Ass’n
v. Baker, 860 F.2d 135, 140 (4th Cir. 1988), and Michael
v. Lullo, 173 F.3d 503, 505 n.3 (4th Cir. 1999), without
mentioning any inconsistency in the Tenth Circuit’s
position.
Other courts have given comparably conflicting signals
in this complex area. The Sixth Circuit, for example, was
No. 02-1467 7
not entirely clear in Coal Operators & Assocs., Inc. v.
Babbitt, 291 F.3d 912 (6th Cir. 2002), whether it was
following a strict jurisdictional approach or a merits
approach. It announced, however, that “[f]or jurisdic-
tional purposes it is not necessary that the duty be clear
before the analysis begins; in other words, we take juris-
diction to determine whether there is a duty owed.” Id.
at 915 (internal quotations omitted).
We agree with the Coal Operators court that unless
the claim is so frivolous that it fails the Bell v. Hood test,
the district court has jurisdiction under § 1361 to deter-
mine whether the prerequisites for mandamus relief
have been satisfied: does the plaintiff have a clear right
to the relief sought; does the defendant have a duty
to perform the act in question; and is there no other
adequate remedy available. See Iddir, 301 F.3d at 499. A
conclusion that any one of those prerequisites is missing
should lead the district court to deny the petition, not
because it now realizes that it had no power to be think-
ing about the case in the first place, but because the
plaintiff has not demonstrated an entitlement to this
form of extraordinary relief.
B
We are satisfied that Ahmed’s claim is plausible enough
to engage the court’s jurisdiction; we therefore turn to
the question whether the district court reached the
correct result on her request for relief. We conclude that
she cannot prevail, because the differences between her
situation and the one we faced in Iddir do not affect
the fundamental basis of our earlier case.
Because Iddir is so central here, we begin with a brief
description of its holding. In that case, which actually
presented the consolidated appeals of a number of im-
migration lottery “winners,” many of the appellants were
8 No. 02-1467
frustrated by bureaucratic delays within the INS, just
as Ahmed was frustrated by her experience at the Embassy
in Islamabad. They filled out all the forms they were
given, but sheer inaction on the part of the INS resulted
in the agency’s failure to make a decision before the visa
year expired. Indeed, again as in Ahmed’s case, the sit-
uation was even worse. The INS specifically told appli-
cants for the visas not to contact the agency, because
doing so would only lead to further delays. It rendered
this advice while at the same time it was doing nothing
at all to process the applications. The applicants sought
writs of mandamus in the district court; their petitions
were denied. 301 F.3d at 493-95.
This court held that 8 U.S.C. § 1252(a)(2)(B) did not
bar appellate review, because that statute applies only
if there has been an actual discretionary decision
either to grant or to deny the visa. Id. at 497-98. The
problem in these cases was that no decision of any kind
had been rendered. We also held that the applicants had
met whatever exhaustion of remedies requirement exists
under the statute. Nevertheless, the majority, reaching
the merits of the mandamus petition, held (1) that the
applicants had a clear right to have their cases adjudi-
cated, (2) that the INS had a duty to adjudicate the ap-
plications in a reasonable period of time, but (3) that
mandamus had to be denied because the expiration of the
time for issuing the visas meant that the agency was
powerless to implement any relief. Chief Judge Flaum
concurred. He agreed that there was no statutory bar
to jurisdiction and that there was no fatal failure to ex-
haust, because of the futility of any further administra-
tive appeal. He would have found that the cases had be-
come moot after the end of the fiscal year, and would
have affirmed the dismissal on that basis. Id. at 502. Both
the majority and the concurring opinion recognized that
the case would have been different if it had been filed be-
No. 02-1467 9
fore the end of the visa year, while the INS still had
statutory authority to issue the visa, and if the district
court had acted within that time period. Id. at 501 n.2, 502.
As our account of the facts above makes clear, Ahmed
did not file any action in the district court until long
after the time for issuing the 1999 diversity visas had
expired. Just as in Iddir, therefore, the district court had
no choice but to deny her petition for a writ of mandamus,
because any relief ordered by the court could not be im-
plemented without violating the substantive limitations
of the statute creating the diversity visa program. The
fact that Ahmed was a person living abroad seeking
such a visa, and the parties in Iddir appear to have been
in the United States on other grounds, is immaterial to
this aspect of the case. The key question pertains to
the limited extent of the authority to grant these kinds
of visas. Here, as in Iddir, that statutory authorization
had expired, and that precludes mandamus relief. (We
recognize that a panel of the Eleventh Circuit has re-
cently come to the same result, but under the mootness
theory preferred by Chief Judge Flaum. See Nyaga v.
Ashcroft, 323 F.3d 906, 916 (11th Cir. 2003). We are not
inclined at this point, however, to revisit the theory used
in Iddir to resolve the matter.)
Ahmed’s effort to find a claim under the Administrative
Procedure Act is equally unavailing. She relies only on
a single district court case, Hu v. Reno, No. 3-99-CV-
1136-BD, 2000 WL 425174 (N.D. Tex. Apr. 18, 2000), in
which the court ruled that APA sections 702 and 706(1), in
conjunction with the federal-question statute, 28 U.S.C.
§ 1331, permit review where the INS refuses to process
an adjustment-of-status application in a reasonable time.
Id. at *3. But Hu did not involve a case in which the
responsible agency no longer had power to do anything
about the application, and thus, even if we were inclined
to accept its reasoning, it does not help here.
10 No. 02-1467
Because Iddir so clearly controls, we have no need to
address the government’s alternative argument that
the doctrine of consular nonreviewability bars Ahmed’s
suit. We note, however, that it is possible to imagine
arguments on both sides of this point. On the one hand,
as the government urges, it is generally true that courts
do not review judgments regarding alien admissibility
made by executive officers outside the United States. See
Saavedra Bruno v. Albright, 197 F.3d 1153, 1159-60
(D.C. Cir. 1999); Doan v. INS, 160 F.3d 508, 509 (8th Cir.
1999); Centeno v. Shultz, 817 F.2d 1212, 1213-14 (5th Cir.
1987) (per curiam); Ventura-Escamilla v. INS, 647 F.2d
28, 30 (9th Cir. 1981); Burrafato v. U.S. Dep’t of State, 523
F.2d 554, 556-57 (2d Cir. 1975). But none of those cases
dealt with the diversity visa program, under which the
responsibilities of the embassies abroad are equivalent
to those of the INS (now, the Department of Homeland
Security) inside the United States. We would prefer not
to resolve the question whether the doctrine of consular
nonreviewability provides an alternate ground for our
decision here and instead to await a case in which its
existence and scope must be addressed squarely. Nor
need we consider whether there is any problem with the
fact that Ahmed’s suit was brought in the Northern Dis-
trict of Illinois, which seems to be a district that has
absolutely nothing to do with Ahmed’s situation. It ap-
pears from the record, notwithstanding a boilerplate
allegation in the complaint, that Ahmed does not live in
Illinois (and perhaps has never even been to Illinois), and
there is no indication that any U.S. government official
in Illinois handled her case. This is only a venue prob-
lem that does not affect this court’s jurisdiction, which
means that we can lay aside any issues relating to her
choice of district.
No. 02-1467 11
III
As in Iddir, therefore, we find that the district court was
empowered to adjudicate the mandamus petition and
the APA claims before it, but that it correctly determined
on the merits that neither the petition for mandamus
nor the claim for relief under the APA could be granted.
We thus modify the judgment of the district court to re-
flect the fact that it is on the merits, not for a lack of sub-
ject-matter jurisdiction, and as so modified it is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-9-03