Yung-Kai Lu v. Tillerson
Yung-Kai Lu v. Tillerson
Opinion of the Court
Plaintiff Yung-Kai Lu, proceeding pro se , is a citizen and resident of Taiwan. In 2015, Lu was the lucky winner of the "visa lottery" for lawful admission to the United States. Yet his victory proved hollow, as he was never granted a visa. Lu then brought this suit alleging that this 2015 visa deprivation was based on unreasonable delays on the part of the State Department, as well as on other unconnected events. As relief, Plaintiff asked this Court to compel Defendant Secretary of State to extend the time for a visa interview for his 2015 application. In now moving to dismiss, the Government asserts that it can do no such thing. According to Defendant, once the 2015 fiscal year expired, so too did the statutory authority for the issuance of Lu's Diversity Visa. State argues both that Plaintiff's claims are thus moot, thereby depriving this Court of subject-matter jurisdiction, and that his statutory causes of action fail to adequately state a claim for relief. As the case is indeed moot, the Court will dismiss it.
*279I. Background
According to the Complaint, which the Court must credit at this stage, Plaintiff entered the Department of State's Diversity Visa (DV) program for fiscal year 2015. See ECF No. 1, ¶¶ 19-20. Fiscal year 2015 ran from October 1, 2014, to September 30, 2015. Id., Exh. 1. Lu had previously resided in the United States and had applied (to no avail) for a Diversity Visa since 2002. His 2015 application, however, proved auspicious. Although there is an apparent inconsistency between the Complaint and the record evidence as to when Lu was notified that his application had been chosen, see Compl., ¶ 20 (stating that Lu was notified in "early October 2015" that he was selected); but see ECF No. 1-2, Exh. 1 (Notification Letter) (letter notifying Lu of selection dated May 1, 2014), there is no dispute that he was in fact an FY 2015 selectee.
In any event, the State Department notification letter informed Plaintiff that he had been selected out of the FY 2015 applicant pool for "further processing," but cautioned that "selection [did] not guarantee that [he would] receive a visa." Notification Letter. The letter went on to provide a series of instructions for Lu to follow "to increase [his] chances of possible visa issuance," which included registering with the online DS-260 Immigrant Visa and Registration Application. Id. Finally, the Department informed Lu that his case would "not be scheduled for an interview appointment until a visa number is available," and that, were an interview to be scheduled, Lu would receive notification. Id. Lu submitted his DS-260, but never received notification of an interview. (The Court notes that, although both Plaintiff and Defendant state that Lu submitted the DS-260 visa application form in October 2015, see Compl., ¶ 20; MTD at 3, the record suggests that it was in fact submitted on October 30, 2014. See ECF No. 1-2 (DS-290 Application).)
A year later, between the fall of 2015 and June 2016, Lu wrote to the U.S. Attorney General and the State Department alleging that he had been unfairly treated and unlawfully deprived of his 2015 visa. Specifically, he claimed that he had been denied a Diversity Visa for the 2015 fiscal year because of "technical" issues and "computer system glitches." Compl., ¶ 22. In response to his inquiries, Lu received a July 2016 letter from the State Department stating that the "DV program for fiscal year 2015 is closed, and winning entries from that year are no longer eligible for processing." ECF No. 1-2, Exh. 2 (State Dept. Letter).
On May 24, 2017, Lu filed suit in this Court, alleging that he had "suffered the loss of his permanent visa interview to obtain [a] green card" because Defendant "did not appropriately and lawfully take [its] mandatory duties to execute and process applications under the 2015 Diversity Immigration Visa Program." Compl., ¶¶ 1-2. His Complaint attributes the 2015 delay to, inter alia , "cyber terrorist attacks or other computer glitches," "the earthquake in Nepal in 2014," and the State Department's "new computing systems to operate [the] visa lottery interview." Id., ¶¶ 15, 28; see ECF No. 1-2, Exh. 3 (assortment of news articles discussing 2015 technical issues with State Department visa processing). Construing Lu's Complaint liberally, as it must, the Court can discern three possible statutory bases for his claims. It appears that Plaintiff is alleging that, in failing to promptly process his application and grant an interview, the Government violated the requirements of the Administrative Procedure Act,
Plaintiff requests that, in light of these alleged violations, the Court compel State to grant him an extension "to finalize the interview" and to add him "on the winning list in future visa lottery."
II. Legal Standard
As the Court essentially relies on the question of subject-matter jurisdiction, it articulates solely the standard under Rule 12(b)(1) below.
When a defendant brings a Rule 12(b)(1) motion to dismiss, the plaintiff must demonstrate that the Court indeed has subject-matter jurisdiction to hear his claims. See Lujan v. Defenders of Wildlife,
III. Discussion
The Court first gives a brief overview of the Diversity Visa program before turning separately to the question of its jurisdiction over Lu's claims and his request for other relief, including money damages.
A. Diversity Visa Program
The Diversity Visa program provides a limited number of visas to individuals from countries that historically have had low rates of immigration to the United States. See
Yet the moniker "lottery winner" is a bit misleading. Selection of an applicant's petition does not ensure that he will in fact receive a visa, as the total number of lottery winners exceeds the number of Diversity Visas available under the program. Id. at 7 (stating that "nearly half of the original 100,000 lottery winners do not receive a visa"). A lottery winner thus obtains not the right to a visa, but "only the right to apply to receive a visa through the DV program." Coraggioso v. Ashcroft,
According to the statute, "Aliens who qualify, through random selection, for a [diversity] visa ..., shall remain eligible to receive such visa only through the end of the specific fiscal year for which they were selected."
B. Mootness
The threshold, and ultimately dispositive, question before the Court is whether Lu's alleged entitlement to his 2015 visa is now moot. A case is considered moot either "when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack,
The Government asserts that this matter no longer presents a live case or controversy. According to Defendant, "[T]he *282period of Plaintiff's eligibility for the DV lapsed as of September 30, 2015," and there is "no legal authority for the [Government] to issue a [Diversity Visa] after the end of the relevant fiscal year." MTD at 3. In other words, as there is no viable route to the relief Lu seeks, the Court must dismiss his claims as moot.
Lu responds that his suit is alive and well. He relies, in large part, on his general contention that the "Department of State could" have "finish[ed] all interviews" for the 2015 fiscal year, and that the delays in visa processing were the result of internal technical difficulties. See Opp., ¶ 28 (emphasis added). These factors, he argues, mean that his claims are not in fact moot and that the Court has the equitable authority to "change or extend the deadlines" for the DV program. Id., ¶ 80. He additionally cites to the Court's jurisdiction under the APA to review "final" agency actions, asserting that because "Department of State admitted their action of process[ing] [the] DV lottery is final," the Court has jurisdiction to review its delay. Id., ¶ 45. Finally, Lu cites to a number of cases addressing federal courts' jurisdiction over the Government's failure to timely adjudicate an application for "adjustment of status"-an immigration process distinct from the granting of a Diversity Visa. Id., ¶¶ 52-53.
Unfortunately for Lu, the Government's position is correct. No matter the merits of Plaintiff's application or the existence of an underlying duty to timely adjudicate it, this Court cannot act if the remedy he seeks is illusory. Examining the immigration laws governing the Diversity Visa program, the Court concludes that it has no authority to order relief for Lu's claims arising from his 2015 DV application.
The INA provides that applicants who are selected under the lottery system "shall remain eligible to receive [a DV] visa only through the end of the specific fiscal year for which they were selected."
Although this Court has sympathy for those applicants who do not make the fiscal-year cut off, it follows suit. Plainly stated, the mandamus and declaratory relief sought by Lu-the nunc pro tunc processing of his Diversity Visa application after *283the relevant fiscal year-is statutorily barred.
That conclusion is not altered, moreover, by the fact that Lu had completed certain steps toward fulfilling his requirements for selection. In Keli v. Rice,
As in the instant case, the Government cried mootness. The court agreed, finding that the plain language of the INA meant "that as of 12:00 a.m. on October 1, 2007, [plaintiff] was no longer eligible to receive a diversity visa."
Nor did it matter that the plaintiff in Keli, as here, raised a claim of equitable tolling of the DV deadline. Regardless of the equities behind the circumstances and causes of the alleged delay, the INA precluded granting relief in the form of a Diversity Visa. Keli,
The reasoning in Keli reflects the reality of the immigration laws governing the DV program and mirrors the circumstances of this case. Here, too, "events [have] outrun the controversy such that the court can grant no meaningful relief." McBryde v. Comm. to Review,
C. Other Relief
As the Court liberally construes the pleadings of a pro se party, it *284very briefly turns to Lu's requests for other relief. In his Complaint, Plaintiff asks for "60,000 cash compensation because [he] has suffered the nightmare due to the government neglect." Compl., ¶ 46. Unfortunately for Lu, just as none of his potential causes of action-the APA, the INA, and the Mandamus Act-provide a route to injunctive relief, none can provide a jurisdictional basis for money damages in light of the Government's sovereign immunity. The APA explicitly precludes compensatory relief against the Government, see Dep't of the Army v. Blue Fox,
The same is true for Lu's request that the Government "add him on the winning list on the future visa lottery." Compl., ¶ 46. Plaintiff provides no authority for the proposition that the Court could order him so listed. Indeed, to the extent that courts have found jurisdiction to order some form of remedy for DV applicants, it has never been in the form of deeming them prospective lottery winners. See Gebre,
IV. Conclusion
The Court acknowledges Plaintiff's frustration in being deemed a "winner" and yet garnering no visa. In light of the statutory text governing the DV program, however, this Court can order no further action with respect to Lu's lottery victory in 2015. Defendant's capacity to award a Diversity Visa to Plaintiff expired with that fiscal year, as did the ability of the Court to grant meaningful relief. On a more optimistic note, it does seem that Plaintiff is mistaken when he states that he cannot be selected in a future Diversity Visa drawing. See Compl., ¶ 40. As he was informed in the 2016 State Department letter, Lu may indeed submit his application for future DV program years. Because there is no relief available regarding his 2015 DV claims, however, the Court will dismiss the instant suit. A contemporaneous Order will so state.
Reference
- Full Case Name
- YUNG-KAI LU v. Rex W. TILLERSON
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- 8 cases
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- Published