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Mogu v. Chertoff


May 8, 2008


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


Plaintiff, Francis Mogu ("Mogu"), brings this action against Secretary of the Department of Homeland Security Michael Chertoff, Secretary of State Condoleeza Rice, Attorney General Alberto Gonzales,*fn1 Ambassador Eric Bost, Director of U.S. Citizenship and Immigration Services Rosemary Melville, Consul General Steven Coffman, and Consular Officers Charles Luoma and Elizabeth Schlacter (collectively "defendants") in their official capacities. Mogu seeks a writ of mandamus to compel adjudication of his visa application and an injunction preventing defendants from denying him a visa. Defendants have filed a motion to dismiss. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that defendants' motion must be granted.


Mogu is a native and citizen of Nigeria. In 2007, Mogu was randomly selected under the United States Diversity Lottery Program*fn2 and, together with his son Simon Mogu, attended two interviews at the United States Consulate in South Africa during March 2007.*fn3 The Mogus' applications were denied on the basis that the son's passport was not genuine. The Mogus' passports were both confiscated and their visas were cancelled.

Mogu obtained a replacement passport for his son and a DNA test to prove their relationship. The United States Consulate refused, however, to take any further action with respect to the Mogus' visa application. Mogu brought suit in this court on September 13, 2007.


Defendants move to dismiss this action on the grounds that Mogu's claim is moot.*fn4

Defendants' position has merit.

Under Article III of the Constitution, federal courts may only adjudicate "actual, ongoing controversies," Honig v. Doe, 484 U.S. 305, 317 (1988), and "lack jurisdiction to decide moot cases." Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 70 (1983). A case is moot and must be dismissed when "events outrun the controversy such that the court can grant no meaningful relief." McBryde v. Comm. to Review, 264 F.3d 52, 55 (D.C. Cir. 2001), cert. denied, 537 U.S. 821 (2002).

The diversity visa program is a limited-time offer. An immigrant who qualifies for a visa under the program is "eligible to receive such visa only though the end of the specific fiscal year for which they were selected." 8 U.S.C. § 1154(a)(1)(I)(ii)(II) (emphasis added); see also 22 C.F.R. § 42.33(a)(1) ("The eligibility for a visa . . . ceases at the end of the fiscal year in question."). There are no exceptions to this rule. 22 C.F.R. § 42.33(a)(1) ("Under no circumstances may a consular officer issue a visa or other documentation to an alien after the end of the fiscal year during which an alien possesses diversity visa eligibility."). At midnight on the last day of the fiscal year, any "lottery winner" who is not already in possession of an immigrant visa number is no longer eligible to obtain a diversity visa based on her eligibility during the fiscal year that just ended. 22 C.F.R. § 42.33(d) (stating that even if an immigrant has an approved petition through the diversity visa program, the petition ceases to be valid after "midnight of the last day of the fiscal year for which the petition was approved"); 22 C.F.R. § 42.33(f) (stating that no immigrant visa numbers will "be allotted after midnight of the last day of the fiscal year for which the petition was submitted and approved").

Mogu was selected as a diversity visa "lottery winner" for the 2007 fiscal year. The 2007 fiscal year ended on September 30, 2007. See Congressional Budget Act of 1974, 2 U.S.C. § 631 (1997). Thus, Mogu's eligibility to receive a visa through the diversity visa program ended at midnight on September 30, 2007. 8 U.S.C. § 1154(a)(1)(I)(ii)(II); 22 C.F.R. § 42.33. The statutory language and implementing regulations of the diversity visa program make clear that there are no circumstances under which Mogu could receive a visa through the diversity visa program after his eligibility expired at midnight on September 30, 2007. Id.

Though unforgiving, this strict interpretation of the diversity visa statute has been adopted by every Circuit Court to have addressed the issue. Mohamed v. Gonzales, 436 F.3d 79, 81 (2nd Cir. 2006) ("Despite the harsh consequences of this result, we are compelled, as our sister circuits have recognized, to apply the unambiguous language of the operative statutory framework."); Coraggioso v. Ashcroft, 355 F.3d 730, 734 (3rd Cir. 2004) ("If Congress had used different language, our analysis may be different. We are compelled, however, to interpret the statute as written."); Iddir v. I.N.S., 301 F.3d 492, 501 (7th Cir. 2002) ("Based on the statutory deadline set by Congress, the INS lacks the statutory authority to award the relief sought by the plaintiffs."); Carrillo-Gonzalez v. I.N.S., 353 F.3d 1077, 1079 (9th Cir. 2003) ("We hold that the doctrine of equitable tolling has no application in cases involving the Congressionally-mandated, one-year deadline of the DV Lottery Program."); Nyaga v. Ashcroft, 323 F.3d 906 (11th Cir. 2003) ("The INS's failure to process [plaintiff's] application does not extend [plaintiff's] statutorily-limited period of eligibility for a diversity visa.").

Because the 2007 fiscal year has already concluded, Mogu seeks relief that this court cannot provide.*fn5 Accordingly, his claim is moot and this court lacks jurisdiction to adjudicate it. Iron Arrow,464 U.S. at 70.


For the foregoing reason, defendants' motion to dismiss is GRANTED. An appropriate order accompanies this memorandum.

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