Shahi v. United States Department of State, No. 21-3171 (7th Cir. 2022)

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Justia Opinion Summary

The diversity-visa program makes as many as 55,000 visas available annually to citizens of countries with low rates of immigration to the United States, 8 U.S.C. 1151(e), 1153(c); the State Department holds a lottery to determine priority. Applicants 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.” The fiscal-year limit has caused many applications to fail; bureaucratic inertia or foul-ups have the same effect as affirmative decisions that applicants are ineligible. The Seventh Circuit held in 2002 held that the fiscal-year limit cannot be extended by judicial order.

In March 2020, the State Department stopped processing routine visa applications, including diversity visas. High-priority applications, such as for diplomats, medical emergencies, and medical personnel, continued to be approved. Two presidential orders confirmed the Department’s approach. Fiscal Year 2020 expired.

The Seventh Circuit affirmed the dismissal of a suit by applicants whose eligibility had expired. Section 1154(a)(1)(I)(ii)(II) applies regardless of the relief sought; it does not set a time limit for administrative action nor impose any duty on the State Department. It only specifies the consequence of delay: the applicant’s eligibility expires. A court is not authorized to substitute a different consequence. There is no statute authorizing monetary relief for the plaintiffs’ outlays that did not lead to visas.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 21-3171 AKASH SHAHI, et al., Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF STATE, et al., Defendants-Appellees. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 20 C 7590 — Jorge L. Alonso, Judge. ____________________ ARGUED APRIL 21, 2022 — DECIDED MAY 6, 2022 ____________________ Before EASTERBROOK, ROVNER, and BRENNAN, Circuit Judges. EASTERBROOK, Circuit Judge. The diversity-visa program makes as many as 55,000 visas available annually to citizens of countries with low rates of immigration to the United States. 8 U.S.C. §§ 1151(e), 1153(c). More than 55,000 people apply for these visas every year, so the State Department holds a loTery to determine priority. People in the top 55,000, plus some others selected to ensure that enough will qualify 2 No. 21-3171 to ll out the authorized number, are invited to seek “adjudication” of their applications—that is, to submit paperwork and sit for interviews so that the State Department can con rm their eligibility (such as, for example, the absence of disqualifying convictions). Persons whose applications are successfully adjudicated by the end of the scal year receive visas and permanent-residence status. The proviso “by the end of the scal year” is important. Applicants “who qualify, through random selection, for a visa under section 1153(c) of this title shall remain eligible to receive such visa only through the end of the speci c scal year for which they were selected.” 8 U.S.C. §1154(a)(1)(I)(ii)(II). See also 31 U.S.C. §1102 (de ning “ scal year”); 22 C.F.R. §42.33(d) (an approved petition “will be valid for a period not to exceed Midnight on the last day of the scal year for which the petition was approved”). This scal-year limit has caused many an application to fail, because it means that bureaucratic inertia or foul-ups have the same e ect as a rmative decisions that applicants are ineligible. Twenty years ago, some aliens whose aTempts to obtain visas timed out because of delay at the agency sued, but Iddir v. INS, 301 F.3d 492 (7th Cir. 2002), held that the scal-year limit cannot be extended by a judicial order. Other circuits have reached the same conclusion. See, e.g., Ermuraki v. Renaud, 987 F.3d 384, 386–87 (5th Cir. 2021); Mwasaru v. Napolitano, 619 F.3d 545 (6th Cir. 2010); Mohamed v. Gonzales, 436 F.3d 79, 81 (2d Cir. 2006); Coraggioso v. Ashcroft, 355 F.3d 730, 734 (3d Cir. 2004); Nyaga v. Ashcroft, 323 F.3d 906, 916 (11th Cir. 2003). In this suit, however, more than 180 aliens who believe that their loTery results were good enough to secure visas during Fiscal Year 2020—if they otherwise qualify— No. 21-3171 3 contend that they are entitled to have their claims adjudicated today notwithstanding §1154(a)(1)(I)(ii)(II) and Iddir. But the district court dismissed the suit for lack of standing. 2021 U.S. Dist. LEXIS 222937 (N.D. Ill. Nov. 18, 2021). Our plainti s ran into trouble because, in the middle of scal 2020, the World Health Organization declared that SARS-CoV-2 and its disease, COVID-19, had become a pandemic. On March 20, 2020, the State Department stopped processing all routine visa applications, a category that includes diversity visas. Higher-priority applications, such as for diplomats, medical emergencies, and medical personnel, continued to be approved. Two presidential orders (Proclamation 10014 of April 22 and Proclamation 10052 of June 22) con rmed the Department’s approach. Fiscal Year 2020 expired at the end of September 2020 with plainti s’ applications still in stasis. The aliens later led this suit, joined by some U.S. citizens and by rms that would employ the aliens if they had permanent-residence status. Plainti s seek to distinguish Iddir on the ground that it denied a petition for mandamus, while they want an injunction, a declaratory judgment, and damages. But the di erence in requested relief does not overcome the reason Iddir came out as it did: the language of §1154(a)(1)(I)(ii)(II). If applicants “remain eligible to receive such visa only through the end of the speci c scal year for which they were selected”, then it does not maTer what kind of relief they want. Once the scal year ends, they are no longer eligible. Nor can plainti s get mileage from decisions such as Brock v. Pierce County, 476 U.S. 253 (1986), and Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003). These decisions dealt with statutes requiring agencies to do things by speci ed dates—for 4 No. 21-3171 example, issue regulations within a year of a statute’s enactment or, in Peabody Coal, to match coal companies with claims for health bene ts. The Justices held in these and similar cases that agencies do not lose power to act just because they fail to meet a statutory deadline. Plainti s want us to treat §1154(a)(1)(I)(ii)(II) as a deadline for administrative action and to hold that the State Department still owes them a duty to adjudicate their visa applications. Their problem is that this statute, unlike the ones in Peabody Coal and Pierce County, does not set a time limit for administrative action. Indeed, it does not impose any duty on the State Department. Instead it speci es the consequence of delay: the applicant’s eligibility for a visa expires. A court is not authorized to substitute a di erent consequence, such as belated agency action, for the one chosen by Congress. A statute such as §1154(a)(1)(I)(ii)(II) imposes the onus of delay on the aliens. Perhaps it would have been wiser for Congress to enact a deadline for administrative action—for why should people lose entitlements because of things outside their control?—but that’s not the sort of statute on the books. Still, plainti s insist, they can at least receive a declaratory judgment. They want a court to declare that the State Department acted unlawfully or in bad faith when it stopped processing most visa applications in March 2020. That would be an advisory opinion, since it would be disconnected from any of plainti s’ legal entitlements. As for money—plainti s want the State Department to reimburse their application fees plus expenses for medical exams and other documents used to support the applications— the problem is sovereign immunity. To obtain damages from the United States, a plainti needs a statute authorizing relief. No. 21-3171 5 See, e.g., Brownback v. King, 141 S. Ct. 740, 749 (2021); United States v. Navajo Nation, 556 U.S. 287, 289–90 (2009). The Administrative Procedure Act does not serve that function, for its waiver of sovereign immunity is limited to “relief other than money damages”. 5 U.S.C. §702. Plainti s want compensation for outlays they have made; that would be a form of money damages, as the Supreme Court understands §702. See Department of the Army v. Blue Fox, Inc., 525 U.S. 255 (1999). When a statute directs the United States to pay money, enforcing that statute does not entail money damages. See Bowen v. MassachuseNs, 487 U.S. 879 (1988). This brings us back to the point that plainti s have not identi ed any statute requiring the State Department to make them whole for outlays that do not lead to visas and so seem wasted in retrospect. Plainti s’ request for nominal damages fails for the same reason. We have said enough to show why the plainti s lose. But we need to say more about the district court’s conclusion that they lack standing. That is not what Iddir held. Plainti s in Iddir sought a writ of mandamus to compel the State Department to adjudicate their applications, and we held that because of §1154(a)(1)(I)(ii)(II) the aliens lack a clear entitlement to that relief. Such an entitlement is essential to mandamus, and the opinion in Iddir wrapped up with the statement that the district court lacked “mandamus jurisdiction” under 28 U.S.C. §1361. 301 F.3d at 501. The court did not explain why failure on the merits implied lack of jurisdiction, and many times the Supreme Court has held that it does not. See, e.g., Steel Co. v. Citizens for a BeNer Environment, 523 U.S. 83, 89 (1998); Bell v. Hood, 327 U.S. 678 (1946). A concurring judge reached a jurisdictional conclusion by a di erent route; he would have held that, because §1154(a)(1)(I)(ii)(II) blocks 6 No. 21-3171 relief, the plainti s’ claim was moot. 301 F.3d at 501–02 (Flaum, J., concurring). Neither opinion in Iddir nds an absence of standing. The district court instead relied on Taylor v. McCament, 875 F.3d 849 (7th Cir. 2017). Taylor dealt with a class of visas (the U visa) that is limited to 10,000 a year. Plainti s maintained that because in some years the State Department did not issue any U visas, and a long queue had developed (applications for U visas, unlike applications for diversity visas, roll over from one year to the next), a court should order it to issue 80,000 visas in a single year to clear the backlog. We held that this relief was forbidden by statute. Our opinion characterized this as a lack of standing, because the limit on the annual number of U visas meant that the plainti s’ injury was not redressable. The opinion in Taylor implied that this is what both of the opinions in Iddir had been geTing at, which is what led the district court to dismiss the current suit for lack of standing. We shall not try to conceal our skepticism about the jurisdictional characterizations of the dispositions in both Iddir and Taylor. All three of these opinions (two in Iddir and one in Taylor) use the fact that statutes foreclose relief as a reason to nd a lack of jurisdiction. Yet plainti s lose all the time without having their suits dismissed for lack of jurisdiction. The Supreme Court insists that jurisdictional dismissals be limited to statutes that speak in jurisdictional terms. See, e.g., Boechler, P.C. v. CIR, No. 20–1472 (U.S. Apr. 21, 2022) (collecting authority). Section 1361, the mandamus statute, does not concern jurisdiction at all; it authorizes a particular kind of remedy. Jurisdiction in Iddir rested on 28 U.S.C. §1331 (federal question) and §1346(a)(2) (United States as defendant). No. 21-3171 7 Section 1154(a)(1)(I)(ii)(II) does not contain the word “jurisdiction” or subtract from jurisdiction granted elsewhere. And it is hard to see how Iddir could have been dismissed as moot. “A case becomes moot only when it is impossible for a court to grant any e ectual relief whatever to the prevailing party.” Cha n v. Cha n, 568 U.S. 165, 172 (2013) (cleaned up). “As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Ibid. The plainti s in Iddir had a concrete stake in the outcome, and relief was possible. A court could have ordered the State Department to adjudicate the visa applications after the scal year ended. The problem was not impossibility but the fact that plainti s did not have a right to that relief. The same can be said about standing: a court could redress plainti s’ injury by ordering the State Department to adjudicate their applications. The problem is not impossibility but the lack of an entitlement. In other words, the plainti s in Iddir and Taylor lost on the merits, just as the plainti s in this case have done. Any doubt about whether a court can order relief of the sort that plainti s want is dispelled by the fact that a court has done so. The alien plainti s are members of the class in Gomez v. Trump, 490 F. Supp. 3d 276 (D. D.C. 2020), which ordered the State Department to “reserve” about 9,000 visas for people whose applications lapsed on September 30, 2020. These applications apparently would be adjudicated in 2022 or even later, despite the statutory language. The district court stayed its order to the extent that it requires belated adjudication, and the case is before the D.C. Circuit on the State Department’s appeal. The Department does not appear to contend that Gomez is moot or that the class lacks standing; instead the 8 No. 21-3171 Department contends that plainti s lose on the merits, given §1154(a)(1)(I)(ii)(II). And that seems to us the right issue. Still, both Iddir and Taylor announced jurisdictional holdings. The other courts of appeals cited in this opinion’s third paragraph likewise have concluded that one or another jurisdictional obstacle prevents relief in favor of aliens who seek belated adjudication of diversity-visa applications. Overruling the jurisdictional holdings of Iddir and Taylor would not open the door to a decision in plainti s’ favor, yet it would create a con ict among the circuits. The di erence between jurisdictional and substantive characterizations would maTer if the State Department were to waive or forfeit the bene t of §1154(a)(1)(I)(ii)(II). Statutory defenses may be surrendered, while jurisdictional issues must be resolved even if the parties ignore the question or a rmatively declare that the court has jurisdiction. We leave to the future whether to revisit the jurisdictional footing of Iddir and Taylor should the bene t of §1154(a)(1)(I)(ii)(II) be waived or forfeited. One last comment. Because the alien plainti s are members of the class certi ed in Gomez, they will receive the bene t of that decision should it be a rmed. Our opinion in Iddir suggested that it might be possible to disregard §1154(a)(1)(I)(ii)(II) if the court awards relief before the end of a scal year, even if the implementation of that relief would come later. 301 F.3d at 501 n.2. The district court in Gomez acted on September 30, 2020, the last day of FY 2020. The D.C. Circuit (and, if necessary, the Supreme Court) will have to decide whether the date of judicial action makes a di erence. We do not tackle that question today, for this suit was not led No. 21-3171 9 until after the end of FY 2020. If plainti s are to obtain any relief, it must come in Gomez. AFFIRMED
Primary Holding
Seventh Circuit rejects a suit based on the State Department's failure to process diversity "lottery" visas during 2020.

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