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Keywords

plaintiffdefendantmotionvisacitizenshipliensmotion to dismiss
plaintiffdefendantmotionvisacitizenshipliensmotion to dismiss

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Basova v. Ashcroft

Facts

The plaintiffs in this action were selected as candidates for the 2003 Diversity Immigrant Visa Lottery ('DV') program. They alleged that their applications for adjustment of status were denied because defendants – the New York District Office of the United States Citizenship & Immigration Services; the Department of State; the Federal Bureau of Investigation; and the Central Intelligence Agency – failed to timely process their applications. On September 26, 2003, four days before the close of the statutory period, two of the plaintiffs, Maria Basova and Andrei Basov, brought an action to compel defendants to process their applications before the deadline of September 30, 2003 for the 2003 fiscal year. An amended complaint was filed on February 23, 2004, adding additional plaintiffs who had applied for adjustment of status.

The plaintiffs in this action were selected as candidates for the 2003 Diversity Immigrant Visa Lottery ('DV') program. They alleged that their applications for adjustment of status were denied because defendants – the New York District Office of the United States Citizenship & Immigration Services; the Department of State; the Federal Bureau of Investigation; and the Central Intelligence Agency – failed to timely process their applications. On September 26, 2003, four days before the close of the statutory period, two of the plaintiffs, Maria Basova and Andrei Basov, brought an action to compel defendants to process their applications before the deadline of September 30, 2003 for the 2003 fiscal year. An amended complaint was filed on February 23, 2004, adding additional plaintiffs who had applied for adjustment of status.

Issue

Whether the claims of the plaintiffs were moot due to the expiration of the statutory period for issuing visas and whether the government had met the annual quota of 50,000 visas for Fiscal Year 2003.

Whether the claims of the plaintiffs were moot due to the expiration of the statutory period for issuing visas and whether the government had met the annual quota of 50,000 visas for Fiscal Year 2003.

Rule

Claims brought after the statutory deadline are moot, but claims brought before the deadline may not be dismissed on mootness grounds. The court also considered the accuracy of statistical evidence regarding the issuance of visas.

Claims brought after the statutory deadline are moot, but claims brought before the deadline may not be dismissed on mootness grounds. The court also considered the accuracy of statistical evidence regarding the issuance of visas.

Analysis

The court found that the claims brought by the Basova plaintiffs prior to the September 30 deadline should not be dismissed on mootness grounds. The court accepted the argument that the government had not sufficiently demonstrated that all 50,000 diversity visas had been issued for FY 2003, as the plaintiffs provided statistics that undermined the government's contention. However, upon reconsideration, the government presented further evidence indicating that the visa ceiling had indeed been met, which the court found persuasive.

The court found that the claims brought by the Basova plaintiffs prior to the September 30 deadline should not be dismissed on mootness grounds. The court accepted the argument that the government had not sufficiently demonstrated that all 50,000 diversity visas had been issued for FY 2003, as the plaintiffs provided statistics that undermined the government's contention. However, upon reconsideration, the government presented further evidence indicating that the visa ceiling had indeed been met, which the court found persuasive.

Conclusion

The court granted the government's motion to dismiss the complaint as to all the aliens with prejudice, vacating the prior memorandum and order.

The court granted the government's motion to dismiss the complaint as to all the aliens with prejudice, vacating the prior memorandum and order.

Who won?

The government prevailed in the case because the court found that all available visas for FY 2003 had been distributed, rendering the plaintiffs' claims moot.

The government prevailed in the case because the court found that all available visas for FY 2003 had been distributed, rendering the plaintiffs' claims moot.

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