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LAWSUIT OVER INS FAILURE TO ISSUE DIVERSITY VISAS HEADS FOR TRIAL  
The diversity visa, or DV, lottery, gives citizens of certain countries the opportunity to immigrate to the US by entering a drawing.  Millions of applications are received each year for 50,000 visas, so chances of winning are very slim.  The lottery drawing is held in the spring, and winners are notified during the summer.  Processing occurs between the October after notification and the next October.  For example, a person who entered the 2000 lottery enters in the fall of 1998, is selected in the spring of 1999, and is processed between October 1999 and October 2000, fiscal year 2000.  Those who are selected generally act promptly so submit all the necessary documents so they can obtain their visa before the end of the fiscal year.  But all the speed on the part of an applicant cannot prevent bureaucratic delays.   
Teodor and Lelia Paunescu know this all too well.  They entered the DV-1998 lottery, and were selected for processing in July 1997.  The INS received their completed applications, including fingerprints, on November 5, 1997, one month into the 1998 fiscal year.  Interviews were scheduled for February 23, 1998.  At this interview, Teodor was told the FBI had rejected his fingerprints, and he would need to submit a new set.  The same day Teodor sent in a new set of prints.  On July 24, 1998 he was told his fingerprints had not yet cleared, but was not given a reason.  He was not told to resubmit fingerprints.  On September 18, 1998 they were told they had an interview on September 21, 1998.  At this interview Teodor was told to resubmit his fingerprints, which he did the same day.  On September 23 the Paunescu’s filed suit in federal court, seeking a writ of mandamus ordering the INS to issue them visas before September 30, the end of the fiscal year.  The court issued such an order, but made it contingent on whether the INS received cleared fingerprints from the FBI.  The fingerprints were not received, so visas were not issued.  
Although visas were not granted, the lawsuit continued.  The INS made two arguments that the court did not have jurisdiction.  The first relied on section 242(g) of the Immigration and Nationality Act (INA).  This section eliminates federal court jurisdiction over cases related to the decision of the Attorney General to “commence proceeding, adjudicate cases, or execute removal orders.”  The court found that this section applied only to a narrow set of cases involving deportation orders, and certainly not this case involving a visa petition.  The INS’ other argument against jurisdiction rested on section 242(a)(2)(B) of the INA, which eliminates federal court jurisdiction over cases involving the decision of the Attorney General to grant discretionary relief in cases involving adjustment of status.  The court found this statute inapplicable. 
The court found the responsibility of the INS to process lottery winners is not discretionary, nor did it involve the need to make any decisions.  According to the court, the plaintiffs did “not ask this court to ‘review’ a governmental action, but to examine and rectify a gross inaction.”  Having determined that no statute eliminated jurisdiction, the court then examined whether the case warranted an exercise of mandamus jurisdiction.  
Three factors must be present for a court to issue a writ of mandamus.  First, the plaintiff must have a clear right to the relief sought.  Second, the defendant must have a clear duty to perform for the plaintiff.  Third, there must be no other adequate remedy.  The INS argued that the plaintiffs had no right to relief, and that they did not have a duty to them, because all decisions related to adjustment of status are discretionary.  The court rejected this argument, finding that the INS had a non-discretionary duty to rule on the plaintiffs applications for adjustment of status within a reasonable time.  It is not a particular decision the court said the INS must issue, but that the agency must issue some decision on the application pending before it. 
The INS’ last argument was that there was an adequate remedy for plaintiffs – wait until the INS begins deportation proceedings and raise their arguments there.  The court found no merit in this argument, and so proceeded to determine what form of relief was proper.  The court ruled that the plaintiffs must be given the visas they would have received had the INS dealt with their application in a timely manner.  Although the INS argued that it could not complete the applications because fiscal year 1998 was over, this argument was rejected, with the court finding that the plaintiffs “should not be penalized for the government’s misfeasance.”