Free Order - District Court of California - California

Case 3:07-cv-05003-TEH

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

AKE PETER GERHARD SVENSBORN and LISA ULRIKA NORGREN, Petitioners,

NO. C07-5003 TEH ORDER VACATING SEPTEMBER 28, 2007 ORDER AND DENYING PETITION FOR WRIT OF MANDAMUS

PETER D. KEISLER, et al., Respondents.

United States District Court

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For the Northern District of California

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This matter came before the Court on Monday, November 5, 2007, for a further

13 hearing on Petitioners' request for a writ of mandamus. On September 28, 2007, the Court 14 granted mandamus relief following a hearing on Petitioners' oral request for a temporary 15 restraining order.1 In its order, the Court also "recognize[d] that its decision [was] based on 16 papers and oral arguments that [had] been quickly assembled by both Petitioners and 17 Respondents," and the Court therefore invited further briefing should the government 18 continue to oppose the granting of the writ. Sept. 28, 2007 Order Granting Pet'n for Writ of 19 Mandamus at 2. 20 The government filed a timely supplemental opposition brief on October 15, 2007,

21 and Petitioners filed a late reply brief on October 23, 2007, which the Court nonetheless 22 reviewed. After carefully considering the parties' written and oral arguments, the record in 23 this case, and relevant law, the Court concludes that its September 28, 2007 order was in 24 error and now VACATES that order and DENIES Petitioners' request for a writ of 25 mandamus. 26
1 Although styled as a request for a temporary restraining order, Petitioners essentially 27 requested that the Court grant the petition for writ of mandamus. Petitioners did not, for example, request that any action be enjoined pending a motion for preliminary injunction. 28 See Civ. L.R. 65-1(c) (discussing form of appropriate temporary restraining orders).

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1 BACKGROUND 2 In May 2006, Petitioner Ake Peter Gerhard Svensborn was notified that his

3 application in the diversity immigration visa lottery program for fiscal year 2007 was 4 selected.2 In September 2006, he married Petitioner Lisa Ulrika Norgren. As Svensborn's 5 spouse, Norgren was permitted to submit a derivative application for a diversity visa under 6 8 U.S.C. § 1153(d). Applicants who are selected in the diversity immigration visa lottery 7 program remain eligible to receive a visa only through the end of the fiscal year in which 8 they are selected ­ in this case, September 30, 2007. 8 U.S.C. § 1154(a)(1)(I)(ii)(II). 9 Following his marriage to Norgren, Svensborn remained in the United States on a

10 student visa and applied to have his status adjusted to that of lawful permanent resident. The

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11 government granted Svensborn's application to adjust his status on May 10, 2007.
For the Northern District of California

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Norgren was in the United States only as a visitor, and she returned to Sweden in

13 December 2006. She attended an immigrant visa interview at the United States embassy in 14 Stockholm on August 16, 2007. It is undisputed that she was given a Form OF-194 on that 15 date denying her request for a visa under section 221(g) of the Immigration and Nationality 16 Act ("INA"),3 but also explaining that the deficiencies in her application might be overcome 17 if she provided additional documentation. 18 The parties dispute whether Norgren diligently gathered such additional

19 documentation and provided it to the embassy. However, it is not disputed that Norgren's 20 application remains open, and that consular officials remain unsatisfied that Norgren has 21 presented sufficient evidence to establish her eligibility to receive an immigrant visa. 22 23 24 Diversity immigrants are provided for by 8 U.S.C. § 1153(c). The diversity immigration visa lottery program is governed by 22 C.F.R. § 42.33.
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3 Section 221(g) provides in relevant part that "[n]o visa or other documentation shall 25 be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa 26 or such other documentation under section 1182 of this title, or any other provision of law, (2) the application fails to comply with the provisions of this chapter, or the regulations 27 issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 1182 of this title, or 28 any other provision of law." 8 U.S.C. § 1201(g).

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Petitioners filed this case, seeking declaratory relief and a writ of mandamus to

2 compel adjudication of Norgren's visa application, on September 27, 2007. Petitioners 3 named the following individuals as Respondents: Peter Keisler, Acting Attorney General of 4 the United States4; Michael Chertoff, Secretary of the United States Department of 5 Homeland Security; Condoleeza Rice, United States Secretary of State; and Gottlieb Duwan, 6 Vice Consul of the United States embassy in Stockholm. 7 The parties first appeared before this Court on September 28, 2007, for argument on

8 Petitioners' oral request for a temporary restraining order. At that time, the Court was not 9 convinced by Respondents' argument that the August 16, 2007 decision on Norgren's visa 10 application constituted an unreviewable consular decision, or that it constituted a final

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11 adjudication of Norgren's application. Consequently, the Court granted the petition because
For the Northern District of California

12 Norgren would have lacked any means to obtain a diversity visa for the 2007 fiscal year 13 unless the Court ordered that adjudication be completed prior to September 30, 2007. 14 Recognizing that the parties may not have had an opportunity to develop their arguments 15 fully, the Court established a supplemental briefing schedule and set a further hearing on the 16 petition for November 5, 2007, indicating that the Court may vacate its order granting the 17 writ if Respondents ultimately demonstrated the superior position. 18 19 LEGAL STANDARD 20 This Court has jurisdiction over mandamus actions "to compel an officer or employee

21 of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 22 U.S.C. § 1361. However, mandamus is "an extraordinary remedy," and a writ of mandamus 23 is proper "only when (1) the plaintiff's claim is clear and certain; (2) the defendant official's 24 duty to act is ministerial, and so plainly prescribed as to be free from doubt; and (3) no other 25 adequate remedy is available." Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir. 1994) (internal 26 quotations and citations omitted). 27 Petitioners actually named Alberto Gonzalez as a Respondent. As Gonzalez's successor, Keisler is substituted as a party pursuant to Federal Rule of Civil Procedure 28 25(d)(1). 3
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1 DISCUSSION 2 As an initial matter, Petitioners agree that Respondents Keisler and Chertoff have no

3 jurisdiction over Norgren's visa application. Accordingly, Respondents Keisler and Chertoff 4 are hereby DISMISSED from this case. 5 Turning to the remaining Respondents' disputed arguments, the Court first rejects the

6 contention that the September 28, 2007 order impermissibly tolled the statutory deadline. It 7 is undisputed that the Court cannot, regardless of the equities involved, extend the statutory 8 September 30, 2007 deadline by which applicants for diversity immigration visas must 9 receive their visas. Carrillo-Gonzalez v. I.N.S., 353 F.3d 1077, 1079 (9th Cir. 2003). 10 Respondents contend that the September 28, 2007 order granting the writ of mandamus

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11 violated this rule because the Court knew that compliance prior to September 30 was
For the Northern District of California

12 unlikely, given that the order was issued on a Friday at 4:00 PM Pacific time, at which time 13 the embassy in Stockholm was already closed until Monday, October 1. Respondents argue 14 that the cases relied on by the Court in which similar orders were issued are distinguishable 15 because, in those cases, the orders were issued with several business days remaining in the 16 fiscal year. See Przhebelskaya v. U.S. Bureau of Citizenship & Immigration Servs., 338 F. 17 Supp. 2d 399, 402 (E.D.N.Y. 2004) (four business days); Paunescu v. I.N.S., 76 F. Supp. 2d 18 896, 898 (N.D. Ill. 1999) (three business days5). 19 The number of business days remaining in the fiscal year is, however, inapposite. The

20 statute provides that aliens who qualify for diversity immigrant visas through the lottery 21 remain eligible "through the end of the specific fiscal year for which they were selected," not 22 through the end of the close of business, local time, on the last business day remaining in the 23 fiscal year. 8 U.S.C. § 1154(a)(1)(I)(ii)(II). Contrary to Respondents' argument, the Court's 24 September 28, 2007 order was not the equivalent of tolling the statutory deadline because 25 Respondents still had two calendar days in which to comply. Although compliance may 26 have been inconvenient, it was not impossible. 27
5 The government mistakenly argues that orders in both cases were issued with four 28 business days remaining in the fiscal year.

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Nonetheless, the Court finds that its September 28, 2007 order improperly granted a

2 writ of mandamus for the reasons set forth below. First, this case is distinct from the other 3 cases in which district courts have ordered that a visa application be adjudicated. Unlike this 4 case, where there is no dispute that Norgren's application was refused under section 221(g), 5 there was no indication in those cases that the consular officials had made any decision at all. 6 Przhebelskaya, 338 F. Supp. 2d at 402 (noting that "the Agency still had not adjudicated the 7 applications because the FBI had failed to complete [a] background check"); Paunescu v. 8 I.N.S., 76 F. Supp. 2d at 898 (indicating that no decision had been made on petitioner's 9 application because of the failure of the FBI to process a fingerprint check); Kobzev v. I.N.S., 10 Case No. 00 C 4576, 2001 WL 12011, at *1 (N.D. Ill. Jan. 4, 2001) (noting that a writ of

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11 mandamus was granted because "the INS had still not adjudicated Kobzev's application").
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The only case that has addressed whether a court can review a decision by a consular

13 official to refuse a visa application under section 221(g) appears to be Patel v. Reno, 134 14 F.3d 929 (9th Cir. 1998). In that case, an alien wife applied for a visa based on her marriage 15 to a naturalized citizen. While her application was pending, denaturalization proceedings 16 were begun against the husband, and a consular official subsequently issued a letter 17 explaining that the wife's "`application is refused' until the denaturalization proceedings had 18 been completed and [the applicant's] eligibility to petition had been firmly established." Id. 19 at 931. The letter stated that the application was denied under section 221(g) but did not 20 comply with regulations requiring the denial to be "on a form prescribed by the Department" 21 and to state statutory provisions under which administrative relief is available.6 Id. at 932. 22 The Ninth Circuit further explained that the denial was "not a final decision. As 23 respondents' counsel admitted during oral argument, the consulate is holding the visa 24 applications in abeyance." Id. The court held that, based on these deficiencies, the 25 consulate's letter was "not a refusal within the meaning of 22 C.F.R. § 42.81." Id. The court 26 distinguished the Patels' situation from the scenario, contemplated by the regulations, in 27 Petitioners here do not argue that the refusal of Norgren's visa application failed to comply with these technical regulations. Petitioners' only assertion is that the refusal was 28 not a final adjudication of Norgren's application. 5
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1 which an applicant indicated an intent to submit additional evidence where such evidence 2 may overcome the stated grounds of ineligibility. Id. at n.2 (discussing provisions for 3 reconsideration under 22 C.F.R. §§ 42.81(b) and (e)). 4 Petitioners argue that Patel requires this Court to find that all refusals under section

5 221(g) are impermissible temporary refusals, but the Court does not find Petitioners' 6 argument persuasive. Unlike in the present case, the government in Patel admitted that it 7 was holding the visa application in abeyance ­ i.e., that it refused to make a decision ­ until 8 after the denaturalization proceedings had concluded. Here, by contrast, the government 9 asserts that it did make a decision by refusing Norgren's visa application for lack of adequate 10 documentation under section 221(g); in fact, it is undisputed that Norgren received a form

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11 OF-194 refusing her visa application because she was found to be ineligible. Thus, this case
For the Northern District of California

12 and Patel arise under very different facts, and this Court does not interpret Patel as a binding 13 decision that all refusals under section 221(g), regardless of the factual circumstances, are not 14 final for purposes of determining whether a writ of mandamus should issue. 15 Moreover, since Patel was decided, the governing regulations have been modified.

16 They now explicitly provide that a consular official may fulfill his duty to issue or refuse to 17 issue a visa by refusing the visa under section 221(g): "When a visa application has been 18 properly completed and executed before a consular officer in accordance with the provisions 19 of INA and the implementing regulations, the consular officer must either issue or refuse the 20 visa under INA 212(a) or INA 221(g) or other applicable law." 22 C.F.R. § 42.81(a) 21 (emphasis added); see 66 Fed. Reg. 10363-64 (Feb. 15, 2001) (noting amendment). This is 22 precisely what the consular officials did in Norgren's case. 23 Although Norgren's visa application remains under review, the regulations provide for

24 such reconsideration where, as here, the applicant provides "further evidence tending to 25 overcome the ground of ineligibility on which the refusal was based" within one year from 26 the date of refusal. 22 C.F.R. § 42.81(e); see also 22 C.F.R. § 42.81(b). Petitioners have 27 failed to convince the Court that the ongoing review of Norgren's application is not properly 28 construed as part of this reconsideration process, rather than as an indication that no decision 6

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1 has yet been reached on the application. Indeed, it is undisputed that Norgren received a 2 Form OF-194 stating that she was found ineligible to receive a visa. 3 In short, the Court concludes that the refusal of Norgren's visa application under

4 section 221(g) complied with the consular officer's duty under 22 C.F.R. § 42.81(a) to issue 5 or refuse the visa. Petitioners have failed to cite any authority for the proposition that any 6 other duty was owed by Respondents to Norgren, and there is thus no basis on which this 7 Court could grant relief to Petitioners. 8 9 CONCLUSION 10 For the reasons discussed above, the Court concludes that no writ of mandamus or any

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11 other relief should issue in this case. It is undisputed that Norgren's visa application was
For the Northern District of California

12 refused under section 221(g). This refusal satisfied the duty owed to Norgren under 22 13 C.F.R. § 42.81(a) ­ namely, to "issue or refuse the visa under INA 212(a) or INA 221(g) or 14 other applicable law" ­ and Petitioners have pointed to no authority imposing on 15 Respondents any other duty, such as a duty that reconsideration also be completed before the 16 end of the fiscal year or that Norgren's application be approved. Consequently, there is no 17 outstanding duty that a writ of mandamus could compel Respondents to perform. The 18 Court's September 28, 2007 Order Granting Petition for Writ of Mandamus is therefore 19 VACATED, and the petition for writ of mandamus is DENIED in its entirety.7 The Clerk 20 shall enter judgment against Petitioners in favor of Respondents and close the file. 21 22 IT IS SO ORDERED. 23 24 Dated: 11/07/07 25 26
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THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

This Court wholeheartedly agrees with other courts that have noted the inequities that may result from the September 30 cut-off date for the diversity immigration visa program. 27 E.g., Coraggioso v. Ashcroft, 355 F.3d 730, 734-35 (3d Cir. 2004); Gebre v. Rice, 462 F. Supp. 2d 186, 191-92 (D. Mass. 2006). However, such inequities do not provide this Court 28 with the authority to grant Petitioners the relief they seek. 7