Coraggioso v. Atty Gen USA

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

1-23-2004

Coraggioso v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-1075

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PRECEDENTIAL

Filed January 23, 2004

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 03-1075

SALVATORE CORAGGIOSO

Petitioner

v.

JOHN ASHCROFT, Attorney General of the United States,

Respondent

Petition for Review of an Order of

The Board of Immigration Appeals

(No. A77 035 208)

Argued October 28, 2003

Before: SCIRICA, Chief Judge, NYGAARD and

AMBRO, Circuit Judges

(Filed: January 23, 2004)

John D. Perez, Esquire (Argued)

41-51 Wilson Avenue

Newark, NJ 07105

Attorney for Petitioner

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Robert D. McCallum, Jr.

Assistant Attorney General

Civil Division

Donald E. Keener

Deputy Director

Michelle E. Gorden (Argued)

Senior Litigation Counsel

Michael P. Lindemann, Esquire

John D. Williams, Esquire

Office of Immigration Litigation

Civil Division, Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Attorneys for Respondent

OPINION OF THE COURT

AMBRO, Circuit Judge:

Salvatore Coraggioso was born in Italy and entered the

United States with his parents in 1984 at the age of four.

Since then he has resided with his family in the United

States, where he has been educated and employed. He has

never been arrested. What reads like an immigrant’s dream

nonetheless is becoming a nightmare.

The hitch is that Coraggioso was not admitted formally to

the United States. As a result, in 1999 he was served with

notice of removal proceedings. He conceded that he was

removable pursuant to Section 212(a)(6)(A)(i) of the

Immigration and Nationality Act (INA), 8 U.S.C.

§ 1182(a)(6)(A)(i), as an alien present in the United States

without being properly admitted. Before the Immigration

Judge (“IJ”), however, Coraggioso argued that removal

proceedings should be terminated and relief be accorded

under the Diversity Immigrant Visa Program (“DV Program”)

established by Congress. Concluding he was powerless to

grant relief, the IJ issued an oral decision denying

Coraggioso’s motion to terminate removal proceedings and

ordered him removed to Italy. In December 2002, the Board

of Immigration Appeals (“BIA”) affirmed the IJ’s decision

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without opinion. A timely appeal followed. We have

jurisdiction to review final orders of removal pursuant to 8

U.S.C. § 1252(a), as amended by the Illegal Immigration

Reform and Immigrant Responsibility Act, Pub. L. No. 104-

208, 110 Stat. 3009 (1996).

Application of the statutory language exacts an extreme

hardship on Coraggioso and his family. But in the absence

of a patent absurdity, we must interpret a statute according

to its plain meaning. Here the statute, with perhaps

unintended and lamentable consequences, is not absurd.

Coraggioso’s petition for review is therefore denied.

I.

Congress instituted the DV Program in 1990. Each year

this program provides visas to individuals from countries

with historically low immigration admissions to the United

States. See generally 8 U.S.C. § 1153(c).1 A total of 55,000

visas are allotted to the program annually. 8 U.S.C.

§ 1151(e).2 A diversity visa (an immigrant visa issued

through the DV Program) qualifies an individual for

permanent resident status. See 8 U.S.C. § 1255(a). If an

alien qualifies to receive a visa under the program, that

person’s spouse and children under the age of twenty-one

are entitled to visas as well. 8 U.S.C. § 1153(d).

A person seeking a visa through the DV Program files a

petition with the State Department. In turn, it randomly

selects the individuals who are eligible to participate in the

Program. Such a person is considered a “lottery winner.”

Selection as a lottery winner, however, does not ensure that

an applicant will receive a visa. The total number of lottery

1. The individual eligibility requirements for the DV Program and the

procedures for allocating visas to specific regions are not relevant to this

case.

2. Passed by Congress in 1997, the Nicaraguan Adjustment and Central

American Relief Act (NACARA), Pub. L. No. 105-100, 111 Stat. 2193

(1997) (codified as amended in scattered sections of 8 U.S.C.), stipulates

that up to 5,000 of the 55,000 annually allotted diversity visas will be

made available for use under the NACARA program. The reduction of

visas to 50,000 began with the 2000 DV Program and remains in effect.

It does not affect this case, the facts of which predate 2000.

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winners exceeds the number of diversity visas available

(approximately 100,000 winners for the 55,000 visas).3

Thus, a lottery winner obtains only the right to apply to

receive a visa through the DV Program.

Once an individual is selected to participate in the DV

Program, s/he must submit numerous documents and

undergo an extensive background review. Lottery winners

from abroad submit applications at a United States

consular office. Those residing in the United States,

however, may apply to the INS for an adjustment of status

under 8 U.S.C. § 1255(a). This procedure allows a lottery

winner to receive a diversity visa without returning to his or

her native country. A person is eligible for the DV Program

for a single fiscal year only.4 Those not receiving visas

must, with sisyphean frustration, go back to the starting

line and reapply to the lottery.

Coraggioso’s parents were selected in the 1998 lottery

and participated in the 1998 DV Program.5 Coraggioso

(then under twenty-one years old) was included in the

diversity visa and adjustment of status applications

submitted by his parents. He alleges his parents promptly

submitted all required documents, paid all necessary fees,

qualified for the diversity visas and were merely awaiting

notification from the INS that their applications had been

approved.6 Sometime in January 1999, though, his parents

received a letter stating their applications had been denied,

not on their merits, but because the fiscal year had ended.

In other words, the INS had not finished processing the

3. The excess number of petitions selected are “to ensure, to the extent

possible, usage of all immigrant visas authorized.” 22 C.F.R. § 42.33(c).

4. For example, fiscal year 1998 for the DV Program began October 1,

1997 and ended September 30, 1998.

5. The record fails to specify whose name in the lottery was drawn —

Coraggioso’s father, his mother or both of his parents jointly.

6. The record is devoid of any documentary evidence of Coraggioso’s

parents’ participation in the 1998 DV Program. Any factual

representations have been made by Coraggioso’s counsel orally or in

writing. The INS, however, has not challenged these factual allegations or

presented any contrary evidence. For the purposes of this appeal,

therefore, we accept these allegations as true.

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applications by the end of the fiscal year. Sadly, diversity

visas were available for Coraggioso and his family had the

INS timely dealt with their application. Only 51,565 of the

55,000 diversity visas were actually issued for fiscal year

1998.

II.

On appeal, Coraggioso argues that his removal

proceedings should have been terminated due to the INS’s

failure to adjudicate his parents’ adjustment of status

application under the DV Program.7 In addition, Coraggioso

now requests that we order visa numbers be procured for

him and his parents.

We review the decision of the IJ as adopted by the BIA.

Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002) (citation

omitted). Whether the IJ erred in interpreting the statutory

provisions of the DV Program is a question of law subject

to plenary review. See Valansi v. Ashcroft, 278 F.3d 203,

207 (3d Cir. 2002). However, the BIA’s (and hence the IJ’s)

interpretation of the INA is subject to established principles

of deference. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25

(1999). “[I]f the intent of Congress is clear . . . the court, as

well as the agency, must give effect to the unambiguously

expressed intent of Congress.” Chevron, U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).

But “if the statute is silent or ambiguous with respect to

the specific issue, the question for the court is whether the

agency’s answer is based on a permissible construction of

the statute.” Id.

III.

As the IJ correctly noted, Coraggioso’s status cannot be

adjusted in the absence of an approved visa petition or

evidence that an immigrant visa is available. 8 U.S.C.

7. Coraggioso also appeals the BIA’s affirmance of the IJ’s decision

without opinion. This issue is identical to the one decided in Dia v.

Ashcroft, 2003 U.S. App. LEXIS 25901, 2003 WL 22998113, ___ F.3d ___

(3d Cir. Dec. 22, 2003) (en banc). As dictated by Dia, we must conclude

the BIA’s actions in this case were proper.

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§ 1255(a). Thus the only issue we need decide is whether

the DV Program allows the issuance of a diversity visa after

the end of a given fiscal year. In other words, are

Coraggioso and his parents still eligible to receive diversity

visas after September 30, 1998 (the end of the 1998 fiscal

year DV Program)? If so, we may grant relief. If not, relief is

foreclosed.

In interpreting the scope of the DV Program, we must

begin with the statutory language. Hughes Aircraft Co. v.

Jacobson, 525 U.S. 432, 438 (1999). According to long-

standing principle, ambiguities are resolved in favor of

aliens. INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987).

But where the statutory language provides a clear answer,

our inquiry usually ends. Hughes Aircraft Co., 525 U.S. at

438. The provision that dictates the result we reach today

is 8 U.S.C. § 1154(a)(1)(I)(ii)(II). It states: “Aliens 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 specific fiscal year for which they

were selected.” Id. The phrase “only through the end of the

specific year” unambiguously indicates Congress’s intent to

impose a time deadline on an applicant’s eligibility to

receive a visa. If Congress had used different language, our

analysis may be been different. We are compelled, however,

to interpret the statute as written.

Despite the clear mandate in 8 U.S.C. § 1154(a)(1)(I)(ii)(II),

Coraggioso argues that we should still interpret the DV

Program to grant the relief he requests. Congress chose to

use affirmative language throughout § 1153(c). See 8 U.S.C.

§ 1153(c)(1) (“diversity immigrants shall be allotted visas”),

(c)(1)(A) (“[t]he Attorney General shall determine”), (c)(1)(B)(i)

(“[t]he Attorney General shall identify”), (c)(1)(B)(ii) (“[t]he

Attorney General shall identify”), (c)(1)(C) (“[t]he Attorney

General shall determine”), (c)(1)(D) (“[t]he Attorney General

shall determine”), (c)(1)(E)(iv)(“excess visa numbers shall be

made available”). Hence the Attorney General and the INS

have an affirmative duty to administer the DV Program in

a timely manner. Further, § 1153(c)(1)(E)(iv) states:

If the Secretary of State estimates that the number of

immigrant visas to be issued to natives in any region

for a fiscal year under this paragraph is less than the

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number of immigrant visas made available to such

natives under this paragraph for the fiscal year,

subject to clause (v), the excess visa numbers shall be

made available to natives (other than natives of a high-

admission state) of the other regions in proportion to

the percentages otherwise specified in clauses (ii) and

(iii).

(Emphasis added.) This language could be interpreted as

providing a clear directive that the INS distribute all 55,000

diversity visas for a fiscal year. See Nyaga v. Ashcroft, 323

F.3d 906, 918 (11th Cir. 2003) (Barkett, J., dissenting).

According to Coraggioso, these provisions of the DV

Program conflict with the time limitation of 8 U.S.C.

§ 1154(a)(1)(I)(ii)(II), resulting in an absurdity. It is well

recognized that even clear statutory language will not be

given effect if to do so is absurd. Cardoza-Fonesca, 480 U.S.

at 452 (Scalia, J., concurring).

Ultimately, however, we must heed the jurisprudential

tenet not to create ambiguity in a statutory provision (and

not to create a conflict between two sections of a statute)

where none reasonably exists. The affirmative language

used throughout 8 U.S.C. § 1153 creates a duty to

administer the DV Program, but it does not extend the

statutorily-limited period of eligibility for a diversity visa.

Nyaga, 323 F.3d at 914. Also, we interpret

§ 1153(c)(1)(E)(iv) to mean that, time permitting, the INS

must make available the excess visa numbers from one

region to applicants from another region. But these

provisions in 8 U.S.C. § 1153(c) in no way conflict with the

requirement in 8 U.S.C. § 1154(a)(1)(I)(ii)(II) that all visas for

a given year’s DV Program must be issued by the end of

that fiscal year. We therefore join the Seventh and Eleventh

Circuits in concluding that, in the current circumstances,

the language Congress used precludes the INS from issuing

a visa pursuant to the DV Program for a given fiscal year

upon the expiration of that fiscal year. See Nyaga, 323 F.3d

at 914; Iddir v. INS, 301 F.3d 492, 501 (7th Cir. 2002).8

8. Had Coraggioso sought relief prior to the expiration of the 1998 fiscal

year, our analysis may have been different. See Paunescu v. INS, 76 F.

Supp. 2d 896 (N.D. Ill. 1999). Similar to Coraggioso’s parents, Paunescu

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IV.

We conclude with regret that Coraggioso’s petition for

review must be denied, thus affirming his order of removal.

The equities of the situation clearly give us pause. Having

lived in the United States since the age of four, Coraggioso

is more truly an American than an Italian. He is neither a

criminal nor a burden on society. In addition, it appears

Coraggioso would have been entitled to a diversity visa

(and, hence, permanent resident status) if the INS had

performed its statutorily mandated duty and timely

adjudicated his parents’ DV Program applications. Now that

he is over twenty-one years old, however, Coraggioso is no

longer a “child” under the INA and cannot obtain relief

through his parents. 8 U.S.C. § 1101(b)(1), (c). Therefore, it

appears the only redress currently available is a private bill

directing the INS to grant a visa number to him. See, e.g.,

H.R. 4863, 107th Cong. (2002) (“For the relief of Rodney

Allan Green and Wendy Sharon Green”); H.R. 4829, 107th

Cong. (2002) (“For the relief of Olivera Goronja”). Absent

was a lottery winner for the fiscal year 1998 DV Program. But unlike

Coraggioso’s parents, Paunescu filed a complaint for mandamus and

declaratory judgment against the INS on September 23, 1998. After a

hearing on September 25, 1998, the District Court ordered the INS to

“complete adjudication of the applications for adjustment status” for

Paunescu and his wife without delay, or by no later than September 30,

1998. Id. at 898. Despite the court order, Paunescu’s application was not

adjudicated in time. In that instance, and despite the expiration of the

fiscal year, the District Court ordered “defendants to process plaintiffs’

applications and to grant plaintiffs all relief to which they would have

been entitled had defendants processed their applications in a timely

fashion.” Id. at 903 (emphasis added). The Seventh Circuit has explicitly

approved this result.

It would be a different case had the district court ordered the INS to

adjudicate the appellants’ status while the INS maintained the

statutory authority to issue the visas. In such a situation, the INS

would be on notice to reserve visas and must complete the task, as

ordered, before time expires. Allowing the INS to claim inability to

issue visas at that point would impinge the authority of the court.

Iddir, 301 F.3d at 501 n.2 (discussing and citing Paunescu) (emphasis in

original) (internal citations omitted).

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such relief, Coraggioso will be forced to leave behind his

family, friends and the only life he can remember.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit