Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Imagine winning the lottery only to find that bureaucracy has rendered your ticket worthless. That’s what happened to Charles Kibaara Nyaga in his quest to become an American citizen. The 45-year-old Kenyan, who came to the United States with his wife and two children, lives in Powder Springs, Ga. Nyaga learned in 1997 that he was one of 100,000 winners in an annual U.S. State Department drawing held for citizens of countries that are under-represented on America’s immigration rolls. Millions participate, each hoping to get applications for “diversity visas” that grant aliens permanent residency on their way to citizenship. Nyaga filed his diversity visa application in February 1998 with the Immigration and Naturalization Service. But according to court decisions, the INS did nothing to process the application beyond sending Nyaga’s fingerprints to be checked by the FBI. The INS responded in court briefs that it was “simply overburdened” and that Nyaga was not entitled to have his application processed within a specific period of time. That was bad news for Nyaga and his wife, Doin Kainyu Kibaara, whose immigration status is tied to her husband’s diversity visa. Last week, a panel of the 11th U.S. Circuit Court of Appeals voted 2-1 in favor of the government. The majority said that Nyaga’s eligibility for a visa expired at midnight on Sept. 30, 1998 — the end of the fiscal year for which the lottery applied. Nyaga and Kibaara aren’t in immediate danger of deportation because their case is still alive, said one of their lawyers, Madeline S. Wirt of Gainesville, Ga.’s Whelchel & Dunlap. But the couple’s prospects for collecting on the winning lottery ticket look murky at best. Wirt said she probably would ask the full 11th Circuit to reconsider the panel’s ruling. The court grants only a handful of such reviews each year, and petitions for certiorari at the U.S. Supreme Court face equally long odds. What little case law that exists on the subject poses more trouble, as the 7th Circuit, the federal appeals court based in Chicago, held in a similar case that eligibility for a diversity visa ends with the fiscal year in which the application is issued. The couple has received some sympathy — from Chief Judge Orinda D. Evans of U.S. District Court for the Northern District of Georgia, who last year ordered the INS to process Nyaga’s application, and from 11th Circuit Judge Rosemary Barkett, who dissented from last week’s decision reversing Evans. This week U.S. Sen. Zell Miller, D-Ga., also pledged his support to the couple. “The INS’ handling of this couple’s visa application was deplorable,” Miller said in a statement issued by his spokeswoman. Miller added that the case was the latest example of the INS being “dysfunctional and incompetent,” a reason he supported the bill that placed immigration decisions within the new Department of Homeland Security’s Bureau of Citizenship and Immigration Services. An Atlanta spokeswoman for the new bureau said she could not discuss the case without “an original, notarized statement” from Nyaga giving permission. A statement meeting those requirements could not be provided by press time. Miller added that if Nyaga and Kibaara want help from his office, “I stand ready to serve them.” If litigation proves fruitless, the couple may very well need the assistance of Miller and at least half of his colleagues. The 11th Circuit majority suggested Congress could pass a bill authorizing the government to issue visas specifically to Nyaga and Kibaara. That is what happened in 1999, when Congress authorized the INS to issue diversity visas to emigrants whose application process was interrupted by the 1998 terrorist bombings of U.S. embassies in Kenya and Tanzania. If all else fails, Nyaga said that he would consider moving back to Kenya, but that is “the last option.” LOST IN THE SHUFFLE Nyaga’s ride on America’s immigration roller coaster began in May 1996, when he came to the United States to attend technical college. His wife came two months later, followed by their daughter and son, who are now 16 and 13, respectively. The son of a Presbyterian minister, Nyaga said, “I wanted to get some education so I could better myself.” He earned an associate’s degree from Chattahoochee Technical College in Marietta, Ga. Now he works in guest services at a Marietta hotel and for a commercial cleaning service. Kibaara is a cashier at a local Wal-Mart. Nyaga said he threw his name into the State Department lottery because he hoped to gain permanent residency in America so his kids would have opportunities for a good education. When he received notice that he had won one of the rare applications for a diversity visa, Nyaga said, “It was a big shock. … It was incredible.” But what was incredible was yet to come. After Nyaga submitted his application in February 1998, the INS sent his fingerprints to the FBI — and did nothing else, according to Evans’ decision. Meanwhile, Nyaga said he followed the instructions on the diversity visa application — not to inquire as to the status of his case. But when he came to the INS to renew his work permit, he asked informally. Each time, he recalled, “they said the best thing to do was wait.” So he waited. And waited. And waited. Finally, in January 2001, the INS asked Nyaga’s wife, Kibaara, to come in for a permanent status interview. They both went. According to Evans’ decision, an INS representative told the couple that Nyaga’s diversity visa lottery information could not be located. Accordingly, Kibaara’s request for a visa — based on Nyaga’s now nonexistent diversity visa — was denied. In briefs submitted to the 11th Circuit, Linda S. Wernery, a Justice Department lawyer representing the INS, pointed out that the Atlanta INS office gave higher priority to diversity visa applications. But that “does not create a duty on the part of the INS to adjudicate such applications within a certain time frame,” she added. Later she wrote, “The INS inadvertently failed to expedite Nyaga’s adjustment application and was unable to adjudicate the application within fiscal year 1998 because it is simply overburdened.” Wernery concluded that the INS did not violate any statute or regulation: “At most, this is simply a case of unexplained delay or inaction and thus does not rise to the level of affirmative misconduct.” NO ISOLATED INCIDENT Nyaga’s problem wasn’t unique. While Nyaga’s application was gathering dust in Atlanta, the INS in Chicago was having trouble with the diversity visa applications of Teodor and Leila Paunescu from Romania. Just 12 days before the Sept. 30, 1998, deadline, the INS requested a third set of fingerprints from Teodor. He complied, and then he and his wife sued the INS in federal court. On Sept. 25, the judge ordered the INS to complete the processing of the applications, pending approval from the FBI fingerprint check. The fingerprints didn’t clear until Oct. 8, 1998, eight days after the deadline. But in December 1999, the judge, Robert W. Gettleman, ruled that the Paunescus “should not be penalized for the government’s misfeasance” and again ordered the INS to process their applications. Paunescu v. INS, 76 F. Supp. 2d 896 (E.D. Ill. 1999). James V. Noonan, one of the Paunescus’ lawyers, said his firm “developed a little niche industry” from the botched visa cases — “until the circuits starting ruling against us.” Noonan went on to represent Nyaga with Wirt. Last August, a three-judge panel of the 7th Circuit ruled in a case of eight plaintiffs whose diversity visa applications lapsed. While noting that the INS “did not take a single step toward processing any of the applications,” the panel ruled that the law clearly stated the applications could be processed only “through the end of the specific fiscal year for which they were issued.” The 7th Circuit distinguished between the eight plaintiffs before them and the Paunescus’ case because the Paunescus brought their case before the Sept. 30 deadline. Iddir v. INS, 301 F.3d 492 (7th Cir. 2002). PREDICAMENT IS ‘OFFENSIVE’ Judge Evans looked at Nyaga’s case before the 7th Circuit issued its Iddir decision. Evans said that while she was sympathetic to the overworked INS, the service offered no evidence explaining why it did not process Nyaga’s application on time. “The court will not reward such gross inaction by concluding the application was automatically denied when the fiscal year expired,” Evans added. But when the 11th U.S. Circuit panel looked at the case, Iddir was on the books — and was cited by the majority that voted to reverse Evans. In an unsigned decision, Chief Judge J.L. Edmondson and Senior Judge Emmett Ripley Cox said that the law establishing the diversity visa was clear that the applications expire at the end of the fiscal year. Since Nyaga’s application had expired, they added, whether the INS should process the application was a moot point. Barkett, the 11th Circuit dissenter, hinted that Edmondson and Cox struggled with their decision by writing that the majority “reluctantly” accepted the INS’ argument. Moreover, Barkett decried Nyaga’s predicament as not his fault. “Such a result is particularly offensive because it is clear from the statute that Congress expected the INS to perform the ministerial duties required by the program,” Barkett added. Nyaga v. Ashcroft, No. 02-12265 (11th Cir. March 5, 2003). MISSING PRINTS Wirt, Nyaga’s lawyer, said she blames the FBI as much as she does the INS. “If the FBI had sent back the fingerprint cards, something would have happened,” she said. A spokesman at the FBI’s fingerprint lab in West Virginia did not respond to a faxed request for comment. The Atlanta spokeswoman for the Bureau of Citizenship and Immigration Services allowed that it usually takes only one or two days for fingerprints to be processed by the FBI and that immigration officials do follow up with the FBI “if the situation is warranted.” Wernery, the Justice Department lawyer who represented the INS, referred a call to the department’s press office, where an official declined to comment on the case. Daryl R. Buffenstein, an Atlanta immigration lawyer from Paul, Hastings, Janofsky & Walker, said the INS was “absolutely overwhelmed with unfunded mandates,” but he called the case “very, very troubling.” Buffenstein, the general counsel of the American Immigration Lawyers Association, said holdups regarding fingerprint checks could be “a portent of things to come,” given the security precautions being applied under immigration’s new administrators at the Department of Homeland Security. For his part, Nyaga did not sound cynical about the justice system in the country he wishes to join. “I don’t have a problem with the legal system,” he said. But he added, “I don’t feel good. I’d feel good if I had my visa.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.