                                                                                                                           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Precedential or Non-Precedential: Precedential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
                             2


                      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
                                     3


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.
                                    4


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.
                                  5


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.
                                 6


§ 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
                                    7


     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
                                    8


                                   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).
                              9


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
