Opinion
00 Civ. 1216 (LAK)
September 11, 2000
ORDER
Plaintiff, a Polish citizen living in the United States, was notified by the State Department in August 1996 that he had been selected for possible issuance of an immigrant visa under the fiscal year 1997 diversity immigrant visa program in Section 203 of the Immigration and Nationality Act of 1952, as amended (the "Act"), see 8 U.S.C. § 1153(c) (the "Visa Lottery"). Based on that notification, he applied to the INS for a discretionary adjustment of his status to that of lawful permanent resident pursuant to Section 245 of the Act, 8 U.S.C. § 1255(a). He allegedly was told by an INS employee in January 1997 that his case was approved except for FBI fingerprint clearance. The Visa Lottery expired on September 30, 1997, however, without plaintiff having obtained a diversity immigrant visa. In 1999, the INS denied his application for adjustment of status because his fingerprint clearance had not been completed prior to the end of the 1997 fiscal year. Plaintiff thereafter filed this action, seeking nunc pro tunc adjustment of his status to that of lawful permanent resident. The government moves to dismiss for lack of subject matter jurisdiction.
Plaintiff asserts jurisdiction under Section 279 of the Act, 8 U.S.C. § 1329, and the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361. His reliance on Section 279 is frivolous, however, as the statute itself provisions, with respect to actions filed on or after October 1, 1996, that "[n]othing in this section shall be construed as providing jurisdiction for suits against the United States or its agencies or officers." Thus, the only even debatable issue is whether there jurisdiction lies under the Mandamus and Venue Act.
The basis for plaintiff's claim is not altogether clear. If he contends that he is entitled to relief in the nature of mandamus on the ground that the government is estopped by the January 1997 comments of the INS employee, he is mistaken. The employee's statement, even if made, was not an unequivocal representation that plaintiff would be granted permanent resident status. Even if it was, plaintiff alleges no detrimental reliance. And even if the elements of estoppel had been made out, the government plainly "is not bound by the unauthorized acts of its agents." Doe v. Civiletti, 635 F.2d 88, 96 (2d Cir. 1980).
Plaintiff may be contending also that the government unreasonably delayed in performing the FBI fingerprint clearance and, in consequence, that it is estopped to deny that he is entitled to the adjustment in status that he seeks. But the Supreme Court has held that "unexplained delay" alone cannot support an estoppel claim against a government agency. See INS v. Miranda, 459 U.S. 14, 19 (1982). Affirmative misconduct alone suffices. Id. And plaintiff here alleges no facts amounting to affirmative misconduct.
Accordingly, the action is dismissed.
SO ORDERED.