[Congressional Record Volume 150, Number 18 (Thursday, February 12, 2004)]
[Senate]
[Page S1267]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       DIVERSITY VISA LEGISLATION

  Mr. CHAMBLISS. Mr. President, today I am introducing legislation to 
fix a problem some of my colleagues have experienced in serving their 
constituents. Immigration case work is one of the top issues my State 
offices handle on a regular basis. Occasionally, people who are in the 
country legally and playing by the rules can slip through the cracks as 
they wait on the immigration process to run its course. With the 
massive caseload handled by Immigration Services, there are bound to be 
mistakes and this legislation allows the agency to remedy those 
mistakes in the limited situation of the Diversity Visa Program.
  The case of an Atlanta couple, Charles Nyaga and his wife Doin, 
recently came to my attention. Charles Nyaga, a native of Kenya, came 
to the United States with his family as a student in 1996. He is 
currently pursuing a master's degree in divinity.
  In 1997, he applied for the fiscal year 1998 Diversity Visa Program 
and the Immigration and Naturalization Service selected him. In 
accordance with the diversity visa requirements, Nyaga and his wife 
submitted an application and a fee to adjust their status to legal 
permanent resident. A cover letter on the diversity visa application 
instructed Mr. Nyaga as follows:

       While your application is pending before the interview, 
     please do not make inquiry as to the status of your case, 
     since it will result in further delay.

  During the 8 months the INS had to review his application, Mr. Nyaga 
accordingly abided by what the INS told him to do and never made any 
inquiry. He unfortunately never heard back. His valid application 
simply slipped through the cracks because at the end of the fiscal year 
Mr. Nyaga's application expired, although a sufficient number of 
diversity visas remained available.
  Mr. Nyaga and his wife took their case all the way to the Eleventh 
Circuit Court of Appeals. In a decision last year, the court found that 
the INS lacks the authority to act on Mr. Nyaga's application after the 
end of the fiscal year, regardless of how meritorious his case is. The 
court even went so far as to note that a private relief bill is the 
remedy for Mr. Nyaga in order to overcome the statutory barrier that 
prohibits the INS from reviewing the case in a prior fiscal year. The 
U.S. Supreme Court recently refused to take up the case.
  My legislation would overcome this statutory hurdle for Charles 
Nyaga, his wife, and others who are similarly situated. The legislation 
would give the Department of Homeland Security the opportunity to 
reopen cases from previous fiscal years in order to complete their 
processing. The bill would still give the Department of Homeland 
Security the discretion to conduct background checks and weigh any 
security concern before adjusting an applicant's status.
  I look forward to working with my colleagues and with homeland 
security officials to pass this legislation this year. We must provide 
relief in these cases. I believe this targeted legislation strikes the 
proper balance to provide thorough processing of diversity visa 
applications while not compromising the Department's national security 
mission.
  I yield the floor.
  Mrs. MURRAY. Mr. President, I rise this evening to introduce an 
important piece of legislation called the Guard and Reserve Enhanced 
Benefits Act of 2004. This bill is at the desk.
  I ask unanimous consent to add the following cosponsors: Senator 
Leahy and Senator Reid of Nevada.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mrs. Murray pertaining to the introduction of S. 2068 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  The PRESIDING OFFICER (Mr. Chambliss). The Senator from Rhode Island.

                          ____________________