[Congressional Record Volume 151, Number 71 (Wednesday, May 25, 2005)]
[Senate]
[Page S5928]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CHAMBLISS:
  S. 1119. A bill to permit an alien to remain eligible for a diversity 
visa beyond the fiscal year in which the alien applied for the visa, 
and for other purposes; to the Committee on the Judiciary.
  Mr. CHAMBLISS. Mr. President, today, I am introducing legislation to 
fix a problem that some of my colleagues have experienced in serving 
their constituents. Immigration case work is one of the top issues that 
my State offices handle on a regular basis. Occasionally, people who 
are in our 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, came 
to my attention about a year ago. Charles Nyaga, a native of Kenya, 
came to the U.S. with his family as a student in 1996, and 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 (INS) 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: ``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 eight months that INS had to review his 
application, Nyaga accordingly never made inquiry, and he unfortunately 
never heard back. His valid application simply slipped through the 
cracks. At the end of the fiscal year, Nyaga's application expired, 
although a sufficient number of diversity visas remained available.
  Nyaga and his wife took their case all the way to the 11th Circuit 
Court of Appeals. In a decision last year, the Court found that the INS 
lacks the authority to act on 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 
Nyaga in order to overcome the statuary barrier that prohibits the INS 
from reviewing a case in a prior fiscal year. The U.S. Supreme Court 
declined to take up this 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 (DHS) the opportunity to 
reopen cases from previous fiscal years in order to complete their 
processing. It is important to understand that this process would only 
be available to those individuals who have been here since the time 
they filed their claim. The bill would still give DHS the discretion to 
conduct background checks and weigh any security concerns 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.
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