Case: 20-20370 Document: 00515728030 Page: 1 Date Filed: 02/01/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED February 1, 2021 No. 20-20370 Lyle W. Cayce Summary Calendar Clerk Anastasiia Ermuraki; Aurel Ermuraki, Plaintiffs—Appellants, versus Kenneth T. Cuccinelli, USCIS Director; David Pekoske, DHS Secretary; Tony L. Bryson, USCIS District Director; Wallace L. Carroll, Houston USCIS, Defendants—Appellees. Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19-CV-4169 Before Clement, Higginson, and Engelhardt, Circuit Judges. Per Curiam:* Plaintiffs-Appellants Anastasiia and Aurel Ermuraki filed suit in the district court to challenge the United States Citizenship and Immigration * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-20370 Document: 00515728030 Page: 2 Date Filed: 02/01/2021 No. 20-20370 Services’ (“USCIS”) denial of their application to adjust their immigration status to lawful permanent residents under the diversity visa program. Upon the motion of Defendants-Appellees (“the Government”), the district court dismissed the case with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). Because we hold this case was moot prior to the entry of the district court’s final judgment, we VACATE the judgment and DISMISS the case. I As part of USCIS’ selection process, the Ermurakis—who are husband and wife—were randomly invited to apply to the diversity visa lottery program for the fiscal year ending on September 30, 2019. See 8 U.S.C. § 1153(c), (e)(2). They submitted their status adjustment application on October 9, 2018. On April 17, 2019, USCIS denied their application because it found the Ermurakis did not have lawful immigration status at the time they submitted their application, as required by statute. See 8 U.S.C. § 1255(c)(2). On May 20, 2019, the Ermurakis filed what they describe as a motion to reconsider 1 with USCIS. On September 23, 2019, USCIS denied the motion. Counsel for the Ermurakis received notice of this denial three days later, on September 26, 2019. Approximately one month later, on October 24, 2019, the Ermurakis filed their initial underlying complaint in the district court, beginning this action. After the Ermurakis filed an amended complaint, the Government moved to dismiss for failure to state a claim pursuant to Federal Rule of Civil 1 USCIS treated the motion as a motion to reopen. Because we dismiss this case on jurisdictional grounds, we need not decide whether the motion was properly treated as a motion to reopen. 2 Case: 20-20370 Document: 00515728030 Page: 3 Date Filed: 02/01/2021 No. 20-20370 Procedure 12(b)(6). In its motion, the Government also asserted what the district court understood to be an argument that the case was moot. By law, diversity visas must be awarded before midnight on the last day of the fiscal year for which an applicant was selected to apply. 8 U.S.C. § 1154(a)(1)(I)(ii)(II); 22 C.F.R. § 42.33(f). Because the fiscal year for the Ermurakis’ ...
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