DV 2012: Injunction requested, Court hearing set

It is to be recalled that on May 13 US state department voided the results of DV 2012 on the ground that ’90% of the selectees to come from the first two days of the registration period’ due to computer glitch’. However, the ‘erroneous’ results, which had been on its website in the previous 12 days, notified at least 22,000 individuals that they ‘are selected’. A score of them even started processing their Visa.

Normally, State Departments selects about 90,000 people among applicants. Of which, 55,000 will be granted visa ultimately. Now, this year at least 22,000 people have been notified they are selected or passed the first stage- thus, were supposed to be part of the 90,000 pool.

The State Department announced the draw will be conducted again and the results will be posted on July 15.

However, that was not acceptable to those who had been notified that they are selected in the voided result.

Consequently, two parties got involved in the matter. The Office of Inspector General (OIG)  and the the District Court for the District of Columbia[Washington D.C.].

The OIG said on June 3 it is to conduct a review on the matter upon the request by for the U.S. Department of State. However, there has been no development yet. Kenneth While, a lawyer involved in the matter, was suspicious of the genuineness of OIG’s move from the beginning as he noted on his blog then. Now, he is convinced so as to say ‘it is abundantly clear that OIG has no interest in or desire to finish its investigation by July 15.’ [Click here to see Mr. White’s letter to OIG on June 30]

The lawsuit which Kenneth White filled in a Washington D.C. Court had showed progress.

The The case, named Ilya Smirnov et al. v. Hillary Rodham Clinton et al  is scheduled for hearing for July 12. That is pretty close to the time when the State Department is expected announce the results of the second re-drawing. If the latter takes place there will be a new group of selectees and the State Department wouldn’t be able to accommodate those selected in the voided drawing even if it wants to. As the annual visa to be granted is fixed by a law enacted by the US Congress.

To avoid such a scenario Kenneth White made another move this week. His law firm requested the court for a preliminary injunction ‘to ensure that the interests of the Class of 22,000 are protected.’ An injunction order is a sort of temporary decision that courts usually give to keep things as they are until a final judgment is made. In this case, the injunction sought by Kenneth White, according to the press release, is:

1) allow the July 15 drawing to proceed, only with safeguards to protect the plaintiffs’ rank order; or 2) reinstate the original results for all selectees.

It is my understanding that if the Court is convinced of the need for injunction order, it is not bound by the options listed above and could give any type of injunction, say, freezing the July 15 drawing in general.

Kenneth White had also requested the court for Class Certification, which if granted means all the 22,000 concerned individuals will be considered as plaintiffs. Currently, Mr. White name 36 individuals from 22 countries on his lawsuit.

The Court is expected to hear the main case and the request for injunction on July 12, according to a brief statement from Mr. White yesterday. He said:

A court hearing has been set for July 12 at 10 a.m. in Washington D.C. The court has combined the hearing on the injunction with a hearing on the merits, meaning, it will make a final decision on the entire case brought by the 36 plaintiffs.  If a decision is negative, the court will not go to the question of the entire class; if positive, the court would then review the question of the entire 22,000.

Read below the press release from Mr. White, which he posted on June 30. Check the DV 2012 Archive for previous posts.


Green card Lottery Class Action – Press Release


Los Angeles, CA, Tuesday June 28, 2011


  • Injunction Motion Filed – Requesting Accelerated Court Hearing
  • Interim judgment sought AHEAD of planned July 15 Drawing
  • Motion for Class Certification Filed

An Injunction request has today been filed in support of the Class Action lawsuit being brought against the State Department, with respect to its handling of the 2012 Green card lottery.

Attorney Kenneth White of White and Associates says of the injunction – “This is a necessary and meaningful step, in which we seek to dramatically accelerate the hearing of our arguments in court. It deals with the State Department plans to hold a second lottery on July 15. We need to ensure that the interests of the Class of 22,000 are protected going forward and this accelerated hearing will preserve the possibility of justice being done.”

In addition to the Injunction request, a motion for class certification was filed with the Court. The motion requests the Court to allow the 22,000 individuals affected to join with the 36 named plaintiffs in asserting their rights in the lawsuit.


A Class Action lawsuit was filed against the State Department on June 16, 2011 seeking to reinstate a commitment first made, then broken, to 22,000 would-be legal and rule-abiding immigrants to the United States. The blunder, for which fault is already admitted by the State Department, saw 22,000 individuals who were proceeding down a legal route to immigrate to the United States, have their applications cancelled. The State Department’s preferred approach to handling its error is to entirely disregard the in-writing commitment it made to Class members, and hold a new drawing on July 15.

Injunction Details

Should the State Department be unrestrained and go forward in running the second drawing in the way it plans, it would be irreparably harming the interests of the class of 22,000. By pressing on with its plan to allocate the available visas to an entirely new set of winners ahead of the outcome of the class action lawsuit, this could render any favorable verdict for the plaintiffs meaningless – and result in a travesty of justice.

To prevent this, a request for a preliminary injunction has been filed, which petitions the court to weigh two potential outcomes to preserve the plaintiffs’ interests: 1) allow the July 15 drawing to proceed, only with safeguards to protect the plaintiffs’ rank order; or 2) reinstate the original results for all selectees. The goal of this request is to immediately re-commence the processing of visa and adjustment of status applications for those who have already been recognized and selected in the Lottery.

Stuart McBrien, who is a plaintiff in the lawsuit, comments: “The injunction is the only fair way to move forward. Without it all the available visas will be allocated by the time our court case is heard – so even if we win, it will be pointless for me and thousands of others. This is the only way that justice can be done.”


Appendix – Key Questions and Answers

1. Why is this matter so urgent?


Regardless of any second drawing, it is essential that the State Department allow processing of applications for all those who have “won” the green card lottery as soon as possible. Despite a congressional mandate, the State Department has failed to issue the full allocation of 50,000 diversity visas for almost every year in the past 5 years. Therefore, timely processing is a critical factor, and it is important that:

  • Processing of applications for all winners begins as soon as possible
  • The class of 22,000 is not disadvantaged by being sidelined until after the lawsuit is decided before being allowed to start processing their applications – as this would likely result in some or all not making it through processing by the closing deadline
  • The class of 22,000 should not be disadvantaged by being put “to the back of the line” as a result of any part of a potential re-drawing


2. Are White and Associates in a position to litigate this lawsuit early?


Yes. White and Associates would like to participate in an early hearing on this matter, to allow all those impacted to move forward with the green card lottery process with clarity and certainty.

Further Case Information: White & Associates maintains a blog on the ongoing litigation at blog.visarefusal.com Mr. White can be reached at 818-730-3540 and [email protected]

Daniel Berhane

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