The lawsuit which White & Associate law firm filled to challenge US State Department’s May 13 decision to void the results of DV 2012 has failed.

State Department voided the results, which had been on its website in the previous 12 days, on the ground that ’90% of the selectees [came] from the first two days of the registration period’ due to ‘computer glitch’.

However, White & Associate law firm took the matter to court on behalf of the 22,000 individuals who were notified that ‘they are selected’ by the voided results. The hearing of the case, named Ilya Smirnov et al. v. Hillary Rodham Clinton et al, took place on July 12 at a Court in District of Columbia(Washington D.C.).

The law firm requested the court to order the State Department to reinstate the results of the 22,000 individuals. It also requested an injunction( a temporary order) to protect their interest in the new drawing of the DV 2012 Lottery which the State Department planned to announce ‘on or about July 15′. As only 36 of the 22,000 concerned individuals are named in the case, Kenneth While did also request the court for Class Certification – that is, for all the 22,000 to be considered as plaintiffs in the case, and thus benefit from the decision.

However, Judge Amy Berman Jackson, who presided on the case, dismissed the case in a 37 page long decision s/he delivered on July 14.

Judge Jackson’s decision begins summarizing the the case as follows:

Congress established the diversity visa program to encourage and facilitate immigration to the United States from countries with historically low rates of immigration. Each year, the U.S. Department of State (“State Department” or “Department”) administers a lottery program where approximately 100,000 randomly-selected “winners” are given the opportunity to apply for “green cards,” or permanent residence visas. Lottery winners do not receive the right to immigrate to the United States, but they do receive an opportunity to submit a visa application that will remain valid for the remainder of the fiscal year involved. This is a highly coveted prize, as winners may ultimately qualify for U.S. citizenship, and it provides a means of applying for a visa that does not depend upon sponsorship by an employer or a relative.

In October 2010, over 19 million people submitted entries for the diversity visa lottery for fiscal year 2012. When the results were announced in early May of 2011, it became apparent that more than 90% of the winners had completed their entries during the first two days of the thirty day submission period. The State Department decided to void the lottery results, and it announced that another lottery would be conducted in July 2011. By that point, about a quarter of the winners had already accessed the website and learned of their selection.

Plaintiffs were among the group who received notification that they had won the right to apply for visas. On behalf of themselves and the entire class of 22,000 individuals who learned of their winning status, they filed this action and a motion for a preliminary injunction seeking to enjoin the defendants from voiding the results of the first lottery and conducting another.

Then, it states:

The moving force behind the lawsuit is, as one plaintiff put it, “broken dreams.” Plaintiffs have supplied the Court with a collection of impassioned declarations of lottery winners, tracing their path from exhilaration to despair. They write of themselves:

  • [T]he 22,000 were and are individuals who played by the rules; individuals who are friends of the United States; who are seeking only to pursue their own American dreams . . .

The Court is sympathetic to the plaintiffs’ plight. While it does not doubt that the emotional impact of the Department’s reversal has been painful and real, and that many of the plaintiffs have compelling reasons to seek to immigrate to the United States, it must take note of the fact that all of the others who submitted timely petitions during the thirty day period also “played by the rules . . . seeking only to pursue their own American dreams.”

There are 19 million more stories, from other lottery participants, many of which may be equally or even more compelling, and it is for that reason that Congress determined that every applicant would have an equal chance of winning the right to apply for the visa.

The Court cannot order the Department of State to honor a botched process that did not satisfy that regulatory and statutory requirements. Moreover, the Court does not find that it was arbitrary or capricious for the Department to decide to rescind a lottery that did not meet the single most important criterion for a drawing: a random selection.

However, Judge Jackson decided:

The Court concludes that since the original lottery did not comply with the statutory and regulatory requirements, it cannot order the Department to process the original winners’ applications. It further concludes that the Department’s decision to conduct a second lottery in compliance with law was neither arbitrary nor capricious, and that it was based on a reasonable interpretation of the statute and the agency regulations. Therefore, the second lottery may proceed as planned.

In a brief Statement today the law firm, White & Associate, said:

Yesterday, the US District Court for the District of Columbia dismissed the complaint of plaintiffs, who had initiated a lawsuit against the State Department to reinstate their winning selections in the Diversity Visa-2012 Lottery. We respect the decision of the Court and we are grateful to the Court for the urgency that it treated this case.

However, we respectfully disagree with the Court’s analysis – the Court believes that the only way to obtain a random result here was the proper utilization of a computer randomization program. We believe that the purpose of Congress had been achieved by the first drawing – that the 22,000 individuals selected were chosen at random: with no manipulation of results, a level playing field, and no discrimination based on race, age, creed, or national origin. The end result is that the American government has lost credibility – promising 22,000 individuals the right to proceed with the immigration process and then snatching away that hope and promise. The State Department may have won in court, but it has lost the hearts and minds of 22,000 individuals from all around the world.

Check the DV 2012 Archive for related posts.

You may download the Court’s decision here.[PDF – 166 KB]


Daniel Berhane

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