Monday, July 18, 2011

US Court Dismisses Lawsuit Against State Dept for Voided Green Card Lottery

You must have heard about the green card lottery this year that the State Department voided due to computer error. The Department of State has determined in May that results of the selection process for the 2012 Diversity Immigrant Visa (DV) are void. Due to a computer programming error the results "did not represent a random selection of entrants" as required by U.S. law.  Click here to see Consular Affairs Bureau's David Donahue who explained the problem.

In June, a lawsuit was filed against the State Department seeking a "motion for a preliminary injunction seeking to enjoin the defendants from voiding the results of the first lottery and conducting another."  Last week, Judge Amy Berman Jackson of the U.S. District Court of the District of Columbia dismissed the lawsuit. Below is excerpted from the memorandum opinion dated July 14:

Congress established the diversity visa program to encourage and facilitate immigration to the United States from countries with historically low rates of immigration. See 8 U.S.C.§ 1153(c)(1). 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.1 The moving force behind the lawsuit is, as one plaintiff put it, “broken dreams.” McBrien Decl. ¶ 13. 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 . . .
Plaintiffs’ Application for Preliminary Injunction (“Pls.’ Memo”) at 8.
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.” Pls.’ Memo at 8.

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. Defs.’ Opp. at 2. 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. For the following reasons, then, the Court will deny plaintiffs’ claims for relief and dismiss the complaint.

Read the ruling on ILYA SMIRNOV, et al., vs. HILLARY RODHAM CLINTON, Secretary of State, et al., here.

The Green Card Lottery Program officially known as the Diversity Visa Program is part of the Immigration Act of 1990 and was designed to increase diversity in the U.S. immigrant population by providing visas to nationals of countries that have had low immigration rates to the United States. Applicants for the DV program participate in a lottery in which the winners are selected through a computer-generated random drawing. Annually, approximately 50,000 aliens enter the United States under the program.

The State Department explains in its handout that "the law states that no DVs shall be provided for natives of ―high-admission countries. The law defines this to mean countries from which a total of 50,000 persons in the Family-Sponsored and Employment-Based visa categories immigrated to the United States during the previous five years. Each year, U.S. Citizenship and Immigration Services (USCIS) adds the family and employment immigrant admission figures for the previous five years to identify the countries whose natives will be ineligible for the annual diversity lottery. Because there is a separate determination made before each annual E-DV entry period, the list of countries whose natives are not eligible may change from one year to the next."

For DV-2011, natives of the following countries1 are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years: BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, POLAND, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. For DV-2011, no countries have been added or removed from the previous year’s list of eligible countries.

Interest in the diversity visa program as can be expected far exceeds the number of visas awarded each year. According to court documents, in 2011, 19 million entries were received for the lottery.

This is one of those programs that Congress created with no foresight into its unintended consequences. Not just that the lottery is based solely on luck so lottery winners may not have the extended family and economic support when they come to the United States.  But in the boom years of the 1990's no one had foreseen the 9.2% unemployment rate in this country.  This is a program that will continue to be controversial, even unpopular in certain circles given the current economic realities and national security concerns.  But try not to beat up the State Department too much; our congressional reps created the law that made this possible, with no brakes in place.

Congress actually slugged this out in 2005.  You can read the transcript of that hearing here.  You can also check out the results of DV Lottery 2011 with the statistical breakdown by country.

1 comment:

melb26sa said...

My sister actually won the DV lottery on May 1st and on July 15th - she should play Powerball how lucky she is to be drawn twice. I already had sibling petition (F4)for her in the works - submitted last year - but I am very happy she still played DV and got it so she doesn't have to wait another 10 yrs for my petition to be current and visa number available. The US will be getting a productive LPR with a Master's from a US university, much above the required minimum of the highschool diploma.