Smirnov v. Clinton

• Decision Date: 14 July 2011
• Docket Number: Civil Action No. 11–1126 (ABJ).
• Citation: 806 F.Supp.2d 1
• Parties: Ilya SMIRNOV, et al., Plaintiffs, v. Hillary Rodham CLINTON, Secretary of State, et al., Defendants.
• Court: U.S. District Court — District of Columbia

806 F.Supp.2d 1

Ilya SMIRNOV, et al., Plaintiffs,

v.Hillary Rodham CLINTON, Secretary of State, et al., Defendants.

Civil Action No. 11–1126 (ABJ).

United States District Court, District of Columbia.

July 14, 2011.

Kenneth White, White & Associates, Woodland Hills, CA, Michael E. Piston, Law Office of Michael E. Piston, Rochester Hills, MI, for Plaintiffs.

Hans Harris Chen, J. Max Weintraub, Wynne Patrick Kelly, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

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.

BACKGROUND

I. The Diversity Visa Program

The diversity visa program (“DV program”) allows eligible immigrants from countries or regions with low admission rates to apply for permanent residence visas to the United States. See 8 U.S.C. § 1153(c)(1). The statute delegates the administration of this program to the State Department and authorizes 50,000 diversity visas to be issued each fiscal year. 8 U.S.C. § 1151; Compl. ¶ 69.² The visas must be issued “to eligible qualified immigrants strictly in a random order established by the Secretary of State for the fiscal year involved.” 8 U.S.C. § 1153(e)(2). “Aliens who qualify, through random selection, for a visa ... shall remain eligible to receive such a visa only through the end of the special fiscal year for which they were selected.” 8 U.S.C. § 1154(a)(1)(I)(ii)(II).

To comply with its statutory requirement to randomly select the recipients of diversity visas, the State Department promulgated regulations creating procedures for conducting a drawing known as the diversity visa lottery (“DV lottery”). The regulations provide in relevant part:

Entries received during the petition submission period established for the fiscal year in question ... will be assigned a number in a separate numerical sequence established for each regional area specified in INA 203(c)(1)(F). Upon completion of the numbering of all petitions, all numbers assigned for each region will be separately rank-ordered at random by a computer using standard computer software for that purpose. The Department will then select in the rank orders determined by the computer program a quantity of petitions for each region estimated to be sufficient to ensure, to the extent possible, usage of all immigrant visas authorized under INA 203(c) for the fiscal year in question. The Department will consider petitions selected in this manner to have been approved for the purposes of this section.

22 C.F.R. § 42.33(c).

In accordance with these regulations, then, the State Department was bound to follow a three-step process in administering the DV lottery: numbering, random re-ordering, and selection. To implement this procedure for 2012, a database program first captured and recorded the petitions that were submitted to the State Department's website. Amin. Supp. Decl. ¶ 3. The database program then stored the petitions to a physical location on the hard drives, for the most part in the order in which they were received. Id. ¶ 4. However, because of the high volume of petitions received for the lottery—more than one petition per second—the database could not store the petitions in the sequential order in which they were submitted with 100% precision. Id. ¶ 5; July 12, 2011 Hearing Transcript (“Tr.”) at 30. In some instances, the program “would record the petition in a distant location on the hard drive and leave, temporarily, an empty spot or gap on the hard drive adjacent to where it had recorded the immediately preceding petition.” Amin. Supp. Decl. ¶ 5. The database program later filled in the gaps with petitions submitted later in time than their numerical placement in the database would otherwise suggest. Id. ¶ 6. This amounted to approximately 2% of the petitions. Amin Decl. ¶ 5. The program then applied the regional and country limitations specified by the regulations to ensure that all eligible regions of the world were fairly represented. Id. ¶ 7. In light of these processes, the system did not number the applications in exactly the order they were received, but the process assigned each application a number, and those numbers substantially mirrored the order in which the petitions were received. Id.

According to the regulation, the second step is that that program was supposed to rank-orders the petitions at random using a computer software program designed for that purpose (“the randomizer program”). Amin. Supp. Decl. ¶ 8. Third, the computer program was supposed to select entries based on the rank order determined by the randomizer program. Id. ¶ 9.

After the selection is complete, lottery winners must comply with the immigration requirements set forth in the INA, which include payment of visa fees, an interview with the Consular's Office, and a medical examination, among other requirements. 8 U.S.C. § 1154; Compl. ¶ 81. A consular officer must then adjudicate the application before the alien receives a diversity visa. Id. At the end of this process, nearly half of the original 100,000 lottery winners do not receive a visa. Compl. ¶ 92; Defs.' Opp. at 3.

II. The 2012 Diversity Visa Lottery

For the 2012 DV lottery, aliens seeking visas were directed to submit their entries electronically during a thirty-day petition submission period that took place in fall 2010. 22 C.F.R. §§ 42.33(b); 75 Fed.Reg. 60, 846 (Oct. 1, 2010). No paper entries were accepted; the procedure involved the submission of petitions including specified personal information and a digital photograph to a State Department website. Id. These entries make up the pool of applicants for the lottery, which is held in 2011.

The State Department used a new randomizer program for the 2012 DV lottery, which turned out to include an error in the process that “rendered the Randomizer Program ineffective.” Amin Supp. Decl. ¶ 10–11. Instead of directing the computer to select the winners as they had been re-ordered and randomized in step two, the computer simply selected the entries in the order in which they were originally numbered. Id. ¶ 11. Therefore, the majority of the winners, 98%, were applicants who submitted their entries on October 5 and 6—the first two days of the submission period. Id.; Amin Decl. ¶ 9. ³

Each of the plaintiffs and proposed class members submitted an application to participate in the 2012 DV lottery. Compl. ¶ 83.⁴ Between May 1–5, 2011, plaintiffs visited the State Department website and learned that their applications had been...