__________ WHITE & ASSOCIATES
A T T O R N E Y S A T L A W __________
WARNER CENTER TOWERS
21550 OXNARD STREET, STE. 300
WOODLAND HILLS, CA 91367
TEL. 818-730-3540 FAX: 509-694-9786
KENNETH WHITE
(Admitted to the Bar in Pennsylvania and District of Columbia)
(U.S. Court of Appeals for D.C. and 9th Circuits, U.S. District Court for D.C.)
May 17, 2011
BY FAX AND COURIER
The Honorable David Donahue
Deputy Assistant Secretary of State for Visa Services
Bureau of Consular Affairs
Department of State
2201 C Street, NW, Room 6811
Washington, D.C. 20520
Dear Mr. Donahue,
Thank you for considering and acting upon my letter to the Visa Office of May 10, 2011, highlighting errors in the way the Department of State processed the DV-2012 Lottery drawing, resulting in the selection not being properly randomized.
This letter requests your reconsideration of the mechanism chosen by the Department to correct the mistake.
Specific concern exists that, in the interest of correcting one “wrong”, another injustice has been enacted – namely towards the group that received official communication that they had been selected for further processing in the 2012 DV lottery during May 2011. This letter outlines a clear moral and legal position as to why this should not be the case. It also explains that this need not be the case, as there is a perfectly acceptable solution that would mean no broken commitment to any group or individual. In short, as discussed below, the Department does not need to “throw out the baby with the bath water.”
With this letter, I also implore you to adopt the solution I will suggest. Not only will this solution mean no broken commitment to any group or individual, it will also be consistent with the stated position to hold a new drawing. I implore you to do this primarily in the interest of fairness and justice to all involved, and also to entirely avoid likely litigation from aggrieved parties.
Why it is morally and legally wrong to deny existing “winners” the right to progress with a DV-2012 visa application
• Those selected for further processing have done nothing wrong
• There is no basis in the written DV Lottery rules for an individual’s selection to be rescinded or annulled
• Many (perhaps most) individuals in this group are in possession of an official and printed communication from the U.S. Government, informing them that they have been selected for further processing.
o It is morally and legally wrong for any organization, including the government, not to honor official written commitments
o Any court ruling that an official written commitment from the U.S. government can be arbitrarily withdrawn would create an uncomfortable precedent with wide-reaching implications, and as such a ruling of this nature is most unlikely
o In the run-up to this Lottery, the US government proactively sought to warn individuals of scam artists, and advised participants that the only official notification of selection is notification by the US Government, accessible through the Department’s website starting on May 1, 2011. Now the Department is informing the public that it cannot rely on that notification either, additionally undermining the integrity of the program
• Those selected for further processing have already taken steps to pursue their visa applications during the interim period between the notification and your announcement on May 13. They have relied on the Department’s notification by submitting application forms to the Kentucky Consular Center; consulting with lawyers and agents; commencing the document gathering process; and making plans to immigrate
• Congressional intent behind the Lottery program is clear in ensuring the widest casting of the immigration net, not disqualifying already-selected and already–notified individuals through no fault of their own
• Individuals without other means of legally immigrating to the United States have been participating in the Lottery for years. As you know, the chances of a repeat selection are extremely slim. By unilaterally depriving those selected of their opportunity, the Department would be, realistically speaking, extinguishing the possibility of them ever receiving green cards through the Lottery.
Suggested approach to solve the error made by the Department of State in the original drawing - without creating any broken commitments or requiring any additional visa provision
• Honor the commitment made on May 13 to all who entered the Lottery to hold a fair and randomized drawing by re-running the selection event on July 15 as planned. Use this to create a pool of individuals able to apply for the available Diversity Visa allocation (this pool could be between 78,000 to 100,000 individuals)
• Honor the commitment, made in writing through an official U.S. Government communication, to all those who were selected for further processing as part of the original draw in May 2011. It is appropriate that only those who actually accessed their ‘winner’ notification should be included in this group, as only these individuals were truly communicated with. It is understood that this would make an additional 22,000 individuals eligible to apply for allocation of visas
• Make no change to the congressionally mandated pool of 55,000 visas that are available for the DV2012 Lottery
• Accept no documentation from any selectee until August 1, 2011 ensuring a level playing field for all concerned
Advantages of this approach are:
• It is consistent with the way forward already identified by the Department of State, namely to resolve the situation by holding a second drawing. It is simply a refinement of this existing plan
• No congressional action is needed
• No aggrieved parties are created. There is no motivation for any aggrieved party to pursue a path of litigation
• There is no additional cost or requirement to issue any additional visas
• There is an ability to rapidly move on from this matter
• The US Government will be viewed as acting constructively and favorably in resolving a situation fraught with potential public relations fallout
Disadvantages of not taking this approach are:
• With 22,000 unnecessarily aggrieved parties, it seems all but certain that many will seek redress through the courts. Public money will be spent defending this, and will be wasted because the net result will be the same: the issuance of up to 55,000 diversity visas to applicants who have all been selected to apply through a process of chance.
• The litigation process will cause the matter to linger, become ingrained, and be harder to move on from
• US public image will needlessly suffer overseas as the aggrieved parties will share their stories with the media, their neighbors and families. With the power of the Internet and the axiom that an unsatisfied customer is ten times more likely to share his experience than a satisfied customer, this small computer glitch will become the Computer Glitch Heard Round the World and have negative repercussions for years to come.
Mr. Deputy Assistant Secretary, in your recent testimony to Congress, you noted that visitors to the United States leave with a “better understanding of American culture and values.” An integral part of these values is that our word is our bond. The proposal made herein is unique in that it represents a true win-win situation and adheres to our core values: we are able to keep our word to those notified winners, and ensures a random selection process, as promised to all DV entrants. This is certainly the fairest, fastest and cleanest way to move on from this unfortunate situation, with no identifiable downside. My work in this matter is on behalf of a client with no interest in unnecessary litigation or class actions - thus our focus is on a fair, reasonable, and administrative resolution.
I would be very open to participating in further dialogue on this matter. Please provide your response on the matters raised in this letter by May 24 so that my client can plan his next steps in this time-critical matter. Thank you in advance for your anticipated cooperation.
Sincerely,
Kenneth White, Esq.
cc: Hillary Clinton, Secretary of State
Judith McHale, Under Secretary for Public Diplomacy and Public Affairs
Office of Inspector General
Vincent Beirne, Deputy Director, Office of Legislation, Regulations and Advisory Assistance
A T T O R N E Y S A T L A W __________
WARNER CENTER TOWERS
21550 OXNARD STREET, STE. 300
WOODLAND HILLS, CA 91367
TEL. 818-730-3540 FAX: 509-694-9786
KENNETH WHITE
(Admitted to the Bar in Pennsylvania and District of Columbia)
(U.S. Court of Appeals for D.C. and 9th Circuits, U.S. District Court for D.C.)
May 17, 2011
BY FAX AND COURIER
The Honorable David Donahue
Deputy Assistant Secretary of State for Visa Services
Bureau of Consular Affairs
Department of State
2201 C Street, NW, Room 6811
Washington, D.C. 20520
Dear Mr. Donahue,
Thank you for considering and acting upon my letter to the Visa Office of May 10, 2011, highlighting errors in the way the Department of State processed the DV-2012 Lottery drawing, resulting in the selection not being properly randomized.
This letter requests your reconsideration of the mechanism chosen by the Department to correct the mistake.
Specific concern exists that, in the interest of correcting one “wrong”, another injustice has been enacted – namely towards the group that received official communication that they had been selected for further processing in the 2012 DV lottery during May 2011. This letter outlines a clear moral and legal position as to why this should not be the case. It also explains that this need not be the case, as there is a perfectly acceptable solution that would mean no broken commitment to any group or individual. In short, as discussed below, the Department does not need to “throw out the baby with the bath water.”
With this letter, I also implore you to adopt the solution I will suggest. Not only will this solution mean no broken commitment to any group or individual, it will also be consistent with the stated position to hold a new drawing. I implore you to do this primarily in the interest of fairness and justice to all involved, and also to entirely avoid likely litigation from aggrieved parties.
Why it is morally and legally wrong to deny existing “winners” the right to progress with a DV-2012 visa application
• Those selected for further processing have done nothing wrong
• There is no basis in the written DV Lottery rules for an individual’s selection to be rescinded or annulled
• Many (perhaps most) individuals in this group are in possession of an official and printed communication from the U.S. Government, informing them that they have been selected for further processing.
o It is morally and legally wrong for any organization, including the government, not to honor official written commitments
o Any court ruling that an official written commitment from the U.S. government can be arbitrarily withdrawn would create an uncomfortable precedent with wide-reaching implications, and as such a ruling of this nature is most unlikely
o In the run-up to this Lottery, the US government proactively sought to warn individuals of scam artists, and advised participants that the only official notification of selection is notification by the US Government, accessible through the Department’s website starting on May 1, 2011. Now the Department is informing the public that it cannot rely on that notification either, additionally undermining the integrity of the program
• Those selected for further processing have already taken steps to pursue their visa applications during the interim period between the notification and your announcement on May 13. They have relied on the Department’s notification by submitting application forms to the Kentucky Consular Center; consulting with lawyers and agents; commencing the document gathering process; and making plans to immigrate
• Congressional intent behind the Lottery program is clear in ensuring the widest casting of the immigration net, not disqualifying already-selected and already–notified individuals through no fault of their own
• Individuals without other means of legally immigrating to the United States have been participating in the Lottery for years. As you know, the chances of a repeat selection are extremely slim. By unilaterally depriving those selected of their opportunity, the Department would be, realistically speaking, extinguishing the possibility of them ever receiving green cards through the Lottery.
Suggested approach to solve the error made by the Department of State in the original drawing - without creating any broken commitments or requiring any additional visa provision
• Honor the commitment made on May 13 to all who entered the Lottery to hold a fair and randomized drawing by re-running the selection event on July 15 as planned. Use this to create a pool of individuals able to apply for the available Diversity Visa allocation (this pool could be between 78,000 to 100,000 individuals)
• Honor the commitment, made in writing through an official U.S. Government communication, to all those who were selected for further processing as part of the original draw in May 2011. It is appropriate that only those who actually accessed their ‘winner’ notification should be included in this group, as only these individuals were truly communicated with. It is understood that this would make an additional 22,000 individuals eligible to apply for allocation of visas
• Make no change to the congressionally mandated pool of 55,000 visas that are available for the DV2012 Lottery
• Accept no documentation from any selectee until August 1, 2011 ensuring a level playing field for all concerned
Advantages of this approach are:
• It is consistent with the way forward already identified by the Department of State, namely to resolve the situation by holding a second drawing. It is simply a refinement of this existing plan
• No congressional action is needed
• No aggrieved parties are created. There is no motivation for any aggrieved party to pursue a path of litigation
• There is no additional cost or requirement to issue any additional visas
• There is an ability to rapidly move on from this matter
• The US Government will be viewed as acting constructively and favorably in resolving a situation fraught with potential public relations fallout
Disadvantages of not taking this approach are:
• With 22,000 unnecessarily aggrieved parties, it seems all but certain that many will seek redress through the courts. Public money will be spent defending this, and will be wasted because the net result will be the same: the issuance of up to 55,000 diversity visas to applicants who have all been selected to apply through a process of chance.
• The litigation process will cause the matter to linger, become ingrained, and be harder to move on from
• US public image will needlessly suffer overseas as the aggrieved parties will share their stories with the media, their neighbors and families. With the power of the Internet and the axiom that an unsatisfied customer is ten times more likely to share his experience than a satisfied customer, this small computer glitch will become the Computer Glitch Heard Round the World and have negative repercussions for years to come.
Mr. Deputy Assistant Secretary, in your recent testimony to Congress, you noted that visitors to the United States leave with a “better understanding of American culture and values.” An integral part of these values is that our word is our bond. The proposal made herein is unique in that it represents a true win-win situation and adheres to our core values: we are able to keep our word to those notified winners, and ensures a random selection process, as promised to all DV entrants. This is certainly the fairest, fastest and cleanest way to move on from this unfortunate situation, with no identifiable downside. My work in this matter is on behalf of a client with no interest in unnecessary litigation or class actions - thus our focus is on a fair, reasonable, and administrative resolution.
I would be very open to participating in further dialogue on this matter. Please provide your response on the matters raised in this letter by May 24 so that my client can plan his next steps in this time-critical matter. Thank you in advance for your anticipated cooperation.
Sincerely,
Kenneth White, Esq.
cc: Hillary Clinton, Secretary of State
Judith McHale, Under Secretary for Public Diplomacy and Public Affairs
Office of Inspector General
Vincent Beirne, Deputy Director, Office of Legislation, Regulations and Advisory Assistance