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Litigation update this week

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CraigToomy said:
DECLARATION OF KIRIT AMIN

I, Kirit Amin, pursuant to 28 U.S.C. § 1746 do hereby declare the following under penalty of perjury:

1. My name is Kirit Amin. I am employed by the US Department of State where I worked since June 2007. I am assigned to the DOS Bureau of Consular Affairs, where I am the CIO to Consular Affairs and Director of Consular Systems and Technology. In that capacity I oversee all systems related operations involving Consular Affairs, including the computer database and selection program used in the 2012 diversity lottery.

2. As a result of my job position, I have become thoroughly familiar with the computer hardware, software and databases that the State Department relies upon to administer the DV Lottery program. I am also familiar with the process by which the software that the State Department used to conduct the DV lottery was written, installed and implemented.

3. As a preliminary step in this yerar’s DV lottery, the State Department operated a website at which aliens seeking a diversity visa could submit petition during a submission period. The submission period this year began on October 5, 2010 and ended on November 3, 2010 (the “Submission period”). Each petition server as a “lottery ticket” in the DV lottery.

4. After the submission period closed but prior to the DV Lottery selection process the State Department sorted the petitions into different world regions and numbered them in a database according to the order that they were received.

5. Because of the way our database’s internal storage optimization algorithms work, the database moved the physical database location of some petitions that were submitted later in the Submission period, totaling about two percent of the total number of entries, so that they were adjacent to records that had been submitted in the first two days of the Submission period. This database optimization occured prior to the Lottery selection and is a standard data storage protocol used by Oracle brand database software. It had nothing to do with the fact that this particular database contained DV Lottery entries.

6. This year, the State Department used a new computer program intended to randomly renumber the DV Lottery petitions.

7. The programmer who wrote the program, however, made an error that essentially rendered the program ineffective. Instead of instructing the computer to renumber the petitions from entry date order to random order as required by 22 CFR § 42.33(c), the computer program simply selected entries in the existing order which was the order in which they entered plus two percent of applicants reordered as part of resulting from database optimization. Thus, the computer program designed to make selection random failed entirely.

8. I am familiar with regulations of 22 CFR § 42.33(c) that requires that the DV entries be “rank ordered at random be a computer using computer software for that purpose.” In computer software the use of term “random” ordering of a list is a term of art that requires specialized software that generates numbers that are mathematically proven to be random. Not only did the software we used fail to randomize the DV entries here, but the two percent of entries who were at the top of list due to database optimization also fails to meet the definition of random in the regulations because no computer software designed for the purpose of randomizing was used.

9. The computer programmer’s error explains why 98% of the lottery “winners” came from October 5 and 6, 2010, with the remaining two percent of the “winners” submitted on other days in the submission period.

10. The State Department made the results of the selection available on its website on May 1, 2011, without realizing that the programmer’s error had failed to randomize the petitions.

11. During the period in May when the erroneous results were posted, 1 940 615 applicants logged on and checked the results. Of these applicants, 22 316 were notified in error that they had been selected.

I declare, under the penalty of perjury, that the foregoing is true and correct. Executed on July 6, 2011.

/s/ Kirit Amin.
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Wow!!!! 98% (NOT 90% AS WE KNEW) of winners came from the 5th and the 6th AND ONLY 2% (2,000) ON OTHER DAYS.....!!!!:confused:
 
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10. The State Department made the results of the selection available on its website on May 1, 2011, without realizing that the programmer’s error had failed to randomize the petitions.
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Sounds like a bloddy damn lie and for sure once they closed the status check, they had known something is wrong (if thats the trueth) but they still told the applicants to send documents!

Anyway I'm pretty sure they did a test with the new software before, another point why this story sounds fishy.
 
CraigToomy said:
DECLARATION OF KIRIT AMIN


7. The programmer who wrote the program, however, made an error that essentially rendered the program ineffective. Instead of instructing the computer to renumber the petitions from entry date order to random order as required by 22 CFR § 42.33(c), the computer program simply selected entries in the existing order which was the order in which they entered plus two percent of applicants reordered as part of resulting from database optimization. Thus, the computer program designed to make selection random failed entirely.

8. I am familiar with regulations of 22 CFR § 42.33(c) that requires that the DV entries be “rank ordered at random be a computer using computer software for that purpose.” In computer software the use of term “random” ordering of a list is a term of art that requires specialized software that generates numbers that are mathematically proven to be random. Not only did the software we used fail to randomize the DV entries here, but the two percent of entries who were at the top of list due to database optimization also fails to meet the definition of random in the regulations because no computer software designed for the purpose of randomizing was used.

9. The computer programmer’s error explains why 98% of the lottery “winners” came from October 5 and 6, 2010, with the remaining two percent of the “winners” submitted on other days in the submission period.

10. The State Department made the results of the selection available on its website on May 1, 2011, without realizing that the programmer’s error had failed to randomize the petitions.

11. During the period in May when the erroneous results were posted, 1 940 615 applicants logged on and checked the results. Of these applicants, 22 316 were notified in error that they had been selected.

I declare, under the penalty of perjury, that the foregoing is true and correct. Executed on July 6, 2011.

/s/ Kirit Amin.
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There.. Anyone still thinks it was random ? lol
 
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PROPOSED ORDER - blah-blah-blah, well you guessed it right - to deny motion, complaint dismissed with prejudice.

Defendant's memorandum of points and authorities in opposition to plaintiffs emerging motion for a preliminary injunction.

[...]

Because this Court lacks jurisdiction, Defendants request that the Court deny Plaintiff's motion and dismiss their Complaint.

[...]

1. Plaintiffs lack standing to sue

[...]

The cancellation of the flawed DV Lottery results did not violate or deny Plaintiffs any right, entitlement for legitimate legal interest.

[...]

a) Plaintiffs had no cognizable legal interest in DV. The requirements of Procedural Due Process, however, attach only to the deprivation of constitutionally protected liberty and property interests. Similarly, AOS for aliens already present in the U.S. is entirely discretionary. [...] The results were void ab initio. [...] no valid basis for assuming that they would receive visas. [...] Vander Molen v Stetson ("Actions by any agency of the executive branch in violation of its own regulations are illegal and void") [...]

b) The claimed loss of time to process DV applications is merit-less [...] Plaintiff's other claims for damages fare no better that the ones based on their erroneous sense of entitlement to an immigrant visa. [...] Plaintiffs have furthermore squandered the time that they claim they have lost by waiting 6 weeks from the cancellation of the DV Lottery results before moving for an injunction. [...]

c) Cancellation of the Lottery results had no impact on Plaintiff's showing of immigrant intent. First, Plaintiffs have already demonstrated their intent to immigrate by submitting the Lottery petitions. [...]

2) Plaintiff's claims are not ripe because no final agency action has occurred. [...]

3) Plaintiffs have shown bo basis for a preliminary injunction. [...]

2) Plaintiff's mandamus claim fails because they have no entitlement to the DV Lottery results.

3) Plaintiffs APA claim fails because the State Department acted in accordance with the law in cancelling the DV Lottery [...] Plaintiff's, however, overlook the second sentence of 22 CFR § 42.33(c). The clause defines random order.

c) An injunction ordering the validation of the flawed DV lottery results would require the State Department to violate the law and would defeat worldwide expectations contrary to the public interest. [...]

If the government can be estopped at all, it may not be estopped on the same terms as private litigant (Heckler v Cmty Health Services of Crawford Cnty, 1984). [...]

d) The balance of equities favors Defendants.
 
Wow!!!! 98% (NOT 90% AS WE KNEW) of winners came from the 5th and the 6th AND ONLY 2% (2,000) ON OTHER DAYS.....!!!!
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They have never said 90%.
Ms. Fulton:
Although we received a large number of entries every day during the 30-year - 30-day registration period, a computer programming error caused more than 90 percent of the selectees to come from the first days of the registration period. The computer error that caused this unfair, nonrandom result has since been corrected, and we sincerely regret any inconvenience or disappointment this problem might have caused.
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David Donahue:
These results are not valid because they did not represent a fair, random selection of entrants as required by U.S. law. Although we received large numbers of entries every day during the 30-day registration period, a computer programming error caused more than 90% of the selectees to come from the first two days of the registration period. The computer error that caused this unfair, non-random result has since been corrected. We sincerely regret any inconvenience or disappointment this problem might have caused
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CraigToomy said:
PROPOSED ORDER -
b) The claimed loss of time to process DV applications is merit-less [...] Plaintiff's other claims for damages fare no better that the ones based on their erroneous sense of entitlement to an immigrant visa. [...] Plaintiffs have furthermore squandered the time that they claim they have lost by waiting 6 weeks from the cancellation of the DV Lottery results before moving for an injunction. [...]
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THat's a good one.
 
Plaintiffs have already demonstrated their intent to immigrate by submitting the Lottery petitions
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That looks like a potential major policy change that could affect issuing nonimmigrant visas to DV lottery applicants.

According to H. Edward Odom’s directive, “the fact that an alien has registered for the visa lottery may be taken into account (just as any other fact may be) by a consular officer when adjudicating a subsequent non-immigrant visa application. However, the Visa Office is of the opinion that the fact of registration, by itself, would not ordinarily be sufficient cause for visa denial and certainly is not an automatic bar to receipt of a subsequent non-immigrant visa(s).”63
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63 Letter from H. Edward Odom, Chief of Legislation and Regulations Division, Directorate for Visa Services to Stephen Yale-Loehr, Esq., (November 12, 1997), reprinted in 75 Interpreter Release App. VI (March 16, 1998).
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USAnDream said:
There.. Anyone still thinks it was random ? lol
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Nope, not according to point #8 .....8. "I am familiar with regulations of 22 CFR § 42.33(c) that requires that the DV entries be “rank ordered at random be a computer using computer software for that purpose.” In computer software the use of term “random” ordering of a list is a term of art that requires specialized software that generates numbers that are mathematically proven to be random. Not only did the software we used fail to randomize the DV entries here, but the two percent of entries who were at the top of list due to database optimization also fails to meet the definition of random in the regulations because no computer software designed for the purpose of randomizing was used.



So Mr. White's interpretation of 'random' is not consistent with that of DoS (i.e their computer software use of the term).........
 
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raevsky said:
That looks like a potential major policy change that could affect issuing nonimmigrant visas to DV lottery applicants.
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Their next sentence I didn't make a note of, reads that there's no significant difference whether you applied or not and quotes the same source. I think even DOS hasn't figured it out clearly.
 
The proposed order document follows common sense we have already discussed, except the possible major policy change that could affect all past and future DV applicants.
The affidavit has a few interesting details.
It looks like this year they completely forgot to do random selection.

Previously we have known this:
QUESTION: Okay. And then regarding the software program itself, can you spell out what the reasons were for revising the selection process, for revising the software? Was it something that IT people said, "We have what we think might be a better way of doing it." And then a program was written with an error or was there some congressional mandate that said you need to tweak the selection program? What happened here?

SENIOR STATE DEPARTMENT OFFICIAL: Yeah. I think it was exactly what you said. We've been using the same program before. Our IT people suggested that they could do it this way, and someone made a programming error and that's what happened. But there was - no, there was no mandate. I think it was just as you do; you're always reviewing your systems and seeing if there's a better way of doing this.

QUESTION: Were there any dry runs for the software since it's - it was being rewritten? Was it tested before the program actually was brought online? Because I would imagine there are a lot of people out there who were thinking, oh, my goodness, I -

SENIOR STATE DEPARTMENT OFFICIAL: Yeah.

QUESTION: -- have a chance, and now I don't have a chance and this is really nerve-wracking because there are people counting on me.

SENIOR STATE DEPARTMENT OFFICIAL: Yeah. We're very - again, we really regret the frustration. We understand the frustration that people feel, and we can - we understand that. We do test all of our systems. I don't know the details of what testing was done on this program. It was a small coding error that we have - we know exactly what the coding error was, but it's just very unfortunate. And it was only afterwards that we were able to see that it was not truly random.

QUESTION: Okay. So then are you now going to be using the old software program?

SENIOR STATE DEPARTMENT OFFICIAL: No, we're going to use the new one with - correcting that coding error.
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So, they were changing something in the program and while doing the change forgot to apply randomness at all.

I wonder how they tested their software and how they made sure random selection is actually done. I hope OIG will give an answer to this question, or maybe this lawsuit will.

Sounds like a bloddy damn lie and for sure once they closed the status check, they had known something is wrong (if thats the trueth) but they still told the applicants to send documents!

Anyway I'm pretty sure they did a test with the new software before, another point why this story sounds fishy.
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Looks extremely strange to me they have not noticed it.
 
Their next sentence I didn't make a note of, reads that there's no significant difference whether you applied or not and quotes the same source. I think even DOS hasn't figured it out clearly
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Please take a not next time if possible. That might be extremely important.
 
raevsky said:
It looks like this year they completely forgot to do random selection.
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That's the last bit I haven't figured. If they simply queried the database with no order or sorting specified, how come my wife who submitted the entry 10 minutes after me on 5th didn't win?
 
Am sorry to say this but i have a feeling this guy is just plain lying. If the program was tested, how can you say randomness was non existed in the system and you only saw it afterwards yet the randomness should be the major thing to test in the system. What were they testing, that they cud notify users about their bieng selected.
 
muta said:
Am sorry to say this but i have a feeling this guy is just plain lying. If the program was tested, how can you say randomness was non existed in the system and you only saw it afterwards yet the randomness should be the major thing to test in the system. What were they testing, that they cud notify users about their bieng selected.
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What will DoS gain by lying? Nevertheless, they should have done a test-run in any event especially because they were using a new software. Seriously, the dots are not connecting.
 
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Tazmania said:
....but they still told the applicants to send documents!
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When are you going to realise this was said by the people manning the phone, they are the lowest of the low, probably contract workers who speak only according to a prepared script and didn't know any wiser.
 
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