Silva v. Mayorkas

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PEDRO ALEXANDRE MENDES SILVA,

Plaintiff,
v. Case No. 22-cv-44-ZMF
ALEJANDRO MAYORKAS, et al.,

Defendants.

MEMORANDUM OPINION

I. BACKGROUND

On January 7, 2022, Plaintiff Pedro Alexandre Mendes Silva sued Defendants Secretary of

Homeland Security Alejandro Mayorkas and Ur Mendoza Jaddou Andrew Davidson, Director of

the United States Citizenship and Immigration Services (USCIS), in the U.S. District Court for the

District of Columbia seeking to compel adjudication of his I-601 Application for Waiver of

Grounds of Inadmissibility (“I-601”). Compl. ¶ 1, ECF No. 1. Before the Court is Defendants’

motion to transfer this case to the U.S. District Court for the District of Nebraska or, in the

alternative, to dismiss. See Defs.’ Mot. to Transfer and Dismiss (Defs.’ Mot.), ECF No. 9. Upon

consideration of the parties’ briefings, the relevant case law, and the entire record herein, the Court

shall grant Defendants’ motion to transfer venue and deny their motion to dismiss without

prejudice.

II. STATEMENT OF FACTS

Mr. Silva, a citizen and resident of Portugal, is the spouse of Ms. Christina Ramos, a United

States citizen, and the father of their United States citizen child. Compl. ¶ 13. On March 6, 2020,

Mr. Silva was found inadmissible to the United States under INA § 212(a)(6)(C)(i) due to an

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alleged past misrepresentation. See id. ¶ 23. On July 29, 2020, Mr. Silva filed his I-601, the

approval of which would allow Mr. Silva to immigrate to the United States by waiving the ground

of inadmissibility. See id. ¶¶ 1–2. Mr. Silva’s I-601 is now under consideration before USCIS at

its Nebraska Service Center. See id. ¶ 24.

III. LEGAL STANDARD

“A case may be transferred to any district where venue is also proper ‘[f]or the convenience

of parties and witnesses, in the interest of justice.’” Ctr. for Env’t Sci., Accuracy & Reliability v.

Nat’l Park Serv., 75 F. Supp. 3d 353, 356 (D.D.C. 2014) (quoting 28 U.S.C. § 1404(a)). “Section

1404(a) is intended to place discretion in the district court to adjudicate motions for transfer

according to an ‘individualized, case-by-case consideration of convenience and fairness.’” Stewart

Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612,

622 (1964)). The movant “bear[s] the burden of persuasion on the transfer issue.” SEC v. Savoy

Indus., Inc., 587 F.2d 1149, 1154 (D.C. Cir. 1978) (citation omitted).

IV. ANALYSIS

A. Motion to Transfer

“Determining whether transfer is appropriate pursuant to section 1404(a) calls for a two-

part inquiry.” Bourdon v. U.S. Dep’t of Homeland Sec., 235 F. Supp. 3d 298, 304 (D.D.C. 2017).

District of Nebraska Has Venue

“The first step in resolving a motion for transfer of venue under § 1404(a) is to determine

whether the proposed transferee district is one where the action ‘might have been brought.’” Ctr.

for Env’t Sci., Accuracy & Reliability v. Nat’l Park Serv., 75 F. Supp. 3d 353, 356 (D.D.C. 2014)

(quoting 28 U.S.C. § 1404(a)). Defendants correctly point out—and Mr. Silva does not dispute—

that this case “might have been brought” in the District of Nebraska because Mr. Silva’s I-601

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application is being processed there. See 28 U.S.C. § 1391(e); Pl.’s Opp’n to Defs.’ Mot. to

Transfer and Dismiss (Pl.’s Opp’n) at 4, ECF No. 8.

Private and Public Factors Favor Transfer

“The second step of the Court’s analysis is determining whether the relevant private and

public interest factors weigh in favor of transferring the action.” Bourdon, 235 F. Supp. 3d at 305.

Courts consider the following six private interest factors:

(1) the plaintiffs’ choice of forum, unless the balance of
convenience is strongly in favor of the defendants; (2) the
defendants’ choice of forum; (3) whether the claim arose elsewhere;
(4) the convenience of the parties; (5) the convenience of the
witnesses of the plaintiff and defendant, but only to the extent that
the witnesses may actually be unavailable for trial in one of the fora;
and (6) the ease of access to sources of proof.

Greater Yellowstone Coalition v. Bosworth, 180 F.Supp.2d 124, 127 (D.D.C. 2001). “The only

private interest factor that counsels in favor of retaining venue here is that the District of Columbia

is the plaintiffs’ preferred forum, which ‘is typically entitled to deference.’” Pasem v. U.S.

Citizenship & Immigr. Servs., 2020 WL 2514749, at *4 (D.D.C. May 15, 2020) (quoting Sallyport

Global Servs., Ltd. v. Arken Int’l, LLC, 78 F. Supp. 3d 369, 373 (D.D.C. 2015)). However, “such

deference is minimized when the forum chosen is not the plaintiff’s home forum.” Sallyport

Global, 78 F. Supp. 3d 373. Thus, the first factor “counts for less when, as here, the plaintiff does

not reside in that forum.” Rasool v. Mayorkas, No. 21-cv-2367, 2021 WL 5492976, at *2 (D.D.C.

Nov. 23, 2021).

“The second and third factors both support transfer because Defendants prefer the [District

of Nebraska] and the claim arose there.” Id. at *2 (citing Nat’l Ass’n of Home Builders v. U.S.

Env’t Prot. Agency, 675 F. Supp. 2d 173, 179 (D.D.C. 2009)). Indeed, “challenges to individual

immigration decisions generally arise in the forum of the USCIS service center that processed the

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application at issue.” Pengbo Li v. Miller, No. 20-cv-1122, 2021 WL 1124541, at *4 (D.D.C. Mar.

24, 2021).

Mr. Silva responds that his case is properly within this district because he is challenging

the national immigration strategy of delayed processing of applications, which he claims agency

leadership in the District of Columbia implemented. See, e.g., Pl.’s Opp’n at 8, 13.

Mr. Silva’s argument fails for two reasons. First, Mr. Silva did not challenge or identify a

nationwide policy or practice in his complaint but instead sought judicial intervention in the

processing of his individual application. See Compl. ¶¶ 39–40. A plaintiff cannot claim venue in

the District of Columbia “[b]y naming high government officials as defendants” because it would

allow “a plaintiff [to] bring a suit here that properly should be pursued elsewhere.” Cameron v.

Thornburgh, 983 F.2d 253, 256 (D.C. Cir. 1993). Second, even if Mr. Silva challenged a national

USCIS policy or practice, venue in the District of Columbia is inappropriate because USCIS is

headquartered in Maryland. See, e.g., Laurel v. U.S. Citizenship & Immigr. Servs., No. 21-cv-

0552, 2022 WL 971236, at *3 (D.D.C. Mar. 31, 2022) (granting transfer from the plaintiff’s choice

of forum—the District of Columbia—because “USCIS headquarters moved to Maryland in 2020,

before [the plaintiff] filed her case”). And there is no support for Mr. Silva’s claim that USCIS

should still be considered to reside in the District of Columbia for purposes of venue because

“Camp Spring, Maryland is essentially a city within Washington, DC.” Pl.’s Opp’n at 14. Judicial

districts are based on maps, not truthiness. 1 See, e.g., Rasool, 2021 WL 5492976, at *2 (granting

motion to transfer; finding that USCIS’s authority over immigration means that even “a challenge

1
See The Colbert Report, The Word – Truthiness, Comedy Central (Oct. 17, 2005),
https://www.cc.com/video/63ite2/the-colbert-report-the-word-truthiness.
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to the entire asylum system” would need to be brought in Maryland, the home of USCIS, rather

than the District of Columbia).

The parties agree that the remaining private interest factors—the convenience to the parties,

witnesses, and of access to evidence—are neutral here because presentation of testimony or

evidence is atypical in cases like this. See Defs.’ Mot. at 7; Pl.’s Opp’n at 14. Nonetheless, the

Court recognizes that the “[District of Nebraska] is convenient for Defendants because that is

where the relevant USCIS office and staff are located.” Rasool, 2021 WL 5492976, at *3. Mr.

Silva’s preference for suit in the District of Columbia is overcome by the weight of the remaining

private interest factors, each of which favors transfer to Nebraska or is neutral. See, e.g., Pasem,

2020 WL 2514749, at *4 (transferring venue despite the plaintiffs’ preference for the District of

Columbia).

Public Factors Favor Transfer

Next, the Court examines the public interest factors. See Bourdon, 235 F. Supp. 3d at 305.

“These factors include (1) the transferee’s familiarity with the governing laws and the pendency

of related actions in the transferee’s forum; (2) the relative congestion of the calendars of the

potential transferee and transferor courts; and (3) the local interest in deciding local controversies

at home.” Id. at 308.

The first two factors are of little relevance here. According to the parties, both districts are

equally familiar with the laws at issue and have comparable congestion. See Pasem, 2020 WL

2514749, at *3 (“[F]ederal district courts are ‘equally familiar’ with federal law, so that factor does

not tip the scale in either direction.”) (quoting Al-Ahmed v. Chertoff, 564 F. Supp. 2d 16, 20

(D.D.C. 2008)); see also Pl.’s Opp’n at 9–10 (citing Median Time Interval of 5.5 months in the

District of Columbia and 5.0 months in the District of Nebraska).

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 The local interest in deciding local controversies is “[t]he most important public interest

factor,” Rasool, 2021 WL 5492976, at *4. This factor favors the District of Nebraska because

“districts that encompass [a] service center[] have a greater interest in deciding these claims than

this Court.” Pasem, 2020 WL 2514749, at *3; see also Pengbo Li, 2021 WL 1124541, at *4

(holding “claims arose primarily in the District of Nebraska” even though “the fact that the

[Nebraska service center] reviewed this particular petition was the result of a decision made by

USCIS agency officials in the District of Columbia”). Indeed, “the district in which the relevant

USCIS Field Office is located is better positioned to be involved in dictating the priorities of a

local USCIS office and may have a superior interest in doing so.” Chauhan v. Napolitano, 746 F.

Supp. 2d 99, 105 (D.D.C. 2010) (cleaned up). Thus, “[c]ases challenging the actions of local

USCIS offices are frequently, and appropriately, transferred to the venue encompassing those local

offices.” Bourdon, 235 F. Supp. 3d at 305; see, e.g., Mukherjee v. U.S. Citizenship & Immigr.

Servs., No. 20-cv-0676, 2020 WL 3447963, at *3 (D.D.C. June 24, 2020) (severing and

transferring claims seeking to compel action on immigration applications to the districts where the

applications were pending); Pasem, 2020 WL 2514749, at *4 (same); Ike v. U.S. Citizenship &

Immigr. Servs., No. 20-cv-1744, 2020 WL 7360214, at *1 (D.D.C. Dec. 15, 2020) (transferring

action seeking review of the denial of an immigration application to the district where the denial

occurred); Aftab v. Gonzalez, 597 F. Supp. 2d 76, 84 (D.D.C. 2009) (transferring case seeking to

compel action on immigration application to the district where application was pending).

Mr. Silva again argues that the District of Columbia has the greater interest in deciding this

case because of the authority and influence of agency leadership within the District of Columbia.

See Pl.’s Opp’n at 5–8. However, “[Mr. Silva] does not allege that the DHS Secretary or . . . CIS

Directors were personally involved with the processing or adjudication of his application.” Aftab,

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597 F. Supp. 2d at 81. “Even if these officials had some involvement in policy decisions that affect

[Mr. Silva], attenuated or insignificant involvement by an official in the District of Columbia does

not support venue here.” Id. at 82 (citing Marks v. Torres, 576 F. Supp. 2d 107, 111 (D.D.C.

2008)). Thus, the local interest in deciding local controversies strongly favors transfer to the

District of Nebraska. See, e.g., id. at 84. Defendants have met their “burden of persuasion on the

transfer issue.” Savoy Indus., 587 F.2d at 1154.

V. CONCLUSION

“For the reasons set forth above, the Court shall grant Defendant’s motion to transfer venue

and shall deny without prejudice Defendants’ motion to dismiss so that Defendants may refile that

motion, if appropriate, upon transfer to the [District of Nebraska].” Abusadeh v. Chertoff, 2007

WL 2111036, at *9 (D.D.C. July 23, 2007).
Zia M. Faruqui
2022.05.10
11:33:47 -04'00'
___________________________________
ZIA M. FARUQUI
UNITED STATES MAGISTRATE JUDGE

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