Wei Lai Development LLC v. United States Citizenship and Immigration Services ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WEI LAI DEVELOPMENT LLC, et al.,
Plaintiffs,
v.
Civil Action No. 21-887 (RDM)
U.S. CITIZENSHIP AND IMMIGRATION
SERVICES,
Defendant.
MEMORANDUM OPINION
Plaintiff Wei Lai-USA, a Washington State limited liability company engaged in the
construction and rental of residences, and Lin Han, a citizen and national of the People’s
Republic of China currently present in the state of Washington, bring this action pursuant to the
Administrative Procedure Act (“APA”), 5 U.S.C. § 706, seeking review of the U.S. Citizenship
and Immigration Services’ (“USCIS”) denial of an I-129 immigration petition and associated L-
1A adjustment-of-status application that they had filed. Dkt. 1 at 2 (Compl. ¶ 1); Dkt. 1-5 at 1.
Pending before the Court is USCIS’s motion, pursuant to 28 U.S.C. § 1404(a), to transfer the
case to “the Western District of Washington state[,] where Plaintiff [Han] resides[,] or the
Central District of California because the denial happened there.” Dkt. 8-1 at 2. USCIS also
moves to dismiss this case under Federal Rules of Civil Procedure 12(b)(1) and (b)(3) for lack of
subject-matter jurisdiction and improper venue, respectively. Dkt. 8 at 1.
For the reasons set forth below, the Court will GRANT USCIS’s motion to transfer the
case to the Central District of California.
I. BACKGROUND
When evaluating a motion to transfer to a different venue, “a court should only consider
undisputed facts supported by affidavits, depositions, stipulations, or other relevant documents.”
One on One Basketball, Inc. v. Glob. Payments Direct, Inc., 38 F. Supp. 3d 44, 48 (D.D.C.
2014). The Court therefore draws the relevant facts from uncontested allegations in the
complaint and a declaration submitted by Catherine C. Bowie, who recently “led the
headquarters consolidation efforts” and “physical relocation” of USCIS, Dkt. 14-1 at 1 (Bowie
Decl. ¶ 1).
“On November 4, 2019, Wei Lai-USA filed a[n] [I-129] petition for nonimmigrant
worker upon behalf of Lin Han to classify her as an intracompany transferee manager with a
concurrent request to change her nonimmigrant status to L-1A.” 1 Dkt. 1 at 3 (Compl. ¶ 8a). 2 As
Plaintiffs explain, “Ms. Han had, at the time of filing, been employed for over two years by
Harbin Jin Mao Cheng Public Facility Co., Ltd. (Jin Mao-China)”—which is “an affiliate of Wei
Lai-USA”—“as its Deputy General Manager.” Id. (Compl. ¶¶ 8b–9). “The petition filed by Wei
Lai-USA offered to employ Ms. Han in the United States in a position in which she would
primarily manage the organization.” Id. at 4 (Compl. ¶ 15).
On April 3, 2020, USCIS issued Plaintiffs a Request for Evidence (“RFE”), asking them
to further substantiate that Han was employed in a “managerial, executive, or specialized
1
“The L-1 classification may be granted to an individual who, within three years preceding the
time of his or her application for admission into the United States: [h]as been employed abroad
continuously for one year by a firm, corporation, or other legal entity or parent, branch, affiliate,
or subsidiary; [s]eeks to enter the United States temporarily to render services to a branch of the
same employer, or a parent, affiliate, or subsidiary; and [w]ill work in a capacity that is
managerial or executive, or involves specialized knowledge.” Dkt. 11-1 at 951.
2
The complaint contains two paragraphs numbered “8.” Dkt. 1 at 3. The Court refers to the
first of these paragraphs as “8a” and to the second as “8b.”
2
knowledge position” while at Jin Mao-China. Dkt. 11-1 at 951 (capitalization altered). As
USCIS explained in the RFE:
[Plaintiffs] submitted a letter, org[anizational] chart, description of duties, and
copies of the foreign entity’s payroll records to establish the beneficiary’s role
abroad. While you have described and illustrated the nature of [Han’s] position,
you did not provide sufficient evidence of her daily duties to show how she
carried out the nature of these tasks. . . . Although the payroll records provide
evidence of pay and employment, the records do not establish the beneficiary
operated in primarily a managerial capacity on a daily basis. . . . [D]escriptions
of the position abroad should be supported by sufficient corroboratory evidence
of the beneficiary’s role, duties, and daily responsibilities.
Id. at 952.
Plaintiffs responded to the RFE on August 25, 2020, submitting to USCIS roughly 160
pages of materials, including additional letters, payroll records, and documents signed by Han
that purportedly verified her managerial duties at Jin Mao-China. Id. at 958–62. But USCIS was
still unsatisfied. It issued another RFE to Plaintiffs on October 13, 2020, requesting additional
evidence demonstrating that Wei Lai-USA was engaged in business in the United States in 2019
and that the proposed position for Han at Wei Lai-USA was “primarily managerial or executive.”
Id. at 1127–30. As before, USCIS explained in some detail why it required the additional
evidence. Id. Plaintiffs responded months later, on January 22, 2021, providing USCIS nearly
300 pages of documents including, inter alia, Wei Lai-USA’s 2019 federal tax returns, payroll
summaries of Wei Lai-USA employees from September 2019 to November 2020, and certain
contracts into which Wei Lai-USA had entered between 2019 and 2020. Id. at 1139–40. USCIS,
however, remained unconvinced that Plaintiffs had met their burden, and on February 12, 2021,
3
USCIS issued a decision denying Wei Lai-USA’s I-129 petition and its L-1A application on
behalf of Han. Dkt. 1 at 5 (Compl. ¶ 20–21a). 3
This suit followed. Dkt. 1. Plaintiffs’ complaint, filed on April 1, 2021, alleges that
USCIS’s decisions denying the I-129 petition and L-1A application were arbitrary, capricious,
and not in accordance with law, all in violation of the APA. Id. at 5–28 (Compl. Counts I–IV).
In addition, Plaintiffs ask the Court to “order USCIS to re-adjudicate Wei Lai-USA’s petition
and application upon behalf of Ms. [Han] within thirty (30) days of its order holding the
decisions denying them unlawful and setting them aside.” Id. at 29 (Compl. Prayer for Relief).
Plaintiffs have also moved for a preliminary injunction “to postpone the effectiveness of the
denial of Wei Lai-USA’s nonimmigrant visa petition upon Ms. Han’s behalf and the
corresponding denial of her application for a change of nonimmigrant [status].” Dkt. 2-1 at 2.
On April 16, 2021, USCIS responded to Plaintiffs’ pending motions with a motion to
transfer the case pursuant to 28 U.S.C. § 1404(a), or, in the alternative, to dismiss this case
pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(3) for lack of subject-matter
jurisdiction and improper venue. Dkt. 8. Plaintiffs later filed their opposition to transfer or
dismissal, Dkt. 13, after USCIS had prematurely filed a reply brief in favor of its motion, Dkt.
11. On May 10, 2021, the Court ordered USCIS promptly to file “a declaration under the penalty
of perjury that explains (1) the timing of USCIS’s relocation to Maryland; (2) any remaining
USCIS presence in the District of Columbia; (3) any other facts relevant to the motion to
transfer, including whether any aspect of Plaintiffs’ petition was adjudicated or reviewed in the
District of Columbia.” Minute Order (May 10, 2021). The Court also invited Plaintiffs to file a
3
The complaint contains two paragraphs numbered “21.” Dkt. 1 at 5. The Court refers here
only to the first of these paragraphs.
4
response to the declaration. Id. USCIS submitted Bowie’s declaration on May 13, 2021, Dkt.
14, and Plaintiffs filed their response on May 17, 2021, Dkt. 15. USCIS then submitted
additional material for the Court to consider, Dkt. 16, as did Plaintiffs in response, Dkt. 17. 4
II. ANALYSIS
Pursuant to 28 U.S.C. § 1404(a), the Court may transfer a case to “any other district or
division where it might have been brought” for the “convenience of [the] parties and witnesses,
in the interest of justice.” The inquiry is two-fold. First, the Court must determine whether the
case could have been brought in the transferee district. Van Dusen v. Barrack, 376 U.S. 612, 616
(1964). Second, the Court must decide whether the private and public interests at stake favor
transfer. Aracely v. Nielsen, 319 F. Supp. 3d 110, 127 (D.D.C. 2018); see also Ike v. USCIS, No.
20-cv-1744, 2020 WL 7360214, at *2 (D.D.C. Dec. 15, 2020). This requires the Court to
consider the “preferred forum of the parties,” “the location where the claim arose,” and “other
factors of convenience,” as well as “the transferee district’s familiarity with the governing law,”
“the relative congestion of the courts,” and the “local interest in deciding local controversies at
home.” Aracely, 319 F. Supp. 3d at 128–30. In making the decision to transfer, the Court must
make an “individualized, case-by-case consideration of convenience and fairness.” Abusadeh v.
Chertoff, No. 06-cv-2014, 2007 WL 2111036, at *3 (D.D.C. July 23, 2007) (quoting Barrack,
376 U.S. at 622). As the moving party, USCIS bears the burden of justifying the proposed
transfer. Aracely, 319 F. Supp. 3d at 127.
4
The Court will also take judicial notice of the materials on USCIS’s website. Fed. R. Evid.
201.
5
For the following reasons, the Court will transfer this action to the United States District
Court for the Central District of California, where the USCIS service center that adjudicated
Plaintiffs’ petition and application is located.
A. Where the Action Could Have Been Brought
The Court starts its analysis by evaluating whether either of the proposed transferee
districts were ones in which Plaintiffs’ action could have been brought. Barrack, 376 U.S. at
616. The Court concludes that Plaintiffs could have filed suit in the Central District of California
or the Western District of Washington.
Where an agency of the United States is the defendant, as here, venue is proper “in any
judicial district in which (A) a defendant in the action resides, (B) a substantial part of the events
or omissions giving rise to the claim occurred, or . . . (C) the plaintiff resides if no real property
is involved in the action.” 28 U.S.C. § 1391(e)(1). Plaintiffs’ immigration petition and
application were both adjudicated at the California Service Center in Laguna Niguel, California.
Dkt. 14-1 at 3 (Bowie Decl. ¶ 10); see also Dkt. 11-1 at 1, 14. Therefore, because “a substantial
part of the events . . . giving rise to [Plaintiffs’] claim[s] occurred” in the Central District of
California, venue is proper in that district. 28 U.S.C. § 1391(e)(1); accord Pasem v. USCIS, No.
20-cv-344, 2020 WL 2514749, at *3 (D.D.C. May 15, 2020) (“In APA cases, the underlying
claim typically arises ‘where the decisionmaking process occur[s].’” (alteration in original)
(quoting Gyau v. Sessions, No. 18-cv-407, 2018 WL 4964502, at *1 (D.D.C. Oct. 15, 2018)).
Similarly, the Western District of Washington is also a proper venue because this case involves
no real property and that is the “judicial district in which . . . the [P]laintiff[s] reside.” 28 U.S.C.
6
§ 1391(e)(1); see also Dkt. 1 at 1 (Compl.) (listing Wei Lai-USA’s residence as Renton,
Washington, and Han’s residence as Seattle, Washington). 5
B. Private and Public Interests
The private and public interests largely weigh in favor of transfer, except for two
factors—the relative congestion of the courts and the proposed transferee district’s familiarity
with the governing law—which are neutral.
First, as to the preferred forum of the parties, USCIS prefers the Central District of
California or the Western District of Washington, Dkt. 8-1 at 19 n.2, while Plaintiffs prefer to
(and did) bring this case in the District of Columbia, Dkt. 15. Although courts generally defer to
the plaintiff’s choice of forum, Gyau, 2018 WL 4964502, at *2, that deference is lessened when
5
The Court need not decide whether the District of Columbia is also a proper venue. That is
because the Court is not dismissing the action for improper venue under 28 U.S.C. § 1406(a), but
is instead transferring the action under 28 U.S.C. § 1404(a) for the convenience of and fairness to
the parties. As the Supreme Court has explained, Ҥ 1404(a) does not condition transfer on the
initial forum’s being ‘wrong.’ . . . [I]t permits transfer to any district where venue is also proper
(i.e., ‘where [the case] might have been brought’) or to any other district to which the parties
have agreed by contract or stipulation.” Atl. Marine Constr. Co. v. U.S. Dist. Court, 571 U.S. 49,
59 (2013) (quoting 28 U.S.C. § 1404(a)). Moreover, as discussed below, see infra n.6, the Court
is not obligated to resolve motions to dismiss for improper venue before evaluating whether
transferring the action under § 1404(a) is warranted.
That said, the propriety of venue in the District of Columbia is in doubt, given USCIS’s limited
presence in the District at the outset (and throughout the course) of this litigation. Although
USCIS’s headquarters were previously located in five buildings in the District of Columbia (and
one in Arlington, Virginia), “USCIS began physically relocating agency offices on August 27,
2020.” Dkt. 14-1 at 2 (Bowie Decl. ¶ 4). “The relocation entailed moving the USCIS
headquarters . . . located in the six buildings . . . into the new Camp Springs, Maryland location,”
a move that the agency “completed on December 11, 2020.” Id. (Bowie Decl. ¶¶ 5–6). “There
[have been] no USCIS headquarters level offices located within the District of Columbia” since
December 11, 2020. Id. at 3 (Bowie Decl. ¶ 8). Three USCIS offices remain in the District of
Columbia, but they “are not headquarters level programs[,] nor do they involve the type of
petition at issue in the instant matter.” Id. (Bowie Decl. ¶ 9). Those remaining offices are the
Immigrant Investor Program Office, the Refugee Affairs Division, and the Arlington Asylum
Pre-Screening Center. Id.
7
the plaintiff’s choice is not the plaintiff’s home forum, Abusadeh, 2007 WL 2111036, at *4, and
is at its nadir when the “plaintiff’s forum choice ‘lacks meaningful ties to the controversy and
[has] no particular interest in the parties or subject matter,’” S. Utah Wilderness All. v. Norton,
315 F. Supp. 2d 82, 86 (D.D.C. 2004) (alteration in original) (quoting Islamic Republic of Iran v.
Boeing Co., 477 F. Supp. 142, 144 (D.D.C. 1979)).
Here, Plaintiffs justify their choice of venue on three grounds: first, they contend that
“venue is appropriate in the District because the USCIS performs a substantial portion of its
duties here,” Dkt. 13 at 9; second, they argue that “the agency’s defense [on] the merits of this
action relies heavily upon what appears to be a repealed regulation, 8 C.F.R. § 214.2(l)(1)(ii)(B)
(1987),” and “[t]hus, to decide this case, th[e] Court is going to have to determine whether the
regulation in question was in fact repealed, and, if so, what the significance of that repeal
actually was,” Dkt. 13 at 11; and finally, Plaintiffs assert that USCIS “has failed to identify any
way in which it would be more convenient for any of the parties or the witnesses to transfer this
case to Washington or California,” id. at 12.
The Court is unpersuaded. Even assuming USCIS resides in the District of Columbia—a
dubious proposition, as explained, see supra n.5—Plaintiffs’ instant suit has nothing to do with
directives issued by USCIS officials in D.C. Not to the contrary is Plaintiffs’ argument that this
case involves determining whether 8 C.F.R. § 214.2(l)(1)(ii)(B) (1987) was repealed and, if so,
what effect that repeal had. It is true that USCIS’s briefing contains quotations from the
administrative record which, in turn, contain similar language to that found in 8 C.F.R.
§ 214.2(l)(1)(ii)(B) (1987). Compare 8 C.F.R. § 214.2(l)(1)(ii)(B) (1987) (“Managerial capacity
. . . does not include . . . an employee who primarily performs the tasks necessary to produce the
product and/or to provide the service(s) of the organization” (internal quotation marks omitted))
8
with Dkt. 11-1 at 4, 8 (“An employee who primarily performs the tasks necessary to produce a
product or provide services is not considered to be employed in a managerial or executive
capacity.”). But neither the complaint, the parties’ briefing, nor the administrative record
identify the 1987 version of 8 C.F.R. § 214.2 as the basis for the USCIS’s decision, as opposed
to USCIS’s current belief that an employee who produces products or provides services is not
employed in a managerial capacity. And it is implausible, at best, that an immigration dispute
that concerns the agency’s compliance with its extant regulations and with the APA’s
requirement of reasoned decisionmaking would, instead, require resolving whether a thirty-four-
year-old regulation that has been repeatedly amended or superseded since, that neither party
asserts is operative, and that appears nowhere in the record, was lawfully “revoked.” Simply put,
Plaintiffs are not challenging the validity or existence of any USCIS rule; they are challenging
the decision rendered by the California Field Office to deny their petition and application. That
challenge is more appropriately brought in that jurisdiction. See EfficientIP, Inc. v. Cuccinelli,
No. 20-cv-1455, 2020 WL 6683068, at *3–4 (D.D.C. Nov. 12, 2020) (transferring action seeking
review of visa-petition denial to the district in which the USCIS center that adjudicated the
petition was located, and commenting that “[w]here, as here, the only real connection the lawsuit
has to the District of Columbia is that a federal agency headquartered here is charged with
generally regulating and overseeing the administrative process, venue is not appropriate in the
District of Columbia” (quotation marks and citation omitted)); see also Ike, 2020 WL 7360214,
at *5 (for the same reasons, transferring visa-petition denial to district containing USCIS center
where plaintiff’s petition was processed).
The remaining private and public interest factors also weigh in favor of transfer to the
Central District of California. First, the “location where the claim arose” is in the Central
9
District of California, and “[t]here is a local interest in having localized controversies decided at
home.” Onaghise v. U.S. Dep’t of Homeland Sec., 20-cv-1048, 2020 WL 5642280, at *3
(D.D.C. Sept. 22, 2020) (alternation in original) (quoting Adams v. Bell, 711 F.2d 161, 167 (D.C.
Cir. 1983)); see also Bahena v. Renaud, 20-cv-291, 2021 WL 1820232, at *4 (D.D.C. May 6,
2021). Indeed, as several decisions in this district have explained in the immigration context,
“[c]ontroversies should be resolved in the locale where they arise, a policy rationale [that]
applies equally to the judicial review of an administrative decision which will be limited to the
administrative record.” Ngonga v. Sessions, 318 F. Supp. 3d 270, 276 (D.D.C. 2018) (second
alteration in original) (citation and internal quotation marks omitted); see also Wolfram Alpha
LLC v. Cuccinelli, 490 F. Supp. 3d 324, 330 (D.D.C. 2020) (“Venue is proper in the Central
District of California because that is where the challenged federal action—[the California
Service Center’s] denial of [plaintiff’s] [p]etition—occurred[.]”); Al-Ahmed v. Chertoff, 564 F.
Supp. 2d 16, 20 (D.D.C. 2008) (“The local interest in resolving local disputes at home applies to
controversies involving federal decisions that impact the local environment, and to controversies
requiring judicial review of an administrative decision.” (citation and internal quotation marks
omitted)); Ike, 2020 WL 7360214, at *3; Bourdon v. U.S. Dep’t of Homeland Sec., 235 F. Supp.
3d 298, 308 (D.D.C. 2017); Chauhan v. Napolitano, 746 F. Supp. 2d 99, 105 (D.D.C. 2010).
Second, the Central District of California would be the more convenient forum for this
action, as the field office most familiar with the facts of their application is located there. This
case’s nexus to the District of Columbia, in contrast, is exceptionally weak. The only connection
between the two is that some USCIS offices—none of which worked on Plaintiffs’ application or
petition—were located in the District of Columbia at the time Plaintiffs’ complaint was filed.
Dkt. 14-1 at 3 (Bowie Decl. ¶ 9); see also supra n.5. Accordingly, to the extent any relief is
10
granted in this case, it would apply to government officials not in the District of Columbia, but,
instead, those in the Central District of California who would be responsible for adjudicating
Plaintiffs’ application and petition anew. Convenience therefore favors transfer to the Central
District of California as well.
Third, the Court must evaluate “the relative congestion of the courts.” Aracely, 319 F.
Supp. 3d at 30. “As neither party has made a showing that the current caseloads of either District
would have a bearing on the disposition of this action, the Court finds this factor neutral.”
Ngonga, 318 F. Supp. 3d at 276 (citing Nat’l Ass’n of Home Builders v. U.S. EPA, 675 F. Supp.
2d 173, 178 (D.D.C. 2009)). The Court notes, however, that while the number of “actions per
judgeship” is roughly 43% higher in the Central District of California than it is the District of
Columbia, the median time “from filing to disposition” is, in fact, 10% less in the Central
District of California. See U.S. District Court—Federal Court Management Statistics—Profiles,
United States Courts (Dec. 31, 2020), https://www.uscourts.gov/sites/default/files/data_tables/
fcms_na_distprofile1231.2020.pdf. “Courts have held that when statistics regarding relative
congestion are mixed,” like here, “this factor should be deemed as neutral.” Wolfram Alpha
LLC, 490 F. Supp. 3d at 336. Accordingly, the Court concludes that “the relative congestion of
the courts,” Aracely, 319 F. Supp. 3d at 30, favors neither party.
Finally, the federal judges in the Central District of California, like all federal judges,
“are familiar with federal laws, including those at issue in immigration disputes.” Bahena, 2021
WL 1820232, at *4; see also Aftab v. Gonzalez, 597 F. Supp. 2d 76, 83 (D.D.C. 2009) (“The
transferee district is presumed to be equally familiar with the federal laws governing [the
plaintiff’s] claims.”); Wolfram Alpha, 490 F. Supp. 3d at 335; Bourdon, 235 F. Supp. 3d at 309;
11
W. Watersheds Project v. Pool, 942 F. Supp. 2d 93, 101 (D.D.C. 2013). The relative
competency of each jurisdiction is, accordingly, a neutral factor with respect to transfer.
In sum, the public and private interests largely tip in favor of transfer, except for two
factors, the congestion and competencies of the relevant courts, which are neutral. The Court
will, therefore, order this case transferred to the United States District Court for the Central
District of California. In light of this decision, the Court will not consider USCIS’s motion to
dismiss, Dkt. 8, or Plaintiffs’ motion for preliminary injunction, Dkt. 2. See Mohammadi v.
Scharfen, 609 F. Supp. 2d 14, 16 n.2 (D.D.C. 2009); Glob. Payments, 38 F. Supp. 3d at 51. 6
A separate order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: May 24, 2021
6
Although USCIS’s motion to dismiss challenges the Court’s subject-matter jurisdiction, “a
federal court has leeway ‘to choose among threshold grounds for denying audience to a case on
the merits.’” Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007)
(quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999)). To be sure, “the Supreme
Court . . . has [not] decided whether a court may transfer a case without first satisfying itself of
its Article III and subject matter jurisdiction.” Producers of Renewables United for Integrity
Truth & Transparency v. EPA, 778 Fed. App’x 1, 4 (D.C. Cir. 2019) (per curiam). The only
D.C. Circuit decision to address the issue in detail, meanwhile, did so in an unpublished and
nonprecedential opinion. Id.; see also D.C. Cir. R. 36(d). In that case, the D.C. Circuit
explained that ‘“[j]urisdiction is vital only if the court proposes to issue a judgment on the
merits,’” and then expressed “confiden[ce] that [its] order transferring [part of the case] d[id] not
assume the ‘law-declaring power’ that would require [the court] to first assert jurisdiction.”
Producers of Renewables, 778 Fed. App’x at 4 (first alteration in original) (first quoting
Sinochem, 549 U.S. at 431, and then quoting Ruhrgas, 526 U.S. at 585); accord Klayman v.
Kollar-Kotelly, No. 12-5340, 2013 WL 2395909, at *1 (D.C. Cir. May 20, 2013) (characterizing
(in dicta) venue as a “threshold ground[]” under Sinochem). Courts in this district have
consistently held that questions of venue may be addressed before those of subject-matter
jurisdiction. See, e.g., Pac. Mar. Ass’n v. NLRB, 905 F. Supp. 2d 55, 58–59 (D.D.C. 2012)
(collecting cases). Mindful of the D.C. Circuit’s guidance on the issue to date, and because the
choice of venue has no bearing on the merits of the parties’ underlying dispute, the Court
concludes that transfer is appropriate here despite USCIS’s pending motion to dismiss for want
of subject-matter jurisdiction.
12