Mukherjee v. United States Citizenship and Immigration Services ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHILPI MUKHERJEE, et al.,
Plaintiffs,
v. Case No. 20-cv-676 (CRC)
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES,
Defendant.
MEMORANDUM OPINION
Plaintiffs are fifty-three individuals who have applied to U.S. Citizenship and
Immigration Services (“USCIS”) to extend their nonimmigrant statuses and/or work
authorizations. They claim that USCIS has unreasonably delayed the adjudication of their
applications and that the delay constitutes arbitrary and capricious agency action in violation of
the Administrative Procedure Act (“APA”). Am. Compl. ¶¶ 270–305 (Causes of Action). Last
month, in a case brought by a group of plaintiffs asserting identical claims, this Court denied as
moot the claims of those plaintiffs whose applications had been adjudicated during the pendency
of the lawsuit and then transferred the claims of the remaining plaintiffs to the judicial districts
where the USCIS service centers that were adjudicating their individual applications are located.
See Pasem v. USCIS, No. 20-cv-344, 2020 WL 2514749 (D.D.C. May 15, 2020) (CRC). The
plaintiffs in this case offer no reason to deviate from that tack. The Court will therefore transfer
the seven live claims to the more appropriate judicial district.
I. Background
In Pasem, the Court fully laid out the statutory and procedural history relevant to this
case. See id. at *1–2. Briefly, plaintiffs are dependents of people who have been granted
nonimmigrant visas and work authorizations for either being an employee in a “specialty
occupation” (H1-B visa) or a manager, executive, or employee with specialized knowledge (L-1
visa). 8 U.S.C. §§ 1101(a)(15)(H)(i)(b), 1101(a)(15)(L). As dependents of the primary visa
holders, plaintiffs may apply for derivative nonimmigrant status and work authorization. 8
U.S.C. § 1101(a)(15)(H), 1101(a)(15)(L), 1184(c)(2)(E); 8 C.F.R. § 214.2(h)(9)(iv) (Jan. 1,
2020). Prior to March 2019, derivative applications “were adjudicated as a single package
alongside the primary H1-B or L-1 applications.” Pasem, 2020 WL 2514749, at *2. But now,
USCIS requires derivative applicants to provide biometric information for screening, which “has
predictably extended the amount of time it takes USCIS to adjudicate the applications and has
prevented USCIS from continuing to consider the derivative visas concurrently with the primary
applications.” Id. The resulting delays, plaintiffs claim, are arbitrary and capricious. Plaintiffs
do not challenge the legality of the biometrics policy itself; instead, they simply challenge “the
Agency’s (in)action due to” that policy, among other factors that may result in delays in USCIS’s
review of their applications. Pls.’ Opp. 17.
II. Mootness
Before transferring any claims, the Court will again dismiss as moot the claims of those
plaintiffs whose applications have been adjudicated since this suit was filed. As the Court
explained in Pasem:
When warranted, courts in this district routinely dismiss individual claims prior to
transferring a case. [citing cases] . . . Claims that have become moot must be
dismissed for lack of subject matter jurisdiction. Mittleman v. Postal Regulatory
Comm’n, 757 F.3d 300, 303 (D.C. Cir. 2014); Fed. R. Civ. P. 12(b)(1). In deciding
whether a claim has become moot, a court may “consider such materials outside
the pleadings as it deems appropriate to resolve the question whether it has
jurisdiction in the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp.
2d 18, 22 (D.D.C. 2000).
2020 WL 2514749, at *5. Relying on evidence submitted by USCIS, the Court finds that the
claims of 46 plaintiffs are moot and will dismiss those claims. See Def’s Reply App’x A, ECF
No. 15-4.
2
III. Transfer
Seven plaintiffs are still awaiting adjudication of their applications. Each of the
remaining plaintiffs has an application pending at USCIS’s Texas Service Center, which is
located in the Northern District of Texas. 1 The Court will grant USCIS’s motion to transfer
these plaintiffs’ claims to that district for the same reasons it transferred the live claims in Pasem.
First, there is no dispute that plaintiffs “could have brought” this action “in the judicial districts
where the service centers are located” because that is “where the decisionmaking process
occur[s].” Pasem, 2020 WL 2514749, at *3 (quoting Gyau v. Sessions, No. 18-cv-407, 2018 WL
4964502, at *1 (D.D.C. Oct. 15, 2018)). 2 The only question that remains then is whether
plaintiffs should have brought their suit there. Gyau, 2018 WL 4964502, at *1; see also 28
U.S.C. § 1404(a) (“For the convenience of the parties and witnesses, in the interest of justice,” a
court may transfer a civil action to any other district as long as the transferee district is one where
the case “might have been brought.”). This inquiry requires the Court to weigh whether the
transfer “is in the public interest and in private interest of the parties.” Pasem, 2020 WL
1
One plaintiff, Saranya Chandrasekaran, has an application pending at both the Texas
Service Center (I-539) and the Vermont Service Center (I-765). In the interest of judicial
economy, the Court will transfer both of her claims together to the Northern District of Texas.
Although doing so is somewhat in tension with the Court’s conclusion that efficiency and
convenience dictate transferring all claims to the districts where plaintiffs’ applications are being
adjudicated, splitting a single plaintiff’s nearly identical claims between two different districts
across the country would be more inconvenient for both parties. The transferee court may of
course revisit this decision if necessary.
2
Plaintiffs argue that venue is proper in this district because the policies that affected
their individual delays were made in the District of Columbia. Pls.’ Opp. 16–18. But as
explained in Pasem, the question for transfer is not whether venue is proper here, it is whether
venue is more appropriate elsewhere. A court may transfer venue to a more convenient district,
even if it is proper in the district in which the plaintiff brought the suit. Pasem, 2020 WL
2514749, at *3 (citing Atl. Marine Constr. Co. v. United States Dist. Court, 571 U.S. 49 (2013)).
3
2514749, at *3 (citing Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988). As the Court
explained in detail in Pasem, those factors weigh in favor of transfer. Id. at 3–4.
Plaintiffs fail to directly confront the Court’s decision in Pasem but do make a handful of
arguments that address its reasoning and bear brief discussion. First, plaintiffs contend that
USCIS has failed to satisfy its burden to provide “specific names of witnesses or any specific
evidence that would benefit from this ‘convenience.’” Pls.’ Opp. 19. Relatedly, plaintiffs argue
that, as an APA case, there is no evidence to gather from the service centers because judicial
review is based solely on the administrative record. Id. at 22. These are odd arguments given
that plaintiffs themselves have more than once stressed a need for discovery, including
depositions of the directors of the various service centers. See Am. Compl. ¶ 286 (“Plaintiffs
demand discovery from Defendant to develop the administrative record, [including] requests for
production, interrogatories, and depositions.”); Def.’s Reply 2 & n.2 (noting that, as of June 19,
2020, plaintiffs informed defendant that it intends “seek discovery on the causes of USCIS’s
processing times,” explaining that “unreasonable delay claims are not record review claims.”).
Because plaintiffs do not challenge the legality of the biometrics policy itself, 3 “the evidence of
how it has affected each plaintiff is best available at the service center where they submitted their
3
In their briefing, plaintiffs allude to allegations that the biometrics policy is being
implemented in bad faith in order to achieve the Trump Administration’s purported goal to end
these derivative nonimmigrant statuses altogether. See, e.g., Pls.’ Opp. 24 n.22. But the causes
of action alleged in their Amended Complaint do not challenge the legality of the policy itself;
they only challenge its implementation and effect on these particular applicants. See Am.
Compl. ¶¶ 270–305; see also Pls.’ Opp. 17 (explaining that they are challenging “the Agency’s
(in)action due to” the biometrics policy). In any case, even if some evidence regarding the
implementation of the biometrics policy might be found in D.C., as plaintiffs’ discovery
demands reveal, much of the evidence bearing on the delay will be specific to the relevant
service center.
4
applications.” Pasem, 2020 WL 2514749, at *4; see also id. (explaining that “[w]hen ‘the
implementation of [a] policy is at issue, and [] that implementation took place [in a different
judicial district], venue is more appropriately laid in [the other district].’” (quoting Huskey v.
Quinlan, 785 F. Supp. 4, 7 (D.D.C. 1992) (emphasis in original))).
Second, plaintiffs take umbrage with the Court’s finding that the interest in having
“localized controversies decided at home” weighs in favor of transfer. Pls. Opp. 19–21. They
contend that this local interest only exists when the challenged action “involves the use of or
consequences to land, which is inherently localized” or “where the local population is affected
by the controversies giving rise to the case.” Id. at 19–20. While plaintiffs have marshaled
several cases in which this interest was noted in actions involving land and one about the effect
on local populations, they offer no authority establishing that it is present only in those situations.
Indeed, courts in this district, including this one, have held that the interest in having localized
controversies decided at home extends to “controversies requiring judicial review of an
administrative decision.” Gyau, 2018 WL 4964502, at *1 (applying this interest in a case
seeking the reversal of USCIS’s denial of one plaintiff’s petition sponsoring the other for lawful
permanent residency). While this localized interest may not be as strong as in cases involving
land, it nonetheless applies here. Regardless, the other interests favoring transfer—namely, the
defendant’s preferred forum, where the claim arose, and the convenience to the parties, to the
witnesses, and to the evidence—still weigh so heavily toward transfer that removing the interest
in having localized controversies decided at home would not change the calculus.
IV. Conclusion
For the foregoing reasons, the Court will grant USCIS’s motion to dismiss as moot the
claims of plaintiffs whose visa or work authorization applications have been adjudicated as of the
5
date of this opinion. The Court will then transfer the remaining seven plaintiffs’ claims to the
Northern District of Texas.
Date: June 24, 2020
CHRISTOPHER R. COOPER
United States District Judge
6