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Abusadeh v. Chertoff

July 23, 2007

MOHAMMAD ABUSADEH, PLAINTIFF,
v.
MICHAEL CHERTOFF, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Mohammad Abusadeh filed the instant action pursuant to the Mandamus Act, 28 U.S. § 1361, the Declaratory Judgment Act, 28 U.S.C. § 2201, and the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 706 et seq., to compel action on his dual applications for naturalization and to replace an alien registration card. At the time that Plaintiff filed his Complaint, both applications were pending in the Houston office of United States Citizenship and Immigration Services ("USCIS"). USCIS has since approved Plaintiff's application to replace his alien registration card, such that Plaintiff's claims with respect to that application are moot. Defendants -- Michael Chertoff, the Secretary of the Department of Homeland Security; Emilio Gonzalez, the Director of USCIS; Sharon Hudson, the District Director of the Houston USCIS office; and Robert Mueller, Director of the Federal Bureau of Investigation -- have filed a Motion to Dismiss, or in the Alternative, for Change of Venue. Defendants argue that Plaintiff's Complaint should be dismissed for lack of subject matter jurisdiction and lack of venue, or in the alternative, should be transferred to the United States District Court for the Southern District of Texas, Houston Division, where Defendants assert venue properly lies.

Plaintiff has filed a Response Opposing Defendants' Motion, to which Defendants have replied. Upon consideration of the parties' briefings, the relevant case law, and the entire record herein, the Court shall grant Defendants' motion to transfer venue. In light of the transfer of venue, the Court shall not address the substance of Defendants' motion to dismiss but shall deny that motion without prejudice so that Defendants may refile it, if appropriate, upon transfer to the Southern District of Texas, Houston Division.

I. BACKGROUND

Plaintiff, Mohammad Abusadeh is a 35 year-old native of Kuwait and a citizen of Jordan, who is a lawful permanent resident of the United States and resides in Houston, Texas. Pl.'s Compl. ¶¶ 5, 7. Plaintiff first applied for naturalization on August 13, 1997, but that application was denied because Plaintiff had two arrests for which he failed to comply with the conditions of his probation. Pl.'s Resp. Opposing Defs' Mot. to Dismiss, or in the Alternative, for Change of Venue (hereinafter "Pl.'s Opp'n"), Ex. BC (10/17/00 Abusadeh Decision) (concluding that a "record of 2 (two) arrests, one of which occurred within the statutory period, fails to support a finding of good moral character").*fn1 Plaintiff filed a second application for naturalization on April 12, 2004, and was interviewed regarding his application on August 17, 2004. Pl.'s Compl. ¶¶ 8-9. Following his interview, Plaintiff was informed that he had passed the English language, United States history, and government tests, but that a decision about his application could not be made pending a security check. Pl.'s Compl. ¶ 9, Ex. 2 (Results of Naturalization Interview). Plaintiff has since made inquiries, through counsel, to find out the status of his naturalization application and has been told that security checks are pending. Pl.'s Compl. ¶ 10, Ex. 3 (11/22/04 and 3/8/05 e-mails to Houston USCIS office).

Plaintiff's lawful permanent resident card expired on August 22, 2005. Pl.'s Compl. ¶ 13, Ex. 4 (Abusadeh Resident Alien Card). On July 27, 2005, Plaintiff timely filed an application to replace his lawful permanent resident card and, on September 29, 2005, attended the required biometrics appointment corresponding to his application. Pl.'s Compl. ¶¶ 14-15. As of the filing of his November 27, 2006 Complaint in this action, Plaintiff had not received his replacement card and, as a result, had not been able to travel abroad to visit his ill father in Jordan. Id. ¶¶ 16-19; see also Pl.'s Opp'n, Ex. I (Medical report for Plaintiff's father). It appears that USCIS thereafter approved Plaintiff's application to replace his lawful permanent resident card on February 6, 2007. See Defs' Mot. to Dismiss or, in the Alt., for Change of Venue (hereinafter "Defs' Mot.") at 18. Plaintiff's Opposition to Defendants' Motion to Dismiss does not deny that his application to replace his alien registration card has been approved, and the Court notes that Defendants have provided a print-out of the USCIS Interim Case Management Solution Case History for Plaintiff, which indicates that Plaintiff's application to replace his alien registration card was approved on February 6, 2007. See Defs' Mot., Ex. 3 (Abusadeh Document Production Status Case History). Accordingly, it appears that Plaintiff's claims with respect to his application to replace his lawful permanent resident card are moot.*fn2

On August 17, 2006, Plaintiff filed a complaint in the U.S. District Court for the Southern District of Texas, Houston Division, naming as defendants the same four officials that Plaintiff names as Defendants in this matter. Pl.'s Opp'n Ex. A (Complaint, Abusadeh v. Chertoff, et al., Misc. No. H-06-0337 (S.D.Tex. Aug. 17, 2006). Plaintiff filed his complaint in the Southern District of Texas under the Immigration and Nationality Act § 336(b), 8 U.S.C. § 1447(b), and the APA, asserting that more than 120 days had passed since Plaintiff's interview regarding his naturalization application and no decision had been made on his application. Id. As such, Plaintiff applied to the Southern District of Texas for a hearing on the matter, pursuant to 8 U.S.C. § 1447(b). Id. However, on August 23, 2006, Judge Kenneth M. Hoyt sua sponte remanded Plaintiff's case to the USCIS for lack of jurisdiction, finding that "[i]n the case at bar, the mandatory national security FBI name check process has not been completed," and that therefore "exhaustion of the administrative process has not been completed and the 120-day period has not been triggered." Pl.'s Opp'n, Ex. A (Abusadeh v. Chertoff, et al., Misc. No. H-06-0337, Order for Remand (S.D.Tex. Aug. 23, 2006)).

Thereafter, on November 27, 2006, Plaintiff filed the instant action pursuant to the Mandamus Act, 28 U.S.C. § 1361, the Declaratory Judgment Act, 28 U.S.C. § 2201, and the Administrative Procedures Act, 5 U.S.C. §§ 706 et seq., again naming the same four officials as Defendants. Pl.'s Compl. ¶ 1. Plaintiff's Complaint in this action alleges that Defendants have breached a duty to Plaintiff by failing to finish adjudicating his naturalization application and application to replace a permanent resident card within a reasonable time, and that Defendants' actions have denied Plaintiff "peace of mind,"and "the benefits of citizenship." Id. ¶¶ 25-29. Plaintiff therefore asks this Court to compel action on his applications through an affirmative injunction, declaratory judgment, and a writ of mandamus, and to hold unlawful and set aside agency action that Plaintiff alleges has been "unreasonably delayed and unlawfully withheld." Id. ¶¶ 30-37.

On February 26, 2007, Defendants filed a Motion to Dismiss, or in the Alternative, for Change of Venue. See Defs' Mot. After a number of extensions, Plaintiff filed his Response Opposing Defendants' Motion to Dismiss, or in the Alternative, for Change of Venue, on May 2, 2007. See Pl.'s Opp'n. Defendants filed their Reply to Plaintiff's Response on June 4, 2007. See Defs' Reply.

II. LEGAL STANDARD

Defendants argue that venue in this case is improper in the District of Columbia, and that this Court should therefore dismiss this case pursuant to Federal Rule of Civil Procedure 12(b)(3). When a case is filed in the wrong federal judicial district, the district court in which the action is filed "shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a). In considering a motion to dismiss for lack of venue, "unless contradicted by an evidentiary showing, the court accepts the plaintiff's well-pled factual allegations regarding venue as true, draws all reasonable inferences from those allegations in the plaintiff's favor, and resolves any factual conflicts in the plaintiff's favor." Jyachosky v. Winter, No. Civ. A. 04-01733, 2006 WL 1805607, * 1 (D.D.C. Jun. 29, 2006) (citations and internal quotations omitted).

Defendants alternatively argue that this Court should exercise its discretion to transfer this case to the Southern District of Texas, Houston Division, pursuant to 28 U.S.C. § 1404(a), which states that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). The Court is afforded broad discretion to decide whether transfer from one jurisdiction to another is proper under 28 U.S.C. § 1404(a). SEC v. Savoy Indus. Inc., 587 F.2d 1149, 1154 (D.C. Cir. 1978) (quoting Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955)). The decision to transfer is made by an "individualized, case-by-case consideration of convenience and fairness . . . ." Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 11 L.Ed. 2d 945 (1964).

The Court must therefore initially determine whether venue in the District of Columbia is proper for Plaintiff's claims, before turning to the threshold question under 28 U.S.C. § 1404(a) of whether this action "might have been brought" in the Southern District of Texas. Id. at 616. In an action brought against an officer or employee of the United States, venue is covered by 28 U.S.C. § 1391(e), which provides:

A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property ...


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