United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY United States District Judge
case arises from the United States Citizenship and
Immigration Service (“USCIS”) West Palm Beach
Field Office's denial of Plaintiff's petition to
classify his wife, an adult citizen of Vietnam, as his
immediate relative for immigration purposes. The USCIS West
Palm Beach Field Office denied Plaintiff's petition
pursuant to the Adam Walsh Child Protection and Safety Act of
2006 (“Adam Walsh Act” or “AWA”),
which prohibits U.S. citizens from filing such petitions if
they have been convicted of certain specified offenses
against minors, unless they can prove that they would pose no
risk to the alien-beneficiary of the petition. Plaintiff was
convicted of one of these specified offenses-the possession
of child pornography-in 2003, and the USCIS West Palm Beach
Field Office determined that Plaintiff failed to establish
that he qualified for the “no risk” exception to
the AWA's prohibition. Plaintiff contends that the denial
of his petition was unlawful for a variety of reasons.
Pending before the Court is Defendants'  Motion to
Dismiss or Change Venue. Defendants ask the Court to dismiss
Plaintiff's Complaint for lack of jurisdiction and for
failure to state a claim or, in the alternative, to transfer
this action to the United States District Court for the
Southern District of Florida.
consideration of the pleadings,  the relevant legal
authorities, and the record as a whole, the Court
GRANTS-IN-PART and DENIES-IN-P A R T WITHOUT PREJUDICE
Defendants' motion. The Court GRANTS Defendants'
motion to transfer this action to the Southern District of
Florida because venue would have been proper in that District
had this action been brought there originally, and the
relevant private and public interest factors weigh in favor
of transfer. Because the Court transfers this action, it will
not reach the merits of Defendants' motion to dismiss for
lack of jurisdiction and for failure to state a claim.
Instead, the Court DENIES that portion of Defendants'
motion WITHOUT PREJUDICE to it being refiled in the Southern
District of Florida, if appropriate.
relatives of United States citizens, including spouses,
receive certain preferential treatment under U.S. immigration
law. See, e.g., 8 U.S.C. § 1151(b)(2)(A)(i)
(stating that the immigration of immediate relatives is not
subject to numerical limitations); Pl.'s Compl. for
Declaratory and Injunctive Relief, ECF No. 1,
(“Compl.”) at ¶ 21. However, U.S. citizens
generally must formally petition the government to recognize
their foreign relative as an “immediate relative”
before they can receive such treatment. The procedures for
filing such a petition are set forth in 8 U.S.C. § 1154.
The AWA, which Congress passed in 2006, added language to
section 1154 that states that these procedures “shall
not apply to a citizen of the United States who has been
convicted of a specified offense against a minor, unless the
Secretary of Homeland Security, in the Secretary's sole
and unreviewable discretion, determines that the citizen
poses no risk to the alien with respect to whom a
petition” is filed. 8 U.S.C. §
1154(a)(1)(A)(viii). A “specified offense against a
minor” is elsewhere defined to include, among other
things, the “[p]ossession, production, or distribution
of child pornography.” 42 U.S.C. § 16911(7)(G).
alleges that the Secretary of Homeland Security has delegated
responsibility for deciding whether a petitioner has proven
that he poses “no risk” under the AWA to
Department of Homeland Security (“DHS”) line
officers, whose adverse decisions on this issue are not
subject to oversight or appeal. Compl. ¶ 5. Plaintiff
further alleges that the DHS requires its line officers to
require the petitioning U.S. citizen to establish that they
pose no risk “beyond a reasonable doubt.”
Douglas Bourdon, an American citizen and resident of Stuart,
Florida, alleges that Defendant DHS has wrongfully refused
him the opportunity to petition for recognition of his
spousal relationship with his wife, Ms. Thi Thuan Tran.
Id. ¶¶ 1, 11. Ms. Tran is a citizen of
Vietnam. Id. ¶ 31. Plaintiff and Ms. Tran were
married on May 24, 2008, and on June 18, 2008 Plaintiff
submitted a petition requesting that the government recognize
Ms. Tran as his immediate relative. Id. ¶¶
31-32. On January 15, 2009, Plaintiff and Ms. Tran appeared
for an interview regarding that petition. Id. ¶
32. Plaintiff alleges that at that interview he was informed
that he would be prevented from petitioning for recognition
of his spouse pursuant to the AWA because Plaintiff had
previously been convicted of a “specified offense
against a minor”-the possession of child
pornography-unless Plaintiff was able to satisfy the
AWA's “no risk” exception. Id.
USCIS then issued Plaintiff a Request for Evidence
(“RFE”) regarding Plaintiff's child
pornography offense and rehabilitation. Id. ¶
33. Plaintiff responded to the RFE, providing an affidavit
from Ms. Tran and reports from a social worker and forensic
examiner. Id. ¶¶ 33-34. Despite this
evidence, the USCIS West Palm Beach Field Office denied
Plaintiff's petition on December 4, 2009 based on his
child pornography conviction. Id. ¶ 35. That
office determined that Plaintiff had not demonstrated
“beyond a reasonable doubt” that he posed no risk
to Ms. Tran. Id.
appealed that decision to the Board of Immigration Appeals
(“BIA”) on January 7, 2010. Id. ¶
36. The BIA subsequently remanded the petition to the USCIS
West Palm Beach Field Office for further development of the
record and additional briefing. Id.
Plaintiff submitted the requested briefing on August 31,
2012, he had not yet received a new decision regarding his
petition as of March 4, 2014. Id. ¶¶
37-38. Accordingly, Plaintiff filed suit at that time in the
United States District Court for the Southern District of
Florida, seeking to compel a decision on his petition.
Id. ¶ 38. Following additional procedural
maneuvers, the USCIS West Palm Beach Field Office issued a
new RFE, and Plaintiff provided that office with additional
information regarding his conviction and rehabilitation.
Id. ¶ 39. Plaintiff submitted additional
forensic reports, medical records, social security records,
evidence of employment, and affidavits from Plaintiff, Ms.
Tran and members of Ms. Tran's family. Id.
November 21, 2014, the USCIS West Palm Beach Field Office
again denied Plaintiff's petition. Id. ¶
40. Plaintiff alleges that this denial was wrongful for a
number of reasons. First, Plaintiff alleges that the USCIS
wrongfully applied a “beyond a reasonable doubt”
standard to its decision that Plaintiff had failed to
establish that he qualified for the AWA “no risk”
exception. Id. Second, Plaintiff alleges that USCIS
based its denial on risks Plaintiff might pose not to Ms.
Tran, but to “society” at large, or any
grandchildren Ms. Tran may have in the future-considerations
Plaintiff claims are outside the scope of the AWA.
Id. Third, Plaintiff alleges that USCIS wrongfully
based its denial on the fact that Plaintiff had traveled to
Vietnam and Thailand during the pendency of his petition,
which the West Palm Beach Field Office viewed-incorrectly, in
Plaintiff's eyes-as countries tolerant of child abuse.
Id. ¶ 41. Fourth, Plaintiff alleges that the
USCIS wrongfully based its denial on its determination that
certain declarations filed by Ms. Tran's family members
were “self-serving” because the Field Office
incorrectly believed that the declarants stood to benefit
from Ms. Tran's entry into the country because they
themselves would then be able to emigrate from their home
countries to the United States. Id. ¶ 43.
Fifth, Plaintiff alleges that the West Palm Beach Field
Office ignored much of the evidence Plaintiff had submitted
to establish that he posed no risk to Ms. Tran. Id.
¶ 44. Plaintiff appealed the denial to the BIA, but the
BIA dismissed Plaintiff's appeal on July 21, 2015.
Id. ¶¶ 45-46.
on the preceding facts, Plaintiff has asserted six causes of
action. Id. ¶¶ 49-86. Plaintiff claims
that Defendants have impermissibly applied the AWA
retroactively, have exceeded the scope of Congress'
enumerated powers, and have violated the Administrative
Procedure Act (“APA”) and the Fifth Amendment to
the United States Constitution. Id. As relief, among
other things, Plaintiff requests that this Court vacate the
USCIS West Palm Beach Field Office's decision and issue a
mandatory injunction requiring Defendants to approve
Plaintiff's visa petition on behalf of Ms. Tran.
Id. at 25-26.
to 28 U.S.C. § 1404(a), a court may transfer a case to
any other district where it might have been brought
“[f]or the convenience of parties and witnesses, in the
interest of justice.” The party moving to transfer
venue bears the burden of establishing that convenience and
the interests of justice weigh in favor of transfer. See
Int'l Bhd. of Painters & Allied Trades Union v. Best
Painting and Sandblasting Co., Inc., 621 F.Supp. 906,
907 (D.D.C. 1985). Section 1404(a) vests discretion in the
district court to conduct an “individualized,
case-by-case” analysis of whether transfer is
appropriate. Stewart Org., Inc. v. Ricoh Corp., 487
U.S. 22, 29 (1988).