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Bourdon v. United States Department of Homeland Security

United States District Court, District of Columbia

February 16, 2017

DOUGLAS BOURDON, Plaintiff
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al ., Defendants

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY United States District Judge

         This 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' [7] 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.

         Upon consideration of the pleadings, [1] 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.[2]

         I. BACKGROUND

         A. Statutory Background

         Immediate 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).

         Plaintiff 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.” Id.

         B. Factual Background

         Plaintiff 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.

         The 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.

         Plaintiff 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.

         Although 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.

         On 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.

         Based 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.

         II. LEGAL STANDARD

         Pursuant 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).

         III. ...


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