United States District Court, District of Columbia
MEMORANDUM OPINION DENYING DEFENDANTS' MOTION TO
TRANSFER VENUE; GRANTING PLAINTIFFS' MOTIONS TO
SUPPLEMENT THEIR PRELIMINARY INJUNCTION APPLICATION AND
EXHIBITS; AND GRANTING IN PART PLAINTIFFS' MOTION FOR A
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.
day, individuals fleeing persecution and violence in their
home countries seek asylum within our borders. And every day,
United States immigration officials must determine whether to
admit these individuals or reject them. This case concerns
what happens to these individuals while their requests for
asylum are considered. Plaintiffs undertook perilous journeys
to reach our borders, submitted asylum petitions, and were
detained in what they claim to be prison-like conditions for
an extended period of time while their petitions were
evaluated. They contend that their detention without access
to a bond hearing before an immigration judge violated their
constitutional rights. They also contend that immigration
officials routinely and systematically failed to abide by a
binding, official agency directive governing parole
determinations, and instead applied an unwritten,
unconstitutional policy promulgated by top policy makers. In
the absence of this unwritten policy, Plaintiffs argue, they
would have been conditionally paroled into the United States.
before the Court are two preliminary motions. First,
Defendants seek to transfer this litigation's venue from
the District of Columbia to the Southern District of Texas.
Second, Plaintiffs seek preliminary injunctive relief
granting them bond hearings before immigration judges, and
compelling Defendants to comply with the official directive
and halt the alleged unwritten policy. For the reasons
explained below, the Court denies Defendants' motion, and
grants Plaintiffs' motion in part.
Statutory and Regulatory Framework
case concerns statutes and regulations within the scope of
the Immigration and Nationality Act (“INA”).
See 8 U.S.C. § 1101 et seq. The INA
sets forth the conditions under which a foreign national may
be admitted to and remain in the United States, and it grants
the Department of Homeland Security (“DHS”) the
discretion to initiate removal proceedings. See, e.g.,
Id. §§ 1181-1182, 1184, 1225, 1227-1229, 1306,
1324-25. Within DHS, Immigration and Customs Enforcement
(“ICE”) is the department that is primarily
charged with administering the INA. See 6 U.S.C.
§§ 111, 251, 291. The interactions relevant to this
action involved ICE officials.
are “arriving aliens” from outside of the United
States who surrendered to ICE at United States ports of
entry, sought asylum (“POE asylum seekers”), and
were detained pursuant to 8 U.S.C. §§ 1158(a)(1)
and 1225(b). Section 1225(b) provides that if a
non-citizen “who is arriving in the United
States” indicates an intention to apply for asylum or
expresses a fear of persecution or torture, the individual
must be interviewed to determine whether he or she has a
“fear of persecution.” 8 U.S.C. §
1225(b)(1)(A)(ii). If the individual is determined to have a
credible fear of persecution, he or she “shall be
detained for further consideration of the application for
asylum.” Id. § 1225(b)(1)(B)(ii). ICE
officials determined that each Plaintiff had a credible fear
of persecution, so Plaintiffs' detentions were governed
by § 1225(b)(1)(B)(ii).
individual detained under § 1225(b)(1)(B)(ii) can be
paroled “into the United States temporarily” by
the Attorney General “in his discretion.”
Id. § 1182(d)(5)(A). Agency regulations provide
that the Secretary of Homeland Security “may
invoke” this parole authority for an individual who is
“neither a security risk nor a risk of
absconding” and meets one or more of a series of
conditions, one of which is that “continued detention
is not in the public interest.” 8 C.F.R. §
212.5(a), (b)(5). Plaintiffs contend that they met, and
continue to meet, this condition.
under § 212.5, however, “shall not be regarded as
an admission of the alien.” 8 U.S.C. §
1182(d)(5)(A). Instead, when the purpose of the parole has
been served, “the alien shall forthwith return or be
returned to the custody from which he was paroled and
thereafter his case shall continue to be dealt with in the
same manner as that of any other applicant for admission to
the United States.” Id. Further, immigration
judges do not have authority under § 1225(b)(1)(B)(ii)
to review ICE's parole decisions for POE Asylum Seekers.
See 8 C.F.R. § 1003.19(h)(2)(i)(B). In other
words, a POE asylum seeker may be paroled into the United
States after passing a credible fear interview, but that
individual is still considered an “arriving
alien” under the law, ICE may revoke the parole at any
time, and ICE's parole determination is not subject to
review by an immigration judge.
directive issued by ICE sets forth certain procedures that
must be utilized and factors that, according to Plaintiffs,
must be considered when evaluating parole requests under 8
C.F.R. § 212.5. ICE Directive No. 11002.1: Parole of
Arriving Aliens Found to Have a Credible Fear of Persecution
or Torture (“Morton Directive” or the
“Directive) (Dec. 8, 2009), Pls. Am. Mem. P. & A.
Supp. Mot. Prelim. Inj. (“Pls.' Am. Mem.”)
Ex. 13, ECF No. 74-16. More specifically, the Morton
Directive explains how the term “public interest”
in § 212.5(b)(5) is to be interpreted. According to the
Directive, when an arriving alien found to have a credible
fear of persecution establishes, to the satisfaction of ICE,
his or her identity and that he or she presents neither a
flight risk nor a danger to the community, “[ICE]
should, absent additional factors . . . parole the alien on
the basis that his or her continued detention is not in the
public interest.” Id. ¶ 8.3.
Factual Background and Procedural History
are three aliens-Mikailu J., Aracely R., and Sadat I.-who
came to the United States seeking asylum. The following is a
brief description of each Plaintiff's journey to this
R. fled Guatemala by car in 2016 with her eight-year old
daughter. Decl. of Celinda Aracely R. (“Aracely
Decl.”) ¶ 2, Pls.' Am. Mem. Ex. 1, ECF No.
74-2. While driving through Mexico on the way to the United
States, their car overturned, killing Aracely's daughter
and severely injuring Aracely's leg. Id. Aracely
ultimately reached Hidalgo, Texas, requested asylum at the
border, passed her credible fear interview, and was detained
under § 1225(b)(1)(B)(ii). Id. ¶ 6.
According to Aracely, she submitted to ICE officials two
sponsorship letters from family members, and a copy of her
national identification card in support of her request for
parole. Id. She was detained for nearly a year,
despite requesting parole at least once. Id.; Decl.
of Deborah Achim (“Achim Decl.”) ¶ 6,
Defs.' Opp'n Pls.' Mot. Prelim. Inj.
(“Defs.' Opp'n”), ECF No. 63-1. In early
2018 her injured leg required emergency surgery, so she was
paroled and permitted to travel to California to receive
treatment. Pls.' Am. Mem. at 2 n.4, ECF No. 74-1.
J. fled Sierra Leone in early 2017. Decl. of Mikailu J.
(“Mikailu Decl.”) ¶ 4, Pls.' Am. Mem.
Ex. 4, ECF No. 74-6. He requested asylum at the Brownsville,
Texas port of entry, passed his credible fear interview, and
was detained pursuant to § 1225(b)(1)(B)(ii).
Id. ¶¶ 5-7. According to Mikailu, he
submitted to ICE officials copies of his national
identification card, his press card, his school
identification card, and a letter from a relative offering
him full sponsorship in the United States in support of his
requests for parole. Id. ¶ 8. He has been
denied parole three times, and is currently detained in the
Laredo, Texas Detention Center. Id. ¶¶
8-9; Achim Decl. ¶ 8.
I. fled Ghana in late 2015. Decl. of Sadat I. (“Sadat
Decl.”) ¶ 4, Pls.' Am. Mem. Ex. 3, ECF No.
74-5. After an arduous journey, Sadat requested asylum at the
San Diego, California port of entry, passed his credible fear
interview, and was detained pursuant to §
1225(b)(1)(B)(ii). Id. ¶¶ 5-7. According
to Sadat, he submitted to ICE officials his national
identification card, a copy of his passport, a criminal
background check, and sponsorship letters from his uncle and
a non-governmental organization in Texas in support of his
request for parole. Id. ¶ 8. Although he
requested parole, he never received it. Id.
¶¶ 7-8. Plaintiffs do not clearly explain his
current status, but it appears that his petition for asylum
was denied in 2016, and he remains detained pending a motion
in the Eleventh Circuit to re-open his petition. Id.
¶ 11; Pls.' Am. Mem. at 7 n.13. If this is true, his
detention is pursuant to § 1231(a)(6) rather than §
1225(b), and his parole is governed by 8 C.F.R. § 241.4
rather than § 212.5. Id.
addition to these three individuals, Plaintiffs have
submitted declarations from two former plaintiffs, Hatim B.
and Junior M., who also requested asylum at a port of entry,
passed their credible fear interviews, and were detained
without parole. Hatim B. was granted asylum in early 2018 and
has been fully released into the United States. See Pls.'
Am. Mem. at 9 n.14. Junior M. returned to his home country of
Honduras. Id. at 3.
claim that they were denied parole because of a de facto
immigration policy promulgated by high-level officials in
Washington D.C. Pls.' Updated Mem. Opp'n Defs.'
Mot. Transfer Venue at 4, ECF No. 64. Specifically,
Plaintiffs claim that DHS responded to a surge in asylum
seekers beginning in 2014 by instituting policies designed to
“serve as a deterrent to asylum seekers by forcing them
to either endure prolonged detention or risk the grave perils
involved in unlawful entries.” Third Am. Compl.
(“TAC”) ¶¶ 42-44, 62, ECF No. 73.
Plaintiffs further contend that “to achieve this
result, Defendants initiated an unwritten practice
and policy, ordering local officials to heavily weight
immigration deterrence in deciding parole and similar forms
of release.” Id. ¶ 52. For instance, and
as described in more detail below, Plaintiffs cite data
compiled by a non-profit human rights organization, Human
Rights First,  indicating that the parole release rate of
the asylum seekers who crossed a U.S. Port of Entry was 80
percent in 2012, but dropped to 47 percent in 2015.
Id. ¶ 56 (citing Human Rights First,
Lifeline on Lockdown at 13 (July 2016)). Plaintiffs
argue that “[s]uch planned, systematic denials of
parole to eligible POE seekers constitute an official agency
policy.” TAC ¶ 59. They also suggest that
Defendants re-emphasized this policy after the 2016
Presidential election. See Pls.' Am. Mem. at
argue that their parole requests should have been granted
under both international and domestic laws. Id.
¶¶ 27, 31. In particular, Plaintiffs cite that the
United States adopted Article 2-34 of the 1951 United Nations
Convention Relating to the Status of Refugees (“Refugee
Convention”) and promulgated the Refugee Act of 1980,
“which required the United States to establish
procedures for noncitizens physically present . . . at a port
of entry to apply for asylum.” Id. ¶¶
27-28. Article 31 of the Refugee Convention provides that
“states shall not impose penalties on refugees for
illegal entry or presence.” Id. ¶ 26.
are government officials who implemented or enforced the
alleged immigration deterrence policy. Id.
¶ 83. The Secretary of Homeland Security and certain ICE
officials, including those who “established, developed
and promoted the current binding policy” reside in
Washington D.C. Defs' Suppl. Brief Mot. Transfer Venue
(“Defs. Suppl. Br.”) at 6, ECF No. 67. But, some
ICE officials, including those who evaluated Plaintiffs'
specific parole requests, reside in Texas. Id. at 7.
filed this suit in late 2017, alleging that (1) ICE's
parole denials based on the nation-wide, de facto immigration
deterrence policy violates Plaintiffs' First and Fifth
Amendment rights under the United States Constitution and is
arbitrary and capricious in violation of the Administrative
Procedure Act (“APA”); and (2) they are
constitutionally entitled to bond hearings before immigration
judges. See generally Compl., ECF No. 1 They have
since amended their complaint on three occasions due to their
changing personal circumstances and the shifting legal
landscape, but their core allegations and relief sought have
not changed. See generally Am. Compl., ECF No. 7;
Second Am. Compl., ECF No. 56; TAC. Shortly after the
complaint was filed, Defendants moved to change the
litigation's venue to the Southern District of Texas.
See generally Mot. Transfer Venue, ECF No. 38.
Plaintiffs moved for a preliminary injunction in early
February 2018, and they amended that motion in March. See
generally Mot. Prelim. Injunction, ECF No. 54; Pls.'
First Am. Appl. Prelim. Inj., ECF No. 74. Finally, Plaintiffs
moved to amend their preliminary injunction for a third time
in late April 2018. See generally Mot. Supp. Appl.
Prelim. Injunction, ECF No. 79. Now ripe for the Court's
consideration are (1) Defendants' motion to change venue;
(2) Plaintiffs' motion to amend their application for a
preliminary injunction and update their exhibits in support
of that application; and (3) Plaintiffs' motion for a
when venue is properly laid in a given judicial district,
“[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
idea behind § 1404(a) is that where a ‘civil
action' to vindicate a wrong-however brought in a
court-presents issues and requires witnesses that make one
District Court more convenient than another, the trial judge
can, after findings, transfer the whole action to the more
convenient court.” Vasser v. McDonald, 72
F.Supp.3d 269, 281 (D.D.C. 2014) (citing Continental
Grain Co. v. Barge F.B.L. 585, 364 U.S. 19, 26 (1960)).
“[T]he main purpose of section 1404(a) is to afford
defendants protection where maintenance of the action in the
plaintiff's choice of forum will make litigation
oppressively expensive, inconvenient, difficult or harassing
to defend.” Starnes v. McGuire, 512 F.2d 918,
927 (D.C. Cir. 1974) (en banc).
preliminary injunction is an injunction to protect [the
movant] from irreparable injury and to preserve the
court's power to render a meaningful decision after a
trial on the merits.” Select Milk Producers, Inc.
v. Johanns, 400 F.3d 939, 954 (D.C. Cir. 2005) (quoting
11A Charles Alan Wright, Arthur R. Miller, & Mary Kay
Kane, Federal Practice and Procedures § 2947 (2d ed.
1992)). “[T]he decision to grant injunctive relief is a
discretionary exercise of the district court's equitable
powers.” John Doe Co. v. CFPB, 235 F.Supp.3d
194, 201 (D.D.C. 2017) (quoting Sea Containers Ltd. v.
Stena AB, 890 F.2d 1205, 1209 (D.C. Cir. 1989)). A
preliminary injunction is an “extraordinary remedy,
” and one that is “never awarded as of
right.” Winter v. Nat'l Res. Def. Council,
Inc., 555 U.S. 7, 9 (2008).
warrant preliminary injunctive relief, the moving party
“must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of the
equities tips in his favor, and that an injunction is in the
public interest.” Id. at 20. Of these factors,
likelihood of success on the merits and irreparable harm are
particularly crucial. See Sherley v. Sebelius, 644
F.3d 388, 393 (D.C. Cir. 2011) (reading Winter
“to suggest if not to hold ‘that a likelihood of
success is an independent, freestanding requirement for a
preliminary injunction'”); Chaplaincy of Full
Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir.
2006) (“[A] movant must demonstrate at least some
injury for a preliminary injunction to issue, for the basis
of injunctive relief in federal courts has always been
irreparable harm.” (internal citations and quotation
“if the requested relief ‘would alter, not
preserve, the status quo,' the court must subject the
plaintiff's claim to a somewhat higher standard.”
Paleteria La Michoacana, Inc v. Productos Lacteos Tocumba
S.A. de C.V., 901 F.Supp.2d 54, 56 (D.D.C. 2012)
(quoting Veitch v. Danzig, 135 F.Supp.2d 32, 35
(D.D.C. 2001)); see also Singh v. Carter, 185
F.Supp.3d 11, 17 n.3 (D.D.C 2016); Columbia Hosp. for
Women Found., Inc. v. Bank of Tokyo- Mitsubishi Ltd., 15
F.Supp.2d 1, 4 (D.D.C. 1997). Because Plaintiffs seek to
alter-not preserve-the status quo, the Court will exercise
extreme caution in assessing Plaintiffs' invitation to
invoke the court's extraordinary equitable powers.
See Allina Health Servs. v. Sebelius, 756 F.Supp.2d
61, 70 n.5 (D.D.C. 2010).
Administrative Procedure Act
governs the conduct of federal administrative agencies. 5
U.S.C. §§ 101-913. It permits a court to
“compel agency action unlawfully withheld or
unreasonably delayed, ” and to “hold unlawful and
set aside agency action, findings and conclusions found to be
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” Id. § 706.
The APA provides for judicial review of all “final
agency action for which there is no other adequate remedy in
court, ” id. § 704, except when
“statutes preclude judicial review” or the
“agency action is committed to agency discretion by
law, ” id. § 701(a).
VENUE TRANSFER ANALYSIS
Court first considers Defendants' motion under 28 U.S.C.
§ 1404(a) to transfer the action to the Southern
District of Texas, and their related argument that
Plaintiffs' claims may only be raised through a habeas
corpus petition. The Court is unpersuaded by both arguments.
Court first considers whether, as asserted by Defendants
during the March 2, 2018 motion hearing and in many of their
briefs, Plaintiffs must bring their claims through a habeas
petition. Generally, jurisdiction for a core habeas petition
challenging present physical confinement lies only in the
district of confinement. Rumsfeld v. Padilla, 542
U.S. 426, 443 (2004). Thus, if Defendants are correct that
Plaintiffs may only seek relief by way of a habeas petition,
this Court would likely lack jurisdiction because none of the
Plaintiffs are confined in this District.
Plaintiffs have not brought their claims by way of a habeas
petition, nor are they required to do so. Indeed, “a
federal prisoner need bring his claim in habeas only if
success on the merits will ‘necessarily imply the
invalidity of confinement or shorten its
duration.'” Davis v. U.S. Sentencing
Comm'n, 716 F.3d 660, 666 (D.C. Cir. 2013) (quoting
Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)).
“Otherwise, he may bring his claim through a variety of
causes of action.” Id. Here, Plaintiffs
challenge (1) what they claim is a de facto policy of denying
parole to asylum seekers, in violation of the APA; and (2)
their detention without access to a bond hearing by an
immigration judge, in violation of the Constitution. If
Plaintiffs are successful and this Court enjoins Defendants
from adhering to any such policy and requires that Plaintiffs
be given bond hearings, that ruling would not necessarily
imply that their confinement is invalid or otherwise should
be shorter, because their parole could still be denied for
other legitimate reasons.
other courts in this jurisdiction facing challenges to
similar nation-wide immigration policies have rejected the
notion that detainees must proceed through a habeas petition.
See R.I.L-R v. Johnson, 80 F.Supp.3d 164, 186
(D.D.C. 2015) (“although Congress has expressly limited
APA review over individual deportation and exclusion orders,
see 8 U.S.C. § 1252(a)(5), it has never
manifested an intent to require those challenging an
unlawful, nationwide detention policy to seek relief through
habeas rather than the APA.”). Although, as Defendants
regularly note, many of the relevant cases challenging the
government's treatment of asylum seekers lie in habeas,
those cases do not stand for the proposition that they could
only have been brought as habeas petitions. See
Davis, 716 F.3d at 666 (holding that a federal prisoner
need not bring an equal protection challenge to his sentence
by means of a habeas petition because “[s]uccess would
do no more than allow him to seek a sentence reduction, which
the district court retains the discretion to deny”).
Accordingly, Plaintiffs may proceed on their claims under the
APA and the Constitution, and jurisdiction is proper in the
District of Columbia.
Court now turns to its venue analysis. Defendant moves to
transfer this case to the Southern District of Texas pursuant
to 28 U.S.C. § 1404(a). Section 1404(a) “vests
‘discretion in the district court to adjudicate motions
for transfer according to an individualized, case-by-case
consideration of convenience and fairness.'”
Reiffin v. Microsoft Corp., 104 F.Supp.2d 48, 50
(D.D.C. 2000) (quoting Stewart Org., Inc. v. Ricoh
Corp., 487 U.S. 22, 29 (1988)). When venue is properly
laid in this jurisdiction, “[t]ransfer elsewhere under
Section 1404(a) must . . . be justified by particular
circumstances that render [this] forum inappropriate by
reference to the considerations specified in that statute.
Absent such circumstances, transfer in derogation of properly
laid venue is unwarranted.” Starnes, 512 F.2d
statute “directs a district court to take account of
factors other than those that bear solely on the parties'
private ordering of their affairs. The district court also
must weigh in the balance the convenience of the witnesses
and those public-interest factors of systemic integrity and
fairness that, in addition to private concerns, come under
the heading of ‘the interest of justice.'”
Stewart Org., 487 U.S. at 30. However, the precise
“standards to be considered in determining whether to
grant or deny a section 1404(a) motion to transfer are
generally . . . left to the discretion of the trial court,
” SEC v. Page Airways, Inc., 464 F.Supp. 461,
463 (D.D.C. 1978), which is “broad” but
“not untrammeled, ” Fine v. McGuire, 433
F.2d 499, 501 (D.C. Cir. 1970) (per curiam) (noting that the
trial court must “give consideration to the traditional
[forum non conveniens] factors, including the plaintiff's
choice of forum”).
the burden is on the moving party to establish that transfer
under § 1404(a) is proper. Montgomery v. STG
Int'l, Inc., 532 F.Supp.2d 29, 32 (D.D.C. 2008);
Trout Unlimited v. U.S. Dep't of Ag., 944
F.Supp. 13, 16 (D.D.C. 1996). Accordingly, Defendants must
make two showings to justify transfer. First, Defendants must
establish that Plaintiffs could have brought the action in
the proposed transferee district. Van Dusen v.
Barrack, 376 U.S. 612, 616 (1964). Second, Defendants
must demonstrate that considerations of convenience and the
interest of justice weigh in favor of transfer to that
district. Trout Unlimited, 944 F.Supp. at 16. In
evaluating a motion to transfer, a court should weigh several
private- and public-interest factors. Sheffer v. Novartis
Pharm. Corp., 873 F.Supp.2d 371, 375 (D.D.C. 2012)
(citing Trout Unlimited, 944 F.Supp. at 16).
the threshold inquiry under the statute is whether the action
could have been brought in the proposed transferee district,
Blackhawk Consulting LLC v. Fed. Nat'l Mortg.
Ass'n, 975 F.Supp.2d 57, 60 (D.D.C. 2013) (citing 28
U.S.C. § 1404(a)), in this case, Plaintiffs do not
dispute that the action could have been brought in the
Southern District of Texas. See Pls.' Mem. P.
& A. Opp'n Defs.' Mot. Transfer Venue
(“Pls.' Opp'n”) at 8, ECF No. 41. Thus,
“this Court's only task is to determine whether the
private and public interest factors weigh in favor of or
against transfer.” Pls.' Opp'n at 8; see
Sheffer, 873 F.Supp.2d at 375. For the reasons stated
below, the Court finds that Defendants have failed to
demonstrate that these factors weigh in favor of venue
transfer. Accordingly, this Court denies Defendants'
Private Interest Considerations
resolve Defendants' motion, the Court must first consider
certain “private-interest factors.”
Sheffer, 873 F.Supp.2d at 375. These factors roughly
break down into three categories: (1) the preferred forum of
the parties, (2) the location where the claim arose, and (3)
factors of convenience. Id.
The Preferred Forum of Each Party
case, neither of the parties' forum preferences are
entitled to significant weight. Ordinarily, a plaintiff's
choice of forum is afforded “considerable
deference.” S. Utah Wilderness Alliance v.
Norton, 315 F.Supp.2d 82, 86 (D.D.C. 2004). However,
that choice is “conferred less deference by the court
when [it] is not the plaintiff's home forum.”
Shawnee Tribe v. United States, 298 F.Supp.2d 21, 24
(D.D.C. 2002) (citing Piper Aircraft Co. v. Reyno,
454 U.S. 235 (1981). Here, two of the three Plaintiffs are
currently detained in Texas, and the third is currently
located in California. See TAC ¶¶ 76, 79,
80. Plaintiffs claim no specific personal connection to the
District of Columbia, nor do they make any argument that it
should be considered their home. See Pls. Opp'n
at 10. Thus, Plaintiffs' choice of forum does not weigh
as strongly against transfer as it would if they resided in
the District, and their preference is partly balanced against
Defendant's preference for the Southern District of
Texas. The parties' respective forum preferences, on
balance, weigh only slightly against transfer. See Foote
v. Chu, 858 F.Supp.2d 116, 121 (D.D.C. 2012) (where the
plaintiffs and defendants resided outside of the District,
holding that “the parties' respective forum
preferences weigh against transferring the case, although not
as strongly as it would if Plaintiff resided in this
Location Where the Claims Arose
parties strongly dispute whether Plaintiffs' claims arose
primarily in the District of Columbia or in the Southern
District of Texas. The D.C. Circuit has cautioned that
“[c]ourts in this circuit must examine challenges to .
. . venue carefully to guard against the danger that a
plaintiff might manufacture venue in the District of
Columbia.” Cameron v. Thornburgh, 983 F.2d
253, 256 (D.C. Cir. 1993). However, when a plaintiff directly
challenges a policy promulgated in the District of Columbia,
“the interests of justice could well favor venue [in
this District].” Aishat v. DHS, 288 F.Supp.3d
261, 270 (D.D.C. 2018). For example, in Ravulapalli v.
Napolitano, a court in this jurisdiction held that the
claims in that case arose primarily in the District of
Columbia when “officials at the United States Citizen
and Immigration Services (“USCIS”) Texas Service
Center denied Plaintiff's I-485 applications based on
policy guidance issued from USCIS headquarters in the
District of Columbia.” 773 F.Supp.2d 41, 56 (D.D.C.
principle is supported, rather than undercut, by
Defendants' case law. Defendants filed a Notice of
Supplemental Authority directing the Court to
Aishat, which they characterized as a recent case in
which the District “granted a motion to transfer venue
. . . with factual circumstances that are analogous to this
case.” Def.'s Notice Supplemental Auth. at 1, ECF
No. 70. But rather than support Defendants' argument,
Aishat suggests that venue is proper in this
District. In Aishat, the plaintiff sued DHS, USCIS,
and agency employees in both Washington D.C. and Texas
seeking to compel USCIS to resolve his naturalization
application after years of delays by its Dallas Field Office.
288 F.Supp.3d at 264-65. In his briefing, but importantly not
in his complaint, the plaintiff argued that USCIS had
implemented an agency-wide policy mandating denial or delay
of applications from Middle Eastern or South Asian
individuals, a group including the plaintiff. Id. at
269-70. The court noted that “[w]ere [the plaintiff]
directly challenging [the policy], the [c]ourt agrees that
the interests of justice could well favor venue here . . .
[p]erhaps even challenging the Dallas Field Office's
application of [the policy] to him would
suffice.” Id. at 269 (citing
Ravulapalli, 773 F.Supp.2d at 56). But because the
plaintiff did not raise those challenges in his complaint,
they were not entitled to sufficient weight to sustain venue
in the District when the plaintiff's core allegations
related to his individualized naturalization decision made in
Plaintiffs emphasize that “[they] are not seeking
review of ICE's exercise of discretion in reaching their
individualized parole decision.” Pls. Opp'n at 8.
Rather, Plaintiffs claim that Texas-based Defendants
improperly denied parole requests “in compliance with
the official policies promulgated by the D.C. based
Defendants.” Id.; TAC ¶¶ 52, 96.
Plaintiffs argue that their “cause of action therefore
arises from this national policy, not the low-level decisions
of individual officers who were bound by such policy.”
Id. at 9. Thus, as discussed in Ravulapalli
and Aishat, because Plaintiffs in this case are
challenging the application of a purported policy that
supposedly emanated from an agency located in the District of
Columbia, the Court finds that this factor weighs in favor of
the Court must consider certain convenience factors.
Specifically, the Court considers the convenience of the
parties, convenience of witnesses, and ease of access to
sources of proof. Here, these factors are in equipoise.
Plaintiffs are detained or reside in Texas and California,
and Defendants reside in Texas and the District of
Columbia. Defs.' Mot. Transfer Venue
(“Defs. Motion”) at 12, EFC No. 38-1; Pls.'
Opp'n at 13. Likewise, it is very likely that important
witnesses and documents will likely be found in both Texas
and the District of Columbia. Indeed, ICE field officers who
participated in Plaintiffs' parole determinations and
documents relating to those detentions will likely be located
in Texas. Defs. Mot. at 12-13. On the other hand, the
government officials who allegedly established, developed,
and promoted the policy at the heart of this case, and the
documents relating thereto, will likely be found, if at all,
in the District of Columbia. Defs. Suppl. Mot. at 6.
Therefore, the convenience factors weigh neither in favor of
nor against transfer.
Public Interest Considerations
Court next considers certain public-interest considerations.
Specifically, it considers (1) the transferee district's
familiarity with the governing law; (2) the relative
congestion of the courts of the transferor and potential
transferee; and (3) the local interest in deciding local
controversies at home. Onyeneho v. Allstate Ins.
Co., 466 F.Supp.2d 1, 3 (D.D.C. 2006).
this case involves only federal law claims, the first factor
does not weigh either for or against transfer because all
federal courts are equally competent to resolve such matters.
See, e.g., Nat'l Wildlife Fed'n v. Harvey,
437 F.Supp.2d 42, 49 (D.D.C. 2006) (holding that “both
courts are competent to interpret the federal statutes
involved[, ] . . . there is no reason to transfer or not
transfer based on this factor”).
parties each cite favorable statistical evidence regarding
the second factor, but Defendants' statistics are
slightly more persuasive. Plaintiffs maintain that “the
Southern District of Texas is far more congested than that of
the District of Columbia.” Pls. Opp'n at 16.
Plaintiffs present statistics showing that, as of September
2017, there were 12, 497 pending cases in the Southern
District of Texas, averaging 658 pending cases per judge,
while there were 3, 942 cases pending in the District of
Columbia, averaging 263 pending cases per judge. Id.
Defendants, however, argue that “the chart for 2016
suggests the docket is relatively less congested in the
Southern District of Texas, ” and they present
statistics showing that “median length for a civil case
that goes to trial in the District of Columbia is 31 months,
and in the Southern District of Texas is 24 months.”
Defs. Mot. at 15. Given the statistics, the Court considers
the District of Columbia to be slightly more congested
because cases appear to move more slowly in this District.
“Those raw statistics, however, may overstate the
difference, as they ‘provide, at best, only a rough
measure of the relative congestion of the dockets in the two
districts.'” Aishat v. U.S. Dep't of
Homeland Sec., 288 F.Supp.3d 261, 271 (D.D.C. 2018)
(citing United States v. H & R Block, Inc., 789
F.Supp.2d 74, 84-85 (D.D.C. 2011). Accordingly, this factor
weighs only slightly in favor of transfer, and on balance it
does not overcome the factors weighing against transfer.
the potential national significance of this dispute dictates
that the third public-interest factor weighs against
transferring the case to satisfy a local interest. Defendants
argue that “there is a strong local interest for the
courts in the Southern District of Texas in deciding [this
dispute], ” Defs. Mot. at 15-16, because Plaintiffs are
or were detained in Texas and most of the discretionary
parole determinations were made by federal officials there.
But, in determining whether a controversy is local, courts
have often considered a variety of different factors other
than where Plaintiffs are located or where the challenged
decision was made. These other factors include,
“whether the decision directly affected the citizens of
the transferee state; the location of the controversy,
whether the issue involved federal constitutional issues
rather than local property laws or statutes; whether the
controversy involved issues of state law, whether the
controversy has some national significance; and whether there
was personal involvement by a District of Columbia
official.” Otay Mesa Prop. L.P. v. U.S. Dep't
of Interior, 584 F.Supp.2d 122, 126 (D.D.C. 2008)
(citing Nat'l Wildlife Fed'n, 437 F.Supp.2d
at 49; Sierra Club, 276 F.Supp.2d at 70).
have been clear that their challenge is not based on the
specific decisions made by federal officials in Texas, but
rather upon an alleged national policy promulgated by DHS,
which carries with it nationwide significance. Thus, the
Court concludes that the Southern District of Texas has no
particular localized interest in this litigation.
Ravulapalli, 773 F.Supp.2d at 56 (holding that
transferee forum had no localized interest where
“plaintiffs' claims focus primarily on the policies
issued from [D.C.] headquarters that apply to all [regional]
offices” (citing Otay Mesa Prop. L.P., 584
F.Supp.2d at 126-27)).
weighing the relevant private and public interest
considerations, the Court concludes that, on balance, those
considerations favor retaining venue in this District, albeit
slightly. Because the injuries perceived by Plaintiffs
allegedly stem from policies that were conceived, promoted,
and implemented by government officials in the District of
Columbia, their claims hold a close connection to this forum.
While many of the factors discussed above, including factors
of convenience, do not clearly favor one forum over the
other, on balance they do not weigh in favor of transfer.
Accordingly, the Court concludes that the Defendants have
failed to meet their burden to show that considerations of
convenience and the interest of justice favor transferring
this matter to the Southern District of Texas.
ANALYSIS OF PLAINTIFFS' MOTION TO SUPPLEMENT THEIR
PRELIMINARY INJUNCTION APPLICATION
Court next considers whether Plaintiffs may supplement their
preliminary injunction application for a second time. In
their first amended ...