SILVA v. MAYORKAS et al
MEMORANDUM OPINION. Signed by Magistrate Judge Zia M. Faruqui on 5/10/2022. (lccr)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PEDRO ALEXANDRE MENDES SILVA,
Case No. 22-cv-44-ZMF
ALEJANDRO MAYORKAS, et al.,
On January 7, 2022, Plaintiff Pedro Alexandre Mendes Silva sued Defendants Secretary of
Homeland Security Alejandro Mayorkas and Ur Mendoza Jaddou Andrew Davidson, Director of
the United States Citizenship and Immigration Services (USCIS), in the U.S. District Court for the
District of Columbia seeking to compel adjudication of his I-601 Application for Waiver of
Grounds of Inadmissibility (“I-601”). Compl. ¶ 1, ECF No. 1. Before the Court is Defendants’
motion to transfer this case to the U.S. District Court for the District of Nebraska or, in the
alternative, to dismiss. See Defs.’ Mot. to Transfer and Dismiss (Defs.’ Mot.), ECF No. 9. Upon
consideration of the parties’ briefings, the relevant case law, and the entire record herein, the Court
shall grant Defendants’ motion to transfer venue and deny their motion to dismiss without
STATEMENT OF FACTS
Mr. Silva, a citizen and resident of Portugal, is the spouse of Ms. Christina Ramos, a United
States citizen, and the father of their United States citizen child. Compl. ¶ 13. On March 6, 2020,
Mr. Silva was found inadmissible to the United States under INA § 212(a)(6)(C)(i) due to an
alleged past misrepresentation. See id. ¶ 23. On July 29, 2020, Mr. Silva filed his I-601, the
approval of which would allow Mr. Silva to immigrate to the United States by waiving the ground
of inadmissibility. See id. ¶¶ 1–2. Mr. Silva’s I-601 is now under consideration before USCIS at
its Nebraska Service Center. See id. ¶ 24.
“A case may be transferred to any district where venue is also proper ‘[f]or the convenience
of parties and witnesses, in the interest of justice.’” Ctr. for Env’t Sci., Accuracy & Reliability v.
Nat’l Park Serv., 75 F. Supp. 3d 353, 356 (D.D.C. 2014) (quoting 28 U.S.C. § 1404(a)). “Section
1404(a) is intended to place discretion in the district court to adjudicate motions for transfer
according to an ‘individualized, case-by-case consideration of convenience and fairness.’” Stewart
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612,
622 (1964)). The movant “bear[s] the burden of persuasion on the transfer issue.” SEC v. Savoy
Indus., Inc., 587 F.2d 1149, 1154 (D.C. Cir. 1978) (citation omitted).
Motion to Transfer
“Determining whether transfer is appropriate pursuant to section 1404(a) calls for a twopart inquiry.” Bourdon v. U.S. Dep’t of Homeland Sec., 235 F. Supp. 3d 298, 304 (D.D.C. 2017).
District of Nebraska Has Venue
“The first step in resolving a motion for transfer of venue under § 1404(a) is to determine
whether the proposed transferee district is one where the action ‘might have been brought.’” Ctr.
for Env’t Sci., Accuracy & Reliability v. Nat’l Park Serv., 75 F. Supp. 3d 353, 356 (D.D.C. 2014)
(quoting 28 U.S.C. § 1404(a)). Defendants correctly point out—and Mr. Silva does not dispute—
that this case “might have been brought” in the District of Nebraska because Mr. Silva’s I-601
application is being processed there. See 28 U.S.C. § 1391(e); Pl.’s Opp’n to Defs.’ Mot. to
Transfer and Dismiss (Pl.’s Opp’n) at 4, ECF No. 8.
Private and Public Factors Favor Transfer
“The second step of the Court’s analysis is determining whether the relevant private and
public interest factors weigh in favor of transferring the action.” Bourdon, 235 F. Supp. 3d at 305.
Courts consider the following six private interest factors:
(1) the plaintiffs’ choice of forum, unless the balance of
convenience is strongly in favor of the defendants; (2) the
defendants’ choice of forum; (3) whether the claim arose elsewhere;
(4) the convenience of the parties; (5) the convenience of the
witnesses of the plaintiff and defendant, but only to the extent that
the witnesses may actually be unavailable for trial in one of the fora;
and (6) the ease of access to sources of proof.
Greater Yellowstone Coalition v. Bosworth, 180 F.Supp.2d 124, 127 (D.D.C. 2001). “The only
private interest factor that counsels in favor of retaining venue here is that the District of Columbia
is the plaintiffs’ preferred forum, which ‘is typically entitled to deference.’” Pasem v. U.S.
Citizenship & Immigr. Servs., 2020 WL 2514749, at *4 (D.D.C. May 15, 2020) (quoting Sallyport
Global Servs., Ltd. v. Arken Int’l, LLC, 78 F. Supp. 3d 369, 373 (D.D.C. 2015)). However, “such
deference is minimized when the forum chosen is not the plaintiff’s home forum.” Sallyport
Global, 78 F. Supp. 3d 373. Thus, the first factor “counts for less when, as here, the plaintiff does
not reside in that forum.” Rasool v. Mayorkas, No. 21-cv-2367, 2021 WL 5492976, at *2 (D.D.C.
Nov. 23, 2021).
“The second and third factors both support transfer because Defendants prefer the [District
of Nebraska] and the claim arose there.” Id. at *2 (citing Nat’l Ass’n of Home Builders v. U.S.
Env’t Prot. Agency, 675 F. Supp. 2d 173, 179 (D.D.C. 2009)). Indeed, “challenges to individual
immigration decisions generally arise in the forum of the USCIS service center that processed the
application at issue.” Pengbo Li v. Miller, No. 20-cv-1122, 2021 WL 1124541, at *4 (D.D.C. Mar.
Mr. Silva responds that his case is properly within this district because he is challenging
the national immigration strategy of delayed processing of applications, which he claims agency
leadership in the District of Columbia implemented. See, e.g., Pl.’s Opp’n at 8, 13.
Mr. Silva’s argument fails for two reasons. First, Mr. Silva did not challenge or identify a
nationwide policy or practice in his complaint but instead sought judicial intervention in the
processing of his individual application. See Compl. ¶¶ 39–40. A plaintiff cannot claim venue in
the District of Columbia “[b]y naming high government officials as defendants” because it would
allow “a plaintiff [to] bring a suit here that properly should be pursued elsewhere.” Cameron v.
Thornburgh, 983 F.2d 253, 256 (D.C. Cir. 1993). Second, even if Mr. Silva challenged a national
USCIS policy or practice, venue in the District of Columbia is inappropriate because USCIS is
headquartered in Maryland. See, e.g., Laurel v. U.S. Citizenship & Immigr. Servs., No. 21-cv0552, 2022 WL 971236, at *3 (D.D.C. Mar. 31, 2022) (granting transfer from the plaintiff’s choice
of forum—the District of Columbia—because “USCIS headquarters moved to Maryland in 2020,
before [the plaintiff] filed her case”). And there is no support for Mr. Silva’s claim that USCIS
should still be considered to reside in the District of Columbia for purposes of venue because
“Camp Spring, Maryland is essentially a city within Washington, DC.” Pl.’s Opp’n at 14. Judicial
districts are based on maps, not truthiness. 1 See, e.g., Rasool, 2021 WL 5492976, at *2 (granting
motion to transfer; finding that USCIS’s authority over immigration means that even “a challenge
See The Colbert Report, The Word – Truthiness, Comedy Central (Oct. 17, 2005),
to the entire asylum system” would need to be brought in Maryland, the home of USCIS, rather
than the District of Columbia).
The parties agree that the remaining private interest factors—the convenience to the parties,
witnesses, and of access to evidence—are neutral here because presentation of testimony or
evidence is atypical in cases like this. See Defs.’ Mot. at 7; Pl.’s Opp’n at 14. Nonetheless, the
Court recognizes that the “[District of Nebraska] is convenient for Defendants because that is
where the relevant USCIS office and staff are located.” Rasool, 2021 WL 5492976, at *3. Mr.
Silva’s preference for suit in the District of Columbia is overcome by the weight of the remaining
private interest factors, each of which favors transfer to Nebraska or is neutral. See, e.g., Pasem,
2020 WL 2514749, at *4 (transferring venue despite the plaintiffs’ preference for the District of
Public Factors Favor Transfer
Next, the Court examines the public interest factors. See Bourdon, 235 F. Supp. 3d at 305.
“These factors include (1) the transferee’s familiarity with the governing laws and the pendency
of related actions in the transferee’s forum; (2) the relative congestion of the calendars of the
potential transferee and transferor courts; and (3) the local interest in deciding local controversies
at home.” Id. at 308.
The first two factors are of little relevance here. According to the parties, both districts are
equally familiar with the laws at issue and have comparable congestion. See Pasem, 2020 WL
2514749, at *3 (“[F]ederal district courts are ‘equally familiar’ with federal law, so that factor does
not tip the scale in either direction.”) (quoting Al-Ahmed v. Chertoff, 564 F. Supp. 2d 16, 20
(D.D.C. 2008)); see also Pl.’s Opp’n at 9–10 (citing Median Time Interval of 5.5 months in the
District of Columbia and 5.0 months in the District of Nebraska).
The local interest in deciding local controversies is “[t]he most important public interest
factor,” Rasool, 2021 WL 5492976, at *4. This factor favors the District of Nebraska because
“districts that encompass [a] service center have a greater interest in deciding these claims than
this Court.” Pasem, 2020 WL 2514749, at *3; see also Pengbo Li, 2021 WL 1124541, at *4
(holding “claims arose primarily in the District of Nebraska” even though “the fact that the
[Nebraska service center] reviewed this particular petition was the result of a decision made by
USCIS agency officials in the District of Columbia”). Indeed, “the district in which the relevant
USCIS Field Office is located is better positioned to be involved in dictating the priorities of a
local USCIS office and may have a superior interest in doing so.” Chauhan v. Napolitano, 746 F.
Supp. 2d 99, 105 (D.D.C. 2010) (cleaned up). Thus, “[c]ases challenging the actions of local
USCIS offices are frequently, and appropriately, transferred to the venue encompassing those local
offices.” Bourdon, 235 F. Supp. 3d at 305; see, e.g., Mukherjee v. U.S. Citizenship & Immigr.
Servs., No. 20-cv-0676, 2020 WL 3447963, at *3 (D.D.C. June 24, 2020) (severing and
transferring claims seeking to compel action on immigration applications to the districts where the
applications were pending); Pasem, 2020 WL 2514749, at *4 (same); Ike v. U.S. Citizenship &
Immigr. Servs., No. 20-cv-1744, 2020 WL 7360214, at *1 (D.D.C. Dec. 15, 2020) (transferring
action seeking review of the denial of an immigration application to the district where the denial
occurred); Aftab v. Gonzalez, 597 F. Supp. 2d 76, 84 (D.D.C. 2009) (transferring case seeking to
compel action on immigration application to the district where application was pending).
Mr. Silva again argues that the District of Columbia has the greater interest in deciding this
case because of the authority and influence of agency leadership within the District of Columbia.
See Pl.’s Opp’n at 5–8. However, “[Mr. Silva] does not allege that the DHS Secretary or . . . CIS
Directors were personally involved with the processing or adjudication of his application.” Aftab,
597 F. Supp. 2d at 81. “Even if these officials had some involvement in policy decisions that affect
[Mr. Silva], attenuated or insignificant involvement by an official in the District of Columbia does
not support venue here.” Id. at 82 (citing Marks v. Torres, 576 F. Supp. 2d 107, 111 (D.D.C.
2008)). Thus, the local interest in deciding local controversies strongly favors transfer to the
District of Nebraska. See, e.g., id. at 84. Defendants have met their “burden of persuasion on the
transfer issue.” Savoy Indus., 587 F.2d at 1154.
“For the reasons set forth above, the Court shall grant Defendant’s motion to transfer venue
and shall deny without prejudice Defendants’ motion to dismiss so that Defendants may refile that
motion, if appropriate, upon transfer to the [District of Nebraska].” Abusadeh v. Chertoff, 2007
WL 2111036, at *9 (D.D.C. July 23, 2007).
Zia M. Faruqui
ZIA M. FARUQUI
UNITED STATES MAGISTRATE JUDGE
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