UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PENGBO LI, et al.,

Plaintiffs,

v. Civ. Action No. 20-1122 (EGS)

LOREN K. MILLER, in his official capacity, Director, Nebraska Service Center, U.S. Citizenship and Immigration Services, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs Pengbo Li (“Mr. Li”) and Continental Automotive

Systems, Inc. (“Continental”) bring this lawsuit against

Defendants—Loren K. Miller, Director of the U.S. Citizenship and

Immigration Service (“USCIS”) Nebraska Service Center (“NSC”);

Tracy Renaud, 1 Senior Official Performing the Duties of the

Director of USCIS; and Alejandro Mayorkas, 2 Secretary of the U.S.

Department of Homeland Security—seeking “a judicial declaration

that Defendants’ actions in wrongfully denying Plaintiffs’ EB-1A

1 Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes as defendant the Senior Official Performing the Duties of the Director of USCIS, Tracy Renaud, for the former Senior Official Performing the Duties of the Director of USCIS, Kenneth T. Cuccinelli. 2 Pursuant to Federal Rule of Civil Procedure 25(d), the Court

substitutes as defendant the Secretary of the U.S. Department of Homeland Security, Alejandro Mayorkas, for the former Acting Secretary of the U.S. Department of Homeland Security, Chad F. Wolf. Form I-140 immigrant visa petition . . . were arbitrary,

capricious, an abuse of discretion, and not in accordance with”

the Administrative Procedure Act (“APA”) or the Immigration and

Nationality Act (“INA”). Compl., ECF No. 1 ¶ 1. 3 Pending before

the Court is Defendants’ motion to transfer venue either to the

United States District Court for the District of Nebraska, where

NSC is located, or to the United States District Court for the

Eastern District of Michigan, where Plaintiffs are located. See

Defs.’ Mot. Transfer Venue (“Defs.’ Mot.”), ECF No. 10-1 at 5.

Upon consideration of the parties’ submissions, the applicable

law, and the entire record herein, Defendants’ motion is

GRANTED.

I. Background

On April 29, 2020, Plaintiffs filed a Complaint pursuant to

the APA and INA, asking the Court to overturn a USCIS decision

denying Mr. Li’s EB-1A Form I-140 petition. Compl., ECF No. 1 ¶

1. Plaintiffs allege that: (1) “USCIS’s finding that Continental

failed to demonstrate that Dr. Li’s accomplishments . . . were

of major significance to the biomedical and automated driving

industries lacked any indication that the agency meaningfully

engaged with the voluminous evidence presented . . . , and

3 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document.

2 lacked essential analysis of how it reached its decision,” id.

at 17; (2) “USCIS’s finding that Continental failed to

demonstrate that Dr. Li performed in a leading or critical role

. . . reflects the agency’s complete failure to comprehend the

significance of his technological accomplishments to

Continental’s reputation . . . and his outsized contribution to

the company’s profitability,” id. at 20; and (3) “[d]ue to its

erroneous findings regarding the major significance of Dr. Li’s

sensor technology accomplishments and his leading and critical

role while working for Continental, USCIS failed to address the

remaining requirements to demonstrate eligibility for the EB-1A

immigrant visa petition,” id. at 23.

On July 6, 2020, Defendants filed their motion to transfer

this case to either the United States District Court for the

District of Nebraska or to the United States District Court for

the Eastern District of Michigan. See Defs.’ Mot., ECF No. 10-1

at 5. Plaintiffs filed their opposition on July 19, 2020, see

Pls.’ Opp’n, ECF No. 12; and Defendants filed their reply brief

on July 27, 2020, see Defs.’ Reply, ECF No. 13. The motion is

ripe for adjudication.

II. Legal Standard

Pursuant to

(a), “[f]or the convenience of

the parties and witnesses, in the interest of justice, a

district court may transfer any civil action to any other

3 district . . . where it might have been brought.” In so doing,

the district court has discretion to transfer a case based on an

“individualized case-by-case consideration of convenience and

fairness.” Stewart Org., Inc. v. Ricoh Corp.,

(1988) (quoting Van Dusen v. Barrack,

(1964));

see also Demery v. Montgomery Cnty.,

(D.D.C. 2009) (“Because it is perhaps impossible to develop any

fixed general rules on when cases should be transferred[,] . . .

the proper technique to be employed is a factually analytical,

case-by-case determination of convenience and fairness.”

(internal quotation marks omitted)). The moving party bears the

burden of establishing that transfer of the action is proper.

Devaughn v. Inphonic, Inc.,

(D.D.C.

2005); see also SEC v. Savoy Indus., Inc.,

(D.C. Cir. 1978) (noting that the district court’s denial of a

motion to transfer “was effectively a ruling that [the

appellant] had failed to shoulder his burden”).

To justify a transfer, defendants must make two showings.

First, they must establish that the plaintiff could have brought

suit in the proposed transferee district. See Devaughn, 403 F.

Supp. 2d at 71–72; Trout Unlimited v. United States Dep’t of

Agric.,

(D.D.C. 1996). Second, defendants

must demonstrate that considerations of convenience and the

4 interests of justice weigh in favor of a transfer. See Devaughn,

; Trout Unlimited,

.

To determine whether “considerations of convenience and the

interests of justice weigh in favor of a transfer,” the Court

considers private-interest factors including: (1) “the

plaintiff’s choice of forum, unless the balance of convenience

is strongly in favor of the defendant”; (2) “the defendant’s

choice of forum”; (3) “whether the claim arose elsewhere”; (4)

“the convenience of the parties”; (5) “the convenience of the

witnesses, but only to the extent that witnesses may be

unavailable in one fora”; and (6) “the ease of access to sources

of proof.” DeVaughn,

. Finally, the Court

considers whether certain public-interest factors weigh in favor

of transfer, including: “(1) the transferee’s familiarity with

the governing laws, (2) the relative congestion” of each court,

and “(3) the local interest in deciding local controversies at

home.”

.

III. Analysis

A. Plaintiffs Could Have Brought This Suit in the District of Nebraska or the Eastern District of Michigan

Pursuant to

(e), a lawsuit “in which a

defendant is an officer or employee of the United States or any

agency thereof acting in his official capacity” may be brought

in a judicial district: (1) where “a defendant in the action

5 resides”; (2) where “a substantial part of the events or

omissions giving rise to the claim occurred”; or (3) where “the

plaintiff resides if no real property is involved in the

action.”

It is undisputed that Plaintiffs could have brought their

claims in the District of Nebraska or the Eastern District of

Michigan. See Defs.’ Mot., ECF No. 10-1 at 7; Pls.’ Opp’n, ECF

No. 12 at 6-7. The Court agrees that the District of Nebraska is

an appropriate venue because it is the location where NSC

processed and denied Plaintiffs’ request. See McAfee, LLC v.

USCIS, No. 19-cv-2981 (DLF),

, at *1 (D.D.C. Nov.

15, 2019) (explaining that “in APA cases like this one, the

underlying claim typically arises ‘where the decisionmaking

process occurred’” (citation omitted). The Court also agrees

that the Eastern District of Michigan is an appropriate venue

because Plaintiffs “reside[]” there.

(e)(1); see

Compl., ECF No. 1 ¶ 11.

B. Considerations of Convenience and the Interests of Justice Weigh in Favor of Transfer

1. Plaintiffs’ Choice of Forum

“Absent specific facts that would cause a district court to

question plaintiffs’ choice of forum, plaintiffs’ choice is

afforded substantial deference.” Wilderness Soc’y v. Babbitt,

(D.D.C. 2000)(citations omitted). This is

6 especially true when the plaintiff is a resident of the forum.

See Pyrocap Int’l Corp. v. Ford Motor Corp.,

(D.D.C. 2003). “Conversely, substantially less deference is

warranted when the forum preferred by the plaintiff is not his

home forum.” Reiffin v. Microsoft Corp.,

(D.D.C. 2000). Transfer is proper when “the material events that

constitute the factual predicate for the plaintiff’s claims

occurred” in the transferee forum. Kafack v. Primerica Life Ins.

Co.,

, 6–7 (D.D.C. 1996).

Here, the deference accorded to Plaintiffs’ choice of forum

is “weakened” because Plaintiffs do not reside in their chosen

forum and “most of the relevant events” giving rise to their

claims “occurred elsewhere.” Aftab v. Gonzalez,

(D.D.C. 2009) (citations and quotations omitted). It is

undisputed that Plaintiffs reside in Michigan, see Compl., ECF

No. 1 ¶ 11; and NSC adjudicated and denied the visa petition in

Nebraska, see

¶ 47 & Ex. 4. And while Plaintiffs argue that

their choice of forum is the most appropriate because “a

majority of the Defendants named in this action are domiciled in

the District of Columbia,” Pls.’ Opp’n, ECF No. 12 at 8; the

Court is unpersuaded. Plaintiffs do not allege that the Acting

Secretary of the U.S. Department of Homeland Security or the

Senior Official Performing the Duties of Director of USCIS were

personally involved with the processing or adjudication of Mr.

7 Li’s application, and “naming a cabinet secretary and agency

directors does not alone anchor venue here.” Aftab,

. Therefore, the deference usually given to a

plaintiff’s choice of forum is diminished here. See Chauhan v.

Napolitano,

(D.D.C. 2010) (explaining

that deference to plaintiffs’ choice of forum was weakened where

plaintiffs resided in the Northern District of Texas and the

Dallas Field Office had processed plaintiffs’ applications for

adjustment of their status); Pyrocap,

(finding that the plaintiff’s choice of forum was diminished

because the “gravamen of this case involve[d] defendants’

alleged knowledge and conduct” outside of the District).

2. Defendants’ Choice of Forum

A defendant’s choice of forum is a consideration when

deciding a transfer motion, but it is not ordinarily entitled to

deference. Douglas v. Chariots for Hire,

(D.D.C. 2013) (citations omitted). “[W]here Defendants move to

transfer over Plaintiff’s opposition, they must establish that

the added convenience and justice of litigating in their chosen

forum overcomes the deference ordinarily given to Plaintiff’s

choice.”

As discussed in further detail below, Defendants

have done so here by establishing that transfer to the District

of Nebraska will “lead to increased convenience overall.”

Mazzarino v. Prudential Ins. Co. of Am.,

, 31

8 (D.D.C. 2013). “Since, as just discussed, Plaintiffs receive no

deference, and as these other interests favor transfer,

Defendants receive some deference for their choice of forum.”

Ngonga v. Sessions,

(D.D.C. 2018).

3. Whether the Claim Arose Elsewhere

“Courts in this district have held that claims ‘arise’

under

(a) in the location . . . where most of

the significant events giving rise to the claims occurred.”

Treppel v. Reason,

, 436–37 (D.D.C. 2011)

(citations omitted). “When the material events that form the

factual predicate of a plaintiff’s claim did not occur in his

chosen forum, transfer is favored.” Tower Labs, Ltd. v. Lush

Cosmetics Ltd.,

(D.D.C. 2018). “In

cases brought under the APA, courts generally focus on where the

decisionmaking process occurred to determine where the claims

arose.” Nat’l Ass’n of Home Builders v. EPA,

(D.D.C. 2009). Furthermore, courts in this District

have found that challenges to individual immigration decisions

generally arise in the forum of the USCIS service center that

processed the application at issue. See, e.g., Pasem v. USCIS,

No. 20-cv-344,

, at *1, **4-5 (D.D.C. May 15,

2020); Bourdon v. U.S. Dep’t of Homeland Sec.,

(D.D.C. 2017); Aftab,

.

9 As discussed above, the claims arose primarily in the

District of Nebraska because NSC is the center that processed

and denied Plaintiffs’ petition. See McAfee,

, at

**1-2 (finding that the underlying claim arose in the Central

District of California because the USCIS California Service

Center processed and denied the plaintiff’s request). In

addition, “any alleged error concerning this decision would have

been committed by NSC in the District of Nebraska.” Defs.’ Mot.,

ECF No. 10-1 at 9.

Plaintiffs’ argue, however, that this District is the most

appropriate forum because: (1) “the fact that the [NSC] reviewed

this particular petition was the result of a decision made by

USCIS agency officials in the District of Columbia”; and (2)

this case involves the “policy goals underpinning the United

States’ strategic desire to attract and retain foreign nationals

of extraordinary ability.” Pls.’ Opp’n, ECF No. 12 at 8-9. The

Court is unpersuaded. Regarding Plaintiffs’ first argument, as

Defendants point out, “Plaintiffs are not challenging USCIS’s

delegation of responsibilities among its service centers.”

Defs.’ Reply, ECF No. 13 at 9. Rather, Plaintiffs challenge a

specific decision made at NSC without the personal involvement

of any named Defendants within the District of Columbia.

Therefore, the Court cannot find that the “material facts are

more connected” to the District of Columbia than to Nebraska.

10 Aftab,

; see Pasem,

, at *4

(“When the implementation of a policy is at issue, and that

implementation took place in a different judicial district,

venue is more appropriately laid in that other district.”

(alterations and quotation marks omitted)). Regarding

Plaintiffs’ second argument, even if the Court found that the

claims involved in this case had national implications, “the

connection between the events at issue in this case and the

District of Columbia is still tenuous at best.” Bourdon,

(dismissing plaintiff’s argument that the USCIS

West Palm Beach Field Office’s denial of his visa petition

involved national policies that emanated from agency

headquarters in the District of Columbia).

Accordingly, the Court finds that this factor tips in favor

of transfer.

4. The Convenience of the Parties, the Convenience of Witnesses, and the Ease of Access to Sources of Proof

Defendants argue that because the claims arose primarily in

another forum, the District of Nebraska or the Eastern District

of Michigan would be more convenient for the parties, potential

witnesses, and evidence. Defs.’ Mot., ECF No. 10-1 at 10-11.

Plaintiffs counter that the District of Columbia is the most

convenient venue because Continental’s legal counsel are located

in North Carolina and South Carolina. Pls.’ Opp’n, ECF No. 12 at

11 9. They further contend that because this case will likely be

decided on a factual record and on evidence currently in the

parties’ possession, the convenience of witnesses and the

location of evidence are irrelevant. Id. at 9-10.

Regarding Plaintiffs’ argument that their legal counsel

would have an easier time travelling to the District of Columbia

than to Nebraska or Michigan, “the location of counsel carries

little, if any, weight in an analysis under § 1404(a).”

McClamrock v. Eli Lilly & Co.,

, 40–41 (D.D.C.

2003) (internal quotation omitted). In addition, “[n]o showing

has been made that any potential witnesses would not be

available to testify in either of the [three] competing forums

and accordingly the Court need not consider the convenience of

witnesses factor.” Bourdon,

. To the

extent it would be necessary for the parties to call witnesses

or gather other evidence in this case, Plaintiffs’ Complaint

indicates that more potential witnesses and evidence would be

located in the District of Nebraska, where the claim arose, than

in the District of Columbia. Finally, the administrative record

is located in the District of Nebraska, where the adjudication

of Plaintiffs’ petition occurred, not in the District of

Columbia. See Sierra Club v. Flowers,

(D.D.C. 2003) (“The location of the administrative record . . .

carries some weight in transfer determinations.”).

12 Accordingly, the Court finds that this factor weighs in

favor of transfer.

5. The Transferee’s Familiarity with the Governing Laws

Where “both courts are competent to interpret the federal

statutes involved[,] . . . there is no reason to transfer or not

transfer based on this factor.” Nat’l Wildlife Fed’n v. Harvey,

(D.D.C. 2006). Because federal law

governs this case, this District, the District of Nebraska, and

the Eastern District of Michigan are all “equally familiar” with

applying it. McAfee,

, at *1 (citation omitted);

Pasem,

, 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,

(D.D.C. 2008)). This factor is therefore

neutral.

6. The Relative Congestion of Each Court

“The relative docket congestion and potential speed of

resolution with respect to both the transferor and transferee

courts are appropriate to consider.” Trout Unlimited,

(citing SEC v. Savoy Indus., Inc.,

(D.C. Cir. 1978)). Here, the data regarding the speed of

the relevant court dockets is mixed. Plaintiffs argue that the

Court should consider the median time from filing to disposition

13 in civil cases. Pls.’ Opp’n, ECF No. 12 at 12. “For such cases,

this data reflects a median time of 5.6 months in this District,

8.3 months in the District of Nebraska, and 8.7 months in the

District of Michigan.”

Defendants, on the other hand, argue

that the Court should consider the median time from filing to

trial. Defs.’ Mot., ECF No. 10-1 at 11-12. For such cases, the

median time is 48.7 months in this District, 24.4 months in the

District of Nebraska, and 29.1 months in the Eastern District of

Michigan. Id. at 12. Defendants also point out that in the

District of Nebraska, only 5.1 percent of the civil docket is

more than three years old, compared to 8.3 percent in the

Eastern District of Michigan and 16.5 percent in the District of

Columbia. Defs.’ Reply, ECF No. 13 at 13. In addition, “the

number of filings in this District have grown by more than 50%

since 2014,” while the number of filings in the competing fora

have decreased or “remained relatively constant.” Id. Because

the statistics regarding court congestion is mixed and may also

“reflect differences other than congestion, such as differences

in the types of cases that are likely to be tried in each

district and the level of discovery and pre-trial motion

practice required in those cases,” Aishat v. U.S. Dep’t of

Homeland Sec.,

(D.D.C. 2018); the Court

finds that this factor is neutral.

14 7. The Local Interest in Deciding Local Controversies at Home

Although multiple jurisdictions may have an interest in

resolving Plaintiffs’ claims, courts in this District “have

looked at where a clear majority of the operative events took

place in order to determine where a case should be adjudicated.”

Treppel, 793 F. Supp. 2d at 439–40 (alteration and quotation

marks omitted). Indeed, “[c]ontroversies should be resolved in

the locale where they arise.” Trout Unlimited,

. As previously discussed, the majority of the decisions

underlying Plaintiffs’ claims were made in Nebraska, and a

challenge to a decision regarding one visa petition is not

necessarily of such national significance that transfer to

another venue would be inappropriate. See Ngonga,

(“Although recent events show that immigration policy

is undoubtedly of immense national interest, . . . the Court

finds that the instant case, which challenges an adverse

decision on one visa petition, presents an issue of far more

limited importance.”). Therefore, this factor weighs in favor of

transfer.

IV. Conclusion

Having considered all of the relevant factors, the Court

concludes that Defendants made the necessary showing that

“considerations of convenience and justice weigh in favor of a

15 transfer” to the District of Nebraska. Berry v. U.S. Dep’t of

Just.,

(D.D.C. 2014). Accordingly,

Defendants’ motion to transfer, ECF No. 10, is GRANTED. An

appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge March 24, 2021

16