UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MOHAMED BIN MOHAMED MANA SALEH,

Plaintiff,

v. Case No. 1:23-cv-409-RCL

ALEJANDRO MAYORKAS, Secretary of the Department of Homeland Security, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Mohamed Bin Mohamed Mana Saleh challenges the denial by U.S. Citizenship

and Immigration Services (USCIS) of his Form I-130 petitions on behalf of his wife and minor

child in Yemen. He also raises claims under the Freedom of Information Act. Defendants have

moved to dismiss his FOIA claims. And they ask the Court to transfer the remaining claims to

Saleh’s home district, the Western District of Louisiana, or to dismiss those claims for improper

venue. Saleh has moved for leave to file an amended complaint to reflect USCIS’s new denial of

an I-130 petition on behalf of his child.

As Saleh has conceded that he failed to exhaust the administrative appeals for his FOIA

claims, the Court will GRANT defendants’ motion to dismiss the FOIA claims for failure to state

a claim. And it will GRANT defendants’ motion to transfer Saleh’s remaining claims to the

Western District of Louisiana, since this case could have been brought in that district and the

relevant public and private interests favor transfer. Since the Court will transfer the non-FOIA

claims, defendants’ motion to dismiss as to those claims is DENIED WITHOUT PREJUDICE

AS MOOT. Finally, the Court will let the transferee court decide whether Saleh may amend his

complaint.

1 I. BACKGROUND

A. Statutory and Regulatory Background

Immediate relatives of U.S. citizens, including spouses and children, receive certain

preferential treatment under the Immigration and Nationality Act. See, e.g.,

(b)(2)(A)(i) (providing that immigration of immediate relatives is not subject to numerical

limitations). As relevant here, a U.S. citizen may file a Form I-130 petition with USCIS to classify

the petitioner’s foreign national spouse or child as an immediate relative to allow the beneficiary

to immigrate to the United States. See

(a)(1)(A)(i);

(a)(1), 204.2.

B. Factual and Procedural Background

Saleh is a United States citizen, naturalized in 2019. Compl. ¶¶ 78, 89, ECF No. 1. 1 He

resides in Monroe, Louisiana,

, which is in the Western District of Louisiana. In 2010, he

married Samra Ali Kassem under Yemeni law; the following year, she gave birth to their child,

F.M.M.S., in Yemen.

¶¶ 79–80, 281. In 2017, Saleh filed one I-130 petition on behalf of his

wife and another on behalf of his child.

. Saleh interviewed with USCIS and provided an

affidavit and supporting documentary evidence concerning his residency and relationship with

Kassem and F.M.M.S.

. Nonetheless, in late 2019 USCIS denied both petitions on the

basis that Saleh failed to demonstrate a bona fide relationship with Kassem and did not show that

he is the father of F.M.M.S.

¶¶ 90–91. In connection with each of the denied petitions, Saleh

submitted FOIA requests to USCIS. The agency denied the FOIA requests concerning F.M.M.S.

but disclosed certain responsive records relating to Saleh and Kassem.

¶¶ 93–99. Saleh does

not allege that he pursued any administrative appeals of the FOIA determinations.

1 At this stage, the Court accepts as true Saleh’s well-pleaded factual allegations.

2 Saleh initiated this civil action in February, 2023. See Compl. He named as defendants:

Alejandro Mayorkas, Secretary of the Department of Homeland Security; Ur Mendoza Jaddou,

Acting Director of U.S. Citizenship and Immigration Services; Stanley W. Crockett, Louisiana-

New Orleans Field Office Director of USCIS; Cindy Gomez, Louisiana-New Orleans District

Director of USCIS; USCIS; the Department of Homeland Security; and the Department of State.

at 1–2. Saleh alleged that USCIS’s denial of his I-130 Petitions violated the Administrative

Procedure Act,

¶¶ 243–271, and deprived him of his Fifth Amendment right to procedural due

process,

¶¶ 272–284. He also alleged that USCIS had violated the Fifth Amendment by denying

him equal protection of the law through its use of separate procedures to adjudicate his I-130

petitions based on his Yemeni national origin.

¶¶ 285–300. Finally, he raised several FOIA

claims stemming from his requests for records.

, 301–320.

Defendants moved for the Court to dismiss the FOIA claims for failure to exhaust

administrative appeals and to either transfer the remaining claims to the Western District of

Louisiana under

(a) or to dismiss those claims for improper venue and failure to

state a claim. MTD, ECF No. 16. Saleh filed an opposition, Opp’n to MTD, ECF No. 23, and

defendants filed a reply, Defs.’ Reply, ECF No. 27. Saleh also moved for leave to file an amended

complaint, adding challenges to the new denial of his I-130 petition on behalf of F.M.M.S. but

dropping his FOIA claims. Mot. for Leave to File Am. Compl., ECF No. 24. Defendants filed an

opposition to this motion, Defs.’ Opp’n to Mot. for Leave to File, ECF No. 28, and Saleh filed a

reply, Pl.’s Reply, ECF No. 31.

These motions are now ripe for review.

3 II. LEGAL STANDARDS

A. Motion to Dismiss for Failure to State a Claim Under Fed. R. Civ. P. 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal,

(2009); accord Bell Atl. Corp. v. Twombly,

(2007). A claim

is facially plausible when the pleaded factual content “allows the court to draw the reasonable

inference that defendant is liable for the misconduct alleged.”

. “The plausibility

standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that

a defendant has acted unlawfully.”

A pleading must offer more than “labels and conclusions”

or a “formulaic recitation of the elements of a cause of action.”

(quoting Twombly,

). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.”

B. Transfer Under

(a)

“For 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 . . . .”

(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.,

(1988) (quoting

Van Dusen v. Barrack,

(1964)). The movant “bears the burden of establishing

that the transfer of this action is proper.” Greater Yellowstone Coal. v. Bosworth,

(D.D.C. 2001).

“Deciding a § 1404 motion to transfer is like dancing a Texas two-step: First, could the suit

have been brought in the transferee court? And second, should the suit be brought in the transferee

4 court?” Gyau v. Sessions, No. 18-cv-407,

, at *1 (D.D.C. Oct. 15, 2018)

(Lamberth, J.) (citing Van Dusen, 376 U.S. at 616–43).

The answer to the first question turns on the general venue statute,

.

“Under § 1391(e), a suit against a United States officer or employee can be brought in any district

where a defendant resides, where the underlying claim arose, or—if no real property is involved—

where the plaintiff resides.” Gyau,

, at *1. “Federal defendants reside ‘where

the[ir] official duties are performed and not the[ir] personal residence.’”

(quoting Lamont v.

Haig,

, 1128 n.19 (D.C. Cir. 1978)).

The second question “calls on district courts to weigh in the balance a number of case-

specific factors.” Stewart Org.,

. These factors involve both public and private

interests. The public interests include “the transferee court’s familiarity with the governing laws,

each court’s relative congestion, and the local interest in resolving the controversy.” Gyau,

, at *1 (citing Elemary v. Philipp Holzmann A.G.,

, 149–50

(D.D.C. 2008) and Trout Unlimited v. U.S. Dep’t of Agric.,

(D.D.C. 1996)).

The private interests include “the plaintiff’s preferred forum, the defendant’s preferred forum,

where the claim arose, and the convenience to the parties, to the witnesses, and to the evidence.”

(citing Elemary, 533 F. Supp. 2d at 149–50 and Trout Unlimited,

).

III. DISCUSSION

To begin with, the Court will dismiss Saleh’s FOIA claims because he has conceded that

he failed to exhaust his administrative appeals. Next, it will transfer his remaining claims to the

Western District of Louisiana because this suit could have been brought there and the relevant

public and private interests weigh in favor of transfer. As the Court is transferring Saleh’s

surviving claims, it will decline to dismiss the case for improper venue and will leave it to the

transferee court to decide whether he may amend his complaint.

5 A. The Court Will Dismiss Plaintiff’s FOIA Claims

Saleh has conceded that he failed to exhaust his administrative appeals. He has therefore

failed to plausibly allege his FOIA claims. For that reason, the Court will dismiss Counts Five

through Eight.

“As a general matter, a FOIA requester must exhaust administrative appeal remedies before

seeking judicial redress.” Machado Amadis v. United States Dep’t of State,

, 372

(D.C. Cir. 2020) (quoting CREW v. FEC,

(D.C. Cir. 2013)). Defendants argue

that Saleh did not plausibly allege that he exhausted his administrative remedies because although

he alleged that USCIS responded to his FOIA requests, he did not allege that he then pursued

administrative appeals. MTD 3–4; see also Compl. ¶¶ 93–99 (alleging that USCIS issued three

FOIA denial letters and that at least one letter suggesting Saleh file an appeal, but not alleging that

Saleh filed any appeals);

(a)(6)(A)(i)(III)(aa) (providing that in the case of an

adverse determination, the agency shall notify the requesting person of their right to appeal to the

head of the agency).2

In his opposition to defendants’ motion, Saleh opted not to respond to this argument. See

Pl.’s Opp’n. “It is well-understood that ‘if a party files an opposition to a motion and therein

addresses only some of the movant’s arguments, the court may treat the unaddressed arguments as

conceded.’” Brett v. Brennan,

, 59 (D.D.C. 2019) (quoting Wannall v.

Honeywell, Inc.,

(D.C. Cir. 2014)); see also LCvR 7(b) (providing that if an

opposition “memorandum is not filed within the prescribed time, the Court may treat the motion

as conceded”). By ignoring defendants’ exhaustion argument, Saleh conceded that his FOIA

2 Later in the Complaint, Saleh lists the elements for one of his FOIA counts and states that he “has exhausted the applicable administrative remedies with respect to his FOIA requests.” Compl. ¶ 314. But this is a paradigmatic example of a “[t]hreadbare recital[] of the elements of a cause of action, supported by mere conclusory statements” that cannot suffice to survive a motion to dismiss. See Iqbal,

.

6 claims should be dismissed. His concession is underscored by his omission of the FOIA counts

from his proposed amended complaint. See Am. Compl., Ex. 1 to Mot. for Leave to File, ECF No.

24-1.

Under these circumstances, the Court will dismiss Saleh’s FOIA claims.

B. The Court Will Transfer This Case to the Western District of Louisiana

Since this action might have been brought in the Western District of Louisiana and the

relevant public and private factors favor transfer to that district, the Court will order such transfer. 3

As a preliminary matter, under

(e) venue would be proper in the Western

District of Louisiana because the plaintiff resides there. See Compl. 1. Next, the relevant public

and private factors overall favor transfer to that district.

First, the public interests implicated by transfer are either neutral or support transferring

this case. The first two factors are a wash. This case concerns federal law, with which this district

and the proposed transferee district are equally familiar. See W. Watersheds Project v. Pool,

(D.D.C. 2013) (“Judges in both districts are presumed to be equally familiar

with the federal laws governing this dispute, and thus this factor is not germane since no state law

claims are at issue.”). And the parties have proffered no clear evidence that the proposed transferee

district is more or less congested than this district.

But the final factor favors transfer. “[C]ourts have ‘a local interest in having localized

controversies decided at home,’ . . . , an interest which extends ‘to controversies requiring judicial

review of an administrative decision.’” Gyau,

, at *2 (first quoting Adams v.

Bell,

(D.C. Cir. 1983) and then quoting Sierra Club v. Flowers,

In the alternative, defendants have moved to dismiss Saleh’s claims for improper venue under Fed. R. Civ. P. 12(b)(3). See MTD 13–17. But since the Court will transfer this case, it need not reach that issue, as defendants concede. See

. Instead, defendants’ motion to dismiss as to Saleh’s non-FOIA claims will be denied without prejudice as moot.

7 62, 70 (D.D.C. 2003). This case is mostly local to Louisiana, not the District of Columbia. “To

determine whether a controversy is local in nature, courts consider a wide variety of factors,

including: where the challenged decision was made; 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.” Bourdon v. United States Dep’t of

Homeland Sec.,

(D.D.C. 2017) (internal quotation and citation omitted).

Here, the controversy involves question of federal law and the U.S. Constitution. And it is

arguably of national significance because Saleh alleges discrimination against Yemeni-Americans

writ large, not just himself. See Compl. ¶ 5. But on balance, this case is local to Louisiana. The

challenged decision was made at the USCIS Service Center in New Orleans (albeit in the Eastern

District of Louisiana). See

¶¶ 76–77, 136–37. The decision directly affected a citizen of the

transferee state, namely Saleh. And Saleh has not alleged any personal involvement by an official

in the District of Columbia. The public interest in having local controversies adjudicated locally

thus points toward transfer.

Transfer is also supported by the private interest factors.

First, “[a]lthough the ‘plaintiff’s choice of forum is ordinarily entitled to deference,’ that

choice is conferred considerably less deference when,” as in Saleh’s suit, “it is not the plaintiff’s

home forum, has few factual ties to the case at hand, and defendants seek to transfer to plaintiff’s

home forum.” Bourdon,

(internal quotation and citation omitted); Aftab v.

Gonzalez,

, 80–81 (D.D.C. 2009) (noting that plaintiff’s “choice of this district

8 as a forum commands diminished deference” when “the claim involves identifiable relevant events

occurring in the transferee district and virtually none in this district”).

Second, the defendants’ choice of forum is of course the proposed transferee district.

Third, Saleh’s claims mostly arose in Louisiana rather than the District of Columbia. The

essence of his suit is USCIS’s denial of his I-130 petitions. Saleh does not allege that USCIS’s

decisions were made in the District of Columbia. Instead, he casts the decisions in this case as

downstream of decisions previously made in the District of Columbia. See Pl.’s Opp’n 2–5. But

even if Saleh were ultimately harmed by policies crafted in the capital, the events that directly led

to this suit occurred at the USCIS Service Center. For the most part, at least, his claims did not

arise in the District of Columbia.

Saleh fails in his attempt to shoehorn his case into the District of Columbia by emphasizing

the role of the State Department. The State Department, unlike USCIS, is based in D.C. See

Compl. at 1–2. So, Saleh contends that the State Department is “a key Defendant in Plaintiff’s

constitutional challenges” to USCIS’s denial of his I-130 petitions. Pl.’s Opp’n 2. He alleges that

he is the victim of a “facially discriminatory Yemeni I-130 adjudication policy.” Compl. ¶¶ 278–

79, 296–97. But the only policy Saleh actually attributes to the Department of State is USCIS’s

requirement that Yemeni-American petitioners provide names of family members in an Affidavit

of Residency, as he traces this policy to a 2009 email from the Consular Section Chief of the U.S.

Embassy in Sana’a, Yemen. Compl. ¶¶ 15–18. 4 Saleh’s emphasis on the State Department is

4 In his opposition, Saleh also blames the Department of State for USCIS’s failure to request DNA evidence to establish F.M.M.S.’s paternity. Opp’n 2–5. However, his Complaint alleges that it was USCIS, not the Department of State, that “failed to request DNA testing upon receipt of the I-130 petition or at any other subsequent stage in the adjudication process.” Compl. ¶ 26; see also

¶¶ 135–36 (alleging that “USCIS routinely fail to request DNA evidence until years after receipt of the I-130 Petition”); id. ¶ 178 (alleging that Yemeni adjudication policies were created by USCIS and “developed based on findings made by USCIS in consultation with the Department of State’s former Sana’a Embassy”). In short, Saleh’s attribution of responsibility for the failure to request DNA testing to the Department of State rather than USCIS has no basis in his Complaint. Saleh cannot manufacture a venue argument by

9 meant to show that his claims truly arose in the District of Columbia. But “[c]ourts in this circuit

must examine challenges to personal jurisdiction and venue carefully to guard against the danger

that a plaintiff might manufacture venue in the District of Columbia” because “[b]y naming high

government officials as defendants, a plaintiff could bring a suit here that properly should be

pursued elsewhere.” Cameron v. Thornburgh,

(D.C. Cir. 1993). And “the mere

involvement on the part of federal agencies, or some federal officials who are located in

Washington, D.C. is not determinative” of venue. Ctr. for Env’t Sci., Accuracy & Reliability v.

Nat’l Park Serv.,

(D.D.C. 2014) (internal quotation and citation omitted).

Finally, the Western District of Louisiana would be a more convenient forum for the parties

(because Saleh lives there), any witnesses (since the USCIS Service Center that processed his

petitions is in the same state), and the collection of evidence (for both those reasons). Even if

Saleh is correct that USCIS’s Affidavit of Residency requirement stems from a 2009 State

Department email, that does not suggest that the District of Columbia is home to a significant

number of witnesses or amount of evidence.

Since the public and private interests mostly weigh in favor of transfer, the Court will grant

defendants’ motion to transfer this suit.

C. The Court Will Not Rule on Plaintiffs’ Motion for Leave to Amend His Complaint

Defendants offer reasons to deny Saleh leave to amend his complaint, including that he

failed to comply with Local Civil Rule 7(m) and that his amendment would be futile. Defs.’ Reply

6–7. But because the Court has resolved to transfer this case, it will leave it to the transferee court

to determine whether Saleh’s complaint may be amended. Defs.’ Reply 5–6; see, e.g., 2215 Fifth

using his opposition to rewrite his complaint. See Stewart v. Kendall,

, 24 n.3 (D.D.C. 2022) (Lamberth, J.) (“[A] complaint may not be amended by the briefs in opposition to a motion to dismiss.”) (internal citation and quotation omitted).

10