Feng Chen ex rel. Jiang Jinghon v. Sessions
Feng Chen ex rel. Jiang Jinghon v. Sessions
Opinion of the Court
The pro se plaintiff, Feng Chen, brings this Mandamus action on behalf of her husband, Jiang Jinghon, against Jeff Sessions, Attorney General of the United States, Mike Pompeo, Secretary of State, and L. Francis Cissna, Director of U.S. Citizenship and Immigration Services.
*334For the reasons that follow, I grant the defendants' motion and dismiss this action.
BACKGROUND
Feng Chen, a permanent U.S. resident, filed his action on behalf of her husband, Jiang Jinghon, who was deported from the U.S. to China in July of 2011. (ECF No. 1 at ¶ 17.) Jinghon then applied for a visa, and on June 30, 2016, the National Visa Center sent him a notice scheduling an interview for him at the U.S. Consulate in Guangzhou, China, on August 9, 2016. (ECF No. 1 at ¶ 22, Ex. G.) On July 7, 2016, the plaintiffs' immigration attorney, Stephen Irwin, emailed the consulate to inquire whether Jinghon should attend his interview or wait for approval of his visa forms. (ECF No. 1 at Ex. H.) The consulate apparently did not respond to this email. (See ECF No. 1 at ¶ 34-35.) A few days later, on July 14, 2016, the plaintiff filed a Form I-601 waiver application and Form I-212 application to reapply for admission to the U.S. (ECF No. 1 at ¶¶ 20-21.) Jinghon allegedly believed that he needed to wait for his visa forms to be approved, and he did not attend his August 9 interview. (ECF No. 1 at ¶¶ 24, 35.) The following year, on July 10, 2017, the consulate sent the plaintiffs' attorney a notice of termination, which stated that Jinghon's visa application was cancelled, but could be reinstated if he could establish that his "failure to pursue" his visa was due to "circumstances beyond [his] control." (ECF No. 1 at Ex. I.)
On August 3, 2017, the U.S. Citizenship and Immigration Services ("USCIS") requested additional information from Jinghon in connection with the I-601 and I-212 visa applications he submitted. (ECF No. 1 at Ex. K.) On April 15, 2017, the plaintiffs filed this complaint, alleging that the defendants failed to "extend or hold off on the visa interview to give time for USCIS to adjudicate both forms 601 waiver and 212," and asking the Court to compel the defendants to "adjudicate the forms" and set a new interview date. (ECF No. 1 at ¶ 38, p. 6.)
According to USCIS materials submitted by the defendants, on September 12, 2017, Jinghon had his visa interview at the consulate in China; his visa was denied because of missing documents. (ECF No. 9-5). On December 14, 2017, USCIS denied Jinghon's Form I-601 and I-212 applications.
DISCUSSION
In evaluating a motion to dismiss, the court must accept as true the factual allegations in the complaint, and draw all reasonable inferences in the plaintiff's favor.
*335Town of Babylon v. Fed. Hous. Fin. Agency ,
The defendants assert that the venue is improper, and that the claims are in any event moot. (ECF No. 9-7 at 8.)
A. Improper Venue
The defendants argue that the Eastern District of New York is not the proper venue, because none of the plaintiffs or defendants reside in New York, and none of the events giving rise to this action occurred in New York.
Where a defendant moves to dismiss a complaint for improper venue under Federal Rule of Civil Procedure 12(b)(3), the plaintiff bears the burden of showing that venue in the district is proper, but, unless there is an evidentiary hearing, the plaintiff need only make a prima facie showing of proper venue based on the pleadings. See Fisher ,
The plaintiffs' complaint includes two allegations to support venue in this district: (1) that the plaintiffs' address is Flushing, New York and (2) that the defendants "conduct business" in this district. (ECF No. 1 at ¶ 11.) As discussed below, these allegations do not sustain the plaintiffs' burden.
Although the plaintiffs list a Flushing, New York address, that address appears to be the office of the plaintiffs' immigration lawyer, Stephen B. Irwin; the attachments to the complaint indicate that "Just Law Associates"-which is where counsel works-is located at the address. (See, e.g. , ECF No. 1 at Ex. H, Ex. I, Ex. F.) Moreover, at least one of the attachments show that Feng Chen lives in Fort Worth, Texas. (ECF No. 1 at Ex. C.) The *336plaintiffs do not submit any evidence to the contrary. Because neither the defendants nor the plaintiffs reside there, the attorney's office location cannot support venue in this district unless a substantial part of the events or omissions giving rise to this claim occurred there.
The plaintiffs also allege that venue is proper because the defendants "conduct business" in this district. (ECF No. 1 at ¶ 11.) For venue purposes, a federal official resides "where his or her official duties are performed." See Caremark Therapeutic Services v. Leavitt ,
Although venue here is improper,
B. The Claims are Moot
"A case becomes moot and therefore no longer a 'Case' or 'Controversy' for purposes of Article III-when the issues presented are no longer 'live' or parties lack a legally cognizable interest in the outcome."
*337Already, LLC v. Nike, Inc. ,
The plaintiffs ask that I compel the defendants to "adjudicate Plaintiff's forms 601 and 212 and to set a new interview date." (ECF No. 1 at 6.) The defendants submit USCIS visa documents that demonstrate that the plaintiffs have received what they seek.
CONCLUSION
For the foregoing reasons, I grant the defendants' motion, and dismiss the plaintiffs' claims with prejudice.
SO ORDERED.
The plaintiffs' complaint identifies Jeh Johnson as Secretary of State, and James McCament as acting Director of U.S. Citizenship and Immigration Services. Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes those defendants out for the above listed defendants. Fed. R. Civ. P. 25(d).
The plaintiffs received Local Civil Rule 12.1 documents, notifying them of their obligation to respond to a motion to dismiss that refers to extrinsic materials, including the possibility that it may be converted into a motion for summary judgment, (ECF No. 9-1), but they did not submit a response. The defendants made two requests that the motion be considered fully briefed. (ECF Nos. 13, 14.) Because the plaintiffs are pro se , I gave them two more extensions to file an opposition. When the plaintiffs did not submit a response after the second extension, I cautioned them about the consequences of not responding. Because the plaintiffs were given three opportunities to respond, were cautioned by the Court, and sent proper notification documents, I treat the motion as fully briefed and unopposed. See Pierre-Louis v. Martinez , No. 12-cv-2240-NGG-LB,
Per USCIS's written I-601 and I-212 decisions, Jinghon was given 33 days to appeal the decision. (ECF Nos. 9-5, 9-6.)
Specifically, material acts or omissions giving rise to this action occurred at the consulate in China and USCIS locations in Missouri and Nebraska. (See Ex. 1 at C, E, I.)
I take judicial notice of the Form I-601 and I-212 decisions from USCIS submitted by the defendants. See Akran v. U.S. ,
The Court does not review the defendants' decision. See Khanom ,
Reference
- Full Case Name
- FENG CHEN ON BEHALF OF her spouse JIANG JINGHON v. Jeff SESSIONS
- Cited By
- 5 cases
- Status
- Published