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United States District Court, C.D. California.


Case No 2:23-cv-01120-MCS-KK

Decided: May 12, 2023

Ira J. Kurzban, Kurzban Kurzban Tetzeli and Pratt PA, Coral Gables, FL, for Kantharia. Joshua Samuel Press, Office of Immigration Litigation, District Court Section, Washington, DC, for USCIS.

Proceedings: (In Chambers) Order re: Motion to Dismiss or Transfer (ECF No. 10)

Defendants United States Citizenship and Immigration Services; Susan Dibbins, Chief of USCIS's Administrative Appeals Office; and Alissa Emmel, Chief of USCIS's Immigrant Investor Program Office, move to dismiss or transfer this action to the United States District Court for the District of Columbia. (Mot., ECF No. 10.) Plaintiffs Pankaj Kumar H. Kantharia, Sanjeev Mehta, Harshad Kumar A. Patel, and Satish Patel oppose the motion, (Opp'n, ECF No. 11), and Defendants filed a reply, (Reply, ECF No. 12). The Court deems the motion appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. R. 7-15.


Plaintiffs are Indian nationals who applied for EB-5 investor visas by filing Form 1-526 Immigrant Petitions by Alien Entrepreneur. (Compl. ¶¶ 1, 14, 34–37, ECF No. 1.) Plaintiffs supported their petitions with information about investments in a new commercial enterprise located in this district. (Id. ¶¶ 14–18, 20, 24–25, 28–30.) USCIS ultimately denied the petitions, reasoning, inter alia, that the applications were not supported by a credible business plan or adequate evidence that the business venture would generate in this district the number of jobs forecast in the business plan. (Id. ¶¶ 2, 19, 21–23, 26–27, 31–33.) Plaintiffs contend that the agency decision was arbitrary and capricious in violation of the Immigration and Nationality Act (“INA”) and the Administrative Procedure Act (“APA”), that Defendants unlawfully retroactively applied a rule to Plaintiffs’ detriment by refusing to consider additional evidence in an agency appeal, that Defendants wrongfully applied rules that were not subject to notice and comment under the APA, that Defendants exceeded their statutory authority under the INA by denying the petitions, and that Defendants’ adjudication of the petitions violated Plaintiffs’ right to due process. (Id. ¶¶ 43–84.)

Plaintiffs assert venue in this district is proper under 28 U.S.C. § 1391(e)(1)(B) in that “the new commercial enterprise in which Plaintiffs invested as well as the hotel funded by Plaintiffs’ investment are both located in Los Angeles, California.” (Id. ¶ 42.)


Only the Rule 12(b)(3) standard need be recited here. Federal Rule of Civil Procedure 12(b)(3) provides that a party may move to dismiss a case for “improper venue.” 28 U.S.C. § 1406(a) provides that “[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” “These provisions ․ authorize dismissal only when venue is ‘wrong’ or ‘improper’ in the forum in which it was brought.” Atl. Marine Constr. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 55 (2013); see also In re Hall, Bayoutree Assocs., 939 F.2d 802, 804 (9th Cir. 1991) (determining that dismissal for improper venue must be without prejudice). “Whether venue is ‘wrong’ or ‘improper’ depends exclusively on whether the court in which the case was brought satisfies the requirements of federal venue laws ․” Atl. Marine, 571 U.S. at 55. On a venue challenge, the proponent of venue bears the burden to show venue is proper. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). Courts may consider facts outside the pleadings and need not accept the pleadings as true, but all reasonable inferences and factual conflicts must be resolved in the nonmoving party's favor. Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1137–38 (9th Cir. 2004).

28 U.S.C. § 1391(e) governs venue in a suit against the federal government and federal officials. Venue in such a suit lies “in any judicial district in which (A) a defendant in the action resides, (B) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (C) the plaintiff resides if no real property is involved in the action.” 28 U.S.C. § 1391(e)(1).


The parties agree that venue in this district does not lie under 28 U.S.C. § 1391(e)(1)(A) and (C), as no party apparently resides in this district; the parties’ dispute centers around § 1391(e)(1)(B). Plaintiffs submit that their investment in ventures in this district “formed the basis for USCIS's denial of Plaintiffs’ I-526 petitions, so Plaintiffs’ claims challenging the denials arise substantially out of them.” (Opp'n 9 (footnote omitted); see Compl. ¶ 42.) Defendants argue that the location of the property and enterprise in which Plaintiffs invested is immaterial to the venue analysis because “the operative facts of their Complaint concern USCIS's adjudication—which occurred entirely within the District of Columbia.” (Mot. 5.)

The Court agrees with Defendants that venue does not lie in this district merely because the business enterprises supporting Plaintiffs’ visa petitions are tied to this district. The operative facts pertinent to Plaintiffs’ claims are those surrounding the adjudication of their Form I-526 petitions—not the investments themselves. (See, e.g., Compl. ¶ 44 (“USCIS's decision to deny Plaintiffs’ Form I-526 petitions violates the INA and the APA ․”); id. ¶ 84 (“Plaintiffs followed the AAO's instructions in reliance on longstanding AAO policy, yet the AAO refused to consider their additional evidence in violation of due process.”).) This is true notwithstanding the fact that USCIS rejected the visa applications for reasons relating to Plaintiffs’ business ventures in this district. (See id. ¶¶ 19, 21–23, 26–27, 31–33.) Plaintiffs offer no on-point authorities departing from the well-reasoned line of decisions rejecting arguments like theirs. E.g., Vigg v. Jaddou, No. 21-cv-02678-KAW, 2022 U.S. Dist. LEXIS 149035, at *7 (N.D. Cal. Aug. 10, 2022) (“[T]he location of these investments are not events giving rise to the claims in this litigation. Plaintiffs do not raise claims arising out of these investments, nor do they involve any activity by Defendants. Rather, the main event giving rise to Plaintiffs’ claim is Defendants’ alleged delay in adjudicating their Form I-526s.” (citation omitted)); Batra v. USCIS, No. 2:21-cv-02489-SB-AFM, 2021 U.S. Dist. LEXIS 190230, at *8 (C.D. Cal. Aug. 2, 2021) (rejecting argument that venue for claim of delay in adjudication of Form I-526 petition is proper in this district “because the economic and social impact of Plaintiff's investment can be felt within this district” (cleaned up)).1 The reasoning of these cases aligns with the principle that “the venue inquiry focuses on the defendant's activities, not the plaintiff's.” Knuttel v. Omaze, Inc., 572 F. Supp. 3d 866, 870 (N.D. Cal. 2021) (citing Woodke v. Dahm, 70 F.3d 983, 985 (8th Cir. 1995)) (construing 28 U.S.C. § 1391(b)(2), a venue provision analogous to § 1391(e)(1)(B)).

The decision in Adab v. USCIS, No. 2:14-cv-04597-CAS (AGRx), 2015 U.S. Dist. LEXIS 144413 (C.D. Cal. Feb. 9, 2015), is distinguishable. That court found venue proper in this district under § 1391(e)(1)(B) both because the service center in this district “took significant action on the applications in question,” including “request[ing] additional evidence” and “issu[ing] denial letters,” and because “the visas were denied at least in part because of a dispute over the number of jobs created” in the district. 2015 U.S. Dist. LEXIS 144413, at *11–12.2 Here, however, Plaintiffs do not proffer that the local service center took any significant adjudicative action on their visa applications; they merely posit that USCIS denied their applications based on a dispute over the effects of their investments in this district, meaning the second reason offered by the Adab court is analogously present here. (See Opp'n 11.) The Court declines to expand Adab’s reasoning to conclude that the connection between this district and the reasons USCIS cited for the denial of Plaintiffs’ visa petitions, standing alone, amounts to a “substantial part of the events or omissions giving rise to” Plaintiffs’ claims here. 28 U.S.C. § 1391(e)(1)(B).3

Plaintiffs also argue that their filing of I-526 petitions in a USCIS center in this district should play a role in the venue analysis. (Opp'n 9 n.3.) The Court respectfully declines to follow the reasoning of the decision Plaintiffs cite in support of their position, which found venue in the proposed transferee district proper in part because the plaintiff filed an immigration visa application with a service center located in the district. See Zhang v. Chertoff, No. C 08-02589 JW, 2008 U.S. Dist. LEXIS 104517, at *10–11 (N.D. Cal. Dec. 15, 2008). Cases more closely considering the propriety of venue in the district where a visa application is filed “have found that for venue purposes, where an application is adjudicated is more important than where an application is submitted.” Vigg, 2022 U.S. Dist. LEXIS at *9 (internal quotation marks omitted) (collecting cases).

Plaintiffs fail to meet their burden to show a substantial part of the events or omissions giving rise to their claims occurred in this district. Having found venue improper, the Court has discretion to dismiss or transfer the case. See King v. Russell, 963 F.2d 1301, 1304 (9th Cir. 1992). The interest of justice usually favors a transfer rather than a dismissal. See Abrams Shell v. Shell Oil Co., 165 F. Supp. 2d 1096, 1103 (C.D. Cal. 2001). Here, however, Plaintiffs’ arguments in opposition to the motion call into question whether venue under § 1391(e)(1)(B) is proper in the United States District Court for the District of Columbia,4 or whether Plaintiffs may lay venue in the United States District Court for the District of Maryland. (E.g., Opp'n 2, 7, 14.) For the first time in the reply, Defendants suggest venue is proper in both districts. (See Reply 8 (“[T]his case should be transferred to either the District of Columbia or the District of Maryland.”).) The Court exercises its discretion to dismiss the case because the parties’ briefs leave unclear whether the action “could have been brought” in the District of Columbia, 28 U.S.C. § 1406(a); because no unfair prejudice, such as a statute-of-limitations bar, apparently would result from dismissal over transfer; and because Plaintiffs should have an opportunity to choose their preferred venue if both proposed transferee venues are proper.


The Court grants Defendants’ motion to dismiss this action for improper venue.



1.   Plaintiffs distinguish these cases on the basis that the underlying claims were for unreasonable delay in adjudication of the underlying petitions rather than for unlawful denial. (Opp'n 10–11, 10 n.5.) The Court distills from these cases the proposition that the venue inquiry under § 1391(e)(1)(B) should turn on the location of agency action or inaction in a case challenging agency action or inaction. On this ground, the Court rejects as immaterial the distinction Plaintiffs draw.

2.   Notably, Adab cites cases to support the former rationale for concluding venue was proper but none to support the latter. Adab is the only case in the Court's research that found proper venue based in any part on a connection between the reason for the denial of a visa application and the district.

3.   Although the record indicates USCIS sent Plaintiffs correspondence confirming the receipt and processing of Plaintiffs’ petition from its service center in this district, (Opp'n Ex. 1, ECF No. 11-1), the Court declines to find that this amounts to “significant action” on the petition, Adab, 2015 U.S. Dist. LEXIS 144413, at *11, or a “substantial part of the events or omissions giving rise to” Plaintiffs’ claims, 28 U.S.C. § 1391(e)(1)(B) (emphasis added), sufficient to confer venue here.

4.   Defendants offer no information about where they reside, so the Court cannot determine whether venue would be proper in the District of Columbia under § 1391(e)(1)(A).

Mark C. Scarsi, United States District Judge

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Docket No: Case No 2:23-cv-01120-MCS-KK

Decided: May 12, 2023

Court: United States District Court, C.D. California.

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