United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
ROSENTHAL, CHIEF UNITED STATES DISTRICT JUDGE
plaintiff, Courage Igene, challenges the denial of his
Petition for Amerasian, Widow(er), or Special Immigrant (Form
1-360), which he filed so that he could self-petition under
§ 204 of the Immigration and Nationality Act. (Docket
Entry No. 1). He argues that the defendants arbitrarily and
capriciously misconstrued the "good faith" marriage
requirement of 8 C.F.R. § 204(c)(2). Id. at
¶ 2. The defendants have moved to dismiss for improper
venue, or to have the case transferred to the Northern
District of Texas, where venue would be proper. (Docket Entry
No. 6). Igene did not respond to the motion.
complaint, the motion to dismiss, and the applicable law make
it clear that venue is improper in the Southern District of
Texas. No. hearing is required to resolve the issue. The
defendants' motion to transfer is granted and this case
is transferred to the Northern District of Texas; the motion
to dismiss is moot. The reasons are explained below.
Rule of Civil Procedure 12(b)(3) allows a case to be
dismissed for improper venue. FED. R. Civ. P. 12(b)(3);
see also 28 U.S.C. § 1406(a) ("The
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.")- When a defendant raises improper venue, the
plaintiff has the burden to prove that the chosen venue is
proper. Psarros v. Avior Shipping, Inc.,
192 F.Supp.2d 751, 753 (S.D. Tex. 2002); 15 CHARLES Alan
Wright, et al., Federal Practice and Procedure § 3 826
(2d ed. 1986) ("There are cases holding that the burden
is on the objecting defendant to establish that venue is
improper. But 'the better view, ' and the clear
weight of authority, is that, when objection has been raised,
the burden is on the plaintiff to establish that the district
he chose is a proper venue."). Placing the burden on the
plaintiff is consistent with this court's recent
decisions. See, e.g., Brewer v. United States, No.
CV H-17-870, 2017 WL 6398637, at *1 (S.D. Tex. June 19, 2017)
("When a defendant raises improper venue, the plaintiff
has the burden to prove that the chosen venue is
a Rule 12(b)(3) motion to dismiss for improper venue, the
court must accept as true all allegations in the complaint
and resolve all conflicts in favor of the plaintiff."
Braspetro Oil Servs. Co. v. Modec (USA), Inc., 240
Fed.Appx. 612, 615 (5th Cir. 2007) (citing Murphy v.
Schneider Nat % Inc., 362 F.3d 1133, 1138 (9th Cir.
2004)). "[I]n the absence of an evidentiary hearing, a
court should allow a plaintiff to carry this burden based
upon setting forth facts that taken as true would establish
venue." McCaskey v. Cont7 Airlines,
Inc., 133 F.Supp.2d 514, 523 (S.D. Tex. 2001) (citing
Wilson v. Belin, 20 F.3d 644, 648 (5th Cir. 1994).
U.S.C. § 1391(e)(1) provides that a civil action may be
brought against an officer, employee, or agency of the United
States 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."
asserts that venue is proper based on § 1391(e)(1)(B)
and (C), "because plaintiff is an individual located in
this district and because a substantial part of the events
and omissions giving rise to Plaintiffs' claims occurred
in this district." (Docket entry No. 1 at ¶ 5). The
defendants argue that § 1391(e)(1)(B) does not permit
venue here because no "substantial part of the events or
omissions giving rise to the claim" occurred here.
(Docket Entry No. 6 at 3). The defendants assert that United
States Citizenship and Immigration Services received,
processed, and denied Igene's Form 1-360 in Vermont, and
that Igene's appeal was dismissed by the Administrative
Appeals Office in Washington, D.C. Id. at 3-4.
primary factual allegations in the complaint are as follows:
1. Igene filed a Petition for Amerasia, Widow(er) or Special
immigrant (Form 1-36) to classify himself under §
2948(a)(1) of the Immigration and Nationality Act;
2. United States Citizenship and Immigration Services issued
a notice of intent to deny Igene's petition on January 6,
3. Igene's petition was denied on May 8, 2015 due to an
evaluation of Igene's previous marriage.
Id. at ¶¶ 8-10. The complaint alleges that
Igene is located in Garland, Texas, and that nearly all of
the defendants may be served in Washington, D.C, with the
exception of Donald Neufeld, who may be served in St. Albans,
Vermont. Id. at ¶ 7.
assertion that venue is proper because he "is an
individual located in [the Southern District of Texas],
" (Docket Entry No. 1 at ¶ 5), is contradicted by
the complaint allegation that he is located in Garland,
Texas, which is in the Northern District of Texas.
Id. at ¶ 6. The complaint also undermines his
argument that venue is proper "because a substantial
part of the events and omissions giving rise to
Plaintiffs' claims occurred in [the Southern District of
Texas], " id. at ¶ 5, because the
complaint does not allege that any actions giving rise to
Igene's petition denial occurred in this district. The
only reference to this district is the address of the United
States Attorney's Office's civil process clerk,
located in Houston. Id. at ¶ 7.
record shows improper venue in the Southern District of
Texas. The defendants' motion to transfer, (Docket Entry
No. 6), is granted. The motion to dismiss is moot. This case