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One of the most important strategic decisions to make when filing an immigration delay lawsuit is choosing where to file it. The short answer is federal court. The long answer is, well, a little longer because it means identifying the appropriate “venue.” Selecting the wrong venue could mean dismissal under Federal Rule of Civil Procedure 12(b)(3) (“improper venue”), dealing with bad case law, protracted litigation or an unfavorable outcome. This article will help explain the process of selecting the best court for an immigration delay lawsuit and some advice on best practices when doing so.
Given that the immigration law, the government agencies involved, and the legal basis for seeking to compel a decision from those agencies are all federal in nature, there is no question that U.S. federal court has jurisdiction over such cases. The question thus becomes: in which federal district court (there are 94 of them) should one file an action, i.e., what is the proper venue? Because the defendants include U.S. officers and employees, the answer is found in 28 U.S.C. § 1391(e) which provides that such a case may be brought in a judicial district in which the defendant “resides,” “a substantial part of the events or omissions giving rise to the claim occurred,” or the plaintiff “resides.”
(For certain immigration benefits a specific statute can dictate the venue. For example, in a naturalization cases, 8 U.S.C. 1447(b) directs that delay litigation be filed where the applicant resides.)
Because many of the typical defendants in such cases – the Departments of State, Justice and Homeland Security (including their various immigration-related agencies) – are headquartered in Washington D.C., many immigration delays cases are filed in the D.C. district court. The Judges there are well versed in immigration litigation and filing there is convenient: plaintiff’s counsel can easily obtain admission (no local counsel necessary); papers can be filed electronically; and, attorney appearances are often telephonic (avoiding the need to travel for hearings or conferences).
Not surprisingly, an outsized number of delay cases are filed in D.C. Overwhelmed by these filings, the government sometimes moves to dismiss cases brought in D.C. under 28 U.S.C. § 1404(a), seeking to transfer venue to the district where the plaintiff resides or where the application or petition (whose decision has been delayed) is pending.
While filing in D.C. is usually possible, a case can also be filed in the district where the USCIS branch office handling the pending application is located. Since USCIS is in the process of moving to new headquarters in Camp Springs, Maryland (about 10 miles from downtown Washington), we expect many new cases will be filed in the District of Maryland. In time, should an outsized number of immigration delay cases get filed in Maryland, the government may seek to transfer those cases as well.
To prevent one’s case from being transferred (which wastes time and money), the optimal district to file an action may be where the applicant resides. Courts are generally reluctant to dismiss or transfer an action that is brought by a harmed resident of that district. Of course, because courts have wide discretion with regard to transfer, some courts have found that venue is not proper in the district where a noncitizen plaintiff resides because a noncitizen plaintiff, even a legally permanent resident, does not “reside” in the United States for purposes of venue.
As you can see, there is no right (or short) answer here. Instead, the analysis involves several factors: ease of filing, the need for local counsel, expediency, favorable law and judges. As a practical matter, however, any federal court that has a geographic relationship to the parties or the pending application will serve as a legally sufficient venue. Whether the case is ultimately litigated or decided there is another story.