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Kumar v. Mayorkas

United States District Court, Ninth Circuit

September 23, 2013

PARDEEP KUMAR and BALJINDER KAUR, Plaintiffs,
v.
ALEJANDRO MAYORKAS, Defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR ORDER CHANGING VENUE

MARIA-ELENA JAMES, Magistrate Judge.

I. INTRODUCTION

On December 21, 2012, Plaintiffs Pardeep Kumar and Baljinder Kaur filed their Complaint for Declaratory Judgment and Injunction pursuant to 5 U.S.C. §§ 701-706 against Alejandro Mayorkas, director of the United States Citizenship and Immigration Services ("USCIS"), seeking a judgment: (1) declaring that Ms. Kaur has been granted asylum status in the United States pursuant to 8 U.S.C. § 1158(b)(3)(A); (2) declaring that the USCIS has violated 8 U.S.C. § 1158(b)(3)(A), 5 U.S.C. § 555(b), and 8 C.F.R. § 208.21(e) by not issuing a travel document to Ms. Kaur or forwarding written notice to Mr. Kumar stating the basis for not issuing a travel document; and (3) enjoining the USCIS to immediately issue a travel document to Ms. Kaur. Dkt. No. 1. Subsequently, on July 31, 2013, USCIS denied Mr. Kumar's Form I-730 Refugee/Asylee Relative Petition ("Form I-730 Petition" or "Petition"). First Amended Complaint ("FAC") ¶ 17, Dkt. No. 21. Plaintiffs thereafter filed the operative First Amended Complaint seeking judicial review of USCIS's denial of the Form I-730 Petition. Dkt. No. 21. In their First Amended Complaint, Plaintiffs allege that the Northern District of California is the proper venue for this action pursuant to 28 U.S.C. § 1391(e) because Mr. Kumar resides within this District. FAC ¶ 2. The Government now moves to dismiss this action for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3). Motion, Dkt. No. 5. Plaintiffs have filed an Opposition. Dkt. No. 16. Because the Court finds this matter suitable for disposition based on the parties' written submissions, and oral argument would not assist the Court in making this decision, the Court VACATES the hearing set for October 3, 2013. Civil L.R. 7-1(b). For the reasons set forth below, the Court DENIES the Government's Motion.

II. BACKGROUND

Mr. Kumar is a citizen of India who was granted asylum in the United States on June 24, 2008. FAC. ¶ 4; Compl., Ex. A.[1] He alleges that on October 22, 2006, he married Ms. Kaur, who is a citizen of India. FAC ¶ 5 On July 7, 2009, Mr. Kumar filed a Form I-730 Petition on behalf of Ms. Kaur. Compl., Ex. E. USCIS approved the Petition on February 5, 2010. Id., Ex. B. However, on September 27, 2010, USCIS reopened the Petition. FAC ¶ 6; Compl., Ex. C. Thereafter on November 5, 2010, USCIS denied the Petition due to abandonment, indicating that Mr. Kumar abandoned the Form I-730 Petition when he failed to respond to a request for evidence. FAC ¶ 7; Compl., Ex. D.

Thereafter, Mr. Kumar obtained new counsel and filed a lawsuit in federal district court. Compl., Ex. E. The lawsuit was settled upon USCIS's agreement to again reopen the Petition to afford Mr. Kumar a second opportunity to respond to a notice of intent to deny. Id.

On December 13, 2011, USCIS issued a Service Motion to Reopen and Notice of Intent to Deny ("NOID"). FAC ¶ 10; Compl., Ex. E. In the NOID, USCIS indicated that it was in possession of adverse information regarding Mr. Kumar's I-730 Petition. Compl., Ex. E. The Service Motion indicated that USCIS in New Delhi, India returned the Petition for review and possible denial after Ms. Kaur was interviewed by a USCIS Officer in India on April 19, 2010. Id. The Petition was returned to USCIS on or about June 30, 2010, on the ground that the evidence failed to establish a bona fide or legally valid marital relationship existed between Mr. Kumar and Ms. Kaur. Id. Specifically, the NOID stated: (1) the Marriage Certificate-Registrar of Marriage-Jalandhar, dated March 6, 2009 is of dubious authenticity because it was issued more than two years after the marriage occurred and after Kumar entered the United States; (2) Ms. Kaur provided questionable responses to questions regarding the registration of the marriage; (3) Ms. Kaur was uncertain regarding Mr. Kumar's age at the time they were married; (4) a marriage attended by only 10-11 people, with no photographs and no dowry would be highly unusual; (5) based on Ms. Kaur's understanding of English and appearance, USCIS doubted her statements that her father is a day wage laborer and she attended school only to the 10th level; and (6) it would be unusual that Ms. Kaur was unable to present additional photographs of herself with Mr. Kumar together in India or Poland, or photographs of Mr. Kumar since he entered the U.S. Id. at 1-2. The Notice also indicated that Ms. Kaur did not give satisfactory answers when describing why she did not travel with her new husband to the United States and why Mr. Kumar completed an application for a J1 visa at the U.S. Embassy in Warsaw, in which he stated he was unmarried. Id. at 2. Mr. Kumar was given 30 days from the date of the NOID to submit to USCIS a written rebuttal and sufficient independent evidence to overcome the adverse information. Id.

On December 22, 2011, Mr. Kumar's attorney wrote back to the USCIS, providing an additional declaration from Mr. Kumar in support of the Petition. FAC ¶ 12; Compl., Ex. F. On January 5, 2012, the USCIS reaffirmed its previous decision to approve Mr. Kumar's Form I-730 Petition. FAC ¶ 12; Compl., Ex. G. Plaintiff filed this lawsuit on December 21, 2012, alleging USCIS still had not acted on its decision and seeking an order compelling USCIS to issue travel documents to Ms. Kaur. Compl., Dkt. No. 1.

Subsequently, on January 18, 2013, USCIS issued a second Notice of Intent to Deny Mr. Kumar's Form I-730 Petition. FAC ¶ 13. On February 6, 2013, Mr. Kumar submitted a response to the second NOID. Id. ¶ 14. Thereafter, on March 25, 2013, USCIS issued a third Notice of Intent to Deny Mr. Kumar's Form I-730 Petition. Id. ¶ 15. Mr. Kumar then submitted a response to the third NOID on April 12, 2013. Id. ¶ 16. On July 31, 2013, USCIS denied Mr. Kumar's Form I-730 Petition, finding that Mr. Kumar did not meet his burden of proving that he and Ms. Kaur were lawfully married prior to the date he was granted asylum. Id. ¶ 17.

On August 20, 2013, Mr. Kumar filed a First Amended Complaint, alleging that USCIS's July 31, 2013 decision denying his Petition was arbitrary and capricious and that USCIS violated his Fifth Amendment due process rights to adequate procedures and to reside with his wife in the United States. Id. ¶ 19. He seeks a judgment declaring that: (1) USCIS violated 8 U.S.C. § 1158 and 8 C.F.R. §§ 103.2(b)(16) and 208.21 when it denied his Form I-730 Petition; (2) that USCIS's decision was arbitrary and capricious; and (3) that its findings are not based on substantial and probative evidence. Id. at 4. He further seeks injunctive relief directing USCIS to approve his Form I-730 Petition and issue Ms. Kaur travel authorization to apply for admission to the United States. Id.

In paragraph 3 of the First Amended Complaint, Plaintiff alleges that the Northern District of California is the proper venue for this action "because Mr. Kumar, a resident of Alameda County, resides in this district." FAC ¶ 3.

In the interim, on February 25, 2013, the Government filed the instant motion seeking dismissal based upon improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3), arguing that the Northern District of California is an improper venue for this action. Dkt. No. 5.

III. LEGAL STANDARD

Pursuant to Rule 12(b)(3), a defendant may move to dismiss a complaint for improper venue. When considering a motion to dismiss pursuant to Rule 12(b)(3), a court need not accept the pleadings as true and may consider facts outside of the pleadings. Id. Once the defendant has challenged the propriety of venue in a given court, the plaintiff bears the burden of showing that venue is proper. See Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). Pursuant to 28 U.S.C. § 1406(a), if the Court determines that venue is improper, the Court must either dismiss the action or, if it is in the interest of justice, transfer the case to a district or division in which it could have been brought. Whether to dismiss for ...


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