NILA Practice Advisory: VENUE CHALLENGES IN APA IMMIGRATION CASES

NILA, Sept. 25, 2024

"Increasingly, U.S. Citizenship and Immigration Services (USCIS) and other immigration agencies are challenging venue in U.S. district court lawsuits brought by noncitizens and/or their employers under the Administrative Procedure Act (APA), 5 U.S.C. § 701, et seq. There are two distinct types of venue challenges that an agency may bring. First, it could challenge venue as being wrong under 28 U.S.C. § 1406(a) and/or under Federal Rule of Civil Procedure (Rule) 12(b)(3). In immigration-related cases against a federal immigration agency or one of its officers, venue is only wrong if it fails to satisfy any of the venue options listed in 28 U.S.C. § 1391(e)(1). Where the initial venue is wrong/improper, the court has discretion either to dismiss the case or transfer it to a district in which it could have been filed originally—that is, another venue that satisfies § 1391(e)(1). Even where venue is proper, however, the federal defendant can move to transfer the case to another district, arguing that the “convenience of the parties and witnesses, in the interests of justice” require such a transfer. 28 U.S.C. § 1404(a). Where a court grants such a motion, its only option is to transfer the case to a district in which the lawsuit could have been brought originally; in these circumstances, the court has no authority to dismiss the case. This advisory first discusses the venue requirements found in 28 U.S.C. § 1391 and then explains both types of venue challenges that a federal defendant can bring."