civil-law civil-procedure us-federal-government federal-courts virginia
In which United States District Court should a permanent resident file a lawsuit against the USCIS?
<p>A US permanent resident has recently moved to western VA.</p>
<p>VA has two <a href="https://en.wikipedia.org/wiki/United_States_district_court" rel="nofollow noreferrer">United States District Courts</a>: <a href="https://en.wikipedia.org/wiki/United_States_District_Court_for_the_Western_District_of_Virginia" rel="nofollow noreferrer">Western</a> and <a href="https://en.wikipedia.org/wiki/United_States_District_Court_for_the_Eastern_District_of_Virginia" rel="nofollow noreferrer">Eastern</a>.</p>
<p>The permanent resident would like to file a lawsuit against the USCIS. One of the defendants is the head of the <a href="https://www.google.com/search?q=uscis%20norfolk%20field%20office" rel="nofollow noreferrer">USCIS Field Office at Norfolk, VA</a>, which is now responsible for the permanent resident's case, based on his zip code.</p>
<p>So, the permanent resident resides in one district (the Western district), but his rights were violated by the USCIS field office which is in another district (the Eastern district).</p>
<p>The permanent resident wants to file a lawsuit according to <a href="https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1447&amp;num=0&amp;edition=prelim" rel="nofollow noreferrer">8 U.S.C. § 1447(b)</a>:</p>
<blockquote>
<p><strong>(b) Request for hearing before district court</strong></p>
<p>If there is a failure to make a determination under section 1446 of
this title before the end of the 120-day period after the date on
which the examination is conducted under such section, the applicant
may apply to the United States district court for the district in
which the applicant resides for a hearing on the matter. Such court
has jurisdiction over the matter and may either determine the matter
or remand the matter, with appropriate instructions, to the Service to
determine the matter.</p>
</blockquote>
<p>So, the law specifies that the permanent resident should file his lawsuit in the United States district court for the district in which the applicant resides, i.e. the <strong>Western District</strong>.</p>
<p>However, it would be reasonable to say that the actions or inactions that violated the permanent resident's rights occurred in the <a href="https://www.google.com/search?q=uscis%20norfolk%20field%20office" rel="nofollow noreferrer">USCIS Norfolk Field Office</a>, which is in the Eastern District.</p>
<p>A quote from the US District Court for the Western District of Virginia's <a href="http://www.vawd.uscourts.gov/media/3177/prose_hdbk.pdf" rel="nofollow noreferrer">PRO SE HANDBOOK</a>:</p>
<blockquote>
<p><strong>3. VENUE: Is the Western District of Virginia the appropriate federal court in which to file my lawsuit?</strong></p>
<p>If you decide that there is jurisdiction to bring your claim in a
federal court, you must then determine in which federal court to file.
In order to decide a case, a court must have some logical relationship
either to the litigants or to the subject matter of the dispute; this
is called venue.</p>
<p>There are two United States District Courts in Virginia: the Eastern
District and the Western District. Generally, you may only file an
action in the Western District of Virginia if the actions or inactions
that you believe violated your rights occurred within the boundaries
of this District.</p>
</blockquote>
<p>According to the above resource, the permanent resident should file his lawsuit in the United States district court for the district in which his rights were violated, i.e. the <strong>Eastern District</strong>.</p>
<p><strong>In which district should the permanent resident file his lawsuit then?</strong></p>

<blockquote>
<p>Generally, you may only file an action in the Western District of Virginia if the actions or inactions that you believe violated your rights occurred within the boundaries of this District.</p>
</blockquote>
<p>When a lawyer uses the word &quot;generally,&quot; it typically signals the existence of exceptions.  The specific statutory provision of 8 USC 1447(b) supersedes the general rule expressed in the handbook.</p>
<p>I am not a lawyer, so I hope that the lawyers on this site will correct me if I am wrong, but I believe that this provision establishes &quot;subject matter jurisdiction,&quot; and the statute explicitly grants that jurisdiction to the court for the district in which the permanent resident resides.</p>
<p>The &quot;application for a hearing&quot; should be submitted to the court for the western district.</p>
<p>If I were you, I would try to find out whether &quot;applying for a hearing&quot; is in fact the same as filling a suit; it sounds to me like they may be different.  In the latter case, you submit a &quot;complaint,&quot; which makes you a &quot;plaintiff.&quot;  The use of &quot;apply&quot; and &quot;hearing&quot; suggests that different procedural rules may be relevant.  If that is the case, it supports the conclusion that the general rule expressed in the handbook does not apply, since the talk of rights violation also implies a complaint and a potential trial rather than an application and a hearing.</p>
<p>After writing the previous paragraph, I found a few discussions online that make it clear that &quot;apply for a hearing&quot; <em>does</em> mean &quot;file a suit,&quot; but it's still not clear to me who the defendant would be.  Another open question is when the 120-day period begins.  It seems that different courts have different opinions on the matter.</p>
