United States District Court, W.D. Missouri, Western Division
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE
Kirstjen Nielsen, L. Francis Cissna, Nelson Perez, and
Michelle Perry move to dismiss this action or, in the
alternative, to transfer the action to the United States
District Court for the District of Kansas. Doc. 8. For the
following reasons, Respondents' motion is granted in part
and denied in part.
[Okorie] is a Nigerian citizen who has been a legal permanent
resident since July 26, 2010.” Doc. 1 (Petition),
¶ 1. He resides in Wellsville, Kansas. Id. at
¶ 2; Doc. 1-1 (Civil Cover Sheet) (listing Okorie's
address as “Outside This District”); Doc. 8-1
(Declaration of Elaine Howlett), ¶ 6 (“USCIS
records databases indicate that the most current address
provided by Chijioke Joshua Okorie is 27121 West Tahoe,
Wellsville, KS 66092.”). Okorie filed an application
for citizenship, known as an “N-400, ” on May 18,
2015. Doc. 1, ¶ 11. On February 21, 2017, the United
States Citizenship and Immigration Services
(“USCIS”) denied Okorie's application.
Id. at ¶ 12. Okorie filed an N-336
administrative appeal, also referred to as a request for a
hearing, see 8 U.S.C. § 1447(a), on April 4,
2017. Id. at ¶ 13. On August 14, 2018, USCIS
sent Okorie a notice of decision rejecting his request for a
hearing as “improperly filed.” Doc. 8-4 (August
14, 2018 Notice of Decision), p. 1; Doc. 1, ¶ 14. USCIS
stated that Okorie's submission was not submitted within
the proper timeframe and did “not meet the requirements
for a motion to reopen or reconsider because [he] did not
submit any new facts to be considered, nor did [he] establish
the decision was based on an incorrect application of
law.” Doc. 8-4, p. 1.
September 11, 2018, the U.S. Department of Homeland Security
issued Okorie a notice to appear for removal proceedings set
to take place beginning October 30, 2018, at 8:30 AM in
Kansas City, Missouri. Doc. 8-5 (Department Filing of Notice
to Appear), pp. 1-2.
December 1, 2018, Okorie filed suit in this Court seeking de
novo review of his N-400 application pursuant to 8 U.S.C.
§ 1421(c). Doc. 1, ¶ 20. Respondents seek dismissal
of the action or, in the alternative, transfer to the United
States District Court for the District of Kansas.
U.S.C. § 1421(c) permits a person whose application for
naturalization has been denied to “seek review of such
denial before the United States district court for the
district in which such person resides.” It is
uncontested that this action was filed in the incorrect
district, as Okorie is a resident of Wellsville, Kansas. Doc.
13 (Suggestions in Opposition), p. 6. Okorie requests
transfer to the United States District Court for the District
of Kansas. Respondents do not oppose transfer, Doc. 15 (Reply
in Support of Motion to Dismiss), pp. 1, 7, but argue that
dismissal is appropriate because “transfer to the
correct venue-the District of Kansas-would be futile.”
Doc. 8 (Motion to Dismiss), p. 1.
the sole question before the Court is whether transfer to the
United States District Court for the District of Kansas or
dismissal is the appropriate course of action. “Federal
courts are authorized to transfer an action to the proper
federal court in order to cure a want of jurisdiction.”
Lopez v. Heinauer, 332 F.3d 507, 511 (8th Cir. 2003)
(citing 28 U.S.C. § 1631); see also 28 U.S.C.
§ 1404(a) (permitting transfer “in the interest of
justice” to correct venue). The transfer statute is
mandatory, stating that a court “shall, if it is in the
interest of justice, transfer such action . . . to any other
such court . . . in which the action or appeal could have
been brought at the time it was filed.” 28 U.S.C.
argue that transfer is not required because even if this
action had been filed in the appropriate court it would be
barred for two reasons. First, Respondents argue that the
USCIS's final determination is not subject to collateral
attack in a federal district court because Okorie
“failed to seek timely relief under 8 U.S.C. §
1447(a), ” resulting in a denial of his hearing request
and failure to exhaust his administrative remedies. Doc. 8,
p. 5. Second, Respondents assert that “district courts
lack subject matter jurisdiction to hear 8 U.S.C. §
1421(c) petitions for review when removal proceedings are
Respondents cite to no authority mandating dismissal that is
binding on this Court. Rather, Respondents ask the Court to
choose between conflicting authority from other districts and
circuits to conclude that Okorie's Petition must fail.
See Doc. 8, pp. 5-8, 10 (“The Eighth Circuit
has not addressed this question. This Court should adopt the
reasoning of the Fourth and Fifth Circuits that a district
court lacks subject-matter jurisdiction over a petition under
section 1421(c) while removal proceedings are
ongoing.”). But absent controlling authority mandating
dismissal, the Court is unable to conclude that transfer
would be futile. See Hyun Min Park v. Heston, 245
F.3d 665, 666-67 (8th Cir. 2001) (finding that the interests
of justice warranted transfer of a petition for direct review
of Immigration and Naturalization Service actions where there
remained an open question as to whether the petition was
the Court finds that the interests of justice warrant
transfer of this action to the United States District Court
for the District of Kansas.
these reasons, Respondents' motion to dismiss or, in the
alternative, to transfer, Doc. 8, is granted in part and
denied in part. Pursuant to 28 U.S.C. § 1631, and in the
interest of justice, the Court transfers this ...