Fang v. Rubio

Background

Peijiao Fang, who represented herself, brought an action seeking to compel the defendants to adjudicate her H-1B visa application. USCIS approved her H-1B petition on June 2, 2023. After she attended a visa interview at the U.S. Embassy in Shanghai on December 10, 2024, the application was placed under administrative processing. Fang alleged that she had received no substantive update or final decision and that the delay violated the Administrative Procedure Act, including 5 U.S.C. §§ 555(b) and 706(1).

The named defendants were Marco Rubio, the U.S. Department of State, a consular officer, Kristi Noem, and the U.S. Department of Homeland Security. The defendants moved to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3), or alternatively to transfer the case to the District of Columbia under 28 U.S.C. § 1406(a).

Venue Analysis

For an action involving a federal officer or employee, 28 U.S.C. § 1391(e)(1) provides venue where a defendant resides, where a substantial part of the relevant events or omissions occurred, or where the plaintiff resides if no real property is involved.

The court concluded that venue was proper under the defendant-residence provision in the District of Columbia because federal defendants generally are treated as residing there for venue purposes. The provision concerning where the relevant events occurred did not support venue in California because Fang’s claim arose from events and omissions in China, specifically at the U.S. Embassy in Shanghai.

Fang argued that venue was proper under the plaintiff-residence provision because she was domiciled in Santa Clara, California. She submitted a residential lease, a California driver’s license, bank records listing a Santa Clara mailing address, and employment verification from Applied Materials showing a Santa Clara work location.

The court held that Fang had not rebutted the presumption that, for venue purposes, a noncitizen residing outside the United States does not reside in a United States judicial district. The court noted that Fang admitted she was a Chinese citizen currently residing in Qingdao, China. It also concluded that her H-1B status was temporary and therefore did not establish that she was domiciled in the Northern District of California. The court defined domicile as a permanent home where a person resides with the intention to remain or intends to return.

Disposition

Because Fang failed to establish that venue was proper in the Northern District of California, the court stated that it could either dismiss the action or transfer it if transfer was in the interest of justice. The court found transfer appropriate because dismissal would leave Fang without recourse for her claims and transfer would avoid potential due-process concerns. It also gave diminished weight to Fang’s choice of forum because she was not a resident of the district and the conduct underlying her claim occurred outside the United States.

The court granted the defendants’ alternative motion to transfer and transferred the action to the District Court for the District of Columbia. The opinion does not separately state a disposition on the defendants’ primary motion to dismiss beyond granting the alternative transfer motion.