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United States District Court, S.D. New York

March 15, 2004.

KYUNG MIN KIM Plaintiff, -against- EDUARDO AGUIRRE, JR., Director of the United States Bureau of Citizenship & Immigration Services, and MARY ANN GARTNER, Interim District Director of the New York District of the Bureau of Citizenship & Immigration Services, Defendants

The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn1] [fn1] Danielle Randazzo, a spring 2004 intern in my Chambers and a second-year law student at New York Law School, provided substantial assistance in the research and drafting of this Opinion.


Plaintiff, Kyung Min Kim ("Kim") moves for summary judgment and for attorney's fees and costs pursuant to the Equal Access to Justice Act, as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412 ("EAJA"). Defendants, Eduardo Aguirre, Jr., Director of the United States Bureau of Citizenship and Immigration Services ("CIS"), and Mary Ann Gantner,*fn2 Interim District Director of CIS's New York District (collectively "defendants") move to dismiss Kim's complaint based on improper venue and mootness, pursuant to Rules 12(b)(1) and (3) of the Federal Rules of Civil Procedure ("Fed.R. Civ. P."). For the foregoing reasons, defendants' motion is granted-in-part.


  Kim, a resident of Bayside, Queens, filed her N-400 Application for Naturalization ("application") to become a citizen of the United States on February 3, 1997. On June 21, 1999, Kim had an initial interview and fingerprinting, as required for naturalization. However, due to CIS' substantial delay in processing Kim's application, her fingerprints expired. Therefore, Kim had to succumb to fingerprinting two additional times — the third session taking place on August 19, 2000. Page 2

  During the period subsequent to her interview, each time that Kim inquired about the status of her application, CIS explained that the delay was caused by the need to locate an administrative file in another district. Despite the fact that CIS had initially informed Kim that the adjudication of her application would take between thirty to ninety days, by August 25, 2003, 665 days had passed without a resolution. On this date, after waiting patiently for almost seven years, Kim sought a writ of mandamus in this Court. Shortly thereafter, Kim received from CIS a notice to appear at a December 9, 2003 oath ceremony, and was subsequently sworn in as a natural citizen on such date.


  The Court need not address defendants' mootness argument nor plaintiff's motions for summary judgment and EAJA fees because the Southern District is not the proper venue for this action. Plaintiff filed this underlying action for mandamus relief pursuant to the Immigration and Nationality Act ("INA"), 8 C.F.R. § 310 (2003). This statute provides that "[a]n applicant for naturalization may seek judicial review of a pending application for naturalization in those instances where the Service fails to make a determination under section 335 of the Act within 120 days after an examination is conducted under part 335 of this chapter." This statute places venue in the "United States District Court having jurisdiction over the district in which the applicant resides." 8 C.F.R. § 310.5 (emphasis added).

  While it is uncontested that Kim resides in Queens, and therefore that pursuant to § 310.5, the proper district to bring this suit would have been the Eastern District of New York, plaintiff asserts that 28 U.S.C. § 1391 (2004), the general venue statute, which lays venue more broadly, is also applicable. § 1391(e) states in relevant part that "a civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or any agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) the plaintiff resides if no real property is involved in the action." (emphasis added). As a result, Page 3 plaintiff argues that venue is also proper in this District as the defendant resides herein. However, the general venue statute, by its own words, is not applicable in cases such as this one where venue is "otherwise provided by law." Because § 310.5 has a venue component, § 1391 is inapposite. Therefore, venue is improper. C.f Bahet v. Ashcroft, 01 Civ. 9334, 2002 WL 971712, at *1 (S.D.N.Y. Apr. 10, 2002) (stating in dicta that improper venue would have served as an alternative basis for dismissal in a naturalization case where the plaintiff resided in Queens yet filed in the Southern District of New York).

  When venue is improper, "the district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a) (emphasis added); Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993). As Kim waited far too long for her day in court (a delay I trust that CIS has at least begun to remedy), rather than dismiss, I will transfer the case "in the interest of justice" to the Eastern District of New York, where venue is proper.


  For all of the foregoing reasons, defendants' motion is granted-in-part, and the case is transferred to the Eastern District of New York, where venue is proper. The Clerk is requested to close the motions and any other open motions, remove this case from my docket, and transfer the case to the Eastern District of New York.*fn3


 *fn2 Mary Ann "Gartner" should read Mary Ann "Gantner."

 *fn3 The only open issues are whether plaintiff is entitled to EAJA fees (which requires a grant of summary judgment in plaintiffs favor) or instead whether the case should be dismissed as moot, since plaintiff is naturalized.


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