Li v. Chertoff

• Decision Date: 02 April 2007
• Docket Number: No. 3:06-CV-02625-H (POR).,3:06-CV-02625-H (POR).
• Citation: 482 F.Supp.2d 1172
• Parties: Jing LI, Plaintiff, v. Michael CHERTOFF, Secretary of the Department of Homeland Security; Emilio T. Gonzalez, Director of U.S. Citizen and Immigration Services; and Robert S. Muller, Director of Federal Bureau of Investigation, Defendants.
• Court: U.S. District Court — Southern District of California

482 F.Supp.2d 1172

Jing LI, Plaintiff, v. Michael CHERTOFF, Secretary of the Department of Homeland Security; Emilio T. Gonzalez, Director of U.S. Citizen and Immigration Services; and Robert S. Muller, Director of Federal Bureau of Investigation, Defendants.

No. 3:06-CV-02625-H (POR).

United States District Court, S.D. California.

April 2, 2007.

Jing Li, San Diego, CA, Pro se.

Megan E. Callan, Office of the United States Attorney, San Diego, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

HUFF, District Judge.

On November 29, 2006, pro se plaintiff Jing Li ("Plaintiff') filed a complaint seeking to have defendants Michael Chertoff, Secretary of the Department of Homeland Security ("DHS"), Emilio Gonzalez, Director of United States Citizen and Immigration Services ("USCIS"), and Robert Muller, Director of the Federal Bureau of Investigation ("FBI") (collectively "Defendants") properly adjudicate Plaintiffs 485 application to register permanent residence or adjust status. (Doc. No. 1.) On February 2, 2007, Defendants filed a motion to dismiss. (Doc. No. 6.) On March 16, 2007, Plaintiff filed an opposition. (Doc. No. 8.) On March 26, 2007, Defendants filed a reply. (Doc. No. 9.)

The Court exercises its discretion to decide this matter on the papers, without oral argument, pursuant to Local Civil Rule 7.1(d)(1). For the following reasons, the Court GRANTS WITHOUT PREJUDICE Defendants' motion to dismiss.

Background

On July 3, 2003, Plaintiff filed an 1-485 application to register permanent residence or adjust status with USCIS. (Compl. ¶ 9.) On August 19, 2004, Plaintiff submitted her fingerprints to USCIS. (Id. ¶ 10.) On October 15, 2005, Plaintiff resubmitted her fingerprints to USCIS. (Id. ¶ 11.)

On September 26, 2006, Plaintiff called USCIS. (Id. ¶ 13.) She was told that the name check process that the FBI needed to complete in order for USCIS to adjudicate her 1-485 application was still pending. (Id. ¶¶ 13, 14.) On October 2, 2006, Plaintiff was advised by a USCIS officer to continue to wait for her application to be approved or denied. (Id. ¶ 17.)

On November 29, 2006, Plaintiff filed a complaint seeking to have Defendants properly adjudicate and approve her 1-485 application. (Compl. ¶¶ 1-26.) On February 2, 2007, Defendants filed a motion to dismiss, or in the alternative for the Court to remand the matter to USCIS for adjudication in the first instance. (Defs.' Mem. P. & A. Supp. Defs.' Mot. Dismiss, at 1-9.) On March 16, 2007, Plaintiff filed an opposition, in which she moved to withdraw her request for the Court to require Defendants approve her 1-485 application, but instead to require the FBI to complete their background check within 30 days, and for USCIS to adjudicate Plaintiffs 485 application 30 days thereafter. (Pl.'s Opp. Defs.' Mot. Dismiss, at 1-11.) On March 26, 2007, Defendants filed a reply, in which Defendants withdrew their request to remand the matter to USCIS. (Defs.' Reply Supp. Defs.' Mot. Dismiss, at 1-7.)

Discussion

A. Legal Standards for Motion to Dismiss

Defendants have moved to dismiss Plaintiffs entire suit against them under Rule 12(b)(1) of the Federal Rules of Civil Procedure for tack of subject matter jurisdiction, and under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

1. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction without general subject matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). They can adjudicate only those cases which the Constitution and Congress authorize them to adjudicate. See id. Federal courts are presumptively without jurisdiction over civil actions and the burden of establishing the contrary rests upon the party asserting jurisdiction. See id.; see also Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.1989).

A motion to dismiss for lack of subject matter jurisdiction may be "facial" or "factual." See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction, whereas in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction. See id. If the defendant brings a facial attack, a district court must assume that the factual allegations in the complaint are true and construe them in the light most favorable to the plaintiff. See United States v. One 1997 Mercedes E420, 175 F.3d 1129, 1130-31 & n. 1 (9th Cir.1999); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.2003). A Rule 12(b)(1) motion will be granted if, on its face, the complaint fails to allege grounds for federal subject matter jurisdiction as required by Rule 8(a) of the Federal Rules of Civil Procedure. See Warren, v. Fox Family Worldwide, Inc. 328 F.3d 1136, 1139 (9th Cir.2003); see also Morrison v. Amway Corp. 323 F.3d 920, 924 n. 5 (11th Cir.2003); Schwarzer, et al., California Practice Guide: Federal Civil Procedure Before Trial ¶ 9:80, at 9-20 (The Rutter Group 2006).

A motion to dismiss for lack of subject matter jurisdiction may also be based on evidence extrinsic to the complaint. See Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987). This is the so-called factual attack on jurisdiction. See Safe Air for Everyone, 373 F.3d at 1039. A district court is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary. See id. In such circumstances, a district court need not presume the truthfulness of a plaintiffs allegations. See Roberts, 812 F.2d at 1177. If the district court does not hold an evidentiary hearing, however, it should accept as true the factual allegations in the complaint. See McLachlan v. Bell, 261 F.3d 908, 909 (9th Cir.2001).

2. Motion to Dismiss for Failure to State a Claim

Rule 12(b)(6) permits dismissal of a claim either where that claim lacks a cognizable legal theory, or where insufficient facts are alleged to support plaintiff's theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990). In considering the sufficiency of a complaint under Rule 12(b)(6), courts cannot grant a motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In resolving a Rule 12(b)(6) motion, the court must: (1) construe the complaint in the light most favorable to the plaintiff; (2) accept all well-pleaded factual allegations as true; and (3) determine whether plaintiff can prove any set of facts to support a claim that would merit relief. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). If a complaint is found to fail to state a claim, the court should grant leave to amend unless it determines that the pleading could not possibly be cured by the allegation of other facts. See Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995).

B. Subject Matter Jurisdiction

When a motion to dismiss for lack of subject matter jurisdiction is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) motion first. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001); see also Schwarzer, et al., supra, ¶ 9:75, at 9-18 to 9-19. Plaintiff asserts three statutory bases for subject matter jurisdiction: 1) mandamus jurisdiction pursuant to 28 U.S.C. § 1361;¹ 2) the Administrative Procedure Act, 5 U.S.C. § 551 et seq. ("APA"); and 3) the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. ("DJA"). (Compl. at 2.) Defendants argue that none of these statutes vest the court with subject matter jurisdiction in this case.

1. Mandamus Jurisdiction

District courts have original jurisdiction over any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to a plaintiff. See 28 U.S.C. § 1361. "Mandamus is an extraordinary remedy and is available to compel a federal official to perform a duty only if: (1) the individual's claim is clear and certain; (2) the official's duty is nondiscretionary, ministerial, and so plainly prescribed, as to be free from doubt, and (3) no other adequate remedy is available." Kildare v. Saenz, 325 F.3d 1078, 1084 (9th Cir.2003); see also Pittston Coal Group v. Sebben, 488 U.S. 105, 121, 109 S.Ct. 414, 102 L.Ed.2d 408 (1988) ("The extraordinary remedy of mandamus under 28 U.S.C. § 1361 will issue only to compel the performance of `a clear nondiscretionary duty.'").

Defendants argue that § 1361 does not provide subject matter jurisdiction over USCIS's adjudication of Plaintiff's 1-485 application because USCIS's duty is discretionary. Section 245 of the Immigration and Nationality Act ("INA") states:

The status of an alien ... may be' adjusted by the Attorney General, hi discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

8 U.S.C. § 1255(a) (emphasis added). Furthermore, section 242 of the INA states:

Notwithstanding any other provision of law (statutory or nonstatutory), including ... section[] 1361 ... no court shall have jurisdiction to review —

(i) any judgment regarding the granting of relief under section ... 1255 of this title, or

(ii) any other decision or action of the Attorney General or the...