The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge
ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE
On January 9, 2007, pro se plaintiffs Dong Liu and Yuhong Huang ("Plaintiffs") filed a complaint seeking to have defendants Michael Chertoff, Secretary of the Department of Homeland Security ("DHS"), Robert Mueller, Director of the Federal Bureau of Investigation ("FBI"), Emilio Gonzalez, Director of United States Citizen and Immigration Services ("USCIS"), and Christina Poulos, Acting Director, California Service Center, U.S. Citizenship and Immigration Services ("CSC") (collectively "Defendants") properly adjudicate Plaintiffs' I-485 applications to register permanent residence or adjust status. (Doc. No. 1.) Presently before the Court is defendants' motion to dismiss. (Doc. No. 5.) For the following reasons, the Court GRANTS WITHOUT PREJUDICE Defendants' motion.
Plaintiffs are natives and citizens of China. (Compl.¶ 2.) On July 22, 2004, Plaintiffs each filed I-485 applications to register permanent residence or adjust status with USCIS.*fn1 Id. After filing their adjustment applications, Plaintiffs made multiple inquires of Defendants seeking information regarding the status of their respective applications. (Id. ¶ 13.) Plaintiffs also sought assistance from their United States Senator and local Congressional representative. (Id. ¶ 12.) In the course of Plaintiffs' correspondence with USCIS, Plaintiffs learned that their FBI name check results (one of the necessary investigative steps in processing Plaintiffs' applications) were still pending. (Id. ¶ 13.) Plaintiffs allege that the required FBI checks have been pending for over two years and that Defendants have failed to process the applications towards final adjudication. Id. Plaintiffs request this Court: 1) order the FBI to expedite the background investigations; and 2) order the CSC to adjudicate their applications. (Id. ¶ 17.)
On January 9, 2007, Plaintiffs filed a complaint seeking to have Defendants properly adjudicate their I-485 applications to register permanent residence or adjust status. (Doc. No. 1.) On March 20, 2007, Defendants filed their motion to dismiss. (Doc. No. 5.) On April 10, 2007, Plaintiffs filed their opposition. (Doc. No. 8.) On April 17, 2007, Defendants filed a reply. (Doc. No. 9.) The matter is now fully briefed, and the Court finds it appropriate for disposition without oral argument pursuant to Civil Local Rule 7.1(d)(1).
Defendants have moved to dismiss Plaintiffs' entire suit against them under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction, and under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
A motion to dismiss under Rule 12(b)(1) challenges the jurisdiction of the court over the subject matter of the complaint. Fed. R. Civ. P. 12(b)(1). "Federal courts are courts of limited jurisdiction and possess 'only that power authorized by Constitution and statute.'" Sandpiper Village Condominium Ass'n., Inc. v. Louisiana-Pacific Corp., 428 F.3d 831, 841 (9th Cir. 2005). Limits upon federal jurisdiction must not be disregarded or evaded. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." A-Z Intern. v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (internal quotation and citation omitted). It is the burden of plaintiffs to persuade the Court that subject matter jurisdiction exists. See Hexom v. Oregon Dept. of Transp., 177 F.3d 1134, 1135 (9th Cir. 1999).
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) cert. denied 544 U.S. 1018 (2005). A facial attack challenges the sufficiency of the jurisdictional allegations in the complaint. See Id. In contrast, a factual attack challenges the substance of a complaint's jurisdictional allegations. See St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.1989). 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 Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1990).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).
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6); See Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). Rule 12(b)(6) permits dismissal of a claim when the claim lacks a cognizable legal theory or there are insufficient facts 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 (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).
The Court recognizes the mandate to construe a pro se plaintiff's pleadings liberally in determining whether a claim has been stated. See Ortez v. Washington County, State ...