The opinion of the court was delivered by: Hon. John A. Houston United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [Doc. No. 3]
On April 9, 2007, Plaintiffs Hoda Sayyadinejad and her spouse Alizera Servati (collectively "Plaintiffs") filed a complaint pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1361, 28 U.S.C. § 1651, and 5 U.S.C. § 701 et seq., seeking to have Defendants Michael Chertoff, Secretary of the Department of Homeland Security, Emilio Gonzalez, Director of the U.S. Citizenship and Immigration Services ("USCIS"), Paul Pierre, District Director of the Department of Homeland Security, and Alberto Gonzales, the United States Attorney General (collectively "Defendants"), adjudicate Plaintiff Sayyadinejad's application to adjust her status to that of a lawfully admitted permanent resident. On June 6, 2007, Defendants filed a motion to dismiss for lack of subject matter jurisdiction. On June 12, 2007, Plaintiffs filed an opposition to Defendant's motion to dismiss. On July 30, 2007, Defendants filed a reply.
On August 13, 2007, the Court exercised 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 Defendants' motion to dismiss.
In February 2003, Plaintiff Servati, a citizen of the United States, filed a visa petition to bring his then fiancée, now wife, Plaintiff Sayyadinejad into the United States with a fiancee visa under 8 U.S.C. § 1101(a)(15)(k). Complaint at ¶ 4. On March 9, 2004, Plaintiff Sayyadinejad was issued a visa by the Department of State. On April 27, 2004, Sayyadinejad and Servati were married. Decl. Victoria Porto at ¶ 9. Plaintiff Sayyadinejad applied for adjustment of status on June 25, 2004, and was interviewed by the USCIS office in Chula Vista, California in November of 2004. Complaint at ¶ 5. Since the interview, Plaintiff Sayyadinejad has made multiple inquiries regarding her adjustment of status application. Complaint at ¶ 6. To date, the application has not been adjudicated, because the required background checks are incomplete. Decl. Victoria Porto at ¶ 10.
A. Fed. R. Civ. P. 12(b)(1)
Defendants have moved to dismiss Plaintiffs' entire suit under Rule 12(b)(1) of the Federal Rules of Civil Procedure 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 (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 called a 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 plaintiff's 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).
B. Fed. R. Civ. P. 12(b)(6)
A motion to dismiss pursuant to Federal Rule Civil Procedure 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). A court may dismiss a complaint for failure to state a claim when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Navarro, 250 F.3d at 732 (citing Conley); see also Haddock v. Board of Dental Examiners, 777 F.2d 462, 464 (9th Cir.1985) (stating that a court should not dismiss a complaint if it states a claim under any legal theory, even if the plaintiff erroneously relies on a different theory). Generally, dismissal is proper only when the plaintiff has failed to assert a cognizable legal theory or failed to allege ...