The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment. (Doc. # 5).
On August 28, 2009, Plaintiff Asil Mashiri initiated this action by filing a petition for a writ of mandamus. (Doc. # 1). Plaintiff seeks a writ of mandamus directing the Secretary of the United States Department of Education to grant his 2008-2009 FAFSA application for student aid and issue a 2008-2009 Stafford loan to pay for his tuition at Thomas Jefferson School of Law ("Thomas Jefferson"). Id. at 8.*fn1 Plaintiff contends his application was erroneously denied on the grounds that he was an ineligible non-citizen. Id. at 1. At the time he applied, Plaintiff was in the process of obtaining asylum. Id. at 6. On January 29, 2010, Defendants filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. # 5).
Defendants contend that the petition should be dismissed for lack of subject matter jurisdiction, or in the alternative, for failure to state a claim. (Doc. # 5-1 at 2). Defendants contend that this Court lacks jurisdiction because Plaintiff does not have a clear right to aid, which would be required for this court to grant a writ of mandamus. Id. at 14-15. Defendants contend that this court lacks jurisdiction because the United States has not waived sovereign immunity. Id. at 16-17. Defendants contend that even if the Court has jurisdiction, Plaintiff's complaint fails to state a claim for relief because Petitioner was not eligible to receive student aid due to his immigration status. Id. at 20-21. Defendants contend that eligibility for federal public benefits, including federal financial aid, is governed by 8 U.S.C. § 1641(b), which does not allow applicants for asylum who do not have legal status to receive aid. Id. at 10.
Plaintiff contends that the Ninth Circuit previously held that Plaintiff suffered past persecution, and that he was automatically subject to mandatory withholding of deportation.*fn2 (Doc. # 6 at 11-12). Plaintiff contends that he was therefore a qualified alien under 8 U.S.C. § 1641(b)(5) at the time his financial aid was denied and that was entitled to receive financial aid. Id. at 12. Plaintiff contends that this Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1361, and that the Higher Education Act waives sovereign immunity. (Doc. # 6 at 17-18 (citing 20 U.S.C. § 1082(a)(2)). Plaintiff contends that the United States Customs and Immigration Service ("USCIS") failed to properly and diligently complete the verification form that Thomas Jefferson sent in as required. (Doc. # 6 at 20). Plaintiff contends that Thomas Jefferson is required to rely on USCIS's determination of Plaintiff's immigration status on Form G-845 and that it was ultimately the Department of Education which denied his aid. Id. at 21. Therefore, Plaintiff contends that he does state a claim against USCIS and the Department of Education. Id. at 21-22.
In their reply brief, Defendants contend that none of the statutes Plaintiff cited confer jurisdiction on this Court. (Doc. # 7 at 1). Defendants contend that Plaintiff was not eligible to receive federal financial aid because at the time he applied, his immigration status was that of an alien who had overstayed a temporary visitor visa, not an alien with lawful status in the United States. Id. at 4.
Pursuant to 28 U.S.C. § 1361, "The district courts shall have original jurisdiction of 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 the plaintiff." Section 1361 does not waive the sovereign immunity of the United States. Hou Hawaiians v. Cayetano, 183 F.3d 945, 947 (9th Cir. 1999). The Higher Education Act, however, includes a provision which allows the Secretary of Education to sue and be sued in any court of record of a State having general jurisdiction or in any district court of the United States. 20 U.S.C. § 1082.
This Court therefore has jurisdiction over Plaintiff's action and must determine whether Plaintiff has stated a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To sufficiently state a claim to relief and survive a Rule 12(b)(6) motion, a complaint "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (quoting Fed. R. Civ. P. 8(a)(2)). When considering a motion to dismiss, a court must accept as true all "well-pleaded factual allegations." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1950 (2009). However, a court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see, e.g., Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir. 2009) ("Plaintiffs' general statement that Wal-Mart exercised control over their day-to-day employment is a conclusion, not a factual allegation stated with any specificity. We need not accept Plaintiffs' unwarranted conclusion in reviewing a motion to dismiss."). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations omitted).
In order to state a claim for relief pursuant to 28 U.S.C. §1361, Plaintiff must allege facts which, if proven, would establish that he was clearly entitled to receive federal financial aid. See Kildare v. Saenz, 325 F.3d 1078, 1084 (9th Cir. 2003) ("Mandamus is an extraordinary remedy and is available to compel a federal official to perform a duty only if . . . the individual's claim is clear and certain . . . . "). An alien is eligible to receive federal public benefits if he or she meets the definition of "qualified alien" in 8 U.S.C. § 1641(b):
For purposes of this title, the term "qualified alien" means an alien who, at the time the alien applies for, receives, or attempts to receive a Federal public benefit, is--(1) an alien who is lawfully admitted for ...