The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER DENYING DEFENDANTS' MOTION TO DISMISS*fn1
Defendants filed a motion to dismiss Plaintiffs' complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defendants, however, do not address the 12(b)(6) dismissal standard nor do they differentiate their arguments brought under Rule 12(b)(6) from those brought under Rule 12(b)(1). Therefore, Defendants' conclusory references to Rule 12(b)(6) are disregarded, and to the extent that a ruling is required, that portion of the motion is denied. Further, for the reasons stated below, Defendants' motion to dismiss under Rule 12(b)(1) for lack of jurisdiction is also denied.
Plaintiffs' complaint seeks to compel Defendants to act upon their "Form I-485" applications through which Plaintiffs seek to become lawful permanent residents of the United States. Plaintiff Muhammad Sultan is a native and citizen of Pakistan who was granted asylum in the United States on April 30, 2003. (Compl. ¶¶ 1, 5.) Muhammad Sultan's wife, Plaintiff Sarwat Sultan, and daughter, Plaintiff Madeeha Sultan, who are both also natives and citizens of Pakistan, were granted derivative asylee status. (Id. ¶¶ 6-7.)
After one year of physical presence in the United States, Muhammed, Sarwat and Madeeha Sultan each filed a Form I-485, Application to Register Permanent Resident or Adjust Status ("I-485 Application"), with United States Citizenship and Immigration Services ("USCIS") on July 2, 2004, seeking to have their legal status adjusted to that of permanent lawful residents of the United States. (Id. ¶ 21.) To date, however, USCIS has not acted on the Sultans' I-485 Applications. (Id. ¶ 23.)
Plaintiffs allege this delay contravenes Defendants' statutory "duty to act upon matters presented to them within a reasonable period of time." (Id. ¶ 24.) Plaintiffs seek a writ of mandamus ordering the FBI to promptly complete background checks on Plaintiffs and requiring USCIS to promptly adjudicate each Plaintiff's I-485 Application. (Id. ¶¶ 25, 28-29.)
Defendants declare that Plaintiff Muhammad Sultan's application file shows he was, and still is, a member of the Mohajir Quami Movement ("MQM") - a "Tier III" terrorist organization -rendering him, his wife and daughter "inadmissible" to the United States under various provisions of the Immigration and Naturalization Act. (Micale Decl. ¶¶ 10-16, 24.) Defendants further declare that Plaintiffs' I-485 Applications are on hold in response to a March 26, 2008 memorandum from the Deputy Director of USCIS, which instructs "adjustors to withhold adjudication of cases . . . in which an applicant is inadmissible . . . for activities associat[ed] with a Tier III organization . . . ." (Id. ¶ 19.)
A motion to dismiss for lack of subject matter jurisdiction may be "facial" or "factual." 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. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction."
Id. "Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Savage v. Glendale Union High School, Dist. No. 205, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003) (citation omitted). With a factual challenge, the district court "need not presume the truthfulness of the plaintiffs' allegations." White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Defendants' dismissal motion presents a "factual attack" since they have provided an affidavit and other documents in support.
Defendants argue the court is without jurisdiction because various provisions of the Immigration and Naturalization Act ("INA") preclude judicial review of Plaintiffs' claims; the Administrative Procedures Act ("APA") bars review of Plaintiffs' claims; and the Mandamus and Venue Act ("MVA") does not allow Plaintiffs to seek a writ of mandamus. Plaintiffs counter the APA, 28 U.S.C. § 1331 and the MVA confer jurisdiction, and the INA does not strip the court of jurisdiction to review their claims.
A. Jurisdiction Under the INA
Defendants raise several challenges to jurisdiction ...