The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on (1) the motion of the government to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, or alternatively, under Rule 12(b)(6) for failure to state a claim upon which relief can be granted and (2) plaintiffs' motion to compel production and filing of the administrative records, pertaining to the adjudication of his immigration waiver application, maintained by the Department of State ("DOS") and the Department of Homeland Security ("DHS").*fn1
Because consideration of the administrative records is not necessary to resolve the government's motion to dismiss, the court denies plaintiffs' motion to compel as moot and directs plaintiffs to re-notice the motion before the assigned magistrate judge.*fn2 E.D. Cal. L.R. 302(c)(1) (directing that magistrate judges shall hear all discovery motions). As to the government's motion to dismiss, for the reasons set forth below, the motion is GRANTED in part and DENIED in part.
Plaintiff Dr. Fa'afouina Afato is a citizen of Samoa. (Compl., filed Jan. 8, 2010, ¶ 3.) He first entered the United States in 1982 as a nonimmigrant exchange visitor pursuant to 8 U.S.C. § 1101(a)(16)(J), a "J visa," in order to attend a masters degree program in botany at the University of Hawaii. (Id. ¶ 18.) He later transferred to a new J visa program to study medicine at the University of Hawaii, where he earned his Doctor of Medicine degree in May of 1991. (Id. ¶ 19.) Persons who receive J visas are required to return to their home country for a period of two years before they can be granted an immigrant visa or permanent residence within the United States. 8 U.S.C. § 1182(e).*fn3 Dr. Afato never complied with this requirement, as after completing his residency program in 1994, he began working at a medical clinic located in Yuba County, California. (Compl. ¶¶ 20-21.) In 1996, Dr. Afato started his own private practice, serving a traditionally underserved population as recognized by the United States Department of Health and Human Services. (Id. ¶¶ 26-28.) Subsequently, Dr. Afato married a United States citizen. (Id. ¶ 32.) Together they have six children, two adopted and four biological, who are all United States citizens. (Id. ¶¶ 33, 35.)
On April 16, 2009, Dr. Afato filed an Application to Waive the Foreign Residency Requirement, pursuant to 8 U.S.C. § 1182(e) and its supporting regulations. (Id. ¶ 38.) Receiving a waiver of the two-year residency requirement is a complicated process. See 22 C.F.R. § 41.63(b)(2). Succinctly stated, first, the Director of the DHS must determine that "compliance with the two-year home-country residence and physical presence requirement would impose exceptional hardship upon the spouse or child of the exchange visitor." 22 C.F.R. § 41.63(b)(2)(i). Then, DHS must transmit the application to the DOS, which gives a favorable or unfavorable recommendation to DHS after "review[ing] the program, policy, and foreign relations aspects of the case." 22 C.F.R. § 41.63(b)(2)(ii).
Here, the DHS determined that forcing Dr. Afato to return to Samoa for two years would impose exceptional hardship upon Dr. Afato's family; however, the DOS recommended denying the waiver, and DHS, in turn, ultimately denied Dr. Afato's waiver application on December 16, 2009. (Compl. ¶¶ 38, 42, 47, 50.)
Plaintiffs then filed the instant action, alleging violations of the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., violation of plaintiffs' rights under the Fifth Amendment's Due Process Clause, and violation of "Customary International Law."
A. Lack of Subject Matter Jurisdiction
Subject matter jurisdiction is fundamental and cannot be waived. The party seeking to invoke the jurisdiction of the court has the burden of establishing that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986). The court is under a continuing duty to dismiss an action whenever it appears that the court lacks jurisdiction. Billingsley v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989).
The standards that must be applied in a Rule 12(b)(1) motion vary according to the nature of the jurisdictional challenge.
If, as here, the challenge is a facial attack--one contesting jurisdiction solely on the allegations of the complaint--the factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. See Thornhill Pub. v. Gen'l Telephone & Electronics, 594 F.2d 730, 733 (9th Cir. 1979). A complaint will be dismissed for lack of subject matter jurisdiction if (1) the cause does not "arise under" any federal law or the United States Constitution, (2) there is no case or controversy within ...