ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
This matter comes before the Court on Defendants Michael C. Biggs's, United States Citizenship and Immigration Services, et al's ("Defendants'") Motion to Dismiss Plaintiff Hassene Chaabane's ("Plaintiff Chaabane's") and Plaintiff Safiyah Ribis' ("Plaintiff Ribis'") (collectively "plaintiffs") Complaint ("Complaint") (Doc. # 1). Defendants bring the Motion to Dismiss (Doc. # 14) pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiffs oppose the motion.*fn1
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Chaabane is a citizen of Tunisia, and the spouse of Plaintiff Ribis. Plaintiff Ribis is a citizen of the United States. On September 27, 2002 Plaintiff Chaabane filed an I-485 Application to Adjust Status to that of Lawful Permanent Resident, on the basis of an approved I-130 Petition for Alien Relative filed on his behalf by Plaintiff Ribis. On July 16, 2008 the application was denied by Defendants who found that Plaintiff Chaabane made misrepresentations on his application. On September 5, 2008 a second I-130 visa petition was approved on behalf of Plaintiff Chaabane. On September 14, 2008 Chaabane filed a second I-145 application to adjust status. On July 23, 2009 Defendants denied Plaintiff Chaabane's application, finding him ineligible to adjust status pursuant to 8 U.S.C. 1255(I). On August 7, 2009 a Notice to Appear for removal proceedings was issued. Removal proceedings are pending.
1. 12(b)(1) Dismissal "Dismissal is appropriate under Rule 12(b)(1) when the district court lacks subject matter jurisdiction over the claim. A Rule 12(b) (1) motion may either attack the sufficiency of the pleadings to establish federal jurisdiction, or allege an actual lack of jurisdiction that exists despite the formal sufficiency of the complaint." Kondrachuk v. U.S. Citizenship, 2009 WL 1883720, at *4 (N.D. Cal. June 30, 2009)(internal citations omitted).
Federal courts are courts of limited jurisdiction, and posses only that power authorized by the Constitution and by statute. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)(internal citations omitted). Federal courts are presumptively without jurisdiction over civil actions, and the burden of establishing the contrary rests upon the party asserting jurisdiction. Id. Lack of subject matter jurisdiction is never waived and may be raised by either party or the court at any time. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d. 593, 595 (9th Cir. 1996).
Because jurisdiction is a threshold matter, a case can proceed no further if a court lacks jurisdiction to hear it. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) ("[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety." (citation omitted)).
A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1975), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
1. Subject Matter Jurisdiction
Plaintiffs argue that this Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 which states, "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States" and pursuant to 28 U.S.C. §§ 2201 & 2202 which allows the courts to provide declaratory relief. Defendants assert that Plaintiffs may not rely on these general grants of jurisdiction where a statute specifically limits jurisdiction, citing 8 U.S.C. §1252(2)(A) which states, "[n]otwithstanding any other provision of law (statutory or non-statutory), . no court shall have jurisdiction to review . . ." (emphasis added).
Plaintiffs concede that this Court lacks jurisdiction to review the discretionary denial of an adjustment of status application pursuant to 8 U.S.C. § 1252(a)(2)(B)(i). While Plaintiffs assert that the allegedly improper denial of Chaabane's application raises an issue of law, the Complaint does not allege which law Defendants improperly applied or how it was improperly applied. The Complaint states "the conflicting explanations in the July 16, 2008 and the June 23, 2009 denial of the petitions for adjustment of status are contradictory, illogical, arbitrary and capricious in that they are not in accord with the facts and or law that governs Defendants actions." (Complaint ¶ 28.) This statement does not identify a question ...