The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Through the present action, Plaintiff Elazia Franco Bartolo ("Plaintiff") challenges the denial of her application to adjust status to that of a lawful permanent resident of the United States. The United States now moves to dismiss Plaintiff's lawsuit on grounds that this Court lacks subject matter over the action pursuant to Federal Rule of Civil Procedure 12(b)(1).*fn1
The government alternatively requests that the action be dismissed under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
As set forth below, we conclude that no jurisdiction vests to this Court at the present time because Plaintiff has failed to exhaust administrative remedies now available to her in the course of pending removal proceedings.
The underlying facts presented by this case are undisputed. Plaintiff legally entered the United States in 2009 as the minor child of an alien who was the fiancé of an American citizen. Plaintiff turned twenty-one less than two months after that entry, however, and while she applied for adjustment of immigration status (to a lawful permanent resident) some ten days before her birthday, the government ultimately denied her request on grounds that she turned twenty-one before her application had been adjudicated.
Plaintiff filed the present action on November 16, 2009 to challenge the government's denial of her adjustment application. Less than a month later, on December 10, 2009, removal proceedings were commenced against Plaintiff.
In moving to dismiss for lack of subject matter jurisdiction pursuant to Rule 12 (b)(1), the challenging party may either make a "facial attack" on the allegations of jurisdiction contained in the complaint or can instead take issue with subject matter jurisdiction on a factual basis ("factual attack").
Thornhill Publishing Co. v. General Tel. & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). If the motion constitutes a facial attack, the Court must consider the factual allegations of the complaint to be true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981); Mortensen, 549 F.2d at 891. If the motion constitutes a factual attack, however, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 891).
If the Court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. Generally, leave to amend should be denied only if it is clear that the deficiencies of the complaint cannot be cured by amendment. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980).
Once removal proceedings were instituted against her, it is uncontroverted that Plaintiff became able to renew her previously denied application to adjust status. See 8 C.F.R. § 245.2(a)(5)(ii), (d). It is equally uncontroverted that given those removal proceedings, judicial review is available only as to a final order of removal and only if an alien like Plaintiff has exhausted "all administrative remedies available to [her) as of right." 8 U.S.C. § 1252(d)(1).
As the Supreme Court explained in Reiter v. Cooper, 507 U.S. 258 (1993), "[w]here relief is available from an administrative agency, the plaintiff is ordinarily required to pursue that avenue of redress before proceeding to the courts, and until that recourse ...