The opinion of the court was delivered by: Judge Conner
This is a challenge under the Administrative Procedure Act ("APA") to a final agency decision issued by the Administrative Appeals Office of the Bureau of United States Citizenship and Immigration Services. Plaintiff Shahid Qureshi ("Qureshi") claims that the agency abused its discretion when it denied his request to adjust his status from that of "alien" to "lawful permanent resident." Qureshi also seeks specific performance of a contract under the Judiciary Act of 1789. Defendants the Administrative Appeals Office of the Bureau of United States Citizenship and Immigration Services, the United States Citizenship and Immigration Service, Robert P. Weimann, Evangelia A. Klapakis, the United States Immigration and Customs Enforcement, and James T. Hayes (collectively "the government") have moved to dismiss the complaint for lack of subject matter jurisdiction. (Doc. 4.) For the reasons that follow, the motion will be granted in part and denied in part.
I. Statement of Facts*fn1
Qureshi is a native and citizen of Pakistan who first entered the United States on March 13, 1974. (Doc. 1 ¶ 10.) At that time, Qureshi was employed as a crewman and his initial entry was legal. (Id.) Qureshi's authorized residency period lapsed on March 25, 1974, after which he was placed into deportation proceedings. (Id. ¶¶ 10-11.) In 1979, Qureshi married an American citizen, (id. ¶¶ 11-16), and in 1980, he applied for an immigrant visa based upon this union, (id. ¶ 17). Qureshi's application was still pending when he was arrested for possession of heroin in January 1986. (Id. ¶ 21.) Before he was charged, however, Qureshi claims that he negotiated a deal with officials of the Immigration and Naturalization Service*fn2 ("INS"), and the Drug Enforcement Agency ("DEA"). (See id. ¶¶ 114-15; id., Exs. 1-4.) Representatives of these agencies purportedly promised that they would assist Qureshi in obtaining a green card in exchange for information regarding "a huge hashish smuggling ring." (Id. ¶ 114; see id., Ex. 1-4.) Qureshi maintains that he provided DEA with the required information, but government officials thereafter failed to fulfill their promises to provide Qureshi with assistance in his pursuit of lawful permanent resident status. (Id. ¶¶ 117-19.)
In March 1991, Qureshi was placed into exclusion proceedings by the United States Citizenship and Immigration Service ("USCIS"). Two years later, an Immigration Judge ("IJ") ruled that Qureshi was excludable for lacking proper entry documents and by virtue of his prior involvement in drug trafficking activity. (Id., Ex. 5.) On September 23, 1993, a second IJ denied Qureshi's application for asylum and withholding of deportation, found Qureshi excludable, and ordered him to be removed from the United States. (Id., Ex. 6.) Qureshi appealed the order of deportation to the to the Board of Immigration Appeals ("BIA"), which reversed the IJ's findings with respect to Qureshi's excludability based on his involvement in trafficking narcotics.*fn3 (Id., Ex. 7.)
Qureshi continued to reside in the United States as an alien for the next nine years. On June 4, 2002, Qureshi filed an application to adjust status*fn4 in order to acquire lawful permanent resident status. (Id. ¶ 72.) The application was filed pursuant to § 245A of the Immigration and Nationality Act ("INA"). (Id., Ex. 8.) On November 26, 2004, USCIS denied Qureshi's application. (Id., Ex. 10.) Qureshi appealed this decision to the Administrative Appeals Office of the Bureau of United States Citizenship & Immigration Services ("AAO") and, on June 20, 2008, the AAO affirmed USCIS's ruling. (Id., Ex. 11.) Qureshi subsequently appealed the AAO's decision to the Third Circuit Court of Appeals. (Id. ¶ 35.) On August 28, 2008, the Third Circuit dismissed Qureshi's petition for lack of subject matter jurisdiction, holding that the application to adjust status was unreviewable in federal court because it was not accompanied by a final removal order, as required by 8 U.S.C. § 1252(a). (See id., Ex. 12.)
Qureshi commenced the instant suit by filing a complaint on December 19, 2008. (Doc. 1.) He asserts that USCIS abused its discretion by denying his application to adjust status, and that the AAO abused its discretion by affirming USCIS's decision. (Id. ¶¶ 38-43.) In addition, Qureshi brings a claim in equity, seeking specific performance of an oral contract into which he allegedly entered with USCIS and the United States Immigration and Customs Enforcement ("USICE").*fn5 (Id. ¶¶ 114-19.) Specifically, Qureshi claims that USICE promised him a green card if he cooperated with the Drug Enforcement Agency ("DEA") by providing information regarding drug trafficking. (Id.) Qureshi claims that in spite of the cooperation he provided, assistance from USCIE never materialized. (Id. ¶ 118.) On March 2, 2009, the government filed a motion to dismiss for lack of subject matter jurisdiction.*fn6 (Doc. 4.) The motion has been fully briefed and is ripe for disposition.
Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a complaint for "lack of subject-matter jurisdiction." FED. R. CIV. P. 12(b)(1). A motion to dismiss under Rule 12(b)(1) therefore challenges the power of a federal court to hear a claim or case. See Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006). In the face of a 12(b)(1) motion, the plaintiff has the burden to "convince the court it has jurisdiction." Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000); see also Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) ("When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion.").
Motions under Rule 12(b)(1) may take one of two forms. A "facial" attack "contests the sufficiency of the pleadings." Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009) (quoting Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 187-88 (3d Cir. 2006)). The court assumes the veracity of the allegations in the complaint but must examine the pleadings to ascertain whether they present an action within the court's jurisdiction. United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007). The court should grant such a motion only if it appears with certainty that assertion of jurisdiction would be improper. Empire Kosher Poultry, Inc. v. United Food & Commercial Workers Health & Welfare Fund of Ne. Pa., 285 F. Supp. 2d 573, 577 (M.D. Pa. 2003); see also Kehr Packages, 926 F.2d at 1408-09. If the complaint is merely deficient as pleaded, the court should grant leave to amend before dismissal with prejudice. See Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).
In contrast, a "factual" attack argues that, although the pleadings facially satisfy jurisdictional prerequisites, one or more of the allegations is untrue, rendering the controversy outside of the court's jurisdiction. Carpet Group Int'l v. Oriental Rug Imps. Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In such circumstances, the court is both authorized and required to evaluate the merits of the disputed allegations because "the trial court's . . . very power to hear the case" is at issue. Mortensen, 549 F.2d at 891; see also Atkinson, 473 F.3d at 514. In the motion sub judice, the government presents a facial attack on the court's subject matter jurisdiction; the court will analyze its claims accordingly.
Qureshi's complaint contains three counts purportedly entitling him to relief. (See Doc. 1.) In the first two, he alleges that the AAO abused its discretion in affirming USCIS's denial of his application to adjust status. (Id. ¶¶ 38-40, 78-80.) Qureshi seeks review of the AAO's decision pursuant to § 704 of the APA. See 5 U.S.C. § 704. The third count alleges that USICE breached a contract it entered with Qureshi when it failed to assist him in obtaining a green card after he supplied the government with information regarding drug trafficking. (See Doc. 1 ¶¶ 115-18.) ...