The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
When he commenced this action, pro se Plaintiff Ali Partovi was in the custody of the U.S. Immigration and Customs Enforcement Agency ("ICE"), in Florence, Arizona. He is now released. Partovi alleges that United States Immigration Judge Dayna Beamer ("IJ Beamer") and Assistant District Counsel for the immigration court, June Y.I. Ito ("Ito"), violated his constitutional rights during his May 2002 removal proceedings in Guam. Compl., ECF #1, Counts I & II.
Before the court is Defendants' Motion to Dismiss, brought pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. ECF #37. Partovi has filed an Opposition to the Motion, and Defendants have filed a Reply. ECF #47 & #49. Pursuant to LR7.2(d) of the Local Rules of Practice for the District of Hawaii, the court elects to decide this matter without a hearing. See Local Rule 7.2(d); Fed. R. Civ. P. 78(b). Defendants' Motion to Dismiss is GRANTED, and this action is dismissed with prejudice.
Partovi has an extensive litigation history in the federal courts stemming from his illegal entry into the United States in 2001. See http://pacer.psc.uscourts.gov.*fn1 To date, Partovi has filed twenty-four civil actions and ten appeals in the United States courts protesting his immigration detention and treatment since 2003. Partovi here challenges Defendants' actions taken during and after his immigration proceedings in Guam, in May 2002.
On October 22, 2001, Partovi entered and applied for admission to the United States at Guam using a fraudulent Italian passport. See Defs.' Ex. A, May 3, 2002 Decision & Order of the Immigration Judge ("Removal Order"), ECF #37-3; see also Compl., ECF #1 at 7. On January 8, 2002, Partovi pleaded guilty in the United States District Court for the District of Guam to illegal entry into the United States. Removal Order, ECF #37-3 at 4; see also United States v. Partovi, 1:2001-cr-00120. On April 23, 2002, Partovi was sentenced to 175 days of time served, with twenty-four months of supervised release and immediate deportation to follow. United States v. Partovi, 1:2001-cr-00120, Sentencing, ECF #14.
On May 3, 2002, after two days of immigration hearings, IJ Beamer denied Partovi's application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture, and ordered him removed from the United States. ECF #37-3 at 4, 30; see also Compl., ECF #1 at 7-8. Because Partovi did not appeal this order with the Board of Immigration Appeals ("BIA"), the decision became final thirty days later on June 2, 2002. See 8 C.F.R. §§ 1003.38-.39, 1240.14-.15; see also 8 U.S.C. § 1101(a)(47)(B). Partovi had thirty days to petition for review with the Ninth Circuit Court of Appeals. See 8 U.S.C. § 1252(b)(1); see also Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th Cir. 2009). He did not do so.
Instead, more than a year later, on June 6, 2003, Partovi filed a petition for writ of habeas corpus in the United States District Court for the District of Arizona, Partovi v. Ashcroft, 2:03-cv-01098-EHC. The Arizona district court transferred Partovi's petition to the Ninth Circuit Court of Appeals, as it sought review of the order of removal, and denied Partovi's other claims. 2:03-cv-01098-EHC, Dec. 12, 2005 Order, ECF #49. The appellate court dismissed Partovi's petition for review of the removal order as frivolous, App. Ct. No. 05-77153, ECF #48, and denied rehearing en banc, ECF #57.
On November 22, 2010, more than eight years after Partovi's immigration proceedings had concluded on Guam, Partovi commenced this action. Partovi alleges that IJ Beamer denied him legal representation and made racist comments about his Middle Eastern features and nationality during his 2002 immigration proceedings, in violation of the Sixth and Eighth Amendments and 8 C.F.R. 1003.61.*fn2 Compl., ECF #1 at 7, Count I. Partovi alleges that Ito denied his request for transcripts of those proceedings for more than two years, and, when he finally received the transcripts in 2006, that Ito had altered the transcript to delete IJ Beamer's allegedly racist remarks, violating the Fourth and Fifth Amendments.*fn3 (Id. at 10, Count II.) Partovi names Defendants in their individual and official capacities and seeks $2 million in damages.
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure tests the subject matter jurisdiction of the court. See, e.g., Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039-40 (9th Cir. 2003); White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). The plaintiff bears the burden of establishing the propriety of the court's jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) ("Federal courts are courts of limited jurisdiction. . . . It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.") (citations omitted). If jurisdiction is based on a federal question, the pleader must show that he has alleged a claim under federal law and that the claim is not frivolous. See 5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350, pp. 211, 231 (3d ed. 2004).
"A Rule 12(b)(1) jurisdictional attack 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." White, 227 F.3d at 1242. Although Defendants do not expressly so state, it appears they are making a facial attack, rather than a factual attack, alleging that Partovi's allegations are, in certain respects, insufficient on their face to invoke federal jurisdiction. In a facial attack, the court assumes the factual allegations in the complaint are true and draws all reasonable inferences in the plaintiff's favor. Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009).
"Claims raised under Rule 12(b)(1) should be addressed before other reasons for dismissal filed under Rule 12(b)(6)." Felix v. Pic-N-Run, Inc., 2010 WL 1856347, *2 (D. Ariz. 2010) (citing Wright and Miller, § 1350, 209-10 ("[W]hen the motion is based on more than one ground, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.")).
Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed for failure to state a claim upon which relief may be granted. All allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008). The court is not, however, required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Sciences Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008). Additionally, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a ...