of the divorce, the INS denied his petition on May 13, 1999.
On April 1, 1998, Ameritrust Mortgage Corporation filed an Immigrant Petition for Alien Worker on behalf of Plaintiff seeking residence for the Plaintiff in the United States pursuant to the Immigration and Nationality Act. Ameritrust was El-Khader's employer. On August 18, 1998, the INS approved Ameritrust's petition on behalf of El-Khader. Once he obtained this approval, he was eligible to apply for permanent resident status in the United States.
On September 4, 1998, Plaintiff filed an application for permanent residence status in the United States with the INS's Nebraska Service Center based on Ameritrust's approved petition. This application is known as an "adjustment of status application." On February 3, 2000, the Nebraska Service Center informed Plaintiff that it was transferring his application to the Chicago INS "in order to speed processing." The Chicago INS thereafter instituted an investigation to determine whether EI-Khader was qualified for the permanent resident visa.
As part of its investigation, the INS concluded that Plaintiff's marriage to Ms. Muna was a sham. On December 5, 2001, the INS informed Plaintiff that it intended to revoke the approved petition Ameritrust received on Plaintiff's behalf on the basis that El-Khader had previously entered into a marriage for the purpose of evading the immigration laws. The INS also denied his accompanying adjustment of status application on the same day. On May 14, 2002, Ameritrust and Plaintiff responded to the INS's notice of its intent to revoke his visa petition arguing that his marriage was legitimate.
On November 1, 2002, Defendant Perryman informed El-Khader that his visa petition would be revoked. Perryman informed EI-Khader that the INS was revoking the Petition for Skilled Worker or Professional filed on El-Khader's behalf pursuant to Section 205.2 of the Immigration and Naturalization Act because the INS's investigation revealed that "the marriage between Mr. El-Khader and Ms. Muna was a sham and was entered into for the purpose of procuring an immigration benefit." The INS concluded that El-Khader failed to provide any evidence establishing that his marriage was bona fide. Perryman noted "[e]ven though the marriage was an arranged marriage, Mr. El-Khader failed to establish any commitment to his marital union other than filing for adjustment of status." Accordingly, the INS revoked his petition.
Plaintiff did not file an administrative appeal of Perryman's decision. Plaintiff now seeks this Court's review of the INS' decision under the Administrative Procedure Act.
I. LEGAL STANDARD
On November 14, 2002, at the Court's direction, Plaintiff filed a memorandum with the Court arguing that he had exhausted his administrative remedies and was properly before the Court. The INS subsequently responded to the Plaintiff's memorandum in what amounts to a motion to dismiss the case for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Defendant argues that the Court does not have jurisdiction to hear this case, and even if it did, Plaintiff failed to exhaust his administrative remedies thus he is not properly before the Court. Plaintiff thereafter responded to the motion.
The standard for Rule 12(b)(1) and Rule 12(b)(6) motions is similar. The Court "must accept the complaint's well-pleaded factual allegations as true and draw reasonable inferences from those allegations in the plaintiffs favor." Transit Express, Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001). As the Seventh Circuit recently noted, "if the complaint is formally sufficient but the contention is that there is in fact no subject matter jurisdiction, the movant may use affidavits and other material to support the motion." United Phosphorus, Ltd. v. Angus Chemical Co., No. 01-1693, 2003 WL 910592 at *2 (7th Cir. Mar. 10, 2003). See also United Transp. Union v. Gateway Western Ry. Co., 78 F.3d 1208, 1210 (7th Cir. 1996). The party asserting jurisdiction bears the burden of proof on a Rule 12(b)(1) motion. United Phosphorus, 2003 WL 910592 at *2.
The Court must first determine if it has subject matter jurisdiction to hear this case. The federal courts are courts of limited jurisdiction. "It is axiomatic that a federal court must assure itself that it possesses jurisdiction over the subject matter of an action before it can proceed to take any action respecting the merits of the action. The requirement that jurisdiction be established as a threshold matter `springs from the nature and limits of the judicial power of the United States' and is `inflexible and without exception.'" Cook v. Winfrey, 141 F.3d 322, 325 (7th Cir. 1998) (quoting Steel C. v. Citizens for a Better Environment, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.E.2d 210 (1998)).
Defendant argues that this Court does not have jurisdiction pursuant to Section 1252(a)(2)(B)(ii) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("the IIRIRA") because the Attorney General, through District Director Brian Perryman of the INS, acted within his discretion in revoking the visa petition. Plaintiff contends that Section 1252 does not apply to this case because that section only applies to removal proceedings and the INS' decision was not discretionary.
A. The Scope of Section 1252(a)(2)(B)(ii)
Section 1252(a)(2)(B)(ii) provides:
Notwithstanding any other provision of law, no court
shall have jurisdiction to review . . . any other
decision or action of the Attorney General the
authority for which is specified under this subchapter
to be in the discretion of the Attorney General, other
than the granting of relief under section 1158(a) of