The opinion of the court was delivered by: Marvin E. Aspen, District Judge
MEMORANDUM ORDER AND OPINION
Plaintiff Alexander Fuks brought a three count complaint seeking "a [w]rit of [m]andamus and [d]eclaratory [j]udgment, declaring or ordering the [d]efendants to declare that Plaintiff is prima facie eligible for [n]aturalization, and ... review [of] the Agency's failure to act on his application for naturalization." (Compl. at 1.) Presently before us is defendants Robert Divine's and Michael Comfort's motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. For the reasons set forth below, we grant defendants' motion and dismiss the action for lack of subject matter jurisdiction.
Alexander Fuks, a permanent resident of the United States, first submitted an application to become an American citizen on March 13, 1997. (Compl. ¶¶ 12, 17.) The U.S. Citizenship and Immigration Services ("the Agency," (formerly the INS)) denied Fuks' application for lack of good moral character on November 5, 1998, and subsequently served him with a notice to appear for removal proceedings on October 20, 1999. (Id. at ¶ 19, Ex. J, K.) Fuks did not appeal the Agency's decision. (Id. at ¶ 20.)
On March 2, 2001, Fuks filed another application for naturalization, which the Agency denied on October 13, 2005 (after Fuks instituted this action and during the pendency of removal proceedings). (Id. at ¶¶ 19, 21, p.11; Mot. to Dismiss at Ex. 1.) Fuks did not appeal the Agency's decision to an immigration judge, but rather requested that the Agency vacate their decision sua sponte. (Resp. to Mot. to Dismiss at 2-3.)
In August 2005, the Immigration Court sent Fuks' counsel a notice explaining the nature of, and scheduling the hearing for, Fuks' removal. (Compl. at Ex. V.) Seeking to terminate removal proceedings, Fuks requested that the Agency communicate his prima facie eligibility for naturalization to the immigration judge. (Id. at Ex. U). The District Director of the Agency sent Fuks' attorney a letter, which expressed the Agency's opinion that Fuks was not prima facie eligible for naturalization. (Mot. to Dismiss at Ex. 2.)
Instead of appealing the Agency's decision to the Board of Immigration Appeals ("BIA"), he brought a three count complaint in federal court seeking "a [w]rit of [m]andamus and [d]eclaratory [j]udgment, declaring or ordering the [d]efendants to declare that Plaintiff is prima facie eligible for [n]aturalization, and ... review [of] the Agency's failure to act on his application for naturalization." (Compl. at 1.)
Federal Rule of Civil Procedure ("Rule") 12(b)(1) motions to dismiss are premised on either facial attacks or factual attacks to jurisdiction. "A facial attack is a challenge to the sufficiency of the pleading itself ... A factual attack, on the other hand, is not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction." United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). When reviewing a motion raising a facial attack to jurisdiction, we must accept the well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995). However, when presented with a factual attack to jurisdiction, we "may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Id. (quoting Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993)).
In answering a properly supported Rule 12(b)(1) factual attack, a plaintiff cannot rest on the allegations in the pleadings. Rittmeyer v. Advance Bancorp, Inc., 868 F. Supp. 1017, 1021 (N.D. Ill. 1994). Rather, because the party invoking jurisdiction bears the burden of establishing its requirements, Lucan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 2136 (1992), the plaintiff must come forward with "competent proof" supporting its jurisdictional allegations. NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 237 (7th Cir. 1995); see also Kontos v. United States Dept. of Labor, 826 F.2d 573, 576 (7th Cir. 1987). In other words, the plaintiff must prove to the court by a "preponderance of the evidence or proof to a reasonable probability that jurisdiction exists." NLFC, 45 F.3d at 237 (quotation omitted).
Fuks claims that we have statutory jurisdiction pursuant to 8 U.S.C. § 1447(b), mandamus jurisdiction pursuant to 28 U.S.C. § 1361, and that we have the authority to enter a declaratory judgment on his prima facie eligibility for naturalization based on the BIA's decision in Matter of Cruz, 15 I. & N. Dec. 236 (BIA 1975). We will address each alleged jurisdictional claim in turn.
Fuks argues that the Agency's failure to timely consider his naturalization application invokes § 1447(b), which grants us jurisdiction to review his application. To avoid undue delay in the naturalization process, Congress conferred discretionary jurisdiction upon district courts to conduct hearings on naturalization applications when the Agency fails to make a determination within 120 days from the date that the applicant was initially interviewed. 8 U.S.C. §§ 1446(a), 1447(b). Pursuant to § 1447(b), Fuks filed a petition for review in the Northern District of Illinois, alleging that the Agency failed to rule on his application within 120 days from his initial interview.*fn1 However, Fuks filed his naturalization application after the Agency instituted removal proceedings against him and the Agency is statutorily barred from considering an application during the pendency of such proceedings. 8 U.S.C. § 1429; (Compl. at ¶¶ 19, 21, p.11, Ex. J, K.). Compliance with § 1429 is not an undue delay on the naturalization ...