Ghafi Ibrahim v. Department of Homeland Security

Background

Omar Ibrahim Ghafi, a noncitizen, sought to enter the United States through Chicago, Illinois, on May 8, 2023, stating that he wanted to seek asylum. Customs and Border Protection agents told him that his asylum claim had already been denied and did not refer him for an interview. When Ghafi tried to contact his attorney, the agents told him that he had no right to counsel and would not speak further with the attorney.

The agents told Ghafi that he would be sent back to Jordan and that he needed to book his own return flight. He did so. At the same time, however, the agents paroled him into the United States under 8 C.F.R. § 235.2, which deferred his immigration examination for one month. The agents gave him a parole document, but he apparently did not see or understand it and returned to Jordan the next day.

Ghafi sought an order requiring Immigration and Customs Enforcement to help him return to the United States by issuing a boarding letter and paroling him upon arrival. He also sought a declaration that Customs and Border Protection officials acted wrongfully by misleading him into believing that he was being deported.

Defendants’ motion

The defendants moved to dismiss for lack of jurisdiction and failure to state a claim. They argued that the Immigration and Nationality Act prevents courts from reviewing discretionary parole decisions, and that the alleged conduct by Customs and Border Protection officials did not amount to a due process violation.

Court’s analysis

The court explained that the Immigration and Nationality Act bars judicial review of certain immigration decisions committed to the discretion of the Secretary of Homeland Security or the Attorney General. The court determined that parole decisions are discretionary and therefore outside its jurisdiction to review or compel.

Because Ghafi alleged that Customs and Border Protection had paroled him into the United States in 2023, the court treated both that decision and any later decision not to parole him upon his return as discretionary parole decisions. The court held that it could not review those decisions or require the agency to reconsider them.

The court also rejected Ghafi’s attempt to challenge the agencies’ procedures instead of the parole decisions themselves. It concluded that the requirement to refer a noncitizen for a credible-fear interview was not triggered because Customs and Border Protection had paroled Ghafi rather than determining that he was inadmissible. The court further concluded that Ghafi did not have a right to counsel at the time because he was not participating in an examination and was not detained as the focus of a criminal investigation.

Disposition

The court granted the defendants’ motion to dismiss. To the extent Ghafi challenged the defendants’ decisions about whether to parole him into the United States in 2023 or later, those claims were dismissed without leave to amend because the court lacked jurisdiction over the discretionary decisions. To the extent Ghafi challenged aspects of the defendants’ process, those claims were dismissed with leave to amend within 28 days of the order. Any amendment must remain consistent with the allegation that Ghafi was paroled into the United States on May 8, 2023.