Doe v. Mullin

Background

Plaintiff John Doe, a U.S. citizen originally from Afghanistan, filed suit against the Secretary of Homeland Security, the Secretary of State, and the Director of U.S. Citizenship and Immigration Services (USCIS). He alleged that USCIS violated the Administrative Procedure Act (APA) — the federal law governing agency rulemaking and decision-making — by denying his 27 humanitarian parole applications for family members remaining in Afghanistan without conducting the case-by-case review required by 8 U.S.C. § 1182(d)(5)(A). Plaintiff filed this case under a pseudonym to protect his identity.

The statutory basis for the applications is 8 U.S.C. § 1182(d)(5)(A), which authorizes the Secretary of Homeland Security, "in his discretion," to temporarily parole noncitizens into the United States "only on a case-by-case basis for urgent humanitarian reasons or significant public benefit." USCIS denied all 27 applications twice — first in 2022, and again after reopening and issuing Requests for Evidence (RFEs) — using identical form letters both times.

Procedural History

The litigation involved several prior rulings:

- In March 2025, the court granted in part and denied in part Defendants' initial motion to dismiss. The Secretary of State was dismissed for lack of standing (plaintiff could not plausibly allege his injury was caused by that official). Claims based on the first round of denials were dismissed as moot after USCIS reopened those applications. But the court allowed the APA claim based on the second round of denials to proceed. - The court previously concluded that 8 U.S.C. § 1252(a)(2)(B)(ii) — a jurisdiction-stripping provision — did not bar review of the "predicate legal question" of whether USCIS conducted case-by-case review, even though the ultimate discretionary parole decision is unreviewable. - Plaintiff voluntarily dismissed a procedural due process claim (Count II), leaving only the APA claim (Count I). - In early January 2026, the court denied Defendants' motion for judgment on the pleadings, reaffirming its jurisdiction to review the procedural question.

Shortly after that ruling, the Eighth Circuit Court of Appeals issued Fofana v. Noem, 163 F.4th 1135 (8th Cir. 2026), which prompted Defendants to file the present renewed motion to dismiss for lack of subject-matter jurisdiction (jurisdiction to hear the type of case) under Federal Rule of Civil Procedure 12(h)(3).

Statutory Framework

The key jurisdiction-stripping statute, 8 U.S.C. § 1252(a)(2)(B)(ii), provides that "no court shall have jurisdiction to review . . . any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of" those officials. The central question was whether this provision bars review not only of the Secretary's final discretionary parole decision, but also of the procedural question of whether USCIS followed the case-by-case review requirement.

The Fofana Decision and Its Impact

In Fofana v. Noem, the Eighth Circuit reversed a district court's grant of summary judgment to a plaintiff who had challenged USCIS's denial of a status-adjustment application under 8 U.S.C. § 1159(b). The district court, like this court, had relied on Bremer v. Johnson, 834 F.3d 925 (8th Cir. 2016), which had recognized that courts could review "predicate legal questions" underlying an otherwise unreviewable discretionary decision.

The Eighth Circuit in Fofana held that the Supreme Court's decision in Patel v. Garland, 596 U.S. 328 (2022) required a different approach. Patel held that the phrase "any judgment regarding granting of relief" in § 1252(a)(2)(B)(i) covers not just the ultimate grant-or-deny decision but also nondiscretionary determinations necessary to reach that decision. The Eighth Circuit extended this reasoning to § 1252(a)(2)(B)(ii), concluding that "any other decision or action" similarly covers decisions "of whatever kind" — not just final discretionary decisions. The court clarified that to the extent Bremer's language about reviewing "non-discretionary legal determinations" suggested a broader rule, that language was no longer good law in light of Patel.

The Fofana court's key holding: where a statute commits the authority to grant relief to the Secretary's discretion, § 1252(a)(2)(B)(ii) "insulates the decision from judicial review" in its entirety — including all predicate and eligibility determinations.

The Court's Analysis

Judge Tunheim concluded that Fofana controls here because § 1182(d)(5)(A) expressly commits the humanitarian parole determination to the Secretary's discretion. Just as in Fofana, the relevant statute uses the word "discretion," triggering the jurisdictional bar of § 1252(a)(2)(B)(ii) across all aspects of the parole decision.

The court acknowledged and expressed sympathy for Plaintiff's argument that his challenge was limited to procedural compliance — whether USCIS followed the case-by-case review requirement — rather than the merits of the discretionary parole decision. However, the court found that neither the text of § 1252(a)(2)(B)(ii) nor Fofana draws a distinction between challenges to an agency's procedures and challenges to the Secretary's decisions. The court further noted that the statutory term "action" in § 1252(a)(2)(B)(ii) confirms that the bar extends beyond decisions to include actions taken in exercising discretionary authority — including the procedural steps Plaintiff challenged.

The court also cited a Northern District of Iowa decision, Hirey v. Noem, Civ. No. C25-4075 (N.D. Iowa Jan. 13, 2026), which had reached the same conclusion regarding parole-termination decisions under § 1182(d)(5)(A) after Fofana.

Disposition