Y-Z-L-H v. BostockY-Z-L-H v. Bostock
Tess Hellgren, Stephen W. Manning, Nelly Garcia Orjuela, and Jordan Cunnings, INNOVATION LAW LAB, 333 SW Fifth Avenue, Suite 200, Portland, OR 97204. Of Attorneys for Petitioner.
William M. Narus, Acting United States Attorney; and Joshua Keller and Ariana N. Garousi, Assistant United States Attorneys, UNITED STATES ATTORNEY‘S OFFICE, 1000 SW Third Avenue, Suite 600, Portland, OR 97204. Of Attorneys for Respondents.
Michael H. Simon, District Judge.
In the spring of 2023, a 22-year-old man was lawfully working in Mexico as a farmer on his family‘s ranch.1 One of the most notorious and violent criminal drug cartels in Mexico was operating in the region under the protection of a corrupt local chief of police. The police chief told the young man that members of the cartel would soon be coming for him. Shortly thereafter, others confirmed to the man that members of the cartel were heading to “pick him up.” The young man was fearful that the cartel would force him to work for them and, if he refused, would torture and kill him. The man knew that they had done that to others who were about his age. Not wanting to work for a drug cartel, and not wanting to be tortured and killed, the man presented himself to officers of the U.S. Customs and Border Protection agency (“CBP“) at the United States port of entry in El Paso, Texas. He used a “CBP One” mobile app on his phone to make these arrangements, which was the procedure recommended by CBP.
Upon presentation at the port of entry, the man would have otherwise been mandatorily detained, but he expressed his intent to seek asylum. He was then interviewed by CBP officers to review his potential asylum status and determine whether he presented a security risk or a risk of absconding. Based on the man‘s individualized facts and circumstances, he was granted permission lawfully to enter (also known as being “paroled into“) the United States on a temporary basis while he pursued his applications for asylum and withholding of removal under the Convention Against Torture (“CAT“). Thus, on July 21, 2023, this man was permitted lawfully to enter and remain in the United States while his immigration proceedings progressed.
So far, everything had been done precisely as Congress had directed under federal immigration laws, including
While his immigration case was pending, the young man lived in Newport, Oregon. The man had originally been directed to appear for a hearing on May 7, 2024, but that was later postponed by immigration authorities, who sent an amended Notice to Appear letter. In that letter, the man was directed to appear on June 5, 2025, in Portland before an Immigration Judge employed by the U.S. Department of Justice. Immigration authorities also had previously issued the man an employment authorization
On April 11, 2025, the U.S. Department of Homeland Security (“DHS“) sent emails to tens of thousands of persons who similarly had been lawfully paroled into the United States and allowed to remain for a limited time as they tried to accomplish the individualized purposes of their parole. These standard-form, mass emails sent by DHS stated that “DHS is now exercising its discretion to terminate your parole.” The emails added that any benefits connected to a person‘s parole, “such as work authorization,” also will terminate. The emails advised each recipient to “depart the United States immediately.”
Rather than depart, the young man attended his previously scheduled hearing before an Immigration Judge in Portland on June 5, 2025. The young man identified himself to the Immigration Judge, and the Immigration Judge began by explaining that the “purpose of these proceedings is for the court to decide whether you should be removed from the United States or whether you should be allowed to stay.” The Immigration Judge also stated that both the man and the Government have the right to present testimony and other evidence regarding the man‘s application for asylum and withholding of removal. After the Immigration Judge spoke with the man about some preliminary matters, the Government addressed the Immigration Judge to say that “DHS is moving for dismissal based on changed circumstances since the issuance of the Notice to Appear.” The Immigration Judge asked the young man if he objected or wanted the Immigration Judge to grant the Government‘s motion. The man said that he objected and did not want his case to be dismissed. He added that he also wanted time to obtain a lawyer. The Immigration Judge then spoke to the parties “off the record” and, upon returning, stated that he was granting the Government‘s motion to dismiss the “removal case,” explaining to the man that he was no longer in official removal proceedings. The Immigration Judge added that the man would still have the right to seek legal representation and could appeal the Immigration Judge‘s ruling. The Immigration Judge then told the man, “You are now free to leave.” The man left the courtroom, entered the hallway, and was promptly taken into custody by five or six masked agents of U.S. Immigration and Customs Enforcement (“ICE“).
A volunteer lawyer standing nearby agreed to represent the man and promptly filed a Petition for Habeas Corpus (the “Petition“) with the federal court in the District of Oregon, which is now the subject of this Opinion and Order. After the Petition was filed but before the Court entered an interlocutory order several hours later, ICE removed the man from Oregon and eventually placed him in an ICE detention facility in Tacoma, Washington. The parties have since filed legal briefs, and the U.S. District Court held a hearing on July 1, 2025.2 At the hearing, the Government conceded that if the email
Accordingly, the man‘s arrest and subsequent detention also were unlawful. The Court ordered the Government to release the man and stated that a written Opinion and Order explaining the Court‘s analysis and legal basis would be issued by July 11th. The Court later learned that the man had been released later that evening, after the hearing and the Court‘s oral ruling. This Opinion and Order now provides the Court‘s analysis and legal basis in support of its ruling. For the reasons explained below, the Court finds that the Government‘s termination of the man‘s parole was unlawful, as well as arbitrary and capricious under the APA.
In 1947, shortly after the end of the Second World War, Justice Felix Frankfurter of the United States Supreme Court wrote a separate opinion in United States v. United Mine Workers of America.3 In that case, Justice Frankfurter stated:
There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny. Legal process is an essential part of the democratic process. For legal process is subject to democratic control by defined, orderly ways which themselves are part of law. In a democracy, power implies responsibility. The greater the power that defies law the less tolerant can this Court be of defiance.4
Almost 80 years later, these principles continue to protect the rights of everyone.
BACKGROUND
A. Relevant Statutory Framework
1. Admission Processes and Parole Under the INA
The Immigration and Naturalization Act (“INA“) establishes the framework governing noncitizens’ entry into and removal from the United States, with regulations promulgated by the enforcing agencies providing further governance. When a noncitizen arrives seeking entry into the United States, they are deemed an “applicant for admission.”5 The INA has many categories of “inadmissibility.”6 Noncitizens who arrive at a port of entry without a visa or other entry document, like Petitioner, are deemed “inadmissible” under
When a noncitizen is deemed inadmissible under
Section 1182, however, has a subsection titled “Temporary admission of nonimmigrants,” which allows noncitizens, even those in required detention, to be “paroled” into the United States. This provision, at issue in this case, states:
The Secretary of Homeland Security may, except as provided in subparagraph (B) or in section 1184(f) of this title, in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.
2. Limits on Judicial Review Under the INA
The INA contains a provision limiting judicial review. Respondents rely on this provision to argue that the Court is unable to review Respondents’ purported termination of Petitioner‘s parole. In a subsection titled “Denials of discretionary relief,” the statute states, in relevant part:
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or
(ii) 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 the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.
3. Habeas Corpus Petitions Under 28 U.S.C. § 2241
Under
B. Factual Background
Petitioner now is a 24-year-old citizen of Mexico. More than two years ago, Petitioner feared that a notorious and violent drug cartel in Mexico, working under the protection of a corrupt local police chief, would torture and kill Petitioner if he did not join the cartel and begin doing their bidding.15 After making an appointment through the “CBP One app” for entry into the United States, on July 21, 2023, Petitioner came to the port of entry at El Paso, Texas and explained that he was seeking asylum and withholding from removal under the CAT.16 At the port of entry, Petitioner was deemed inadmissible under
He was, however, paroled into the United States under the Parole Statute.18 Petitioner was thus released from custody. He also was not placed into “expedited removal” under
valid through July 19, 2025.21 On July 9, 2024, Petitioner timely filed his application for asylum or withholding of removal under the CAT.22
On April 11, 2025, Petitioner received an email from Department of Homeland Security (“DHS“) stating:
Notice of Termination of Parole
It is time for you to leave the United States.
You are currently here because the Department of Homeland Security (DHS) paroled you into the United States for a limited period. Pursuant to
8 U.S.C. § 1182(d)(5)(A) and8 C.F.R. § 212.5(e) , DHS is now exercising its discretion to terminate your parole. Unless it expires sooner, your parole will terminate 7 days from the date of this notice.If you do not depart the United States immediately you will be subject to potential law enforcement actions that will result in your removal from the United States—unless you have otherwise obtained a lawful basis to remain here. Any benefits you receive in the United States connected with your parole—such as work authorization—will also terminate. You will be subject to potential criminal prosecution, civil fines, and penalties, and other lawful options available to the federal government.
DHS encourages you to leave immediately on your own.
. . .
Again, DHS is terminating your parole. Do not attempt to remain in the United States—the federal government will find you. Please depart the United States immediately.
ECF 22 at 22 (emphasis in original). This was a mass, form email sent to tens of thousands of migrants23 and did not reference Petitioner‘s pending asylum application.
Petitioner remained in the United States. He previously had been issued a work authorization valid from September 28, 2023, through July 19, 2025.24 This work permit was based on his status as someone who had been paroled into the United States. On May 16, 2025, Petitioner filed an application for a work authorization pursuant to his status as a noncitizen seeking asylum.25 U.S. Citizenship and Immigration Services (“USCIS“) granted Petitioner a new work authorization on June 4, 2025, which is valid until June 3, 2030.26 This work permit is based on his status as a noncitizen seeking asylum.
On June 5, 2025, Petitioner appeared for his immigration court hearing. Petitioner requested more time to try to find an attorney and the Immigration Judge stated, “the court will give you more time, and we‘ll reschedule your case to another day.”27 DHS then orally moved for dismissal of the removal proceedings, including Petitioner‘s asylum application, “based on changed circumstances since the issuance of the Notice to Appear.”28 DHS, however, did not describe the purported “changed circumstances” or articulate any other reasons for seeking
dismissal.29 Petitioner opposed the motion, stating that he first needed a lawyer. The Immigration Judge held a discussion off the record before stating on the record: “The court has considered the department‘s motion for dismissal. And the court has considered the respondent‘s opposition requesting an attorney. The court finds the department has offered more persuasive reasons for seeking dismissal.”30 In orally granting the motion, the Immigration Judge noted a Board of Immigration Appeals (“BIA“) case finding no prejudice where the respondent had not been ordered removed and was in no imminent danger of removal.31 The Immigration Judge dismissed the removal proceedings without prejudice, vacated any future hearings, and stated that Petitioner was no longer in removal proceedings.32 After the hearing, the Immigration Judge entered a written order dismissing without prejudice Petitioner‘s removal proceedings.33
After Petitioner left the courtroom, about five or six ICE agents in masks surrounded him.34 The agents seized Petitioner‘s mobile phone and other belongings and placed him in handcuffs.35 The agents did not explain why they arrested Petitioner.36
explanation about where they had taken Petitioner, where they were going, or why they had arrested Petitioner.38 Petitioner was scared and alone, having never been arrested, and feeling confused because he had followed all the requirements for applying for asylum.39 Petitioner was then taken to Tukwila, Washington.40 After spending the night in a cell in Tukwila, in the afternoon of June 6, 2025, Petitioner was shackled and handcuffed and transferred to the Northwest ICE Processing Center in Tacoma (“Tacoma Detention Facility“).41 As of June 17, 2025, he had been detained in his cell at Tacoma for nearly one week without ever being taken outside.42 Petitioner remains confused regarding his arrest, because he has no criminal history, either in Mexico or the United States.43
Respondents concede that Petitioner is not currently in “expedited removal” proceedings. Respondents further concede that Petitioner remains in removal proceedings under
At 11:21 a.m. on June 5, 2025, Petitioner, through counsel, filed his Petition. At 4:15 p.m. the same day, the Court issued an Order prohibiting Respondents from transferring Petitioner out of the District of Oregon without prior approval of the Court, ordering Respondents to notify the Court if Respondents already had transferred Petitioner out of the District of Oregon, and ordering Respondents to answer or respond to the Petition by June 10,
2025.44 Counsel for Respondents notified the Court by email on June 5, 2024 at 4:55 p.m. that DHS had removed Petitioner from the District of Oregon at approximately 12:30 p.m. on June 5, 2025.45 The Court then ordered Respondents not to transport Petitioner from the Tacoma Detention Facility, other than to return Petitioner to the District of Oregon.46 Petitioner remained in custody at the Tacoma Detention Facility until the Court orally granted the Petition on Count Two at the oral argument on July 1, 2025, stating that a written decision would follow.
DISCUSSION
A. Whether the Court Has Jurisdiction to Review This Matter
1. Statutorily Granted Discretion
Respondents make two arguments in support of their position that this Court lacks jurisdiction to review the decision to detain Petitioner. First, Respondents invoke the jurisdiction-stripping provision of the Review Statute, which precludes a court‘s jurisdiction to review any decision that is specified by the statute to be in the discretion of the Secretary of Homeland Security (“Secretary“). Respondents argue that Petitioner‘s detention is based on a discretionary decision to terminate parole under the Parole Statute, after which Respondents were required to detain Petitioner under
by law. Thus, the Court analyzes whether termination of Petitioner‘s parole was a matter committed to agency discretion under the Parole Statute.
a. Presumption of Judicial Review
In deciding whether a statute bars judicial review of an administrative determination, the Supreme Court has emphasized “a familiar principle of statutory construction: the presumption favoring judicial review of administrative action.”47 “When a statute is reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review.”48 The presumption of reviewability has been “consistently applied” to immigration statutes and can be overcome only by “clear and convincing evidence of congressional intent to preclude judicial review.”49 Accordingly, the Review Statute‘s limitation on judicial review applies only to determinations made discretionary by statute.50
Similarly, “[t]he APA establishes a basic presumption of judicial review for one suffering legal wrong because of agency action. That presumption can be rebutted by a showing that the relevant statute precludes review,
a contrary legislative intent should the courts restrict access to judicial review.”52 Further, the Supreme Court has read the “committed to agency discretion” exception “quite narrowly, restricting it to ‘those rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency‘s exercise of discretion.‘”53
b. The Secretary‘s Discretionary Authority
The Parole Statute provides the Secretary with discretion to grant parole on a case-by-case basis for “urgent humanitarian reasons or significant public benefit”54 After parole has been granted, the Secretary may only terminate parole “when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, have been served.”55 This is a
Agency action is not “specified . . . to be in the discretion” of the official where the action “was not performed in accordance with the mandatory . . . procedures.”56 In the context of granting parole, both the Supreme Court and the Ninth Circuit have acknowledged such mandatory procedures. Quoting the Supreme Court, the Ninth Circuit explained the bounds of
such discretion as follows: “immigration officials clearly have the authority to deny parole to unadmitted aliens if they can advance a facially legitimate and bona fide reason for doing so.”57
Similarly, there are mandatory procedures for terminating parole. As discussed below in Section B.2, Respondents have failed to comply with the requirements imposed by statute (i.e., the parole has served its purpose) or by regulation (i.e., either the parole has served its purpose or neither public nor humanitarian interests support the continued presence of the noncitizen in the United States) for terminating parole. Further, the Supreme Court has stated that under the Parole Statute, immigration officials must “make individualized determinations” of grants of parole.58 “Common sense suggests . . . that parole given only on a case-by-case basis is to be terminated only on such a basis.”59 Thus, the Review Statute only precludes review of terminations of parole that were done on a case-by-case, or individualized, basis. Here, the Secretary has not made any individualized determination that the purposes of a specific parole—and especially Petitioner‘s, for the purposes of the pending case—has been served. Instead, the Secretary purported to terminate categorically, or en masse, parole for tens of thousands of noncitizens. The Court finds persuasive the reasoning of the district court in Doe v. Noem, concluding that such a decision is not within the discretion granted by the Parole Statute.60
Similarly, the Ninth Circuit in Hassan v. Chertoff reviewed revocation of parole in the context of “advance parole,” providing guidance on how a court should consider whether it has
jurisdiction to review claims involving the revocation or termination of parole.61 The Ninth Circuit analyzed whether the parole was properly revoked under the statutory and regulatory requirements before concluding that “[t]he revocation was lawfully authorized” and thus the district court properly concluded that it lacked jurisdiction.62
The plaintiff, Hassan, “while physically present in the United States . . . applied for adjustment to status of lawful permanent resident.”63 While his application was pending, Hassan wanted to travel to Saudi Arabia; he received an “advance parole” granting him permission to return to the
On appeal, Hassan argues that the district court had jurisdiction to review the revocation. He claims that the government lacked any discretion to revoke his advance parole because no statute or regulation expressly authorizes revocation. We disagree. The statutory and regulatory provisions governing the grant of parole provide for the revocation of parole when it no longer serves its purpose.
DHS complied with these regulations when it revoked Hassan‘s advance parole. It is undisputed that Hassan was granted advance parole solely to allow him to return to this country while his application for status adjustment was pending. Thus, once Hassan‘s application for adjustment of status was denied, he was no longer eligible for advance parole. The revocation inevitably
followed from DHS‘s discretionary decision to deny the adjustment of status. Under these circumstances, DHS was required by its own regulation to terminate the advance parole, the parole having served its purpose.
The district court properly rejected Hassan‘s argument that it had jurisdiction to review the revocation of advance parole as an ultra vires. The revocation was lawfully authorized.
Hassan, 593 F.3d at 789-90 (emphasis added) (citations omitted).
Unlike in Hassan, here, it is not undisputed that the purpose of Petitioner‘s parole was for a discrete function that has already been accomplished. (Indeed, it appears beyond reasonable dispute that the purpose of Petitioner‘s parole has not yet been served.) Nor is it clear that termination of Petitioner‘s parole (e.g., the April 11, 2025 email) has “inevitably followed” from some action by DHS regarding Petitioner‘s status or proceedings. That leaves the requirement that the Secretary make an affirmative decision based on facts that the purpose of Petitioner‘s parole has been served. And there is no evidence that the Secretary has expressed such an opinion. Thus, Respondents’ termination of Petitioner‘s parole was not “lawfully authorized,” and the Court retains jurisdiction to review the claim. Indeed, there has been no decision or action made or taken by the Secretary that the Parole Statute expressly provides is within the discretion of that official. Further, there is no clear and convincing evidence that Congress intended to preclude review of termination of parole under these circumstances.
Petitioner also argues that the Review Statute does not preclude review of challenges implicating the legal “backdrop” or “framework” against which discretionary decisions are made.66 The Review Statute “restricts jurisdiction only with respect to the executive‘s exercise of
discretion. It does not limit habeas jurisdiction over questions of law.”67 Accordingly,
Because this case involves the termination of parole, it is distinguishable from the cases relied on by Respondents in arguing that the Court lacks jurisdiction. In Vazquez Romero v. Garland, 999 F.3d 656, 665 (9th Cir. 2021), the Ninth Circuit held that under the Review Statute, the BIA correctly concluded that “it lacked authority to review the government‘s discretionary decision to parole a returning [Lawful Permanent Resident] into the United States” because the Parole Statute gave the Attorney General73 the discretionary authority to parole a noncitizen into the United States.74
That authority is not at issue here. Likewise, in Syed v. Mayorkas, 2023 WL 6596330 (D. Or. Oct. 10, 2023), the district court considered a plaintiff‘s application for a writ of mandamus compelling the defendants to approve the plaintiff‘s application for advance parole, which defendants had twice denied.75 The district court held that under the Parole Statute, the decision whether to parole a noncitizen into the United States was committed to the discretion of the appropriate federal officer.76 Thus, the denial of that petition could not be reviewed, pursuant to the express terms of the Review Statute. Again, Petitioner‘s claim is not about a decision by the Secretary or Attorney General to deny an application for parole.
In summary, the Review Statute does not preclude the Court‘s review, at least in the absence of an appropriate finding by an authorized official that “the purposes of such parole . . . have been served.”77 The Court does not review the Immigration
2. The Suspension Clause
As an alternative ground, Petitioner also argues that even if a statute did strip the Court of jurisdiction over Petitioner‘s claims, the Court would maintain jurisdiction under the Suspension Clause of the United States Constitution. This clause provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”78 The Court agrees that if the Review Statute served to preclude the Court‘s jurisdiction, the Suspension Clause would permit the Court to review Petitioner‘s detention.
The Supreme Court in Boumediene v. Bush provided three factors for district courts to consider when “determining the reach of the Suspension Clause.”79 Those factors are: “(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner‘s entitlement to the writ.”80 For the first factor, courts compare the process that a detainee has actually been afforded with the “procedures and adversarial mechanisms that would eliminate the need for habeas corpus review.”81 At the second factor, that the apprehension and detention took place within the United States weighs in favor of finding rights under the Suspension Clause.82 And with respect to the third factor, if government objectives—such as military missions or international relationships—will be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims, that may weigh against application of the Suspension Clause.83 In Boumediene, the Supreme Court held that noncitizens detained at Guantanamo Bay had the habeas corpus privilege and that § 7 of the Military Commissions Act of 2006 unconstitutionally suspended the writ.84
In Department of Homeland Security v. Thuraissigiam, the Supreme Court provided an analysis of the Suspension Clause in the immigration context.85 Thuraissigiam, a noncitizen, was apprehended within 25 yards of the border and detained for expedited removal.86 He claimed a fear of returning to his home country, Sri Lanka, because he had once been abducted and severely beaten by a group of men, but he did not know who the men were or why they had assaulted him.87 He also affirmed
Justice Breyer concurred in the judgment, stating that “enforcing [the] limits [of
Petitioner‘s case is readily distinguishable from Thuraissigiam. Petitioner does not seek “the opportunity to remain lawfully in the United States,” but merely seeks release from custody—the traditional purpose of the habeas writ. Petitioner also was lawfully admitted to this country as opposed to being apprehended just inside the border, has lived here for nearly two years, has connections to the United States, and has been granted two work permits.
Under the Boumediene factors, and considering Justice Breyer‘s concurrence and the majority‘s distinguishing a migrant who is “at the threshold of initial entry” from one who is more established in this country, the Suspension Clause applies to Petitioner. For the first factor, although Petitioner is not a citizen, he has a much stronger status than the petitioners in Boumediene and Thuraissigiam. Petitioner was not apprehended only 25
Considering the second factor, if the Review Statute were to deprive the Court of jurisdiction to review Petitioner‘s detention, Petitioner would have no forum to challenge his detention. In his current remaining immigration process, Petitioner has no right to challenge Respondents’ decision to terminate his parole.98 Petitioner‘s pending BIA appeal addresses only the removal proceedings,99 and any expedited removal proceedings that Petitioner would be placed in would evaluate only whether Petitioner has a credible fear of persecution.100 Additionally, Petitioner was apprehended and detained within the United States. Finally, Respondents have not presented any credible arguments that any practical obstacles prevent Petitioner from entitlement to the writ of habeas. There is no evidence that Petitioner is dangerous or a flight risk—indeed, Respondents made the decision to parole Petitioner when he arrived, without having any ties to the community or approved work authorizations, and in the nearly two years since his entry into the country, Petitioner‘s ties to the United States have only increased. Petitioner also has complied with the law during his presence in the United States. Thus, even if the Review Statute precluded the Court from reviewing Respondents’ decision to terminate Petitioner‘s parole, the Court would have jurisdiction to review this decision under the Suspension Clause.
B. Whether ICE‘s Detention of Petitioner Violates the APA
Respondents conceded at oral argument that if they unlawfully terminated Petitioner‘s parole, then Respondents do not have a lawful basis for Petitioner‘s detention.101 The Court thus focuses on whether Respondents’ termination of Petitioner‘s parole was lawful under the APA.102
1. Legal Standards Under the APA
Under the APA, a court must “hold unlawful and set aside agency action
arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
“[T]he touchstone of ‘arbitrary and capricious’ review under the APA is ‘reasoned decisionmaking.’”104 “[A]n agency‘s action can only survive arbitrary or capricious review where it has articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made.”105 A court “may not infer an agency‘s reasoning from mere silence”106 because “it makes no difference what [an agency] may have had in mind but failed to express; an administrative agency is not allowed to change direction without some explanation of what it is doing and why.”107 As the Supreme Court has explained, “[a]n agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books. And of course the agency must show that there are good reasons for the new policy,” even though it need not convince the court of the merits of its new policy.108 A court “must not ‘rubber-stamp’ . . . administrative decisions that [it] deem[s] inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.”109
2. Failure to Meet Statutory and Regulatory Requirements
Respondents claim to have terminated Petitioner‘s parole effective April 18, 2025, through a mass distribution, standard-form email sent on April 11, 2025. Respondents contend that at that point, Petitioner “return[ed] to the custody from which he was paroled,” and thus under
Respondents purported to terminate Petitioner‘s parole under the Parole Statute. This provision authorizes the Secretary to grant parole “on a case-by-case basis for urgent humanitarian reasons or significant public benefit” and provides that “when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith return or be returned to the custody from which he was paroled.” Thus, under the statute, a noncitizen may not be “returned to the custody from which he was paroled” unless in the Secretary‘s
Petitioner was paroled into the United States based on his expressed intent to apply for asylum and withholding of removal under CAT. That was the “purpose” of his parole. The parties agree that his original parole expires by its own terms on July 19, 2025. Petitioner received a work permit through his initial entry process that also expires on July 19, 2025. Petitioner applied for asylum and withholding of removal on July 9, 2024. He then applied for a work permit as an asylum-seeker. DHS granted that work permit on June 4, 2025, and that permit expires in June 2030. The Immigration Judge dismissed Petitioner‘s asylum proceeding without prejudice and emphasized in his written order the relevance of the fact that Petitioner would still have avenues to pursue his claim for asylum. Respondents also concede that Petitioner is still in
When asked at oral argument about the sufficiency of the grounds for the termination of parole, counsel for Respondents stated that the only requirement was that the Secretary provide “notice” and that was satisfied by the email sent on April 11, 2025. That, however, is not all that the Parole Statute requires. Under the governing regulations, upon written notice, DHS may terminate parole “upon accomplishment of the purpose for which parole was authorized or when in the opinion of one of the officials listed in paragraph (a) of this section, neither humanitarian reasons nor public benefit warrants the continued presence of the alien in the United States.”110 Thus, written notice is a necessary but not a sufficient condition for compliance with this regulation.
The first clause of this regulation mirrors the Parole Statute. As discussed, that clause has not been met. But there is an alternate method of compliance, the second clause. Under this clause, the agency may terminate parole if an authorized official has found that humanitarian reasons and public benefit no longer warrant a noncitizen‘s presence in the country.
DHS has issued guidance on what it means for the presence of an asylum seeker, such as Petitioner, not to be in the “public benefit.” As explained by U.S. District Judge James E. Boasberg,
In 2009, DHS issued the “Parole Directive,” which further fleshes out when, precisely, it is in the “public benefit” for an asylum-seeker to be paroled. See ICE Directive 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009). According to the Directive, if an asylum-seeker establishes her identity and that she presents neither a flight risk nor a danger to the public, her detention “is not in the public interest,” and thus ICE “should, absent additional factors . . . parole the alien.” Id., ¶ 6.2 (emphases added).
Mons v. McAleenan, 2019 WL 4225322, at *2 (D.D.C. Sept. 5, 2019).
Respondents offer no evidence that any authorized official found Petitioner to be a flight risk or a danger to the public. Nor is there evidence that such an official found that humanitarian reasons do not warrant Petitioner‘s presence in the United States. Thus, Respondents fail to show that they
Counsel for Respondents also argued at the hearing that because the April 11th email cited both the Parole Statute and
As Justice Alito commented in Thuraissigiam, as a noncitizen with connections in the United States who is no longer at the “threshold of initial entry,” Petitioner is entitled to due process rights.113 By failing to follow the requirements of either the Parole Statute or
3. Change of Position without Adequate Explanation
As a further ground for granting habeas relief, the Court notes that upon Petitioner‘s entry into the United States, Respondents determined that Petitioner was suitable for parole. Respondents have not provided a reasoned explanation or any changed circumstances that would justify their current departure from their prior decision.117 In fact, the changed circumstances in the record weigh against terminating parole. When Petitioner arrived in the United States, he had no ties to the community and his background was unknown. Now, after nearly two years’ presence in the United States, Petitioner has demonstrated ties to the community, has received a second work authorization based on his asylum-seeking status, and has a record of compliance with the law and the lawful requirements imposed by USCIS.
It is Respondents’ burden to “provide [a] reasoned explanation for [their] action.”118 “A reasonable basis exists
CONCLUSION
The Court GRANTS the Petition for Writ of Habeas Corpus (ECF 1) based on Count Two and ORDERS Defendants immediately to release Petitioner from custody. Further, in aid of the Court‘s jurisdiction, which is hereby retained, the Court ORDERS pursuant to the All Writs Act,
IT IS SO ORDERED.
DATED this 9th day of July, 2025.
Michael H. Simon
United States District Judge