“a petitioner may not create the jurisdiction that Congress chose to 4 remove simply by cloaking an abuse of discretion argument in constitutional garb”
How later courts described this case
- “a petitioner may not create the jurisdiction that Congress chose to 4 remove simply by cloaking an abuse of discretion argument in constitutional garb”
- “the jurisdiction-stripping provision of 26 § 1252(a)(2)(B)(ii) applies to discretionary parole decisions under § 1182(d)(5)”
- same under Administrative Procedure Act
- finding noncitizen’s removal unlawful due to denial of the right to 8 || counsel
Written by the judges who cited it.
The opinion
1
2
3
4
5 IN THE UNITED STATES DISTRICT COURT
6 FOR THE NORTHERN DISTRICT OF CALIFORNIA
7
8 OMAR IBRAHIM GHAFI, Case No. 24-cv-03736-CRB
9 Plaintiff,
ORDER GRANTING MOTION TO
10 v.
DISMISS
11 DEPARTMENT OF HOMELAND
SECURITY, et al.,
12
Defendants.
13
14 Petitioner Omar Ibrahim Ghafi seeks to have this Court order Defendants—the
15 Department of Homeland Security and several agencies under it—to issue him a boarding
16 letter to travel to the United States and to parole him into the United States upon his
17 arrival. He also seeks to have this Court declare that Defendants violated the law by
18 misleading him into thinking that he was being deported. Defendants move to dismiss for
19 lack of jurisdiction and failure to state a claim upon which relief can be granted. The
20 Court finds this matter suitable for resolution without argument pursuant to Civil Local
21 Rule 7-1(b), vacates the hearing set for May 30, 2025, and GRANTS Defendants’ motion.
22 I. FACTUAL BACKGROUND
23 Petitioner Omar Ghafi is a noncitizen who on May 8, 2023 sought to enter the
24 United States through Chicago, Illinois, claiming to seek asylum. Pet. (dkt. 1) ¶¶ 2–3.
25 Customs and Border Patrol agents informed him that his asylum claim had already been
26 denied and refused to refer him for an interview. Id. ¶ 3. Ghafi attempted to call his
27 attorney to have her speak with the CBP agents, but they told Ghafi they did not want to
1 her that he had no right to counsel and refused to speak further with her. Id.
2 The CBP agents informed Ghafi that he would be sent back to Jordan and that he
3 needed to personally book his return flight, which he did that day. Id. ¶ 5. At the same
4 time, though, the agents paroled Ghafi into the United States pursuant to 8 C.F.R. § 235.2,
5 thus deferring his examination (and with it any determination of whether he would be
6 removed) for one month until June 7, 2023. Id. ¶ 6. The CBP agents issued Ghafi a parole
7 document, but he apparently did not see or understand this document and returned to
8 Jordan the day after he arrived in Chicago. Id. ¶¶ 5–6.
9 Ghafi now seeks a writ of mandamus seeking to require Immigration Customs and
10 Enforcement to facilitate his return to the United States by issuing a boarding letter and
11 paroling him upon arrival in the United States. Id. at 9. He also seeks declaratory relief
12 that the CBP agents acted wrongfully by misleading him into thinking that he was being
13 deported even though he was paroled into the United States. Id. Defendants move to
14 dismiss Ghafi’s petition on two grounds: (1) that the Immigration and Nationality Act
15 strips this Court of jurisdiction to review decisions regarding parole, thus precluding his
16 claims for injunctive relief, and (2) that Ghafi’s allegations as to CBP agents’ conduct do
17 not rise to the level of a due process violation.
18 II. DISCUSSION
19 Through the Immigration and Nationality Act, Congress has limited judicial review
20 of certain decisions of executive agencies tasked with immigration enforcement. As
21 relevant here, 8 U.S.C. § 1182(a)(2)(B)(ii) bars judicial review of any “decision or action
22 of the Attorney General or the Secretary of Homeland Security the authority for which is
23 specified under this subchapter to be in [their] discretion.” This includes parole decisions,
24 which are discretionary. 8 U.S.C. § 1182(d)(5)(A); see also Vasquez Romero v. Garland,
25 999 F.3d 656, 665 (9th Cir. 2021) (“the jurisdiction-stripping provision of
26 § 1252(a)(2)(B)(ii) applies to discretionary parole decisions under § 1182(d)(5)”). Even
27 “constitutional claims [and] questions of law” as to parole decisions may not be initially
1 petition for review filed with an appropriate court of appeals” following an order of
2 removal. 8 U.S.C. § 1252(a)(2)(D), (5); see also Torres-Aguilar v. INS, 246 F.3d 1267,
3 1271 (9th Cir. 2001) (“a petitioner may not create the jurisdiction that Congress chose to
4 remove simply by cloaking an abuse of discretion argument in constitutional garb”).
5 This mostly resolves Ghafi’s claims for relief. Ghafi admits that CBP paroled him
6 into the United States, Compl. ¶ 6, and CBP’s decision to do so is immune from judicial
7 review. So is CBP’s subsequent decision not to parole Ghafi into the United States upon
8 his return; that is still a decision as to parole that this Court lacks jurisdiction to review or
9 force CBP to revisit. See Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1997) (requiring a
10 nondiscretionary duty for mandamus relief to be proper); R.T. Vanderbilt Co. v. Babbitt,
11 113 F.3d 1061, 1065 (9th Cir. 1997) (same under Administrative Procedure Act).1
12 Ghafi attempts to skirt the INA’s jurisdiction-stripping provisions by asserting that
13 he challenges the process, not the results, of CBP’s parole decision-making. See Opp.
14 (dkt. 29) at 5. For instance, he argues that CBP was required to refer him for a credible
15 fear interview because he presented an asylum claim and that CBP officers denied him of
16 his right to counsel when they did not allow him to speak to his attorney. Id. at 4. But
17 these arguments too stall at the simple fact that CBP paroled him into the United States—
18 that is, that CBP did not determine whether Ghafi was admissible when he arrived in
19 Chicago; instead, they deferred his inspection by a month. Thus, the statutory requirement
20 that immigration officers refer noncitizens for a credible fear interview was never
21 triggered, as no immigration officer ever “determine[d] that [Ghafi] … [was] inadmissible
22 under section 1182(a)(6)(C) or 1182(a)(7).” 8 U.S.C. § 1225(b)(1)(A)(ii); see also 8
23 C.F.R. § 235.3 (certain procedures required once a noncitizen “is determined to be
24
25
1 Ghafi’s reliance on ICE Policy Directive No. 11061.1 § 3.1 (Feb. 24, 2012) is misplaced.
That policy does not apply to Ghafi, as he has not alleged that any court has ruled in his
26
favor on a petition for review. See id. § 2 (applying “if an alien who prevails before the
U.S. Supreme Court or a U.S. court of appeals was removed while his or her PFR was
27
pending” (emphasis added)). And in any case, the policy creates no judicially enforceable
1 || inadmissible under [section 1182(a)(6)(C) or 1182(a)(7)]”). Similarly, noncitizens’ right
2 || to counsel under the INA and its implementing regulations applies only once there is an
3 || “examination,” not before. 8 C.F.R. § 292.5(b) (“nothing in this paragraph shall be
4 || construed to provide any applicant for admission in either primary or secondary inspection
5 || the right to representation, unless the applicant for admission has become the focus of a
6 || criminal investigation and has been taken into custody”’); cf. Singh v. Waters, 87 F.3d 346,
7 || 349 (9th Cir. 1996) (finding noncitizen’s removal unlawful due to denial of the right to
8 || counsel). Because Ghafi was neither participating in an examination nor detained as the
9 focus of a criminal investigation when he tried to contact his counsel, he was not entitled
10 || to counsel at the time that CBP paroled him into the United States. Ghafi thus fails to state
11 |} aclaim upon which relief can be granted.
12 | I. CONCLUSION
13 For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss. To
14 || the extent that Ghafi challenges Defendants’ decision whether to parole him into the
15 United States (in 2023 or now), his claims are dismissed without leave to amend because
16 || they challenge a discretionary decision over which this Court lacks jurisdiction. See
5 17 Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)
5 18 |} (dismissal without leave to amend is appropriate if amendment would be futile). To the
19 || extent that he challenges any aspects of Defendants’ process, his claims are dismissed with
20 || leave to amend within 28 days of the issuance of this order. That said, any future
21 || amendment must accord with Ghafi’s well-pleaded allegation that he was, in fact, paroled
22 into the United States on May 8, 2023. See Reddy v. Litton Indus., Inc., 912 F.2d 291, 296
23 || (9th Cir. 1990) (amendments may not contradict allegations in original complaint).
24 IT IS SO ORDERED. rc —
25 Dated: May 27, 2025
CHARLES R. BREYER
26 United States District Judge
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