TOKHI v. CITIZENSHIP AND IMMIGRATION SERVICES

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

GHOTA TOKHI, DAOUD TOKHI,

ROWBINA TORHI, MAHMOOD TOKHI,

MASOOD TOKHI, 8.T., and T.T.,

Civil Action No. 24-8952 (RK)

Plaintiffs,

V. OPINION

KRISTI NOEM, in her official capacity as

Secretary of Homeland Security, and

UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES,

Defendant.

KIRSCH, District Judge

THIS MATTER comes before the Court upon Defendants Kristi Noem, in her official

capacity as Secretary of Homeland Security, and United States Citizenship and Immigration

Services’ (“USCIS”) (together “the Government” or “Defendants”) Motion to Dismiss (ECF Nos.

25, 25-1, “MTD”) the Amended Complaint (ECF No. 16-1, “Am. Compl.”) filed by Plaintiffs

Ghota Tokhi, Daoud Tokhi, Rowbina Tokhi, Mahmood Tokhi, Masoon Tokhi, $.T. and T.T.

(together the “Tokhis” or “Plaintiffs”). Plaintiffs opposed the Motion (ECF No. 26, “Opp.”) and

the Government replied (ECF No. 27, “Rep.”). The Court has considered the parties’ submissions

and resolves the matter without oral argument pursuant to Federal Rule of Civil Procedure 78 and

Local Civil Rule 78.1. For the reasons set forth below, the Government’s Motion is GRANTED

and the Amended Complaint is DISMISSED.

I. BACKGROUND

A, HUMANITARIAN PAROLE

This case centers on one family’s application for—and subsequent denial of—

humanitarian parole. The Immigration and Nationality Act (“INA”) allows the Secretary of

Homeland Security, in his or her discretion, to temporarily parole individuals into the United States

on a “case-by-case basis for urgent humanitarian reasons.” 8 U.S.C. § 1182(d)(5S)(A), Parole is not

admission; rather it is temporary permission to enter the United States without any permanent

immigration status, See Bamba vy. Riley, 366 F.3d 195, 196 n.2 (3d Cir. 2004) (citing 8 U.S.C.

§ 1182(d)(5)). Anyone can apply for parole on behalf of a noncitizen outside the United States by

filing Form I-131, “Application for Travel Documents, Parole Documents, and Arrival/Departure

Records.” See [-131, Application for Travel Documents, Parole Documents, and

Arrival/Departure Records, USCIS, https://www.uscis.gov/i-131 (last updated August 18, 2025),

The USCIS website, uscis.gov, explains the process of applying for parole:! First, a

petitioner (7.e., an applicant) submits an I-131 application on behalf of a noncitizen living outside

the United States, called a “beneficiary.” See Humanitarian or Significant Public Benefit Parole

for Aliens Outside the United States, US. Citizen & Immigr. Servs.,

https://www.uscis.gov/humanitarian/humanitarian_parole (last updated Jan, 24, 2025). Second,

USCIS personnel review the application to confirm their office has jurisdiction over the request,

determine whether expedited review is required, and transfer the request as needed, fd, Third, if a

beneficiary appears eligible for parole based on “urgent humanitarian reasons,” USCIS sends a

1 The Court properly considers information that is publicly available on a government website in deciding

a motion to dismiss. See Vanderklok v. United States, 868 F.3d 189, 205 n.16 (3d Cir, 2017) (taking judicial

notice of publicly available information on government websites); Mayer v. Belichick, 605 F.3d 223, 230

(3d Cir, 2010) (allowing a court to consider “matters of public record” on a motion to dismiss).

“conditional approval notice” or “notice of continued parole processing” to the petitioner and

advises on next steps for screening, including a required appointment at a United States embassy.

Id. Fourth, the beneficiary must fill out an additional form, DS-160, Application for Nonimmigrant

Visa, and appear for an appointment at a U.S. embassy. id. Fifth, after the embassy appointment,

the consular section will issue travel documents to the United States—but only “{i]f no derogatory

(negative) information or new identity information is found during the vetting.” /d. With travel

documents in hand, a beneficiaty can then travel to the United States, where he will be inspected

at the border and seek authorization of parole for a length of time to be determined at the port of

entry. fd. The travel documents themselves, even once issued by the consular section, do not

guarantee parole; they only authorize travel to a United States port of entry, where a United States

Customs and Border Protection official will make a parole decision. See 8 C.F.R. § 212.5).

B. FACTUAL BACKGROUND

For purposes of the present Motion, the Court accepts the well-pled allegations in the

Amended Complaint as trae. See In re Cognizant Tech. Sols. Corp. Derivative Litig., 101 F.4th

250, 255 & n.4 (3d Cir. 2024) (citing Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011)).

Plaintiff Ghota Tokhi (“Ghota”) is a United States citizen residing in New Jersey, (Am. Compl. {

2.) On or about September 30, 2021, Ghota filed Form 1-131 on behalf of six members of her

family (each of whom the Court will subsequently refer to by first name): Daoud Tokhi; (ii)

Mahmood Tokhi; (iii) Masood Tokhi; (iv) Rowbina Tokhi; (v) S.T.; and (vi) T.T. (See id. q 15.)

At the time of the filing of the form, the six beneficiaries were living in Afghanistan, which was

also where they had citizenship, (See id. §{{ 16-17.) Plaintiffs feared persecution by the Taliban

because Ghota is a United States citizen and Mahmood’s “role as the leader of a ‘civil society’

organization under the prior [anti-Taliban] government.” (/d. {| 15.)

On November 29, 2022, Ghota received six identical notices from USCIS, each of which

explained that her case for parole was “eligible for further processing,” but could not be completed

while the Tokhis were in Afghanistan because the U.S. embassy in Afghanistan had suspended all

operations, including consular services, and could therefore not screen the Tokhis for parole. (/d.)

Accordingly, the notices explained, the Tokhis had to relocate to a country that had a functioning

U.S, embassy and then contact USCIS to continue the parole screening process. (/d.)

In January 2023, the Tokhis left their home in Afghanistan and moved to Pakistan, a

country with an operational U.S. embassy and consulate. (/d. § 17.) They were lawfully admitted

into Pakistan for just a few days. (7d. { 18.)* Since then, the Tokhis have been “unlawfully present”

in Pakistan and unable to work. (7d. 9 23.) Without legal status in Pakistan, the Tokhis cannot make

a living, have been arrested (but have avoided imprisonment by paying bribes), and are “afraid to

even leave their hotel room.” (/d. J 25-27.)

On June 27, 2023, the Tokhis’ applications for parole were denied for unexplained reasons.

(Id. Vf 28-29; see also e.g., ECF No. 16-2 at 201-02.) On August 18, 2023, the Tokhis filed a

lawsuit in this Court, see Tokhi v. Mayorkas, No, 23-5215 (D.N.J. 2023), but voluntarily dismissed

the case upon being issued “Conditional Approval Notice[s]” on November 7, 2023. (Am. Compl.

August 2023, Daoud applied to the Pakistani government to extend their stay, but the application was

refused, (Am. Compl. ff 21-22.)

3 Attached to the Amended Complaint is 333 pages of exhibits, including the Tokhis’ parole applications

and correspondence with USCIS. (See generally ECF No. 16-2.) In deciding the present motion, the Court

may rely on the exhibits that are “attached to the complaint, matters of public record, [and] undisputedly

authentic documents if the complainant’s claims are based upon these documents,” Mayer, 605 F.3d at 230.

The Court may also consider any “document integral to or explicitly relied upon in the complaint.” In re

Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (emphasis omitted). In their

Amended Complaint, Plaintiffs repeatedly quote from and reference their various applications and notices,

and those documents are therefore integral to the subject complaint. Moreover, Defendants do not contest

the authenticity of any documents. See Mayer, 605 F.3d at 230.

qq 30-31; see also No. 23-5215, ECF Nos. 10, 11,)4 In relevant part, each Conditional Approval

Notice included the following language:

Parole has been conditionally approved for a period of 2 Years after arrival in the

United States, contingent upon successful completion of Consular processing. The

parole beneficiary must complete the Department of State (DOS) DS-160,

Application for Non-Immigrant Visa, online as soon as possible, . . . If USCIS

determines that the beneficiary is not eligible for parole such as due to new

information found during the overseas processing steps, USCIS may deny the

parole application, USCIS will notify the petitioner, beneficiary, and attorney of

record of the decision to deny the case in writing. .., Provided that USCIS discovers

no information that would impact eligibility for parole, a travel document will be

issued to the parole beneficiary named above.

(Am, Compl. { 32; see also, e.g., ECF No. 16-2 at 314-15.)

Although the Tokhis allege that they “fully complied with all the requirements for parole

specified” in the Conditional Approval Notice (Am. Compl. { 33), they each received parole denial

notices on December 23, 2024. Ud. | 34.) In relevant part, the Parole Denial Notice included the

following language:

On a case-by-case basis, the Secretary of Homeland Security may temporarily

parole into the United States an individual for urgent humanitarian reasons or

significant public benefit. . .. This parole authority is discretionary and not intended

solely to circumvent normal visa-issuing procedures or other remedies available

within the law. We carefully reviewed your application in accordance with the law,

regulation, and USCIS policy and determined that parole is not warranted.

Therefore, we have denied your request for parole. You have failed to establish by

a preponderance of the evidence that your request warrants a favorable exercise of

discretion to parole the beneficiary into the United States. After review of all the

information concerning your application, including supporting documentation,

background checks, country conditions, and all other relevant evidence available to

us, negative factors outweigh positive factors in your case and therefore your parole

request has been denied as a matter of discretion.

4 Neither the Amended Complaint nor any of the briefs explain how or why the Tokhis were issued parole

denials in June and then issued conditional approvals in November, just over four months later, Plaintiffs

do not contest the issuance of the conditional approvals.

(See, e.g., ECF No. 16-2 at 213.) Plaintiffs assert that they do not know what “negative factors”

precipitated the denial of their parole, and allege that they “have no reason to believe such

{negative] factors occur a) because if it did [Plaintiffs] should be aware of it[,] b) the Defendants

have never informed them of any such negative factor[,] and c) because if any such negative factor

existed the USCIS should not have granted [Plaintiffs] Conditional Approval Notices of their

parole.” Ud. J] 35-38.)

Despite their incredulity at the parole denial, Plaintiffs posit (and summarily dismiss) one

possible “negative factor’: on November 20, 2024—just one month before their parole

applications were denied—Daoud received a “notice of intent to deny” informing him that “USCIS

was made aware that U.S. Government records showed [he] had encountered Coalition Forces in

2010 and that [he was] apprehended and detained by Coalition Forces in 2010.” (See id. | 39; ECF

No. 16-2 at 225-26.) Doud responded to the notice with an unsworn declaration, explaining that

the Coalition Forces “released [him], [and] they apologized and said there was a misunderstanding

and then they said that they are ready to help [him] with whatever damage there was to [his] house

and then gave [him] about 2000 Afghanis.” (ECF No. 16-2 at 227; see also Am. Compl. { 40.)

Because the Coalition Forces purportedly admitted they made a mistake and apologized, Plaintiffs

contend that “this could not possibly be a negative factor.” (Am. Compl. 40.)

Plaintiffs ostensibly remain in Pakistan, having exhausted their $19,000 in savings. (/d. {ff

44..45,) Seeking redress for what they claim is an improper denial of their parole applications,

Plaintiffs bring three causes of action: (1) Breach of Contract; (2) Promissory Estoppel; and (3)

Writ of Mandamus.

C. PROCEDURAL BACKGROUND

Plaintiffs filed the present action on September 4, 2024. (ECF No. 1.) The Court granted

the parties’ joint motion to stay the case on December 30, 2024, and directed the parties to provide

a joint status report by March 20, (ECF No. 5.) In early March 2025, Plaintiffs attempted to

voluntarily dismiss this matter twice, though the filings were rejected by the Clerk’s office for

failure to follow ECF guidelines. (See ECF Nos. 6, 7.)° On March 20, the parties submitted a joint

status report, (ECF No. 8.) Plaintiffs reported that although they “initially intended to dismiss this

case,” they decided to instead prepare an amended complaint “in light of the recent announcement

[of] an extensive ‘travel ban’ on citizens of Afghanistan.” (/d. at 2.) Defendant asserted that

Plaintiff's case was moot because their application had been denied. (/d.) The Court granted

Plaintiffs’ request to file an amended complaint. (ECF No. 9.)

Rather than file an amended complaint through a standalone filing on the docket, however,

Plaintiffs, on April 8, 2025, filed an Application for an Order to Show Cause, apparently under

Local Rule 65.1, as to why a Preliminary Injunction should not issue. (ACF No. 16.) Appended to

the Application was an Amended Complaint. (ECF No. 16-1.) Defendant expressed an intent to

file a motion to dismiss the Amended Complaint. (See ECF No. 20.) At a teleconference on April

22, 2025, the Court denied Plaintiff's Application and directed the parties to brief the motion to

Defendants argue that Plaintiffs’ various Motions to Dismiss—-which were terminated by the Clerk’s

Office for being improperly filed (see ECF Nos. 6, 7)—were self-executing pursuant to Fed. R. Civ. P. 41,

and therefore had the effect of ending the case without any Court action, (See MTD at 9-10 (citing In re

Bath & Kitchen Fixtures Antitrust Litig., 535 F.3d 161, 165 (3d Cir. 2008)).) Defendants did not raise this

issue in their joint status report, filed on March 20, 2025 (see ECF No. 8), their response to Plaintiffs’

application for a preliminary injunction (see ECF No. 21), or their pre-motion letter (see ECF no. 20).

Indeed, the Court notes that all parties acted in accordance with the assumption that the case was ongoing,

in reliance on the Clerk’s quality control messages. The Court declines to dismiss this case based on

Plaintiffs’ prior Rule 41 submissions.

~”

dismiss. Defendant filed a Motion to Dismiss (ECF No. 25), Plaintiffs opposed (ECF No, 26), and

Defendant replied (ECF No. 27). ‘The Motion is now ripe for decision.

Ik. LEGAL STANDARD

A. SUBJECT MATTER JURISDICTION

Federal Rule of Civil Procedure (“Rule’) 12(b)(1) authorizes a defendant to move to

dismiss a complaint for lack of subject matter jurisdiction. As an initial matter, a court must first

ascertain whether a Rule 12(b)(1) motion “presents a ‘facial’ attack or a ‘factual’ attack on the

claim at issue, because that distinction determines how the pleading must be reviewed.” Long v.

Se. Pa. Transp, Auth,, 903 F.3d 312, 320 (3d Cir. 2018) (citation omitted). “A facial 12¢b)(1)

challenge, which attacks the complaint on its face without contesting its alleged facts, is like a

12(b)(6) motion in requiring the court to consider the allegations of the complaint as true.” Hartig

Drug Co. Inc. v. Senju Pharm, Co., 836 F.3d 261, 268 Gd Cir, 2016) (internal quotation marks

and citation omitted). A factual challenge, on the other hand, “attacks allegations underlying the

assertion of jurisdiction in the complaint, and it allows the defendant to present competing facts.”

Id. In a factual challenge, the “trial court is free to weigh the evidence and satisfy itself as to the

existence of its power to hear the case” and “the plaintiff will have the burden of proof that

jurisdiction does in fact exist.” Petruska v. Gannon Uniy., 462 F.3d 294, 302 n.3 Gd Cir, 2006)

(quoting Mortensen y. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).

Where, as here, Defendants bring a facial attack of the Court’s subject matter jurisdiction,

the Court reviews the well-pleaded facts in the complaint in the light most favorable to Plaintiffs.

Manivannan y. United States Dep’t of Energy, 42 F.4th 163, 169 Gd Cir. 2022), Because federal

courts are courts of limited jurisdiction, “[i]t is to be presumed that a cause lies outside this limited

jurisdiction and the burden of establishing the contrary rests upon the party asserting jurisdiction.”

G. W. v. Ringwood Bd. of Educ., 28 FAth 465, 468 (3d Cir. 2022) (quoting Kokkonen v. Guardian

Life Ins. Co, of 511 U.S. 375, 377 (1994)). Thus, Plaintiffs must show that this Court has

subject matter jurisdiction to survive the Rule 12(b)(1) Motion. Potter vy. Cozen & O'Connor, 46

148, 155 (3d Cir. 2022) (citation omitted).

B. FAILURE TO STATE A CLAIM .

For a complaint to survive dismissal under Rule 12(b)(6), it must contain “sufficient factual

matter” to state a claim for relief that is “plausible on its face.” Asheroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)), Clark v. Coupe,

55 F.Ath 167, 178 (3d Cir, 2022). A claim is facially plausible “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged,” /d. When assessing the factual allegations in a complaint, courts “disregard

legal conclusions and recitals of the elements of a cause of action that are supported only by mere

conclusory statements.” Wilson y. USI Ins. Serv. LLC, 57 F.4th 131, 140 Gd Cir. 2023), The court

accepts all allegations in the complaint as true and gives the plaintiff “the benefit of every favorable

inference to be drawn therefrom.” Kulwicki, 969 F.2d at 1462. “Factual allegations must be enough

to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

In deciding a Rule 12(b)(6) motion, the court can only consider “the complaint, exhibits

attached to the complaint, matters of public record, as well as undisputedly authentic documents

if the complainant’s claims are based upon these documents.” Mayer, 605 F.3d at 230. A court

may also consider any document “integral to or explicitly relied upon in the complaint” when

ruling on a motion to dismiss. In re Burlington Coat Factory, 114 F.3d at 1426.

□

WE. =©DISCUSSION

Endeavoring to gain entry to the United States, Plaintiffs assert the following novel legal

theory®: Defendants, by denying the Tokhi’s parole applications, breached a contract embedded in

the conditional approval notices. (See Am. Compl, {ff 52-77.) Despite Plaintiffs’ sympathetic

predicament, the Court lacks subject matter jurisdiction to reach the merits of this case. Congress,

in enacting the INA, has shielded many immigration decisions—-including determinations of

eligibility for humanitarian parole—from judicial review. Plaintiffs’ creative repackaging of its

contentions as seeking enforcement of a contract rather than review of an executive immigration

decision amounts to a distinction without a difference. Moreover, even if this Court did have

jurisdiction of Plaintiffs’ claims, the explicit conditional language in the notices makes clear that

the Government neither entered into nor breached any contract with any Plaintiff.

A. SUBJECT MATTER JURISDICTION

Defendants argue that this Court lacks subject matter jurisdiction over this matter because

the INA precludes review of certain discretionary decisions made by the Secretary of Homeland

Security, including decisions to deny parole. (See MTD at 11.) Plaintiffs do not argue that judicial

review is unavailable in the parole context, rather they maintain that their claim is for enforcement

of a contract, not judicial review. (Opp. at 6.) According to Plaintiffs, arguments about the

availability of jurisdiction under the INA are “beside the point.” (/d.) The Court disagrees.

Broadly speaking, “[d]istrict courts have jurisdiction to review agency action under 28

U.S.C. § 1331, ‘subject only to preclusion-of-review statutes created or retained by Congress.’”

§ Indeed, at a teleconference with the Court on April 22, 2025, counsel for Plaintiffs categorized the present

matter as a “case of first impression” and indicated that he would not be able to point to any court that has

held that a Notice of Conditional Approval is a binding contract. (See Transcript of Apr. 22, 2025

Teleconference at 6:11-14)

"W

Bakran y. Sec’y, U.S. Dep't of Homeland Sec., 894 F.3d 557, 562 3d Cir, 2018) (quoting Chehazeh

v. Att'y Gen., 666 F.3d 118, 126 (3d Cir. 2012)), The INA includes one such “preclusion-of-

review” provision, See 8 U.S.C. § 1252(a)(2)(B)Gi). Specifically, Section 1252 provides:

“Notwithstanding any other provision of law (statutory or nonstatutory) ... no court shall have

jurisdiction to review . . . any [] 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.” Id.

Review of decisions made pursuant to the parole statute, 8 U.S.C. § 1182(d)(5)(A), is

plainly precluded by Section 1252. First, the parole statute is part of the “subchapter” referenced

in § 1252(a)(2)(B)(ii). The subchapter at issue includes Sections 1151 through 1382 of Title 8 of

the United States Code, which contains Section 1182, Second, the parole statute is discretionary

by its terms because it specifies that “(t]he Secretary of Homeland Security may ... a his

discretion parole into the United States temporarily under such conditions as he may prescribe . .

8ULS.C. § 1182(d)(5)(A); see Geda v,. Dir, of USCIS, 126 F.4th 835, 842 Gd Cir, 2025) C[T]his

jurisdictional bar applies not to all decisions the Secretary is entitled to make, but to a narrower

category of decisions or actions where Congress has taken the additional step to specify that the

sole authority for the action is in the Secretary’s discretion.” (cleaned up)); Solfane v. U.S. Dep't

of Just., 381 F.3d 143, 146 Gd Cir, 2004) (“The key to § [1252](a)(2)(B)(ii) lies in its requirement

that the discretion giving rise to the jurisdictional bar must be ‘specified’ by statute.”); Khan v.

Att’y Gen., 448 F.3d 226, 232 (3d Cir. 2006) (same). Accordingly, this Court is precluded from

reviewing a parole decision by the Secretary of Homeland Security—including the decision to

deny the Tokhis’ parole applications.

11

Courts in this District routinely find that they lack jurisdiction to review discretionary

parole decisions. See, e.g., Clifton M. v. Decker, No. 18-15760, 2019 WL 13298586, at *4 (DNL.

Mar. 19, 2019) (“The statutory section authorizing parole for urgent humanitarian reasons . . . is

precisely the kind of discretionary decision that § 1252(a)(2)(B) precludes this Court from

reviewing.” (citations omitted)); Lorenzo v. Taylor, No. 17-11640, 2018 WL 1092455, at *1

(D.N.J. Feb, 28, 2018) (“[CJourts in this district and other circuit courts hold that the decision to

parole for immigration detainees is within the sole discretion of the Attorney General, and federal

district courts do not have jurisdiction under federal law to review such decisions.”); Codina y.

Chertoff, No. 06-105, 2006 WL 2177673, at *2 (D.N.J. July 31, 2006) (“Petitioner’s parole request

under 8 U.S.C. § 1182(d)(5)(A) was denied. The Court cannot review this denial of discretionary

relief... as the statute expressly grants the Attorney General discretion to grant or deny parole.”).

The Court has no basis to diverge from these decisions.

Plaintiffs’ argument—that they seek enforcement of a contract rather than judicial review

of a discretionary parole decision--is unpersuasive. The thrust of Plaintiffs’ contractual argument

is that the Conditional Approval Notices that Plaintiffs received on November 7, 2023 contained

the following binding contractual language: “Provided that USCIS discovers no information that

would impact eligibility for parole, a travel document will be issued for the parole beneficiary

named above.” (See Am. Compl. { 32 (emphasis in original)). The “will” language, according to

Plaintiffs, “imposes a mandatory duty upon the Defendants.” (fd. 9 55 (citing James v. Quinlan,

866 F.2d 627, 629 (3d Cir. 1989)’),) Plaintiffs explain that “USCIS said it ’will’ give the plaintiffs

7 The case relied on by Plaintiffs is about whether prisoners have a liberty interest in job assignments,

wherein the court relied in part on whether any statute included language “of a mandatory character” such

as “‘shall,’ ‘will’ or ‘must’” to restrict the decision-making authority of prison officials, See James, 866

F.3d at 629. Unquestionably, the statute at issue here includes no such mandatory language, and uses

discretionary language instead. See 8 U.S.C. § 1182(d)(5)(A), Plaintiffs’ reliance on this case to support the

49

conditional parole, and, by implication, parole itself, unless it ‘determines that the beneficiary is

not eligible for parole.” (Opp. at 11.) Plaintiffs acknowledge that they may be deemed ineligible

based on “new information found during the overseas processing steps,” but posit that this is an

“objective standard” that Defendants have failed to satisfy. (fd.)

Here, Plaintiffs’ contract theory is predicated on the notion that Defendants did not find

any “new information” to deny the parole applications. (See Am. Compl. {| 59 (alleging that “[nJo

new (or any) derogatory information has been found regarding the TOKHIS, and they remain as

eligible for parole as they were on the date of the Notice”).) To assess this premise, however, the

Court would need to determine why parole was denied and whether any adverse information had

been uncovered. Indeed, Plaintiffs’ own pleading probes the Secretary’s rationale by first alleging

that Doud received notice of the intent to deny his parole application and then explaining why

Doud’s record of being apprehended and detained by Coalition Forces could not possibly have

been proper grounds for denial, (See Am. Compl. {[ 39-40.) The Court does not know—and will

not speculate as to-~-why Plaintiffs’ parole applications were denied. To attempt to answer that

question in this judicial forum would contravene Congress’ intent to preclude judicial probing and

review of the Secretary’s discretionary decision. See 8 U.S.C. § 1252(a)(2)(B) (Gi).

Plaintiffs cite to a 2014 case from the Court of Federal Claims in an attempt to distinguish

what it asks the Court to do (i.e., enforce a contract) from that which is statutorily prohibited □□□□□

judicial review), (Opp. at 6.) That case, after examining statutes, case law, and a legal dictionary,

determined that “judicial review” unambiguously “contemplates that a court will review a decision

issued by another tribunal.” Cardiosom, LLC y. United States, 115 Fed. Cl. 761, 774~75 (2014).

mandatory nature of the word “will” in @ government agency notice that is otherwise replete with

conditional language, is inapposite.

12

However, Plaintiffs have failed to distinguish the present case from Cardiosom, aside from stating

that Cardiosom involved an APA claim, and this case does not. (See Opp. at 6.) There is no logical

way to enforce the purported contract—assuming arguendo one exists—without conducting a

judicial review of the Secretary’s underlying denial reasoning, and Plaintiffs have cited no

authority allowing this Court to do so.

Accordingly, the Court lacks subject matter jurisdiction over this matter and is compelled

to dismiss. Generally, a court’s finding a lack of subject matter jurisdiction ends the inquiry. See

In re Orthopedic “Bone Screw” Prods, Liab, Litig., 132 F.3d 152, 155 Gd Cir, 1997). Here,

however, in light of the novel issue before the Court and the very difficult current personal

predicament of the Plaintiffs, the Court will proceed to address the merits. See, e.g., Bowers v.

Nat'l Collegiate Athletic Ass’n, 346 F.3d 402, 415-16 (assuming the existence of statutory

jurisdiction and proceeding to the merits); Schober v. Schober, 761 F. App’x 127, 130 (3d Cir.

2019) (affirming decision of magistrate judge who held that she lacked jurisdiction and, in the

alternative, would dismiss on other grounds); United States v. Washington, No, 20-2333, 2023 WL

2945902, at *4 (3d Cir. Apr. 14, 2023) (“In sum, we lack jurisdiction to hear Washington’s

remaining habeas claims, but even if we had jurisdiction, those clatms would fail on their merits.”

(emphasis added)).

B. BREACH OF CONTRACT

Even if this Court did have subject matter jurisdiction over this matter, the Court cannot

embrace Plaintiffs’ novel contract theory because the Conditional Approval Notice that the Tokhis

received was not a contract, and there is no basis to compel the Government to grant Plaintiffs’

14

parole application based on the language of the Notice.® In New Jersey,® the “basic features” of a

contract are “offer, acceptance, consideration, and performance by both parties.” Shelton vy.

Restaurant.com, Inc., 70 A.3d 544, 556 (N.J. 2013). “A contract arises from offer and acceptance,

and must be sufficiently definite that the performance to be rendered by each party can be

ascertained with reasonable certainty.” Weichert Co. Realtors v. Ryan, 608 A.2d 280, 284 (N.J.

1992) (cleaned up). Accordingly, to prevail on a breach of contract claim, a plaintiff must prove

four elements: “first, that the parties entered into a contract containing certain terms; second, that

plaintiffs did what the contract required them to do; third, that defendants did not do what the

contract required them to do, defined as a ‘breach of the contract’; and fourth, that defendants’

breach, or failure to do what the contract required, caused a loss to the plaintiffs.” Goldfarb vy,

Solimine, 245 A.3d 570, 577 (NJ. 2021) (cleaned up).

The Court has serious misgivings that Plaintiffs can establish any of the requisite elements

of contract formation and breach. Without question, Plaintiff's breach of contract claim fails at the

third element, because there is no indication from the Amended Complaint that Defendants “did

not do what the contract required them to do.” See id. The Conditional Approval Notice is, by its

Defendants also argue that sovereign immunity “shields the Federal Government and its agencies from

suit” for equitable relief in a breach of contract case. (MTD at 15 (quoting Dep’t of Army v, Blue Fox, Inc,,

525 U.S. 255, 260 (1999},) However, the Third Circuit has held that the APA waives sovereign immunity

of “all nonmonetary claims against federal agencies and their officers, regardless of whether or not the cases

seek review” under the APA itself. Treasurer of NJ. v. U.S. Dep’t of Treasury, 684 F.3d 382, 397 (3d Cir.

2012). Defendants concede that this 2012 case “does hold that sovereign immunity is waived for equitable

actions not brought under the APA,” and asks this Court to construe ambiguity here in favor of immunity.

(Rep. at 6.) Defendants have not pointed to any ambiguity in the APA’s statutory fext or in the caselaw.,

Accordingly, the Court does not dismiss the breach of contract claim on sovereign immunity grounds.

The parties do not contest that New Jersey contract law applies. (See, e.g., Am. Compl. ff] 48-49; MTD

at 19; Opp. at 10.)

qe

title and terms throughout the document, conditional—its approval depends on the satisfaction of

a variety of conditions.

The Notice contains the following language that provides a basis to deny parole even if all

beneficiaries “did what the contract required them to do,” see Goldfarb, 245 A.3d at 577: “If the

USCIS determines that the beneficiary is not eligible for parole such as due to new information

found during the overseas processing steps, USCIS may deny the parole application. USCIS will

notify the petitioner, beneficiary, and attorney of record of the decision to deny the case in writing.”

(Am. Compl. {32 (emphasis added); see also, e.g., ECF No. 16-2 at 314.) Here, the Notice allows

the Government to both deny parole approval and still comply with the terms it sets, so long as it

finds that the beneficiary is not eligible for parole. This is precisely what happened in the case of

the Tokhis; Defendants determined that the Tokhis were not eligible for parole as part of the

overseas processing steps. (Am. Compl. | 34.) Accordingly, Defendants determined that Plaintiffs

did not satisfy the conditions precedent for parole.

Plaintiffs further assert that the denial notice ‘did not identify any negative factors.” Ud. |

35.) However, even assuming the terms of the Conditional Approval Notice act as a binding

contract upon Defendants, those terms do not require Defendants to identify the negative factors.

The terms only require Defendants to “notify” the parties “of the decision to deny the case in

writing” (id. | 32), which is what occurred here. (fd. { 34; see also, e.g., ECF No. 16-2 at 213.)

'© One of the conditions embedded in the Notice was to “complete the Department of State (DOS) DS- □□□□

form “as soon as possible.” (See Am. Compl. {[ 32; see also, e.g., ECF No. [6-2 at 314.) Plaintiffs neither

allege that they completed this form, nor include a copy of this form in their voluminous exhibit. See

Chemtech Int'l, Ine. v. Chem, Injection Techs., Inc., 247 F. App’x 403, 405 (3d Cir. 2007) (“A complaint

that alleges a breach of contract without avercing compliance with conditions precedent does not state a

valid breach of contract claim.”} Instead, they conclusorily state that they “fully complied with all the

requirements for parole specified” in the Notice. (Am. Compl. J 33.) Buried on page 247 of Plaintiffs’

exhibit, is a declaration that the Tokhis completed the DS-160 form “online as soon as [they] could.” (ECF

No. 16-2, at 247 (Decl. of Mahmood Tokhi),)

14

Plaintiffs focus on the word “will” used throughout the Conditional Approval Notice (see, e.g.,

Am, Compl, 54-55; Opp, at 11) but ignore and/or minimize the many conditions stated directly

in the same document. Indeed, “no one could reasonably have thought” that the word “will” alone

“was intended to create legally binding obligations.” See Monaco y. Am. Gen. Assurance Co., 359

F.3d 296, 308 (3d Cir, 2004) (citing Geldreich vy. Am Cyanamid Co,, 691 A.2d 423, 427 (NJ.

1997)); (see also MTD at 20-21; Rep. at 10.)

Notwithstanding the unambiguous discretion embedded in the Conditional Approval

Notices and under the INA, Plaintiffs suggest analogizing to a separate well-known government

agreement that is both discretionary and enforceable: criminal plea agreements. (Opp. at 12).

Plaintiffs argue that adopting the Defendants’ reasoning as to the Conditional Approval Notices

“would lead to the conclusion that all plea agreements are unenforceable because they create a

binding contract that could never be modified at the discretion of the prosecutor.” (d.). Plea

agreements, however, are easily distinguishable: unlike parole applications, which are statutorily

committed to the discretion of the Secretary of Homeland Security, see 8 U.S.C. § 1182(d)(5)(A),

prosecutors do not have unfettered discretion to enter into plea agreements; such agreements are

subject to judicial approval. See, e.g., United States v. Gonzalez, 918 F.2d 1129, 1133 (3d Cir.

1996) (“It is axiomatic that a plea agreement is neither binding nor enforceable until it is accepted

in open court.”). Contrary to Plaintiffs’ assertion, the Court’s determination here that Defendants

did not breach a contract in denying Plaintiffs’ parole applications does not in any way call into

question the validity of plea agreements.

Plaintiffs have not cited to a single case from any court in the country holding that

Conditional Approval Notices are contracts, or that the Government breaches a contract by

denying parole applications. The Court finds no basis to endorse this novel legal theory today.

17

C, PROMISSORY ESTOPPEL

Plaintiffs’ promissory estoppel claims are equally unavailing. Under New Jersey law,

“(p]romissory estoppel is made up of four elements: (1) a clear and definite promise; (2) made

with the expectation that the promisee will rely on it; (3) reasonable reliance; and (4) definite and

substantial detriment.” Goldfarb, 245 A.3d at 577 (quoting Toll Bros., Inc. v. Bd. of Chosen

Freeholders of Burlington, 944 A.2d 1, 19 (NJ. 2008)).

Although Plaintiffs’ promissory estoppel claim fails on a variety of grounds, !! Plaintiffs

have notably failed to allege any reliance on Defendants’ purported promises. Plaintiffs allege that

they detrimentally relied on Defendants’ promise to grant parole when they traveled from

Afghanistan to Pakistan for the sole purpose of completing the required steps for parole. (See Am,

Compl. Ff 67-71.) Plaintiffs’ own allegations illustrate, however, that they did not relocate to

Pakistan in reliance on any promise contained in the Conditional Approval Notice, because they

had not even received that notice yet when they moved to Pakistan, Indeed, Plaintiffs allege that

on November 29, 2022, Ghota received six identical Notices of Continued Parole Processing. (Id.

These Notices explained that “the beneficiary must arrange travel to a country where there

is a U.S. embassy or consulate to continue processing of the parole request.” Ud.) Thereafter,

“shortly prior to January 6, 2023,” the Tokhis arrived in Pakistan. (/d. 17.) Nearly ten months

later, on November 7, 2023, the Tokhis received Conditional Approval Notices. (id. § 31.)

Accordingly, it is impossible for Plaintiffs reasonably relied on the Conditional Approval Notices,

'! Unlike breach of contract, Plaintiffs’ promissory estoppel claim may indeed also be barred by sovereign

immunity, because Congress’ waiver of sovereign immunity in the breach of contract context “does not

extend to claims for promissory estoppel.” Talley v. Penn, Dep't of Corr, No, 19-1589, 2024 WL 1253626,

at *21 (B.D. Pa. Mar, 21, 2024) (citing Steinberg v. United States, 90 Ped CL. 435, 443 (2009); Hercules

Inc. v. United States, 516 U.S. 417, 423 (1996); Jabion v. United States, 657 F.2d 1064, 1070 (9th Cir.

18

which postdate their relocation, and Plaintiffs have not alleged any additional facts evidencing

reliance.

D. Writ OF MANDAMUS

Plaintiffs’ third and final claim is brought pursuant to the Mandamus Act. Ud. JY] 78-81.)

This Act empowers courts to issue writs of mandamus “to compel an officer or employee of the

United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. A

writ of “mandamus is a drastic one, to be invoked only in extraordinary situations.” Semper v.

Gomez, 747 F.3d 229, 251 (3d. Cir. 2014) Gnternal quotation marks and citation omitted); see alse

Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (describing a writ of mandamus as

“one of the most potent weapons in the judicial arsenal” (internal quotation marks and citation

omitted)}). To qualify for mandamus, the party seeking the writ must meet three elements: “(1) a

clear and indisputable right to relief, (2) that the government agency or official is violating a clear

duty to act, and (3) that no adequate alternative remedy exists.” Temple Univ. Hosp., Inc. v. Sec’y

US. Dep’t of Health & Hum. Servs., 2 F.4th 121, 132 d Cir. 2021), A court can, in its discretion,

decline to issue a writ. Cheney, 542 U.S, at 381.

As set forth above, Plaintiffs have failed to aliege that any government agency or official

had a “clear duty to act.” See Temple Univ. Hosp., Inc., 2 F.Ath at 132, Instead, the decision to

deny Plaintiffs’ parole application is entirely discretionary, and provides no such duty. See 8

§ 1182(d)(5)(A); see also Heckler v. Ringer, 466 U.S. 602, 616 (1984) (finding that the

writ of mandamus only provides a remedy if defendant owes a “clear nondiscretionary duty”

(emphasis added)). Plaintiffs mount no real objection to this argument. (See Opp. at 13.) In any

event, even if there were any merit to Plaintiffs’ mandamus claim, the Court declines to find a writ

is warranted. See Cheney, 542 U.S, at 381.

19

CONCLUSIONS

For the foregoing reasons, Defendants’ Motion to Dismiss (ECF No. 25) is GRANTED

and Plaintiffs’ Amended Complaint (ECF No, 16-1) is DISMISSED. An appropriate Order

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ROBERT KirsCcH™~ \

UNITED STATES Disrricr: 'UDGE

Dated: September 3, 2025

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