S.M.H. v. McGregor et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
S.M.H.,
Petitioner,
v.
Christopher McGregor, et al.,
Respondents.
No. CV-26-00620-PHX-MTL (JZB)
ORDER
Petitioner filed a Petition for Writ of Habeas Corpus (Doc. 1), challenging his re-
detention after the government revoked his humanitarian parole. The Petition is fully
briefed. (Docs. 9, 12.)
I.
Petitioner is an Afghan national who entered the United States in February 2024 at
a port of entry in California. (Doc. 1 ¶ 1; Doc. 1-3 at 5.) When Petitioner presented himself
at the port of entry, he was “determined to be inadmissible[] and given a Notice to Appear.”
(Doc. 1-3 at 5.) Petitioner was “paroled into the United States to seek asylum,” after which
Petitioner’s removal proceedings were terminated without prejudice “due to the fact that
[Petitioner] could not understand the sole interpreter available nationwide for his native
language.” (Doc. 1 ¶¶ 1, 3.) Petitioner filed an asylum application, which remains pending.
(Id. ¶ 4.) Petitioner’s humanitarian parole was set to expire on February 2, 2026. (Id. ¶¶ 25,
63; Doc. 1-3 at 3.)
On December 16, 2025, Petitioner was re-detained, issued a new Notice to Appear,
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and placed back in removal proceedings. (Doc. 1 ¶ 5.) In his new Notice to Appear,
Petitioner was classified as an “arriving alien.” (Doc. 1-3 at 18.) Petitioner alleges that he
should have been provided with a pre-deprivation hearing, that his detention violates his
due process rights under the Fifth Amendment, and that his detention violates the
Administrative Procedure Act (“APA”) because his humanitarian parole was “unilaterally
canceled.” (Doc. 1 ¶¶ 6, 8-9.)
II.
Respondents do not dispute that Petitioner was “granted parole into the United
States for two years from the date he was initially released.” (Doc. 9 at 2.) Respondents
argue, however, that Petitioner was deemed an “arriving alien” subject to mandatory
detention under 8 U.S.C. § 1225(b)(2)(A), even considering that he was initially granted
parole, and his parole was “properly revoked.” (Id. at 2-3, 3 n.2.) Respondents also argue
that the decision to revoke Petitioner’s parole is not “reviewable by this Court.” (Id. at 3.)
Respondents conclude that Petitioner was therefore not entitled to a pre-deprivation hearing
and is also not entitled to a bond hearing now. (See id. at 3-8.) The Court agrees.
A.
First, Petitioner was not entitled to a hearing before being re-detained. Under 8
U.S.C. § 1182(d)(5), the “Secretary of Homeland Security may . . . 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.” Aliens paroled under this section are not
deemed admitted and “when the purposes of [the] 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 “his case shall continue to be dealt
with in the same manner as that of any other applicant for admission.” Id. (emphasis added).
The Ninth Circuit has explained that there is “no substantive liberty or property
interest . . . in temporary parole status.” Wong v. United States, 373 F.3d 952, 968 (9th Cir.
2004), abrogated on other grounds as stated in Pettibone v. Russell, 59 F.4th 449, 452-53
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(9th Cir. 2023). “The INA does not create any liberty interest in temporary parole that is
protected by the Fifth Amendment,” but instead “makes clear that whether and for how
long temporary parole is granted are matters entirely within the discretion of the Attorney
General.” Id. And as the Supreme Court has explained, the “procedural component of the
Due Process Clause does not protect everything that might be described as a ‘benefit.’”
Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005). For example, “a benefit is not
a protected entitlement if government officials may grant or deny it in their discretion.” Id.
By its own terms, parole under § 1182(d)(5) is such a benefit that may be granted or denied
in the discretion of the Secretary of Homeland Security. Petitioner therefore lacks any
interest in maintaining his parole that is protected by the Due Process Clause and that would
require the government to provide him with a hearing before terminating parole.
Moreover, aliens who arrive at a port of entry—“even those paroled elsewhere in
the country for years pending removal”—are “not considered to have entered the country”
but are “treated for due process purposes as if stopped at the border.” Dep’t of Homeland
Sec. v. Thuraissigiam, 591 U.S. 103, 139 (2020) (quotation marks omitted). Such aliens
have “only those rights regarding admission that Congress has provided by statute,” and
the “Due Process Clause provides nothing more.” Id. at 140. As the Supreme Court has
long held, in these circumstances “the decisions of executive or administrative officers,
acting within powers expressly conferred by Congress, are due process of law.” Id. at 138
(emphasis added) (citation omitted). Petitioner was not entitled to anything beyond the
process provided him under the INA before being re-detained. See Angov v. Lynch, 788
F.3d 893, 898 (9th Cir. 2015) (rejecting that an alien’s “constitutional right to procedural
due process” was violated because the alien “never formally entered the United States” and
thus “ha[d] no such right”).
B.
Second, to the extent Petitioner seeks such relief, Petitioner is not entitled to a bond
hearing while he is currently in custody.1 When Petitioner presented himself for inspection
1 The Petition focuses on the claims that Petitioner should have been afforded a pre-
deprivation hearing and that cancellation of Petitioner’s parole violated the Administrative
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at a port of entry, he became an “arriving alien” and an “applicant for admission.” See 8
U.S.C. § 1225(a)(1) (stating that an “alien . . . who arrives in the United States (whether or
not at a designated port of arrival . . . ) shall be deemed . . . an applicant for admission”); 8
C.F.R. § 1.2 (defining an “arriving alien” as an “applicant for admission coming or
attempting to come into the United States at a port-of-entry”). His status as an arriving
alien did not change when he was granted parole, nor did it change when his parole was
revoked. See 8 U.S.C. § 1182(d)(5) (stating that “parole of such alien shall not be regarded
as an admission of the alien”); 8 C.F.R. § 1.2 (stating that an “arriving alien remains an
arriving alien even if paroled pursuant to [8 U.S.C. § 1182(d)(5)], and even after any such
parole is terminated or revoked”).
Applicants for admission who are found “not clearly and beyond a doubt entitled to
be admitted . . . shall be detained.” 8 U.S.C. § 1225(b)(2)(A). Aliens classified under
§ 1225(b)(2)(A) are not entitled to a bond hearing. See Chavez v. Noem, No. CV-26-00323-
PHX-MTL (JFM), — F. Supp. 3d —, 2026 WL 381618, at *2 (D. Ariz. Feb. 9, 2026); see
also Buenrostro-Mendez v. Bondi, 166 F.4th 494, 499 (5th Cir. 2026) (“Section 1225(b)(2)
does not include any exception that permits the government to release detained aliens on
bond.”). Here, Petitioner was deemed inadmissible when he presented himself at the port
of entry (Doc. 1-3 at 5), so he was not found “clearly and beyond a doubt entitled to be
admitted,” 8 U.S.C. § 1225(b)(2)(A). Petitioner was therefore properly classified as subject
to mandatory detention.
The Court rejects Petitioner’s reliance on the decision in Bautista v. Santacruz,
— F. Supp. 3d —, 2026 WL 468284 (C.D. Cal. Feb. 18, 2026). (Doc. 12 at 3 & n.2). The
Bautista court purported to vacate Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (B.I.A.
2025), a Board of Immigration Appeals (“BIA”) decision holding that Immigration Judges
lack jurisdiction to provide bond hearings to applicants for admission. See Bautista, — F.
Supp. 3d —, 2026 WL 468284, at *10. The Ninth Circuit has stayed this order pending
Procedure Act, 5 U.S.C. § 706(2)(A). (See Doc. 1 at 19.) But the Court nevertheless
addresses entitlement to a bond hearing while in detention because the parties briefed the
analysis underlying application of § 1225(b)(2)(A). (See Doc. 9 at 3-6; Doc. 12 at 3-4.)
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appeal because, as the court reasoned, the government established a “likelihood of success
on its position that the district court lacked jurisdiction to vacate the BIA’s decision in
Yajure Hurtado.” Bautista v. Exec. Off. for Immigr. Rev., No. 25-7958 (9th Cir. Mar. 31,
2026). Regardless, as explained above, the Court agrees with Respondents that Petitioner
is properly classified as subject to mandatory detention.
C.
Finally, the Court agrees with Respondents that the Court lacks jurisdiction to
review the decision to terminate Petitioner’s parole and that Petitioner was provided with
all the process he was owed in terminating that parole. “[N]o 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 . . . to be in the discretion of the Attorney
General or the Secretary of Homeland Security . . . .” 8 U.S.C. § 1252(a)(2)(B)(ii). The
Ninth Circuit has held that a district court “properly reject[s] [the] argument that it [has]
jurisdiction to review the revocation of advance parole” under 8 U.S.C. § 1182(d)(5). See
Hassan v. Chertoff, 593 F.3d 785, 789-90 (9th Cir. 2010) (per curiam); see also Vazquez
Romero v. Garland, 999 F.3d 656, 665 (9th Cir. 2021) (“[T]he jurisdiction-stripping
provision of § 1252(a)(2)(B)(ii) applies to discretionary parole decisions under
§ 1182(d)(5).”); Torres v. Barr, 976 F.3d 918, 931-32 (9th Cir. 2020) (en banc) (“[T]he
parole authority under [8 U.S.C. § 1182(d)(5)] of the [INA] is delegated solely to the
Secretary of Homeland Security . . . .” (third alteration in original) (quotation marks
omitted)). Indeed, § 1182(d)(5) (emphasis added) provides that an alien previously granted
parole must be returned to custody “when the purposes of such parole shall, in the opinion
of the Secretary of Homeland Security, have been served.” Additionally, the APA—which
is the basis for Petitioner’s claim that his parole was unlawfully cancelled (Doc. 1 at 19)—
states that it does not apply to “statutes [that] preclude judicial review” or to “agency action
[that] is committed to agency discretion by law.” 5 U.S.C. § 701(a); see also Padilla v.
Bondi, No. CV-24-00332-TUC-JCH, 2025 WL 2663010, at *5 (D. Ariz. Sep. 17, 2025)
(stating the “Court does not have the jurisdiction to review the denial of Plaintiff’s advance
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parole application” and citing 5 U.S.C. § 701(a) and 8 U.S.C. § 1252(a)(2)(B)); Syed v.
Mayorkas, No. 3:23-cv-00083-IM, 2023 WL 6596330, at *3 (D. Or. Oct. 10, 2023)
(“Because the decision to parole Plaintiff into the United States is discretionary under
§ 1182(d)(5), the INA and APA prevent this Court from reviewing the USCIS’s
decision.”).
Petitioner essentially requests the Court to review the discretionary decision that the
purposes of Petitioner’s parole had been served. (See Doc. 1 ¶ 64; Doc. 12 at 4 n.3.) The
Court lacks jurisdiction to do so.2
The Court also rejects Petitioner’s challenge that he did not receive sufficient
process regarding his parole termination. Petitioner cites a regulation requiring that parole
“be terminated upon written notice to the alien,” arguing that his parole was improperly
revoked without explanation (see Doc. 1 ¶ 64), but as Respondents note (Doc. 9 at 6 n.4),
this same regulation states that “[w]hen a charging document is served on the alien, the
charging document will constitute written notice of termination of parole.” 8 C.F.R.
§ 212.5(e)(2)(i). By serving Petitioner with a Notice to Appear (see Doc. 1-3 at 18-21),
Petitioner was given the written notice due to him under the regulation. See United States
v. Albino-Loe, 747 F.3d 1206, 1211 (9th Cir. 2014) (“A Notice to Appear, like a complaint
in a civil case or an indictment in a criminal case, is . . . a charging document.”).3
2 The Court notes that, even if Petitioner were correct that the reason he was granted
parole—to pursue asylum—was not fulfilled at the time his parole was revoked, this would
not preclude the Secretary of Homeland Security from terminating his parole. See
Gonzales-Gandini v. Holder, 384 F. App’x 658, 659 n.4 (9th Cir. 2010) (per curiam)
(“Contrary to Gonzales’s contentions, the regulation permits termination of parole on
notice even if the purpose for which the advance parole was granted—here, to pursue
adjustment of status—has not been fulfilled.”). Petitioner has not argued that the Secretary
could not have concluded that “public benefit [did not] warrant[] the continued presence
of the alien in the United States,” which is an independent ground for terminating parole.
8 C.F.R. § 212.5(e)(2)(i); (Doc. 12 at 4 n.3 (simply arguing that the “purpose of the
humanitarian parole has therefore not been met”)). Further, Petitioner does not address that
his parole was set to expire less than two months after he was re-detained and, according
to the Petition (filed three days before his parole was set to expire), his affirmative asylum
application remained pending. (Doc. 1 ¶ 4.) By Petitioner’s logic, he could not have
lawfully been detained on the day his parole expired because his purpose of parole—
seeking asylum—had not been fulfilled. Petitioner provides no legal authority that would
justify such a result.
3 Although the Notice to Appear is dated three days after Petitioner was arrested (compare
Doc. 1 ¶ 5, with Doc. 1-3 at 18), Petitioner does not argue that this mere three-day
difference caused the alleged APA violation.
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III.
Accordingly,
IT IS ORDERED that the Petition (Doc. 1) is denied. The Clerk of Court is
directed to enter judgment accordingly and close this case.
Dated this 14th day of April, 2026.
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