District Court Requires DHS To Follow 2009 Parole Directive For INA 235(b) Detainees



On July 2, 2018, Judge James E. Boasberg of the United States District Court for the District of Columbia issued a decision in Damus v. Nielsen, Case 1:18-cv-00578 [PDF version]. Several aliens who were detained under section 235(b) of the Immigration and Nationality Act (INA) brought suit, alleging that the U.S. Immigration and Customs Enforcement (ICE) had not followed its own policy directives in considering whether they were eligible for parole. The plaintiffs sought class certification for similarly situated individuals in the jurisdiction five ICE Field Offices. In his decision, Judge Boasberg granted a preliminary injunction against the Department of Homeland Security (DHS), finding that the plaintiffs had sustained their burden of showing that ICE was not following its policy directive and that the equities weighed in favor of granting the injunction.

In this article, we will briefly examine Judge Boasberg's decision and what it will mean going forward.

Statutory, Regulatory, and Policy Background

The plaintiffs in the case were detained under section 235(b) of the Immigration and Nationality Act (INA). Section 235(b) is a mandatory detention provision for arriving aliens who express a fear of persecution in their home countries and then have that fear determined to be credible through an asylum interview. It provides that such individuals “shall be detained for further consideration of the application for asylum.” However, section 235(b) provides that the Attorney General may, in his or her discretion, temporarily parole an alien subject to mandatory detention into the United States, provided that it is determined that the alien is “neither a security risk nor a risk of absconding,” and that the parole is “for urgent humanitarian reasons or significant public benefit,” under 8 C.F.R. 212.5(b).

On December 8, 2009, the ICE published a policy directive titled “Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture” (“Directive”) [PDF version]. The guidance took effect on January 4, 2010, and has not since been rescinded as of July 3, 2018. The Directive dealt with considering when the parole of an alien subject to detention under section 235(b) would be to the “public benefit.” The following is an excerpt from Judge Boasberg's opinion where he quoted from the Directive in the pertinent parts to the issue before him:

'Each alien's eligibility for parole should be considered and analyzed on its own merits and based on the facts of the individual alien's case,' and that if an asylum-seeker establishes his identity and that he presents neither a flight risk nor a danger to the public, '[ICE] should, absent additional factors … parole the alien on the basis that his or her continued detention is not in the public interest.' (Internal citations omitted.)

The Directive also set forth a set of procedures for evaluating whether a section 235(b) detainee merited parole. Below, we will paraphrase Judge Boasberg's summary of this process:

The alien shall be provided notice of the parole process in a language that he understands;
The alien shall be granted a parole interview within seven days of a credible fear finding;
The alien shall be given notification of a parole determination; and
The alien shall be given a “brief explanation of the reasons for any decision to deny parole.”

Judge Boasberg noted that the Directive makes clear that any decision to grant or deny parole is discretionary. However, he added that the Directive “establishes certain minimum procedures and processes that are to be utilized in making these determinations.” To this effect, he noted that the Directive provides directions on how to interpret the term “public interest” for ICE officers and “mandates uniform recordkeeping and review requirements” for such decisions. (Quoting from the directive.)

Who are the Plaintiffs?

The case involved nine named plaintiffs. The plaintiffs also sought to represent class members who are “asylum seekers who traveled to the United States, were found to have a credible fear of persecution, and were referred to immigration proceedings to decide their asylum claims.” They alleged that during the pendency of asylum proceedings, they were detained “with no individualized review of whether their detention is necessary.”

For more detail on the named plaintiffs, please see pages 5-6 of the decision [PDF version].


Judge Boasberg explained that the plaintiffs alleged that the parole practices at five ICE Field Offices are not in accord with the Directive. They alleged that the shift was due to the immigration policies of the Trump Administration. In addition to the facts of their own detention, the plaintiffs noted that nearly 100% of the parole requests by section 235(b) detainees were denied in the initial months of the Trump Administration, marking a steep drop from the percentages in the previous administration.

Jurisdiction, Class Certification, and Standing

Much of Judge Boasberg's opinion is devoted to issues of jurisdiction, class certification, and standing. These sections occupy pages 9-23 of the decision [PDF version]. Below, we will explain briefly that Judge Boasberg found that the he had jurisdiction over the plaintiffs' claims insofar as they alleged that ICE was not following its own Directive, that the plaintiffs' proposed class qualified for provisional class certification, and that they had standing to sue. Those who are interested in exploring the facts and the issues pertaining to these points more in-depth should consult the text of the decision.

Judge Boasberg concluded that the Court had jurisdiction over the plaintiffs' claims that the Government was not complying with its own Directive. Here, Judge Boasberg rejected a variety of arguments ventured by the Government to argue that several jurisdiction-stripping provisions of the INA precluded his considering these claims. However, Judge Boasberg concluded that he did not have jurisdiction to inquire into specific parole determinations. Accordingly, Judge Boasberg concluded that the matter over which he had jurisdiction was “the manner in which parole is currently being granted (or denied).” The Government had raised 8 C.F.R. 1252(a)(2)(B)(ii) and 1252(f)(1) in arguing that the Court lacked jurisdiction.

Judge Boasberg also granted the plaintiffs' request for provisional class certification. Their class consisted of “arriving asylum-seekers who 'are found to have a credible fear of persecution or torture' and 'who are or will be detained by ICE … after having been denied parole under the authority of the [five] ICE Field Offices.'” Furthermore, Judge Boasberg concluded that the class had Article III standing to sue.

Please consult the decision for further points from Judge Boasberg's analysis of these issues. For our purposes, this brief summary will suffice.


The plaintiffs alleged the following about the DHS's actions:

1. That the DHS's actions were contrary to the Administrative Procedures Act (APA) in that they failed to comport with the Directive;
2. That the DHS's actions violated the APA by failing to conform with the INA; and
3. That the DHS's actions abridged the plaintiffs' due process rights under the Fifth Amendment.

Judge Boasberg concluded that the plaintiffs' first theory, that the DHS violated the APA by failing to comport with its directive, warranted relief. Accordingly, he did not reach the second two claims.

In order to prevail and win an injunction, the plaintiffs had to show that they were likely to prevail on the merits of the first claim were the case to be fully litigated.

The thrust of the plaintiffs' claim involved the Accardi doctrine, which derives from the Supreme Court of the United States decision in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) [PDF version]. Judge Boasberg described the decision as “vacat[ing] a deportation order because it was issued without procedures that conformed to relevant agency regulations.” Judge Boasberg also noted the Supreme Court decision in Morton v. Ruiz, 415 U.S. 199, 232 (1974) [PDF version], wherein the Court held that Accardi applies with particular force in cases in which “the rights of individuals are affected…”

Judge Boasberg set out to assess whether the plaintiffs' Accardi argument supported their first claim, that the DHS's failure to follow its Directive ran afoul of the APA. Citing to a number of precedential decisions from the D.C. Circuit and other circuits, Judge Boasberg sided with the plaintiffs, concluding that they could bring their Accardi argument with regard to their first claim. In Mass. Fair Share v. Law Enf't Assistance Admin., 758 F.2d 708, 711 (D.C. Cir. 1985) [PDF version], the D.C. Circuit held that “a federal agency must adhere firmly to self-adopted rules by which the interests of others are to be regulated.” Judge Boasberg rejected the Government's arguments that the Plaintiffs could not rely on the Directive because it was not “binding” on ICE and because it, by its own terms, did not create any substantive rights. Among other things, Judge Boasberg noted that the Government took the position in hearings that the Directive was binding on ICE.

Finally, Judge Boasberg assessed whether the plaintiffs were likely to succeed on the merits of their Accardi claim, having established that they could bring it.

From February to September 2017, 100-percent of affected parole applications were denied at the ICE's El Paso, Philadelphia, and Newark Field Offices. 92-percent and 98-percent of such applications were denied at the Los Angeles and Detroit Field Offices respectively. In prior years, over 90-percent of such applications at these field offices were approved.

In hearings, the Government conceded that the statistics indicated that there were questions as to whether the five field offices were following the Directive, based on the high denial rates. Judge Boasberg rejected the Government's arguments that the plaintiffs had “cherry-picked” the ICE field offices at issue in the case. Judge Boasberg concluded that the Government had failed to explain the dramatic decline in parole grants in 2017, and noted that in addition to the Government stating that the Directive remains in force in hearings, then-Secretary of Homeland Security John Kelly made clear on February 20, 2017, that the Directive remained in effect [see article].

In addition to the statistics, Judge Boasberg found compelling testimony from the plaintiffs and from experienced immigration attorneys representing them that ICE had departed from its own Directive. These points are addressed on pages 34-35 of the decision.

For the foregoing reasons, Judge Boasberg determined that the plaintiffs were likely to succeed on the merits of their Accardi claim. Furthermore, Judge Boasberg concluded that the plaintiffs established that class members would suffer irreparable harm if he did not grant a preliminary injunction and that the balance of harms and the public interest weighed in favor of ensuring that the Government complied with its obligations under the APA. Judge Boasberg clarified, in granting the injunction, that “the issuance of injunctive relief in this case serves only to hold [the Government] accountable to [its] own governing policies and to ensure that Plaintiffs receive the protections they are due under the Parole Directive.”


Judge Boasberg's injunction will require the Government to afford class members detained in the jurisdiction of the five affected ICE Field Offices to be afforded the protections inherent in the Parole Directive. In short, the Government will have to provide class members with parole interviews after a credible fear finding is made and actually make individualized parole determinations in accordance with the Directive.

Beyond complying with the order for the time being, it is unclear how the Government will respond. Although the DHS has sought to increase the use of immigration detention subsequent to President Donald Trump's January 25, 2017 Executive Orders to that effect, then-Secretary Kelly made clear that the Directive remains binding policy on ICE officers in February 2017. Furthermore, in hearings in the instant case, ICE maintained that the Directive remains binding policy, notwithstanding its own concession that at least some ICE field offices may not be following its terms. The Government will have the option of simply complying with the Directive (either while pursuing the case further or not) or rescinding and or superseding the Directive. We will update the site with more information on the issue as it becomes available.

It is important to add that this article is intended to be a brief discussion of Judge Boasberg's decision and what it means for section 235(b) detainees going forward. As such, did not go into depth on every question presented and Judge Boasberg's reasoning on each and every point. Those who are interested in studying all of the issues more closely should consult his very readable opinion [PDF version].

Any individual who intends to claim asylum or is for any reason facing removal and/or immigration detention should consult with an experienced immigration attorney immediately. Please see our website's sections on Asylum & Refugee Protection [see category] and Immigration Detention [see category] to learn more about related issues to those discussed in this article.