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IMMIGRATION NOVEMBER 15, 2024 | The Indian Eye 34
State Department’s
Interpretation of Matter of
Arrabally and Yerrabelly at
Odds with BIA’s
BY CYRUS D. MEHTA AND The BIA reasoned that trav- and Yerrabelly interpreted (9)(B)(i)(I) relating to the liaison committee posed the
el under a grant of advance the 10 year bar provision un- 3 year bar and INA 212(a) following question:
KAITLYN BOX*
parole is different from a reg- der § 212(a)(9)(B)(i)(I), its (9)(B)(i)(II) relating to the “Members report in-
ular departure from the US, rationale has also applied 10 year bar. The guidance stances where DACA re-
n a previous blog, we an- since the individual is given equally to the 3 year bar un- also emphasizes that Mat- cipients who have received
alyzed Matter of Arra-
Ibally and Yerrabelly, 25 the assurance that they will der § 212(a)(9)(B)(i)(I), but ter of Arrabally and Yerra- Advance Parole have been
be paroled back in the US to had never been officially con-
belly applies equally to INA determined to be inadmissi-
I&N Dec. 771 (BIA 2012), continue to seek the benefit firmed. 212(a)(9)(B)(i)(I), although ble under the three- and/or
a seminal Board of Immi- of adjustment of status. Thus, On September 5, 2024, the BIA decision itself dealt 10-year bars. This is contrary
gration Appeals case which traveling outside the US un- USCIS updated guidance on only with INA 212(a)(9)(B) to the Board of Immigration
held that a departure under der advance parole does not its website to state the fol- (i)(II). The corresponding Appeals decision in Matter
advance parole does not trig- trigger the 10 year bar. Al- lowing: section of the USCIS Policy of Yarrabelly and Arrabel-
ger the 10 year bar provision though Matter of Arrabally Furthermore, under Manual (Volume 8, Part O) ly…Can DOS confirm that
under § 212(a)(9)(B)(i)(I).
Matter of Arrabally and has yet to be updated to re- consular officers are instruct-
Yerrabelly, 25 I&N Dec flect this guidance. ed to apply the Yerrabelly/
771 (BIA 2012), a non- Matter of Arrabally and Arrabelly holding and that,
citizen who accrued Yerabelly enables individuals as such, any visa applicant
more than 180 days to escape the 3 and 10 year who is traveling pursuant
of unlawful presence bar when they depart the US to the approval of Advance
during a single stay and under advance parole in var- Parole would not require a
left is not inadmissible ious contexts. For instance, waiver under INA§212(d)
under INA 212(a)(9)(B) an applicant for adjustment (3) for a violation of 212(a)
(i)(II) when they again of status can request advance (9)(B)? This would be con-
seek admission, if they parole, and a departure un- sistent with USCIS’s recent
left the United States af- der such advance parole does update…”
ter first obtaining an ad- not trigger the 3 and 10 year
vance parole document. bar. Similarly, a DACA re- DOS RESPONDED BY
While the Board of Im- cipient who obtains advance STATING:
migration Appeals, in parole and travels pursuant
Matter of Arrabally and to this grant of advance pa- In Matter of Arrabally
Yerrabelly, stated that role also does not trigger the and Yerrabelly, 25 I&N Dec.
its decision was limited 3 and 10 year bar. The US- 771(BIA 2012), the Board of
to INA 212(a)(9)(B)(i) CIS has also applied Matter Immigration Appeals held
(II), the board’s reason- of Arrabally and Yerrabelly “that an alien who has left
ing in Matter of Arra- to one who leaves the US and returned to the United
m of bally applies equally to pursuant to travel authoriza- States under a grant of ad-
CYRUS D. MEHTA & PARTNERS PLLC INA 212(a)(9)(B)(i)(I). tion under Temporary Pro- vance parole has not made a
tected Status.
For this reason, we ap-
‘departure . . . from the Unit-
ply the decision to both The U.S. Department of ed States’ within the meaning
INA 212(a)(9)(B)(i)(I) State (DOS) policy surround- of section 212(a)(9)(B)(i)(II)
and (II). ing INA 212(a)(9)(B)(i)(I) of the Act.” The holding and
This language and INA 212(a)(9)(B)(i)(II) discussion throughout Ar-
makes clear that USCIS is highly inconsistent with rabally makes clear that ad-
will apply Matter of Ar- this USCIS guidance, howev- vance parole allows a noncit-
rabally and Yerrabelly er. In meeting with DOS on izen who needs to leave and
when making determi- October 10, 2024 the Amer- return to the United States
2 6th Floor nations of inadmissibil- ican Immigration Lawyers to do so with the expecta-
ity under INA 212(a) Association (AILA)’s DOS tion that the noncitizen “will
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