Page 38 - The Indian EYE 082826

IMMIGRATION AUGUST 28, 2026 | The Indian Eye 38

BIA Overrules Arrabally:

Advance-Parole Travel Can Trigger

the Unlawful-Presence Bar

BY CYRUS MEHTA, For years, Arrabally gave years of the date of such alien’s vance-parole documents warned The 9 FAM guidance states
DAMIRA ZHANATOVA AND KAIT- many noncitizens and their fam- departure or removal from the travelers they could be found in- that both INA § 212(a)(9)(B)(i)
LYN BOX ilies a measure of protection. United States.” The same de- admissible under INA § 212(a) (I) and INA § 212(a)(9)(B)(i)
Under that 2012 BIA decision, cision also states that INA § (9)(B) upon return. DelCar- (II) are triggered by departure,
n August 13, 2026, the a temporary trip abroad on ad- 245(a), 8 U.S.C. § 1255(a), re- men-Lara states the Board but it distinguishes the 3-year
Board of Immigration vance parole was not treated as quires an adjustment applicant had impermissibly read an ex- and 10-year bars. According to 9
OAppeals issued Matter of the kind of “departure” that trig- to prove he or she is “admissible ception into the statute, and it FAM 302.11-3(B)(2), the 3-year
DelCarmen-Lara, 29 I&N Dec. gered the 10-year unlawful-pres- to the United States for perma- now “clarif[ies] that the term bar under INA § 212(a)(9)(B)
830 (BIA 2026), a decision that ence bar. Arrabally reasoned nent residence.” In other words, ‘departure’ under this section (i)(I) applies only where the
immediately changes how prac- that travel under advance parole this is a case about who can still of the INA does not include an person leaves voluntarily before
titioners and noncitizens should was “qualitatively different” be- adjust status after travel and who exception for aliens who leave DHS commences proceedings,
evaluate advance-parole travel. cause it presupposed return to may now be blocked by a bar that the country temporarily un- while the 10-year bar under INA
The Board held that when a per- the United States and continu- Arrabally had once eliminated der a grant of advance parole”. § 212(a)(9)(B)(i)(II) applies af-
son departs the United States ation of the adjustment process. In Board’s view, Congress The facts of the case also ter one year or more of unlawful
under a grant of advance parole, DelCarmen-Lara rejects that used the word “departure,” did make the decision especially presence whether the departure
that trip is still a “departure” for reasoning and returns to a strict- not define it, and did not create important for DACA-based and occurred before, during, or after
purposes of INA § 212(a)(9) er reading of the statute. a special advance-parole excep- Temporary Protected Status ad- removal proceedings and regard-
(B)(i)(II), the 10-year unlaw- That change is significant tion in INA § 212(a)(9)(B)(i) vance-parole. The respondent less of whether the departure was
ful-presence inadmissibility bar. because INA § 212(a)(9)(B) (II). The Board also stressed in DelCarmen-Lara had been voluntary or under a removal or-
In the same decision, the Board (i)(II), as quoted in DelCar- that, elsewhere in the INA, granted DACA in 2013, later der. Although Matter of DelCar-
overruled Matter of Arrabally men-Lara, makes inadmissible a Congress knew how to address departed temporarily, and was men-Lara directly addresses the
and Yerrabelly, 25 I&N Dec. person who “has been unlawful- advance-parole departures ex- paroled back into the United 10-year bar in INA § 212(a)(9)
771 (BIA 2012), the precedent ly present in the United States pressly when it wanted to do so. States on January 1, 2024, pur- (B)(i)(II), its interpretation of
that had long been cited for the for one year or more, and who That textual argument became suant to advance parole. Prior “departure” has implications for
opposite proposition. again seeks admission within 10 the foundation for overruling to DelCarmen-Lara, a DACA the 3-year bar as well, because
Arrabally. The Board ac- or TPS recipient who may have USCIS has previously applied
knowledged the statutory entered the US without inspec- the Arrabally rationale to both
scheme in INA § 212(a)(9) tion could depart the US under INA § 212(a)(9)(B)(i)(I) and
is designed to “compound advance parole, and this would INA § 212(a)(9)(B)(i)(II).
the adverse consequences render them eligible for adjust- Another important fol-
of immigration violations” ment of status as under INA low-up question is whether
by making lawful readmis- 245(a) an eligible applicant for DelCarmen-Lara applies retro-
sion harder after depar- adjustment of status has to be actively. The Board answered
ture, and it cited authority “inspected and admitted or pa- that directly. Because it was ex-
recognizing that treating roled” into the US. The return pressly overruling longstanding
advance-parole travel as a of the applicant under advance Board precedent, it performed
triggering departure may parole, who may have not oth- a retroactivity analysis and held
produce “a harsh result.” erwise been eligible for adjust- that the new rule would apply
The Board nevertheless ment of status due to the entry prospectively. That limitation is
concluded that the statuto- without inspection, rendered critical for pending matters be-
ry text did not permit an ex- them eligible for adjustment cause it preserves an argument
ception for advance-parole of status. This is no longer the that pre-decision advance-parole
travel. DelCarmen-Lara case under DelCarmen-Lara as travel should not automatically
removes a longstanding the trip under advance parole be evaluated under DelCar-
defense that practitioners would now trigger the 3 or 10- men-Lara’s new interpretation.
used to protect clients who year bar. As DelCarmen-Lara DelCarmen also illustrates
traveled with government explains, adjustment applicants how the Supreme Court’s de-
authorization and then must prove they are “admissible cision in Loper Bright v. Rai-
sought to continue fami- to the United States for per- mondo, which abolished the
ly-based or other immigra- manent residence”. USCIS ex- longstanding Chevron doctrine,
tion processes inside the plains, in its Policy Manual, that can be used to overturn prec-
m of United States. adjustment under INA § 245(a) edential BIA decisions that are
favorable to noncitizens. The
generally requires inspection
Arrabally had held the
CYRUS D. MEHTA & PARTNERS PLLC opposite. The BIA there and admission or parole, phys- Chevron doctrine required
said that respondents who ical presence, visa availability, courts to defer to an agency’s
temporarily left the Unit- admissibility or a waiver, and a interpretation of an ambiguous

ed States under advance favorable exercise of discretion. statue. Although the BIA did

  parole did not thereby In other words, a return on ad- not directly reference Loper
   
­ make a “departure” that vance parole may satisfy the Bright in DelCarmen, Loper
€
‚   triggered inadmissibility “paroled” part of adjustment Bright’s influence can been felt
under INA § 212(a)(9)(B) eligibility, but if the travel itself in the BIA’s citation to Matter
(i)(II). In support of that triggers inadmissibility under of Forjoe as supporting the idea
conclusion, Arrabally em- INA § 212(a)(9)(B)(i), the per- that “Adjudicators must adhere
phasized the distinctive na- son may still be unable to adjust, to the unambiguous meaning of
2 6th Floor ture of advance parole and unless a waiver or another solu- statutory language, unless do-

    discounted the fact that ad- tion is available. ing so would lead to an absurd

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