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IMMIGRATION AUGUST 28, 2026 | The Indian Eye 39

or bizarre result that is ‘demonstrably at cise of power”. Several circuit courts have DelCarmen-Lara changes the way gins when a period of authorized stay ends
odds with the intentions of its drafters.’” also agreed. See, eg. here, here and here. advance parole has to be analyzed in any or when a person is present without ad-
In Matter of Forjoe, discussed in detail Loper Bright may have eliminated Chev- case involving prior unlawful presence. A mission or parole, while also recognizing
in a prior blog, the BIA held that “admis- ron deference to the BIA’s interpretation trip on advance parole is no longer just a that some periods still count as authorized
sion” in INA § 237(a)(1)(H) of the INA, of the statute, but the BIA does not get travel event. After the Board’s August 13, stay, including deferred action and certain
8 U.S.C. § 1227(a)(1)(H), refers only to a to invoke Loper Bright to signal to fed- 2026 decision, it may be a “departure” procedural postures. The same guidance
noncitizen’s lawful entry into the United eral courts that its interpretation of the under both INA § 212(a)(9)(B)(i)(I) and makes clear that a later authorized peri-
States after inspection and authorization INA is correct and federal courts should INA § 212(a)(9)(B)(i)(II), and that has od does not wipe out unlawful presence
by an immigration officer, overruling follow suit. It is for federal courts to in- immediate consequences for adjustment already accrued. In practice, that means
Matter of Agour, which had held that dependently interpret an INA provision cases because INA § 245(a) still requires these cases now turn on careful timeline
“adjustment of status constitutes an “ad- without regard to the BIA’s interpretation the applicant to be admissible to the Unit- work: identifying when unlawful presence
mission” for purposes of determining an and its faux invocation of Loper Bright. ed States for permanent residence. Cases started, whether it stopped, what periods
alien’s eligibility to apply for the fraud That holding returns the inquiry to the involving DACA history, prior unlawful may have been authorized, and whether
waiver” under INA § 237(a)(1)(H). In principle from Marbury v. Madison: it presence, adjustment under INA § 245(a), the person can still satisfy the admissibil-
Forjoe, the BIA relied on Loper Bright is the province and duty of the judicial or reopening after a return on parole ity requirement for adjustment despite
to revisit and narrow its own prior inter- department to say what the law is. An should now be screened with DelCar- DelCarmen-Lara.
pretation of INA 237(a)(1)(H) in Agour. Article III federal court must decide in- men-Lara in mind. The unlawful-presence * Damira Zhanatova is an Associate at Cyrus D.
The BIA’s citation to Forjoe in dependently whether INA § 212(a)(9)(B) inquiry remains intensely fact-specific. Un- Mehta & Partners PLLC.
DelCarmen-Lara to support its narrow treats advance-parole travel as a trigger- der the State Department’s 9 FAM 302.11 *Kaitlyn Box is a Partner at Cyrus D. Mehta &
interpretation of the term “departure” re- ing “departure.” guidance, unlawful presence generally be- Partners PLLC.
flects a troubling post-Chevron trend: in ________________________________________________________________________________________________________________________________________________________________________________________________
which the BIA is invoking Loper Bright to
overturn its own more generous readings Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta
of INA provisions. The BIA’s reference & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
to Forjoe in DelCarmen also calls into mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
question whether it is appropriate for the
BIA to rely on Loper Bright to overturn Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
its own past interpretations of regulations, of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
or whether determining what the law re-
quires is best left to federal courts. In Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
Matter of Yajure Hurtado, the BIA held Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
that individuals who entered the United on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
States without inspection are ineligible
for bond pursuant to INA 235(b)(2)(A), Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
relying on Loper Bright. The California and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
federal court disagreed, however, and
held that this “expansive interpretation immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
of ‘applicants for admission’ would effec- the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
tively nullify a portion of the INA through in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.
the DHS’s legislative or interpretive exer-

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