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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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