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    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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