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Advance Parole Does Not Trigger Unlawful Presence

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By Debbie Smith

Does a departure from the U.S. with advance parole trigger the unlawful presence bar under INA § 212(a)(9)(B)(i)(II)?  In its April 17, 2012 decision, Matter of Arrabally Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the BIA held that a departure under advance parole does not trigger this inadmissibility ground.  The BIA looked to Congress' intent in enacting 212(a)(9)(B)(i)(II) and found that the purpose of the provision did not apply to individuals "who left and returned to the United States pursuant to a grant of advance parole."  While this case concerns individuals with pending adjustment applications who traveled pursuant to advance parole, its significance might extend beyond those particular facts.

The Facts of Arrabally Yerrabelly.  In Matter of Arrabally Yerrabelly, a husband and wife entered the United States on tourist visas and overstayed for more than five years before applying for adjustment of status under 245(i) as the beneficiaries of an employment-based visa petition.  The couple's adjustment applications were held in abeyance for several years, apparently due to visa retrogression.  During this time, the couple requested and were granted advance parole on several occasions to visit their elderly parents, always returning within the terms of their advance parole.  USCIS and later the immigration judge found that the couple triggered the unlawful presence ground of inadmissibility under INA § 212(a)(9)(B)(i)(II) when they returned to the United States with advance parole.

Earlier CIS Guidance and BIA Case Law on Advance Parole and Unlawful Presence.  The BIA's decision in Matter of Arrabally Yerrabelly rejected earlier USCIS guidance and clarified its own case law on this issue.  Agency memos from 1997 and 2009 had concluded that a departure pursuant to advance parole triggers inadmissibility pursuant to 212(a)(9)(B)(i)(II).  This interpretation is reflected in the warning on the advance parole document that parolees may be inadmissible under 212(a)(9)(B)(i)(II) and ineligible for adjustment upon return.  Similarly, the BIA's decision in Matter of Lemus, 24 I&N Dec. 373 (BIA 2007) "Lemus I," declared that "inadmissibility under 212(a)(9)(B)(i)(II) could be triggered by literally 'any departure' from the United States."   In Matter of Arrabally Yerrabelly, the BIA refined Matter of Lemus and construed departures under advance parole in the context of Congressional intent.

The BIA's Rationale.  The BIA reasoned that interpretations of the Immigration Act require guidance "to a degree by common sense, taking into account Congress' intention to enact a symmetrical and coherent regulatory scheme in which all parts are fit into a harmonious whole."  Keeping this overall statutory scheme in mind, the BIA reviewed the legislative history of 212(a)(9)(B)(i)(II) and noted that this provision of the statute provides notice that those in the U.S. without authorization who depart the U.S. will be "unwelcome to return for at least 10 years thereafter."  However, it is paradoxical to warn those who are returning to the U.S. with authorization, that is with advance parole, that they are "unwelcome to return."  The BIA noted that it is inconsistent with the humanitarian purpose of advance parole to impose the unlawful presence bar because it transforms "advance parole from a humanitarian benefit into a means of barring relief." Therefore, the BIA held that an individual cannot become inadmissible under 212(a)(9)(B)(i)(II) based on a trip abroad with advance parole.

What about Others? While the specific circumstances of the Matter of Arrabally Yerrabelly case involve advance parole during the pendency of an adjustment of status application, the rationale of the case appears to apply equally to advance parole granted in other instances.  For example, those granted Temporary Protected Status (TPS) status are allowed to travel and return to the U.S. pursuant to advance parole.  The departure of TPS grantees under advance parole is also based on providing a humanitarian benefit and not creating "a condition of inadmissibility that may not have existed" before the individual departed the United States.  Although the language of Matter of Arrabally Yerrabelly provides a basis for analogy to different factual circumstances, the case does not directly address advance parole in other scenarios.  We will have to wait for the USCIS to interpret the BIA’s decision to understand its full impact. In the meantime, we will be advocating for a broad interpretation.