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AAO Applies Matter of Arrabally and Yerrabelly to TPS Recipient

By Sarah Bronstein

On September 13, 2012 the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS) issued a decision applying the Board of Immigration Appeals’ decision in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), to an individual who had been granted Temporary Protected Status (TPS) who departed the United States under a grant of advance parole.  In Matter of Arrabally and Yerrabelly, the BIA held that an individual who leaves the United States pursuant to a grant of advance parole does not trigger the ten-year bar for unlawful presence under INA § 212(a)(9)(B)(i)(II) for having been unlawfully present in the United States for more than one year.  The BIA found that a departure pursuant to advance parole is not a departure within the meaning of INA § 212(a)(9)(B)(i)(II).  The Respondents in Matter of Arrabally and Yerrabelly were both applicants for adjustment of status.  In the aftermath of this decision, it has been unclear whether USCIS would apply the BIA’s decision in other contexts.

On October 26, 2012, the AAO reissued its decision in this case eliminating references to the applicant’s TPS status, but still finding that his departure on advance parole was not a departure within the meaning of INA § 212(a)(9)(B)(i)(II).

While this decision by the AAO is a positive sign that USCIS will apply Matter of Arrabally and Yerrabelly broadly, we cannot draw any definitive conclusions particularly in light of the AAO’s withdrawal and revision of its original decision.  CLINIC understands that USCIS is planning to issue guidance to the field on Matter of Arrabally and Yerrabelly, particularly as to whether it applies to DACA recipientsCLINIC is tracking this issue and will inform the network as soon as there is an update.