After years of advocates pursuing the argument that a noncitizen’s release at the border must be classified as parole under INA § 212(d)(5), which qualifies them to apply for adjustment under INA § 245(a) or the Cuban Adjustment Act (CAA), the Board of Immigration Appeals (Board) has issued a disappointing and conclusory decision in which it found that they do not. According to the Board, where the Department of Homeland Security (DHS) elects to place individuals apprehended near the border in full removal proceedings under INA § 240 and then releases them, that release is a conditional parole pursuant to INA § 236(a)(2)(B) rather than humanitarian parole pursuant to INA § 212(d)(5). Matter of Cabrera-Fernandez, 28 I&N Dec. 747 (BIA 2023). While this decision will inevitably lead to many denials of adjustment, advocates should continue to zealously pursue alternate arguments, especially in defensive cases.

Summary of Facts and Procedural History

The respondents in Cabrera-Fernandez were encountered by DHS less than a mile from the southern border of the United States, about 40 minutes after they had entered the country without inspection. DHS detained the respondents for a few days after their initial apprehension and then released them. DHS charged the respondents as inadmissible under INA § 212(a)(6)(A)(i), alleging that they were present without having been admitted or paroled. The respondents conceded removability, and the Immigration Judge (IJ) sustained the charges.

The IJ found that the respondents’ releases from DHS custody constituted grants of humanitarian parole under INA § 212(d)(5)(A). Following the Supreme Court’s logic in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), the IJ determined that the respondents had been subject to expedited removal and, as such, mandatory detention under INA § 235(b)(1). The only mechanism for release from such detention, pursuant to Jennings, is humanitarian parole under INA § 212(d)(5). Because the respondents had been paroled, the IJ concluded that they qualified for adjustment under the CAA. DHS appealed the grant to the Board.

Board Discussion

Although the Board agreed with the IJ that the respondents were “applicants for admission,” thus initially subject to INA § 235(a)(1), it disagreed with the IJ’s conclusion as to the nature of the respondents’ release. The Board followed Matter of E-R-M & L-R-M, 25 I&N Dec. 520, 523 (BIA 2011) (E-R-M-) in holding that DHS has the authority to elect whether to initiate expedited removal proceedings under INA § 235(b)(1)(A)(i) or full removal proceedings under INA § 240. Without clearly stating that individuals placed directly in INA § 240 proceedings must be detained under INA § 236(a), the Board concluded that the respondents in this case were released on conditional parole by DHS under INA § 236(a)(2)(B). Such a conditional parole, the Board said, following Matter of Castillo-Padilla, 25 I&N Dec. 258-263 (BIA 2010), does not constitute “parole” for the purposes of INA § 245(a) or the CAA. The Board therefore found the respondents ineligible for such relief.

The Board next found the IJ’s reliance on Matter of O-, 16 I&N Dec. 344 (BIA 1977), in which it had previously found the releases of military evacuees from Vietnam in exclusion proceedings to have been paroles, misplaced. It said that, unlike the government in Matter of O-, DHS in this case had an alternate statutory means to release the respondents – rather than release them via INA § 212(d)(5) parole, DHS could release them on conditional parole under INA § 236(a)(2)(B) given their placement in INA § 240 proceedings. In Matter of O-, because the respondents were in exclusion proceedings under former INA § 235(b), they were ineligible for conditional parole.

Analysis and Practical Impact

To call the Board’s decision an “analysis” would be an overstatement. As noted above, while the Board cited E-R-M-, it did not contrast the decision in that case with that in Jennings. The Board swiftly summarized Jennings as finding that individuals detained “in expedited removal proceedings are not entitled to bond hearings under the terms of the statute irrespective of detention length,” and ignored the Supreme Court’s lengthy discussion of the law governing the apprehension, inspection, and detention of noncitizens encountered while seeking admission at the U.S. border. The Jennings decision, issued in 2018, could be read to have overruled E-R-M- in substance if not outright. While the Board in E-R-M- found that DHS can elect between expedited removal proceedings under INA § 235 and full removal proceedings under INA § 240 for those apprehended at the border, the Court in Jennings laid out a clear, step-by-step process provided by INA § 235, which requires “applicants for admission” to first be placed in INA § 235 proceedings, with subsequent transfers to INA § 240 proceedings made only in cases where the individuals meet certain criteria, including having a credible fear of return to their home country. The Jennings Court then clearly distinguished between these “applicants for admission” on the one hand and individuals already “inside the United States,” who are subject to INA § 236 detention. None of this language, written by our highest court, was considered by the Board in Cabrera-Fernandez.

Moreover, the Board refused to draw any similarity between the class of persons in Matter of O-, who were apprehended in exclusion proceedings, and those recent arrivals in Cabrera-Fernandez, who likely would have been placed in exclusion proceedings were they apprehended at the time of Matter of O-. The scheme described by the Court in Jennings, in which border arrivals must first be processed by the procedures laid out in INA § 235 before being transferred to INA § 240 proceedings, was devised by Congress specifically as a replacement for exclusion proceedings.

Regardless of its flaws, this decision is binding on all IJs and DHS officers. Therefore, in addition to arguing in immigration court that Cabrera-Fernandez is wrong for the reasons articulated above and seeking circuit court review where denied, advocates must be prepared to try alternative options in their cases.

First, advocates should distinguish any cases in which their clients were designated “arriving aliens” from the facts in Cabrera-Fernandez. The respondents in that case were apprehended shortly after entering the United States without inspection, so advocates can argue that the case should not apply to those who present themselves at a port of entry and are subject to expedited removal. Advocates should additionally make sure that any designation of Entry Without Inspection (EWI) is accurate and challenge if it is not. In making this determination, advocates should interview their clients and review the I-213, Record of Deportable Alien, to see what officers wrote regarding their clients’ entries.

Second, advocates should not concede, as respondents did in Cabrera-Fernandez, that their clients’ releases are pursuant to INA § 236 rather than INA § 212(d)(5). They should point to any documents available to show that DHS placed them in expedited removal proceedings and, as such, mandatorily detained them pursuant to INA § 235(b)(1). These documents may include an unexecuted Notice and Order of Expedited Removal (I-860), an I-213 indicating placement in expedited removal proceedings, or a copy of a credible fear interview.

Finally, practitioners may try to advocate for their clients’ parole with Customs and Border Protection (CBP) or Immigration and Customs Enforcement–Enforcement and Removal Operations (ICE-ERO) directly. Some practitioners have indicated a willingness by ICE-ERO to correct previously issued documents to make clear that clients’ release from custody were grants of humanitarian parole under INA § 212(d)(5). A smaller set of practitioners have successfully requested parole-in-place from ICE-ERO for clients previously released by DHS at the border. Of course, any of the above strategies are riskier for individuals not in active removal proceedings and seeking adjustment affirmatively with USCIS. However, for those in removal proceedings, the approaches may be useful additional tools in practitioners’ defensive toolboxes.

CLINIC will be updating its practice advisory, “All About Parole,” as well as its FAQs on the Cuban Adjustment Act in light of this case. Affiliates are encouraged to keep an eye out for these updates.