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Matter of Arrabally and Yerrabelly: Advance Parole no longer considered a “departure” under INA §212(a)(9)(B)(i)(II)

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For years, U.S.C.I.S. officials have taken the position that a departure under a grant of advance parole is a departure for purposes of Immigration and Nationality Act (“INA”) §§212(a)(9)(B)(i)(I), (II), two bars which do not allow a non-citizen to apply for re-admission into the United States for three or ten years, respectively. However, in Matter of Arrabally and Yerrabelly, 25 I & N Dec. 771 (BIA 2012), the Board of Immigration Appeals held that a non-citizen who departs the United States on a grant of advance parole does not trigger the three and ten year bars for purposes of INA §§ 212(a)(9)(B)(i)(I), (II). In its decision, the Board of Immigration Appeals notes that advance parole is a distinct discretionary benefit for which “the alien must demonstrate his eligibility and worthiness.” 25 I & N Dec. 771, 778 (BIA 2012).

The Board of Immigration Appeals explicitly rejects DHS’s long-standing argument that a grant of advance parole does not authorize the non-citizen to actually depart from the United States. 25, I & N Dec. at 778. DHS’s stance was articulated in two memorandums: (1) the Memorandum from Donald Neufeld, Acting Assoc., Dir., Domestic Operations Directorate, et al., to USCIS Field Leadership, at 16, 17 (May 6, 2009), reprinted in 86 Interpreter Releases, No. 20 May 18, 2009, app. I at 1393, 1394 (“Neufield Memo”) and (2) the Memorandum fro Paul W. Virture, Acting Exec. Assoc. Comm’r, INS Office of Programs to INS Officials, at 3-4 (Nov. 26, 1997), reprinted in 74 Interpreter Releases, NO. 46, Dec. 8, 1997, app. III at 1842, 1844 (“Virtue Memo”).

The Board of Immigration Appeals points out that advance parole is usually a humanitarian measure and by granting such a benefit, DHS is essentially telling the non-citizen that he can leave the U.S without abandoning any pending applications for immigration benefits and that he will be paroled or allowed back into the U.S. Id. Once the non-citizen returns or fulfills the purpose of his advance parole, he returns to the same immigration status he had prior to his departure. Id at 773. The purpose of INA §§212(a)(9)(B)(i)(I), (II) is to strengthen the consequences for immigration violations by making it more difficult for non-citizens who leave the country to be readmitted. Id. at 776. These sections essentially put non-citizens on notice of the harsh consequences of leaving the country after violating immigration laws. However, in cases where DHS grants advance parole, due to the explicit permission given, there is no longer any notice needed because DHS is giving legitimacy to the alien’s departure.
The Board of Immigration Appeals was careful to limit its decision in this case. The Board of Immigration Appeals reasons that §§212(a)(9)(B)(i)(I),(II) is different from other sections because the departure alone creates the condition of inadmissibility. However, advance parole may be considered a “departure” for other purposes. This decision is considered a clarification of the Board of Immigration Appeals’s decisions in Lemus I, 24 I & N Dec. 373 (BIA 2007) and Lemus II, 25 I & N Dec. 734 (BIA 2012), two decisions that previously defined the scope of the term “departure”.

What remains to be seen is how DHS responds to this new decision. Will this decision make it more difficult for non-citizens to get advance parole? Is there any possibility that individuals will now be able to adjust based on their entry on advance parole, even though they previously had entered the U.S. unlawfully and would not be able to adjust if not for the grant of advance parole?

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