BIA Precedent on Unlawful Presence and Advance Parole (Matter of Arrabally and Yerrabelly)
Validated finding · five-country-2010-20260922-v118-evidence-presentation-fix
Policy effect
Established nationwide binding precedent holding that noncitizens who temporarily leave the United States under a grant of advance parole do not make a 'departure' under INA section 212(a)(9)(B)(i)(II), preventing the triggering of the 10-year unlawful presence bar for adjustment of status. Phase scope: Nationwide applicability to all immigration courts and DHS adjudications involving noncitizens departing under advance parole.
Official source excerpt
Quoted verbatim from the official source below. Ellipses indicate omitted text.
Cite as 25 I&N Dec. 771 (BIA 2012) Interim Decision #3748 Matter of Manohar Rao ARRABALLY, Respondent Matter of Sarala YERRABELLY, Respondent Decided as amended August 16, 20121 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals An alien who leaves the United States temporarily pursuant to a grant of advance parole does not thereby make a “departure . . . from the United States” within the meaning of section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2006). Matter of Lemus, 24 I&N Dec. 373 (BIA 2007) … them ineligible for adjustment of status under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2006), based on their inadmissibility under section 212(a)(9)(B)(i)(II), and he ordered them removed from the United States. This case presents the question whether the respondents, who left the United States temporarily under a grant of advance parole, thereby effected a “departure,” which resulted in their inadmissibility under section 212(a)(9)(B)(i)(II). We hold that they did not. Consequently, the respondents’ 1 Upon a motion of the Department of Homeland Security that is expressly unopposed by … has the paradoxical effect of transforming advance parole from a humanitarian benefit into a means for barring relief.7 The language of section 212(a)(9)(B)(i)(II) does not require such a result.8 Accordingly, we hold that an alien who has left and returned to the United States under a grant of advance parole has not made a “departure . . . from the United States” within the meaning of section 212(a)(9)(B)(i)(II) of the Act. 7 As the DHS points out on appeal, documents authorizing advance parole bear explicit warnings that the parolee may be inadmissible under section 212(a)(9)(B) and ineligible … Servs., 545 U.S. 967 (2005). On the contrary, the Third Circuit emphasized that the petition for review did not challenge the Board’s interpretation of the term “departure” or otherwise dispute its determination that the alien was inadmissible under section 212(a)(9)(B)(i)(II). Cheruku v. Att’y Gen. of U.S., 662 F.3d at 205 n.5. 779 Cite as 25 I&N Dec. 771 (BIA 2012) Interim Decision #3748 We emphasize that we hold only that an alien cannot become inadmissible under section 212(a)(9)(B)(i)(II) solely by virtue of a trip abroad undertaken pursuant to a grant of advance parole. Our decision does …
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