BIA held Advance Parole Absence does not trigger Unlawful Presence Bar

In a recent BIA decision, the Board surprisingly held that a foreigner who left the United States after securing an “advance parole” travel document from the DHS is not considered a departure for the purposes of determining whether the person is subject to the 10-year unlawful presence bar.  The Board held that the foreigner is therefore allowed to apply for adjustment of status to become permanent resident under section 245(i) of the Immigration and Nationality Act. 

In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the respondents, husband and wife, legally entered the U.S. in 1999 and 2000 respectively.  After overstaying their nonimmigrant visas, they were present in the U.S. without legal status for more than five years.  Subsequently, the male respondent sought to apply for legal status based on an approved employment based immigrant visa petition filed on his behalf by an employer pursuant to section 245(i) of the Act.  However, the couple made a trip to India to attend totheir aging parents after securing advance parole travel documents from the DHS.  Upon their return to the United States with advance parole, DHS argued that they were barred from applying for adjustment of status because they were inadmissible to reenter the United States for ten years pursuant to section 212(a)(9)(B)(i)(II) of the Act.  This section of the law bars foreigners from admission for ten years if they departed the United States after having been unlawfully present for more than one year.

The BIA previously held in Matter of Lemus that section 245(i) does not overcome the unlawful presence bars, absent a waiver.  In Lemus, the respondent did not have an advance parole document when he left the United States.  Here, the BIA carved out an exception for the respondents in Matter of Arrabally and Yerrabelly, explaining that their absence from the U.S. after a grant of advance parole did not constitute a departure that would trigger the unlawful presence bars.  The BIA noted the advance parole (1) was approved in advance by the United States Government on the basis of a merits application; (2) presupposed the alien’s authorized return thereafter, and (3) was requested solely for the purpose of preserving the alien’s eligibility for adjustment of status.  The BIA seemed to be saying that the respondents merely took a brief trip outside the United States with no intention to depart.

Hence, the BIA concluded that the respondents are not inadmissible for adjustment of status pursuant to section 212(a)(9)(B)(i)(II).  Therefore, they are eligible to apply for adjustment of status based on section 245(i).  The decision no doubt is good news for applicants who must travel for emergency reasons.  However, this decision could still be challenged by the government in federal court.  For example, as the dissenting opinion noted, a recent Third Circuit decision also involved advance parole travel but reached a different conclusion.  Therefore, it is very important for applicants to fully understand the legal ramifications before travelling on advance parole.