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Bloggings: Matter of Arrabally and Yerrabelly: Advance Parole no longer considered a “departure” under INA §212(a)(9)(B)(i)(II), by Danielle Beach-Oswald

Rating: 6 votes, 5.00 average.

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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