This past April, a decision came down from the Board of Immigration Appeals (BIA) that addressed an important issue concerning Advance Parole for aliens whose unlawful presence for one year or more would trigger the 10 year ban from the U.S. The BIA decision of Matter of Arrabally and Yerrabelly has clarified what counts as a departure under the INA.
The statute that concerns all immigrants who have been in unlawful presence for one year or more is as follows: “Beginning April 1, 1997, a person who has been unlawfully present in the U.S. for one year or more consecutively and again seeks admission is barred for 10 years from the date of such person’s departure or removal from the U.S. INA section 212(a)(9)(B)(i)(II), 8 U.S.C. section 1182(a)(9)(i)(II). In order to trigger the 10-year bar, departure from the U.S. is required, H.R. Conf. Rep. 104-828, 104th Cong., 2d Sess. at 207.”
The (BIA) has clarified the term – departure — in the Matter of Arrabally on April 17, 2012 which will help thousands of immigrant applicants who like Manohar Rao Arrabally have been entangled in the web of statutes, regulations, case law, and agency memorandum.
In this case, Mr. Arrabally and Ms. Yerrabelly, while waiting on their I-485 adjustment of status, found it necessary to return to India to attend to their aging parents, but they were appropriately concerned that the USCIS would deem their adjustment applications abandoned if they left the United States. To prevent their applications from being deemed abandoned, they applied for “advance parole” from the USCIS pursuant to section 212(d)(5)(A) of the Act. See 8 C.F.R. §§ 212.5(f) (providing for the advance authorization of parole); 245.2(a)(4)(ii)(A) (2004) (providing that “the departure of an [adjustment] applicant . . . shall be deemed an abandonment of the application constituting grounds for termination of any pending application for adjustment of status, unless the applicant was previously granted advance parole by the Service for such absences, and was inspected upon returning to the United States”). The respondents’ requests for advance parole were granted, and they traveled to India and back on several occasions between 2004 and 2006, returning each time in accordance with the terms.
In separate notices issued on October 15, 2007, the USCIS informed Mr. Arrabally and Ms. Yerrabelly that their applications for adjustment of status were denied. Specifically, the notices informed the respondents that they were no longer “admissible” to the United States, as required for adjustment of status, because they had departed this country (under grants of advance parole) after having been “unlawfully present” here for 1 year ormore and were seeking admission less than 10 years after having departed, a set of circumstances that rendered them inadmissible under section 212(a)(9)(B)(i)(II) of the Act.
Mr. Arrabally promptly sought reopening of his adjustment application before the USCIS, noting the humanitarian considerations that had prompted his request for advance parole and contending that he and his wife should not be punished for having departed the United States when the DHS knew about, and expressly approved of, those departures by granting them
advance parole. On July 21, 2008, a USCIS Field Office Director issued a decision acknowledging the force of some of the male respondent’s arguments but ultimately concluding that his inadmissibility under section 212(a)(9)(B)(i)(II) of the Act necessitated the denial of his application. In arriving at that conclusion, the Field Office Director invoked Matter of Lemus, 24 I&N Dec. 373 (BIA 2007) (“Lemus I”), in which we held that section 245(i) adjustment is unavailable to aliens who are inadmissible under section 212(a)(9)(B)(i)(II) and are not eligible for a section 212(a)(9)(B)(v) waiver.
On November 21, 2008 the DHS commenced these removal proceedings by filing notices to appear in Immigration Court, charging the respondents with inadmissibility under section 212(a)(7)(A)(i)(I) of the Act. By serving these notices to appear on the respondents, the DHS terminated their parole, thereby restoring them to the status they allegedly held at the time of their last parole into the United States, that is, as intending immigrants who are not in possession of valid admission documents. On February 12, 2009, Mr. Arrabally and Ms. Yerrabelly conceded removability through counsel and sought to renew their adjustment applications before the Immigration Judge. At the conclusion of an evidentiary hearing conducted on August 20, 2009, the Immigration Judge found the respondents inadmissible under section 212(a)(9)(B)(i)(II) of the Act and ineligible for section 245(i) adjustment, and he ordered them removed to India.
Mr. Arrabally and Yerrabelly appealed of the decision to the Board of Immigration Appeal. So the question presented to the Board of Immigration Appeal in this case was “whether the respondents (Mr. Arrabally and Mrs.Yerrabelly) 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).”
The Board of Appeal held that they did not. — “An alien who leaves the United States temporarily pursuant to a grant of an advance parole (I-131) does not thereby make a “departure … from the United States” within the meaning of the section 212(a)(9)(B)(i)(II) (2006). Matter of Lemus, 24. I. & N. Dec. 373 (BIA) (2007). Clarified.
Consequently, Mr. Arraball’s and Mrs. Yerrabelly’s appeal were sustained in part and the records were remanded to the Immigration Judge for further proceedings. Decided on April 17, 2012. (Matter of Arrabally, & Yerrabelly, 25 I.&N. De. 771 (BIA 2012)).
Since this decision, the local Field Office in San Diego has clarified their stance on handling adjustment of status cases. In particular:
– A currently pending case but where an unlawful presence waiver has been requested but not yet filed, the Local office will notify applicants that an I-601 waiver is not necessary.
– Where the unlawful presence waiver has been filed but not yet adjudicated, it will not necessary to adjudicate waiver case and the local office will move forward with adjudication of the application without the waiver.
– Where the unlawful presence waiver has been denied but the adjustment is still pending, the field office will move forward with adjudication without the wavier since it is no longer required.
– The unlawful presence waiver has been denied, the adjustment has been denied, but the NTA has not yet been issued, if the case was pending on or after 04/17/12 then the local office will do a service motion to reopen since it was an error to deny.
This decision clarifies what it means to depart the U.S. for those who are currently waiting on an adjustment of status. The BIA made the right decision in determining that leaving on an Advanced Parole should not count as a departure within the meaning of the INA and should not be held against those who received Advanced Parole to leave the U.S. while waiting on their adjustment.