Exit Pursuant to Grant of Advance Parole Is Not Considered “Departure” Under §212(a)(9)(B)

A recent case from the 11th Circuit affirmed a decision by the Board of Immigration Appeals (BIA) regarding departures from the U.S. and what is not considered a “departure” under the regulations. In 2012, the BIA decided Matter of Arrabally where they held “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 [§ 1182(a)(9)(B)(i)(II)].”
In this recent decision by the 11 Circuit, the issue before them was whether the alien was inadmissible under 8 U.S.C. § 1182(a)(9)(B)(i)(II). Under this statute, an immigrant who is not a lawful permanent resident, has been unlawfully present in the United States for one year or more, and seeks admission to the United States within ten years of the immigrant’s departure or removal from the United States is inadmissible. In this case, The Immigration Judge found that Malpica was removable under § 1182(a)(9)(B)(i)(II) because she had left the United States on July 18, 2003. However, she left pursuant to a grant of advance parole, and was paroled back into the United States on July 31, 2003. Under Matter of Arrabally, her exit pursuant to a grant of advance parole does not qualify as a “departure” within the meaning of § 1182(a)(9)(B)(i)(II) and Malpica is, thus, not inadmissible under this section. Thus, this charge of removability cannot be sustained.

This decision by the 11th Circuit conforms with the BIA decision regarding the removability of an individual when they were admitted back to the U.S. pursuant to a grant of advanced parole. Before Matter of Arrabally had been decided, individuals who left the U.S. when they were removable under this provision were always at risk of being denied entry and removable from the U.S. Now, the BIA’s decision regarding this issue has been affirmed by one of the circuit courts. So long as the other circuit courts continue to decide the issue in this fashion, individuals who have been granted advanced parole, despite being removable under 1182(a)(9)(B)(i)(II), will not have to worry about being denied reentry or being removed under that statute once they have been admitted.