Traveling on Advance Parole With Adjustment of Status Pending

Matter of Manohar Rao, ARRABALLY, Respondent and Matter of Sarala YERRABELLY, Respondent 25 I&N Dec.771 (BIA 2012)

Traveling on Advance Parole With Adjustment of Status PendingThis is an immigration case in which the two Respondents from India were found inadmissible by an Immigration Judge on the basis that they were not in possession of valid immigrant visas or other entry documents as required by 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2006) (the Act). The Immigration Judge also found the Respondents ineligible for adjustment of status under section 245(1) of the Act, U.S.C. § 1255(i) (2006), based on their inadmissibility under section 212(a)(9)(B(i)(II),and ordered them removed from the United States. The Board of Immigration Appeals (BIA) overturned the decision of the Immigration Judge and held that the respondents, who left the United States temporarily under a grant of advance parole to visit an ill family member in India, did not thereby effect a “departure” under section 212(a)(9)(B(i)(II).

The respondents, a husband and wife, were natives and citizens of India. To prevent their applications for citizenship from being deemed abandoned, the respondents applied for “Advance Parole” from the United States Citizenship and Immigration Services (USCIS). Most aliens who have pending Applications for changes in nonimmigrant status need Advance Parole, a travel document, to re­enter the United States. Any adjustment of status applicant, which the Respondents were, who leaves the the United States without Advance Parole is subject to being found to have abandoned their application for adjustment of status. 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 of their advance parole. On September 10, 2006, the respondents returned from India for the last time and were paroled into the United States.

In separate notices issued on October 15, 2007, USCIS informed the Respondents that their applications for adjustment of status had been denied. USCIS told the Respondents that they were no longer “admissible” to the United States, as required for adjustment of status, because they had departed the United States after having been “unlawfully present” in the United States for 1 year or more 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). USCIS, in compliance with then existing law, considered the Respondents' having traveled abroad under Advance Parole as not affecting its decision. See, Matter of Lemus, 24 I&N Dec. 373 (BIA 2007).

The Respondents promptly sought reopening of their adjustment applications before the USCIS, contending that they should not be punished for having departed the United States when the Department of Homeland Security (DHS) knew about, and expressly approved of, those departures by granting them advance parole. A USCIS Field Office Director issued a decision concluding that their having obtained Advance Parole before departing the United States did not alter their inadmissibility under section 212(a)(9)(B)(i)(II) of the Act. Ultimately, it was the decision of the BIA that the word “depart” in section 212(a)(9)(B)(i)(II) was not intended to include the Respondents who had left and returned to the United States after receiving the approval of the DHS to do so pursuant to their Advance Parole travel document.

After the USCIS Field Office Director issued his decision the respondents sought to renew their adjustment applications before an Immigration Judge. At the conclusion of an evidentiary hearing 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.

The Respondents appealed the Immigration Judge's decision to the BIA which adopted the Respondents' argument that their departures from the United States under a grant of Advance Parole were not the sort of “departures” that render aliens inadmissible under section 212(a)(9)(B)(i)(II) of the Act. In adopting the respondents argument the BIA reversed an earlier decision it had made in the case Matter of Lemus, 24 I&N Dec. 373 (BIA 2007) and affirmed in Matter of Lemus, 25 I&N Dec. 734 (BIA 2012) (“Lemus II”). In both Lemus decisions the BIA had decided that adjustment of status was not available to aliens who are inadmissible under section 212(a)(9)(B)(i)(II).

In reversing the Lemus decisions, the BIA stated that: “When section 212(a)(9)(B)(i)(II) is understood in context, it becomes clear to us that Congress did not intend it to cover aliens — like the respondents — who have left and returned to the United States pursuant to a grant of advance parole.” pp. 775­776 (emphasis supplied). According to the BIA, advance parole is treated as a distinct benefit for which the alien must demonstrate his eligibility and worthiness. p. 778. The BIA 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 section 212(a)(9)(B)(i)(II) of the Act.” p. 779.

The decision in Arrabally and Yerrabelly is well settled law, and is often cited by immigration lawyers. The impact of Arrabally and Yerrabelly may also extend to Deferred Action for Childhood Arrivals (DACA) according to the Legal Action Center and Catholic Legal Immigration Network, Inc.which has stated that, “Although there has been no formal written guidance on this issue yet, it appears likely that USCIS views Matter of Arrabally and Yerrabelly as applicable to DACA recipients traveling on advance parole.”

Arrabally and Yerrabelly is a major advancement in the way Advance Parole cases are handled under the Act. The perseverance of the Respondents in Arrabally and Yerrabelly has resulted in previously unavailable protection to Advance Parole recipients.