In a precedent decision titled Matter of Cabrera-Fernandez, 28 I&N Dec. 747 (BIA 2023) [PDF version], the Board of Immigration Appeals held that conditional parole is legally distinct from humanitarian parole and that aliens who have been released on conditional parole are ineligible for adjustment of status.

General parole authority is found in section 212(d)(5)(A) of the Immigration and Nationality Act (“INA”). The Department of Homeland Security may, in its discretion, parole an alien into the United States “for urgent humanitarian reasons or significant public benefit.” Humanitarian parole occurs when the adjudicator makes a case-specific determination to grant an alien parole for urgent humanitarian reasons.

Conditional parole authority is set forth by section 236(a)(2) of the Act. This provides that when an alien is arrested and detained pending a decision on whether the alien will be removed from the United States, the Department may either continue to detain the alien or release the alien on bond or conditional parole.

The alien respondents in Cabrera-Fernandez were encountered close to the Southwest border after having entered the United States without having been inspected or paroled. They were detained upon arrested and released on their own recognizance under the Department’s section 236(a)(2)(B) conditional parole authority.

The respondents were treated as applicants for admission and charged with inadmissibility under section 212(a)(6)(A)(i) of the Act for being present in the United States without having been admitted or paroled. The respondents conceded that they were removable as charged in removal proceedings before an Immigration Judge. However, the respondents applied for adjustment of status under the Cuban Adjustment Act as a defense against removal. For purposes of understanding the issues before the Board, it suffices to note that one of the requirements for adjustment of status under the Cuban Adjustment Act is that the applicant was “inspected and admitted or paroled into the United States.” The same “inspection and admission or parole” requirement applies for those seeking regular adjustment of status under section 245(a) of the Immigration and Nationality Act.

The immigration judge decided to grant the respondents’ application for adjustment of status. Notwithstanding the fact that the Department stated the respondent’s were released from detention on conditional parole under section 236(a)(2)(B) of the Act, the immigration judge held that the respondents were actually released on humanitarian parole under 212(a)(2)(B), making them eligible for Cuban Adjustment Act adjustment of status. The judge, relying on the Supreme Court decision in Jennings v. Rodriguez, 138 S.Ct. 830 (2018) [see our discussion], reasoned that the respondents were subject to expedited removal under section 235(b)(1) of the Act on apprehension and thus could only be released under section 212(d)(5)(A) parole rather than section 236(a)(2)(B) conditional parole.

The distinction between humanitarian parole (or any form of parole under section 212(d)(5)) and conditional parole under section 236(a)(2)(B) is significant for adjustment of status eligibility. The Board previously held that release from custody on conditional parole under 236(a)(2)(B) does not constitute being “paroled into the United States” for purpose of adjustment of status under section 245(a). Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010) [PDF version]. While there are many distinctions between section 245(a) adjustment and adjustment under the Cuban Adjustment Act, both have the same admission and parole requirement.

The Board disagreed with the immigration judge’s conclusion that the respondent’s were released under humanitarian parole instead of conditional parole. The Board concluded that the respondents were and remained applicants for admission due to the fact that they were encountered after having entered the United States without being admitted or paroled. See INA 235(a)(1); Matter of Lemus, 25 I&N Dec. 734, 743 (BIA 2012) [PDF version]. The Board explained that under section 235(b)(1)(A)(i) of the Act, the Department may decide whether to initiate expedited removal [see article] proceedings under section 235(b)(1)(A)(i) of the Act or regular removal proceedings under section 240. See also Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520, 523 (BIA 2011) [PDF version]. In the instant matter, the Board explained that the respondents themselves did not dispute that the Department had released them on their own recognizance under section 236(a)(2)(B) rather than under section 212(d)(5). After considering the record as a whole, the Board determined that there was no basis for the immigration judge’s conclusion that the respondents were paroled under section 212(d)(5).

Having concluded that the respondents were released on conditional parole, the Board vacated the immigration judge’s decision granting the respondents’ application for adjustment of status: “As applicants for admission who were released on conditional parole rather than humanitarian parole, the respondents have not been ‘inspected and admitted or paroled,’ and accordingly are not eligible for adjustment of status under the Cuban Adjustment Act.”

The Board’s decision highlights some of the issues that can arise in cases wherein an alien is apprehended after entering the United States without legal authorization. For purpose of subsequently applying for adjustment of status in most cases, there is a decisive difference between being granted parole under section 212(d)(5) or being released on conditional parole under section 236(a)(2)(B). As a threshold matter, sneaking across the border or otherwise entering the United States without inspection can trigger serious immigration consequences, as we see in Matter of Cabrera-Fernandez. Any alien in removal proceedings should consult with an experienced immigration attorney in the area of removal defense [see category] for a case-specific consultation on what options or forms of relief may be available.