Travel Abroad and Reentry with Advance Parole Safer02 Jul 2012
The Board of Immigration Appeals (BIA) recently issued a precedent decision, which significantly changes prior interpretations regarding travel on advance parole (AP) after an individual has been unlawfully present in the United States. Under the BIA decision, Matter of Arrabally and Yerrabelly, an individual who travels abroad pursuant to an AP will not trigger a bar on reentry to the United States even if s/he was unlawfully present for lengthy periods prior to the departure abroad. The decision in this matter is discussed here for the benefit of MurthyDotCom readers.
Background: Three / Year Bars Upon Departure
Individuals who depart the United States after certain periods of unlawful presence are subject to bars on reentry. For individuals who have been unlawfully present for more than 180 days, but less than one year, the bar to reenter the United States is for a period of three years. Those who have been unlawfully present in excess of one year face a ten-year bar on reentry.
These bars are created upon departure from the United States, following the period of unlawful presence and have been in effect since April 1, 1997. The longstanding interpretation has been that departure pursuant to an AP triggers a bar for such an individual. In fact, the AP document has long contained a warning to this effect. The AP is a travel authorization issued, upon application, to individuals who have filed the application for adjustment of status (I-485).
Prior USCIS Position to Deny the I-485 if Bar Applied
Individuals who are subject to the three- or ten-year bar are also barred from adjustment of status to permanent residence. Historically, if an individual ignored the travel warning on the AP, eligibility for approval of the adjustment of status would be undermined by travel abroad, triggering the bars. Such an individual was often allowed to return to the United States using the AP, but the I-485 adjustment of status to permanent residence was generally denied due to the applicability of the three- or ten-year bar.
Summary of BIA Case: Matter of Arrabally and Yerrabally
In Matter of Arrabally and Yerrabelly, a husband and wife entered the United States legally, but remained beyond the allowed period of stay for a period in excess of one year. Despite the accrual of unlawful presence, the couple was eligible to file for adjustment of status. [This eligibility was pursuant to Immigration and Nationality Act (INA) Section 245(i). For additional information, see the entry for 245(i) in the MurthyDotCom list of immigration terms.]
During the pendency of their I-485 applications, the couple wanted to travel abroad to see their aging parents. They applied for and were granted APs. The couple traveled abroad on multiple occasions, each time in accordance with the terms of the AP. However, this travel ultimately resulted in the denial of their I-485 applications, because they departed the United States after having been unlawfully present for more than one year. This travel was found to have rendered them inadmissible and, thus, ineligible for adjustment of status for a period of ten years.
A motion to reopen was filed to challenge their I-485 denials. It was argued that U.S. Citizenship and Immigration Services (USCIS) expressly approved the departures by granting their APs. Nonetheless, removal proceedings were initiated against them. The Immigration Judge also ruled against the couple, and determined that the travel on AP had made them inadmissible as lawful permanent residents to the United States. They appealed their I-485 denials to the Board of Immigration Appeals (BIA).
BIA’s Legal Analysis of “Departure” and Reentry with AP
The central issue under consideration by the BIA was whether departure from the U.S. under a grant of AP was the sort of departure that triggers the three- or ten-year inadmissibility bar. The BIA responded in the negative, finding that a foreign national who leaves the United States temporarily pursuant to a grant of AP does not make the type of departure needed to trigger the inadmissibility bars.
In arriving at this conclusion, the BIA found that the term “departure” could be interpreted to encompass any situation in which a foreign national leaves the United States. However, the BIA found that a departure under a grant of AP is “qualitatively different” from other departures.
In the BIA’s opinion, Congress did not intend to make the foreign national inadmissible based upon travel that the government approved in advance by the issuance of the AP. They reasoned that the AP presupposes the foreign national’s authorized return, and was requested solely for the purpose of preserving eligibility for the adjustment of status. As the Board noted, holding otherwise “vindicates none of the purposes for which the statute was enacted … and has the paradoxical effect of transforming advance parole from a humanitarian benefit into a means of barring relief.”
This decision is an important clarification of the prior rulings and interpretations of this issue. Individuals who may have experienced denials of their I-485 applications due to AP travel may wish to have their cases reviewed to assess potential eligibility for reopening due to the recent BIA interpretation of this important issue.
This decision is binding upon the USCIS, as well as the CBP and ICE. However, given the complexity of the issues presented, individuals who have accrued unlawful presence and have been granted AP should seek qualified guidance prior to foreign travel. If you do not have an attorney, you are encouraged to consult with an experienced immigration lawyer at the Murthy Law Firm. As the Board emphasized, a trip taken in advance parole, while not a departure under the 10-year inadmissibility bar, nevertheless may trigger inadmissibility issues under different grounds.
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