A new BIA decision in the Matter of Arrabally and Yerrabelly, decided on April 17, 2012, provides an interesting and favorable interpretation of a section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act.
In that case a couple, a husband and a wife were admitted to the United States temporarily, on December 15, 1999, and October 29, 2000, respectively, they overstayed their authorized stay, thus remaining for about 5 years without lawful status. Nevertheless, a husband became beneficiary of an approved employment based immigration visa petition with a priority date of April 27, 2001. On June of 2004, they applied for adjustment of status under section 245(i). At the time of applying the application was prima facie approvable but was held in abeyance awaiting visa availability. In the meanwhile, couple had a need to attend their aging parents abroad. A couple filed for advance parole, got it approved, travelled abroad and was paroled on numerous occasions. After their last return from abroad, they were informed that their applications for adjustment of status were denied, because they had departed this country (under grant of advance parole) after having been “unlawfully present” here 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) of the Act. Subsequently notices to appear were issued and a couple appeared before Immigration Judge that found them inadmissible under 212(a)(7)(A)(i)(I) and 212(a)(9)(B)(i)(II) of the Act and not eligible under 212(i).
On Appeal a Board of Immigration Appeals was presented with the question whether a person, who left the United States temporarily under a grant of advance parole, thereby effected a “departure,” which resulted in his inadmissibility under section 212(a)(9)(B)(i)(II).
BIA examined an INA 212(a)(9)(B)(i)(II) that provided that “Any alien (other than an alien lawfully admitted for permanent residence) who—. . .
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible”. BIA concentrated on the meaning of the word “departure” and was guided by common sense, taking into account Congress’ intention to enact “a symmetrical and coherent regulatory scheme” in which all parts are fit into a harmonious whole and has decided that “An alien who leaves the United States temporarily pursuant to a grant of advance parole does not thereby make a “departure . . . from the United States” within the meaning of section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2006).
It is further clarified that as its name implies, “advance parole” is simply parole that has been requested and authorized in advance based on an expectation that the alien will be presenting himself for inspection without a valid visa in the future.8 C.F.R. § 212.5(f). Advance parole can be requested from abroad or at a port of entry, but typically it is sought by an alien who is already inside the United States and who wants to leave temporarily but fears that he will either be excluded as an inadmissible alien upon return or be deemed to have abandoned a pending application for an immigration benefit.
BIA summarized that an undocumented alien’s departure under a grant of advance parole was qualitatively different from other departures, because it presupposed both that he would be permitted to return to the United States thereafter and that he would upon return, continue to pursue the adjustment of status application he filed before departing.
As BIA stated “ We do not believe that Congress intended an alien to become inadmissible under section 212(a)(9)(B)(i)(II) and, by extension, ineligible for adjustment of status solely by virtue of a trip abroad that (1) was approved in advance by the United States Government on the basis of an application demonstrating the alien’s qualification for and worthiness of the benefit sought,
(2) presupposed the alien’s authorized return thereafter, and (3) was requested solely for the purpose of preserving the alien’s eligibility for adjustment of status. Applying section 212(a)(9)(B)(i)(II) to such an alien vindicates none of the purposes for which the statute was enacted, largely defeats the regulatory purpose of preserving advance parolees’ eligibility for adjustment of status, and has the paradoxical effect of transforming advance parole from a humanitarian benefit into a means for barring relief.”
Accordingly, Board of Immigration Appeals, by majority has decided 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” an thus is not inadmissible pursuant to section 212(a)(9)(B)(i)(II) of the Act.
This interesting and favorable case is undeniably helped to achieve justice to a couple in the instant matter. It is also, reversed a long standing policy that departure under Advance Parole pursuant to adjustment of status and return may trigger the unlawful presence bar under 212 (a)(9)(B). This matter will be of much help to adjustment of status applicants who left under advance parole and returned to resume their adjustment of status application, as a departure and return on Advance Parole would not trigger the 212 (a)(9)(B) bar.
At the same time as this decision addressed advance parole in adjustment of status context and only in “unlawful present” ground context, it is prudent to discuss circumstances of each individual case with an experienced Immigration counsel.
