Thursday, April 19, 2012

I got my Advance Parole. Can I travel and return to USA?

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.

Friday, March 16, 2012

Have you been a member of the Communist or any Other Totalitarian party?

A question of a membership in the Communist party or Other Totalitarian party appears in various immigration applications,such as Form DS-230,Form I-485 and Form N-400; however for the purpose of this article we will only concentrate on application for an immigrant visa and on application for adjustment of status.  
Typically, an immigrant from country controlled by Communist Party or other totalitarian party finds this question challenging. Will an answer “yes” immediately make an applicant inadmissible? According to Immigration and Nationality Act Section 212 (a)(3)(D)(i), in general.-Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible, unless qualifying for an exception. The applicant immigrant has a burden of proof to establish that he falls under one of enumerated exceptions. Nevertheless, section 212 (a)(3)(D) provides a few generous exceptions such as for involuntary membership, when the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes, see INA section 212(a)(3)(D)(ii); an exception for past membership, provided that the membership or affiliation terminated at least 2 years before the date of such visa application or 5 years before the date of such application, in the case of an alien whose membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and  the alien is not a threat to the security of the United States INA section 212(a)(3)(D)(iii).

In addition, judicially-created rule provides: an exception to inadmissibility in cases where the applicant lacks “commitment to the political and ideological convictions of communism.”  9 FAM 40.34 N5 (March 21, 2008) 

The leading Supreme Court Case on the point is Rowoldt v. Perfetto, 355 U.S. 115 (U.S. 1957). In that case a man fell within the exception, he paid dues to the U.S. Communist Party, attended meetings, petitioned the government related to unemployment laws and the government budget, worked at a party bookstore, and stated that his purpose in joining the party was to get jobs, food, clothes, and shelter for the people. He denied opposing democratic principles, denied any commitment to violence and denied that violence was discussed at  any meetings he attended. His party membership ended only when he was arrested. The Court held that he qualified for the non-meaningful association exception because of his "unilluminating understanding of" party's principles and the "dominating impulse" of his affiliation with the party was "wholly devoid of any political implications".
Thus the Court in Rowoldt held that an alien's connection to Communist party must constitute a meaningful association and that Communist Party membership is not present when the dominating impulse to the affiliation is "wholly devoid of any political implications". See Rowoldt v. Perfetto, 355 U.S. 115 (U.S. 1957) and Matter of Rusin, 20 I&N Dec.128 (BIA) 1989.

In the alternative, if an applicant is not falling under provided exceptions or judicially created rule of “non meaningful association”, an applicant may be eligible for an exception available for close family members, such as parent, spouse, son, daughter, brother, or sister of a citizen of the United States or a spouse, son, or daughter of an alien lawfully admitted for permanent residence, in form of a waiver for humanitarian purposes, family unity and when it is otherwise in the public interest and if the immigrant is not a threat to the security of the United States INA section 212(a)(3)(D)(iv).

The conclusion is when facing a matter of an immigrant applicant who was or is a member or affiliated with Communist party or other totalitarian party, it is crucially important to present all facts of the case to an experienced immigration attorney for detailed case evaluation in order to find if an applicant is qualified for one of exceptions.  

For more Interesting Immigration Matters, Visit us at