Do Not Travel on Advance Parole Without Legal Advice: New BIA Decision Changes the Rules

The Board of Immigration Appeals (BIA) issued a major decision today, Matter of Delcarmen-Lara. This decision completely changes the legal consequences of traveling on advance parole.

For more than a decade, immigration lawyers relied on Matter of Arrabally and Yerrabelly (2012), which held that a person who left the United States using advance parole had not made a "departure" for purposes of the unlawful presence bars. That interpretation allowed many applicants with pending adjustment of status applications to travel abroad and return without triggering the 3-year or 10-year unlawful presence bars.

In Matter of Delcarmen-Lara, the BIA expressly overruled Matter of Arrabally and Yerrabelly. The BIA now holds that a trip outside the United States on advance parole does qualify as a "departure."

As a result, some people who accrued unlawful presence before traveling could trigger the 3-year or 10-year unlawful presence bar when they leave the country, even if they return using advance parole. This could make them inadmissible and potentially ineligible to adjust status.

The only good news is that the BIA stated that this new rule does not apply to trips taken before this decision was issued.

If you have advance parole and are considering international travel, do not leave the United States until you have spoken with a qualified immigration attorney. Whether this decision affects you depends on your individual circumstances, including whether you have accrued unlawful presence, your immigration history, and whether there may be other legal arguments or protections available in your case.

If you are a current client and would like advice about how this issue may affect your case, please contact our office to schedule a strategy session.

If you are not currently a client and would like to discuss your situation with an attorney, please contact us to inquire about a consultation.

This article is for general informational purposes only and should not be interpreted as legal advice.