In a significant precedent decision, the Board of Immigration Appeals (BIA) has overturned more than a decade of immigration policy and ruled that travel outside the United States pursuant to advance parole constitutes a “departure” for purposes of the unlawful presence bars under the Immigration and Nationality Act (INA).
The decision, Matter of Milagro Delcarmen-Lara, may have substantial consequences for DACA recipients and other humanitarian beneficiaries who use advance parole for international travel and later seek permanent residence.
What the BIA Decided
The BIA held that a departure from the United States under a grant of advance parole is a “departure” within the meaning of INA §212(a)(9)(B)(i)(II). In doing so, the Board expressly overruled its 2012 decision in Matter of Arrabally and Yerrabelly, which had previously protected advance parole travelers from triggering the three-year and ten-year unlawful presence bars.
The Board concluded that:
“A departure from the United States pursuant to a grant of advance parole is a ‘departure’ within the meaning of section 212(a)(9)(B)(i)(II).”
According to the BIA, neither the statutory text nor the legislative history supports creating a special exception for individuals who temporarily leave the United States using advance parole.
Why This Matters
Under existing immigration law:
- Individuals who accrued more than 180 days of unlawful presence may trigger a three-year bar upon departure from the United States.
- Individuals who accrued more than one year of unlawful presence may trigger a ten-year bar upon departure.
For many years, DACA recipients and other noncitizens relied on the Arrabally decision when traveling abroad with advance parole, believing that such travel would not be treated as a departure for purposes of these inadmissibility bars.
The new decision changes that framework.
Impact on DACA Recipients
The ruling could significantly affect DACA recipients who were considering using advance parole as part of a strategy to pursue employment-based or family-based permanent residence.
Historically, some DACA beneficiaries used advance parole to:
- Travel abroad temporarily;
- Return lawfully through inspection and parole; and
- Pursue immigration pathways that might otherwise have been unavailable.
The new decision may create additional risks for individuals who accumulated unlawful presence before receiving DACA and who depart the United States under advance parole in the future.
Prospective Application
Importantly, the BIA determined that its new interpretation will apply prospectively rather than retroactively.
The Board acknowledged that individuals had relied on the prior Arrabally precedent for many years and concluded that fairness considerations warranted prospective application of the new rule
This means the decision generally should not affect individuals who previously traveled on advance parole while Arrabally remained controlling precedent.
What Individuals Should Consider
Individuals currently considering travel on advance parole should carefully evaluate potential consequences before departing the United States.
Potentially affected groups may include:
- DACA recipients;
- TPS beneficiaries;
- Certain asylum applicants;
- Adjustment applicants using advance parole; and
- Others who may have accrued periods of unlawful presence before obtaining a humanitarian or discretionary status.
Because the consequences may vary significantly depending on an individual’s immigration history, legal advice may be especially important before international travel.
Erickson Insights and Analysis
The decision represents one of the most significant BIA precedents affecting advance parole in recent years and aligns with broader efforts by the administration to narrow avenues for obtaining immigration benefits following periods of unlawful presence.
Additional litigation and agency guidance may follow as stakeholders assess how USCIS, consular officers, and other immigration agencies will apply the new precedent in practice.
Erickson Immigration Group will continue monitoring developments and sharing updates as more news is available. Please contact your employer or EIG attorney if you have questions about anything we’re reporting above or if you have case-specific questions.