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Advance Parole

April 23, 2012

There were few instances, in the last years, when I was able to write about any positive news from the immigration front. So much with more joy, then, I report that six days ago, (April 17th), the immigration law has changed for the better, for many thousands of people. This change came from an unexpected side, as a precedent decision of the Board of Immigration Appeals, (BIA) in the case of "Matter of Arrabally" 25 I&N Dec. 771 (BIA 2012). I write "unexpected", because for the last few years, the BIA was a source of very adverse if not outright anti-immigrant interpretations of immigration law, oftentimes reached on absurd or befuddled basis. And it is those BIA precedents, which have a national reach, that the USCIS officers rely on to make their own decisions.

What happened, then? Those who take any interest in the immigration law, know very well about the multi-year bars for admission into the USA, introduced by the IIRAIRA of 1996, for a prior unlawful presence in the US. Three years bar for a period of more than 180 days and less than a year. Ten years bar for period of more than a year. In all cases, for the bar to take effect, a departure from the United States is necessary. For most people who left the US and were present here unlawfully for a long time, nothing has changed. The "Matter of Arrabally" has changed nothing. To return to the United States, their period of inadmission must take its course or a formal forgiveness of this bar, called a "waiver", (based on the proved extreme hardship to the spouse or parent, who are either permanent residents or citizens of the USA), must be granted by the USCIS.

But there is yet another group of immigrants, who have not been granted permanent residence, who can travel overseas and come back, even after an extended period of unlawful presence. They are persons, who have been granted an "advance parole" by the USCIS. This document is now given almost routinely, together with an "employment authorization", as part of an application for an immigrant visa in the US, so called "adjustment of status". Even the government fee is combined. Thousands of people use those "advance parole" documents. Thousands of people who, before applying for their "adjustment of status", stayed in the US illegally and who obtained forgiveness of their illegality by virtue of marriage to a US citizen or sponsorship started before April 30, 2001, pursuant to INA Section 245(i).

And now a question. How do you think all those "advance parolees" were treated after their return to the United States? Did anyone consider a fact, that all of them left the US with an official permission from the USCIS? That all of their immigration infractions were well known to the government, before this permission was given? Did their sanctioned return made any difference to the USCIS? Did having a spouse who is a US citizen or a protection of Section 245(i) and prior payment of $1000 super-penalty fee to the government, make any difference?

In the last fiveteen years, I had the chance to meet many of those unfortunates, like Manohar Rao Arrabally from India, who naivelly trusted their "advance parole" document from the USCIS and left the US, many times for a funeral of someone close, and then were ruthlessly denied their permanent residence case, based on the inadmissibilty bar. And often placed in deportation proceedings. It did not help them much, that USCIS warned them with perfidy, in bold text on the face of the "advance parole" document, that anyone who resided in the US illegally after April 1, 1997, should not use this, just granted, travel document. It did not help them either, that the Board of Immigration Appeals itself, in its two previous precedents, "Matter of Lemus" and "Matter of Lemus II", sided with the idea that all who acquired the prerequisite period of unlawful presence, came into purview of the three or ten year bar, if they left the United States. And how many of my own clients with an "advance parole" in hand, I counseled against travelling, often for a funeral of a parent, wedding of a child or a baptism of a grandchild. To all of them, on behalf of our dysfunctional immigration system, I apologize.

Well. It appears now, that we have all misunderstood the learned judges of the BIA. Now, after fiveteen years and thousands of "inadmissibility bar" denials later, it appears that a trip with an "advance parole" is not a departure from the United States, after all. Not a departure, within the definition of statute dealing with the bars for unlawfull presence. Those persons, who in prior years received such a denial, and who were not deported to their own countries, may ask to have their applications re-opened or file anew, without concern about the "unlawful presence" bar, triggered by the "advance parole" travel.


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rzemysław Jan Bloch

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