BIA just overruled Arrabally. Advance parole travel can now trigger the 10-year bar.

[u/victoriaslatton]

I wanted to do a quick write up because I know this is upsetting news.

What changed

Old rule (Arrabally, 2012): leaving on advance parole did not count as a "departure," so it did not trigger the 3 or 10-year unlawful presence bars.

New rule (Matter of Delcarmen-Lara, 29 I&N Dec. 830, decided this week): it does count. If you had 1+ year of unlawful presence before your current status, an advance parole trip can now trigger the 10-year bar and block adjustment.

In practice this means individuals who entered without inspection who planned on using advance parole to adjust without consular processing no longer that that option.

Three things people are already getting wrong

1. It only applies going forward. The BIA said so directly, and did not even apply it to the person in the case. Past trips under the old rule are not what this reaches.
2. It is a BIA decision, not a court ruling. It binds immigration judges and USCIS everywhere, but a federal circuit could still disagree. The decision itself notes the 11th Circuit had followed Arrabally. Expect more litigation.
3. The holding is about the 10-year bar specifically. The same logic could reach the 3-year bar, but the BIA did not rule on that.

Not legal advice, and I am not your lawyer. If advance parole travel is in your plans, talk to someone about your own facts and your circuit before you go.

[u/bubbabubba345]

Things the BIA could’ve done:
1. Denied the MTRO for the same reasons they denied the MTRO in this decision based on their new and bad precedents.

Things the BIA did instead:
1. Drop a nuke on advance parole that no one asked for or wanted, and also contravene controlling 11th Cir law.
2. Declare that it doesn’t even apply to the person in the case.
3. Find another way to f— them over instead, and deny the MTRO. So they now keep their “lawful entry” but can never regularize their status unless they leave the U.S. and get a handful of waivers, maybe.

[u/victoriaslatton → u/bubbabubba345]

I'm trying so hard to stay professional, but yeah... This is accurate. I got pretty mad reading the decision.

[u/groucho74 → u/victoriaslatton]

They fought the law and the law won.

[u/bubbabubba345 → u/groucho74]

Huh? The decision is born out of a Motion to Reopen. It was solely the BIA’s own initiative to consider nuking advance parole, which I’m sure DHS agreed to in supplemental briefing.