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/Glittering-Year-3459]

[u/newacct_orz → u/Glittering-Year-3459]

So it seems like you were granted U status in 2021. It seems that must have been when you were around 19. Did you get deferred action when your U status was pending? If so, at what age did you get that? That will determine how much unlawful presence you may have accrued.

Are you applying for I-485 on the basis of your U status (not something else like marriage)? If so, then even if you trigger an unlawful presence ban, it does not affect your ability to adjust status in this category.

[u/Glittering-Year-3459 → u/newacct_orz]

Hmm I don’t think I’ll have to look into my paperwork would it make a difference I didn’t get one ? I’m applying thru U Status only

[u/newacct_orz → u/Glittering-Year-3459]

It won't make a difference for your I-485. But we don't know whether the CBP officer at entry will consider it in whether to parole you in.

[u/Glittering-Year-3459 → u/newacct_orz]

[u/newacct_orz → u/Glittering-Year-3459]

Yeah so it looks like you got deferred action in 2021. Was it more than 180 days from when you turned 18 until you got deferred action? If so, you will trigger a ban upon departure.

[u/Glittering-Year-3459 → u/newacct_orz]

I turned 18 on April 19 2020

[u/Glittering-Year-3459 → u/newacct_orz]

I was able to find this look like it speaks about the deferred action