ARRABALLY AND YERRABELLY
25 I. & N. Dec. 771 (2012)
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Rule of Law:
An alien who temporarily leaves the United States pursuant to a grant of advance parole does not make a "departure" within the meaning of section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, and therefore does not trigger the 10-year inadmissibility bar for unlawful presence upon their return.
Facts:
- Manohar Rao Arrabally and Sarala Yerrabelly, a married couple from India, were admitted to the United States on temporary nonimmigrant visas in 1999 and 2000, respectively.
- After their visas expired, both remained in the United States without lawful immigration status for several years, thereby accruing more than one year of 'unlawful presence'.
- In 2004, Arrabally became the beneficiary of an approved employment-based immigrant visa petition, and both he and Yerrabelly applied for adjustment of status to permanent residents.
- While their applications were pending, the couple needed to travel to India to care for their aging parents.
- To avoid having their pending adjustment of status applications deemed abandoned, they applied for and received 'advance parole' from the U.S. government.
- Between 2004 and 2006, Arrabally and Yerrabelly used their advance parole authorization to travel to India and return to the United States on several occasions.
Procedural Posture:
- Arrabally and Yerrabelly filed applications for adjustment of status with United States Citizenship and Immigration Services (USCIS).
- On October 15, 2007, USCIS denied their applications, finding that their travel on advance parole triggered the 10-year inadmissibility bar under INA § 212(a)(9)(B)(i)(II).
- The Department of Homeland Security (DHS) initiated removal proceedings against the respondents in Immigration Court, charging them as inadmissible.
- In Immigration Court, the respondents renewed their applications for adjustment of status.
- On August 20, 2009, the Immigration Judge found the respondents inadmissible under the 10-year bar, denied their applications for adjustment of status, and ordered them removed from the United States.
- The respondents (appellants) appealed the Immigration Judge's decision to the Board of Immigration Appeals (BIA), with the DHS as the appellee.
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Issue:
Does an alien's temporary travel abroad pursuant to a grant of advance parole constitute a 'departure... from the United States' that triggers the 10-year inadmissibility bar under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act?
Opinions:
Majority - Board Member Wendtland
No. An alien who leaves the United States temporarily pursuant to a grant of advance parole has not made a 'departure' that triggers inadmissibility under section 212(a)(9)(B)(i)(II). The court's reasoning is that statutory terms must be interpreted in their broader context and with a view to the overall statutory scheme. The purpose of the unlawful presence bar is to penalize individuals for immigration violations and deter their unlawful return, not to create a trap for those who follow government procedures. A departure under advance parole is qualitatively different from other departures, as it is a government-authorized trip that presupposes the alien's return to continue a pending application for an immigration benefit. To treat this authorized travel as a trigger for a 10-year bar would transform a humanitarian benefit into a means for barring relief, a paradoxical result Congress did not intend. The court clarified its prior holding in Matter of Lemus, stating that its broad language about 'any departure' did not contemplate a departure taken with advance government permission to return.
Dissenting - Board Member Pauley
Yes. A departure under a grant of advance parole should be considered a 'departure' for the purposes of section 212(a)(9)(B)(i)(II). The term 'departure' should be given its plain and ordinary meaning, and leaving the country is a departure. This view is consistent with the long-standing interpretation of the DHS and its predecessor agency, the INS, which is entitled to deference. Furthermore, Congress could have easily created an explicit exception for advance parolees in the statute but chose not to. The government's grant of advance parole is not an authorization to depart, but merely a document that facilitates return, and the travel documents themselves warn applicants that they may be found inadmissible. The majority's decision creates uncertainty and injects a judicially-created exception into an otherwise clear statutory provision.
Analysis:
This decision provides a crucial clarification in immigration law, protecting adjustment of status applicants from inadvertently triggering a 10-year inadmissibility bar by using a government-authorized travel document. It harmonizes the function of advance parole—to preserve a pending application during temporary travel—with the punitive purpose of the unlawful presence bars. By refusing to apply the term 'departure' in a hyper-technical way, the Board prevented a discretionary benefit from becoming a trap. This precedent ensures that individuals who follow the prescribed legal process for temporary travel are not penalized as if they had simply left the country without authorization, thereby adding a layer of fairness and predictability to the adjustment of status process.
