Cabrera-Fernandez
28 I. & N. Dec. 747 (2023)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Release on 'conditional parole' under section 236(a)(2)(B) of the Immigration and Nationality Act (INA) is legally distinct from 'humanitarian parole' under section 212(d)(5)(A) of the INA. Conditional parole does not satisfy the statutory requirement of having been 'inspected and admitted or paroled,' making an individual ineligible for adjustment of status under the Cuban Adjustment Act.
Facts:
- Olty Cabrera-Fernandez and other respondents entered the United States without inspection, admission, or parole.
- Approximately 40 minutes after their entry, Department of Homeland Security (DHS) officials encountered the respondents less than a mile from the southern border.
- The respondents were detained for a few days following their apprehension.
- DHS released the respondents on their own recognizance pursuant to its authority under 'conditional parole' as defined in section 236(a)(2)(B) of the Immigration and Nationality Act.
Procedural Posture:
- The Department of Homeland Security (DHS) initiated removal proceedings against the respondents in Immigration Court, charging them under INA § 212(a)(6)(A)(i) for being present without admission or parole.
- The respondents conceded the charges of removability but filed an application for adjustment of status under the Cuban Adjustment Act.
- In a decision dated August 16, 2022, the Immigration Judge (the trial-level court) granted the respondents' application for adjustment of status.
- DHS, as the appellant, appealed the Immigration Judge’s decision to the Board of Immigration Appeals (the intermediate appellate body), with the respondents acting as appellees.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a noncitizen's release from custody on 'conditional parole' under section 236(a)(2)(B) of the INA satisfy the requirement of being 'inspected and admitted or paroled' into the United States for the purpose of eligibility for adjustment of status under the Cuban Adjustment Act?
Opinions:
Majority - Greer, Appellate Immigration Judge
No. A release on 'conditional parole' under INA § 236(a)(2)(B) does not satisfy the 'inspected and admitted or paroled' requirement for adjustment of status under the Cuban Adjustment Act. The court reasoned that there is a clear legal distinction between conditional parole, which is a release mechanism for individuals in removal proceedings, and humanitarian parole under INA § 212(d)(5)(A), which is a formal grant of permission to be in the U.S. for specific reasons. Citing its precedent in Matter of Castillo-Padilla, the Board held that only humanitarian parole (or an inspection and admission) qualifies an applicant under the Cuban Adjustment Act. The Board rejected the Immigration Judge's conclusion that the release was a humanitarian parole 'by operation of law,' distinguishing Jennings v. Rodriguez and finding Matter of O- inapplicable because a specific statutory mechanism for the respondents' release—conditional parole—existed and was utilized by DHS.
Analysis:
This decision reinforces a strict interpretation of the eligibility requirements for the Cuban Adjustment Act, a significant pathway to lawful permanent residence for Cuban nationals. The Board of Immigration Appeals clarifies that the specific legal authority under which a noncitizen is released from custody is determinative of their eligibility for certain immigration benefits. This ruling curtails attempts to recharacterize a 'conditional parole'—a common form of release for arriving noncitizens placed in removal proceedings—as a substantive 'humanitarian parole' that confers eligibility for adjustment. The decision solidifies the legal distinction between different forms of parole and will require immigration practitioners to scrutinize the exact statutory basis for their clients' release from DHS custody.
