Warning for Those Seeking to Depart on Advance Parole: New BIA Ruling Creates Serious Risks
Last week, the U.S. Department of Justice’s Board of Immigration Appeals (“BIA”) reversed a decade of precedent when it ruled that non-citizens who leave the U.S. while their immigration cases are pending can permanently jeopardize their prospects of obtaining legal residency, even if they received advance permission for the trip.
How Advance Parole Previously Helped DACA and TPS Holders Adjust Status
The new decision overruled a 2012 decision of the BIA that enabled thousands of DACA and TPS holders to adjust their status to permanent resident.
The 2012 BIA Rule on Advance Parole
In the 2012 decision, the BIA held that leaving the U.S. on an advance parole did not constitute a “departure” for purposes of the three and ten year bars.
Under this decision, Dreamers or TPS holders who were ineligible for adjustment of status because their initial entry into the U.S. was without inspection could travel and return on advance parole, thus obtaining a lawful entry for purposes of adjustment of status.
The Milagro Delcarmen-Lara Case
In the case ruled on last week, a Dreamer named Milagro Delcarmen-Lara was brought to the United States from El Salvador as a child. In 2006, a judge found her ineligible for TPS and ordered her removed from the country. In 2013, however, Ms. Delcarmen-Lara was granted protection as part of the DACA program.
The following year, her American husband petitioned to have her granted a visa, her first step toward earning legal residency and ultimately U.S. citizenship. The petition was approved by USCIS. She then asked the BIA to reopen the removal proceedings so she could seek a provisional waiver of inadmissibility and process her immigrant visa abroad. In 2015, the BIA rejected her motion because it was untimely.
Why Advance Parole Mattered to Her Adjustment of Status Claim
After that ruling, Ms. Delcarmen-Lara remained in the U.S. pursuant to DACA, eventually travelling abroad and returning on an advance parole.
Last year, Ms. Delcarmen-Lara filed a second motion to reopen her removal proceedings stating that she was eligible for adjustment of status based upon her U.S. citizen husband’s petition and her entry on advance parole. Under the 2012 BIA decision, Ms. Delcarmen-Lara could adjust under these circumstances.
The BIA Reverses Longstanding Advance Parole Precedent
However, the BIA had different ideas. In deciding Ms. Delcarmen-Lara’s case, the BIA reversed 14 years of precedent and did a full 180-degree turn and reversed the 2012 decision stating that the “parole is not a departure” rule was no longer valid.
Who Is Protected by the Prospective Application of the New Rule?
In an attempt to soften the blow of this sudden reversal, the BIA acknowledged that revising its policy related to advance parole is “significant change” to existing law and said it would therefore apply this new rule only prospectively, meaning that those who relied upon the previous 2012 rule prior to the new decision would still get the benefit of the 2012 rule.
What the New Advance Parole Rule Means for Immigrants
Despite the prospective application of the new rule, the BIA nevertheless still denied Ms. DelCarmen-Lara’s petition, finding it to be untimely. Which is really the most galling part of all of this.
The BIA could have denied the motion as untimely without changing fourteen years of precedent. Reversing the 2012 decision was not necessary for the outcome of this case, but the BIA gratuitously took the opportunity to close another door that has been used by thousands of immigrants since 2012.
This decision is yet another hurdle that the Trump Administration is erecting on the path to legal residency, reinforcing the fact that it has never been more important to have a skilled and experienced immigration attorney by your side. Please contact us if you need assistance with your or a loved one’s immigration case.