- The BIA ruled that travel under advance parole triggers bars to readmission for those with unlawful presence.
- The decision overrules a 14-year-old precedent that previously protected adjustment of status applicants from these bars.
- The new interpretation applies only to travel occurring on or after the August 13, 2026 decision date.
The Board of Immigration Appeals ruled Thursday that leaving the United States under advance parole counts as a departure that can trigger the unlawful presence bars. The decision, known as BIA Overrules Arrabally and Yerrabelly, reverses a 14-year-old precedent but applies only to future travel.
In Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), Interim Decision #4233, the Board held that travel under a parole grant falls within INA § 212(a)(9)(B)(i)(II), 8 U.S.C. § 1182(a)(9)(B)(i)(II). That provision can bar readmission for 10 years after at least one year of unlawful presence, while a separate provision creates a 3-year bar after more than 180 days but less than one year.
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The ruling overruled Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). That decision had treated travel under a valid document as legally different from an ordinary departure while an adjustment application remained pending.
Deputy Chief Appellate Immigration Judge Gorman wrote the decision. Appellate Immigration Judges Montante and Gallow joined it.
A departure from the United States pursuant to a grant of advance parole is a "departure" within the meaning of INA § 212(a)(9)(B)(i)(II), 8 U.S.C. § 1182(a)(9)(B)(i)(II)
The Board did not decide whether the respondent’s own 2024 trip created inadmissibility. Her travel occurred while the earlier rule governed.
The new interpretation applies to later travel
The Board declined to apply its interpretation retroactively. It used the five-factor framework from Matter of Cordero-Garcia, 27 I&N Dec. 652 (BIA 2019), for changes that depart from established precedent.
The factors address whether the case presents an issue of first impression, whether the new rule abruptly changes settled practice, how much reliance the old rule received, the burden of retroactive application, and the government’s interest in immediate enforcement.
The Board found that the first three factors favored prospective application because it was reversing a 14-year-old precedent. It also found retroactive enforcement would impose a substantial burden. The government’s interest in applying the new interpretation immediately did not outweigh reliance on the earlier rule.
The dividing line is August 13, 2026, the date of the decision. The Board’s new definition applies to later trips, not to the respondent’s January 1, 2024 departure.
That protection had covered people with pending adjustment applications who obtained permission to leave temporarily and be paroled back into the country. Under the new approach, a person with more than 180 days of unlawful presence may face the 3-year bar after leaving, while one year or more can lead to the 10-year bar, unless a waiver applies.
Delcarmen-Lara’s motion failed on filing limits
Milagro Delcarmen-Lara, a native and citizen of El Salvador, first came before an Immigration Judge in 2006. The judge found her removable under INA § 212(a)(6)(A)(i), for being present without admission or parole, found her ineligible for Temporary Protected Status, and ordered her removed.
The Board affirmed on June 17, 2008. That ruling became the operative final administrative order for later filing deadlines.
Delcarmen-Lara received Deferred Action for Childhood Arrivals in 2013. USCIS approved her husband’s Petition for Alien Relative, Form I-130, on July 9, 2014.
She first moved to reopen in 2015 to seek a Form I-601A provisional unlawful presence waiver. The Board denied that motion on August 6, 2015, because it was untimely and because her final removal order made her ineligible for that waiver.
On January 1, 2024, she left the United States temporarily and was paroled back in under a grant of advance parole. On May 27, 2025, she filed a second motion to reopen, seeking adjustment of status under INA § 245(a) based on the approved petition.
Her filing included proof of the 2024 trip. Because the case directly raised whether such travel constituted a departure, the Board requested supplemental briefing from her counsel and the Department of Homeland Security on whether the 2012 precedent should be reconsidered.
The Board denied the motion as untimely and number-barred. Motions to reopen generally must be filed within 90 days of a final administrative order under INA § 240(c)(7) and 8 C.F.R. § 1003.2(c)(2). Her filing arrived more than 16 years after the June 17, 2008 order.
She had also already filed one motion. The Board found that she had not shown a statutory or regulatory exception to either restriction.
The judges also declined to reopen the case on their own initiative. The Board described sua sponte reopening as authority reserved for “exceptional situations,” citing Matter of G-D- and Matter of J-J-. Becoming eligible for relief years after a final order, as in Matter of Yauri and Matter of H-Y-Z-, does not by itself satisfy that standard.
Those procedural defects resolved the case. The Board therefore did not decide whether the 2024 trip would have made her inadmissible under the new interpretation.
The Board read “departure” according to its ordinary meaning
The Board began with the statutory text. Neither “depart” nor “departure” is defined in the Immigration and Nationality Act, so the judges consulted the ordinary dictionary meaning, “to go away: leave.”
The decision cited Lamie v. United States Trustee and Connecticut National Bank v. Germain for the presumption that Congress means what it says. The Board found no textual exception for a departure authorized by parole.
The provision came from the IIRIRA-era statutory framework enacted in 1996 and effective April 1, 1997. The Board said the legislative history was sparse and did not show that Congress intended to exclude this kind of travel.
The judges then compared the provision with other sections where Congress expressly addressed parole or short absences:
| Provision | Treatment identified by the Board |
|---|---|
| INA § 201(c)(4)(A) | Refers to aliens who “did not depart from the United States (without advance parole) within 365 days” for family-sponsored immigrant numerical limits |
| INA § 245A(g)(2)(B)(ii) | Excludes parole-related absences from the continuous-physical-presence calculation for legalization |
| INA § 240A(d)(2) | Uses 90-day single-trip and 180-day aggregate thresholds for breaking continuous physical presence in cancellation cases |
| INA § 244(c)(4) | Protects “brief, casual, and innocent” absences for Temporary Protected Status continuous presence |
The Board invoked Russello v. United States, reasoning that Congress’s use of specific language in one section and omission of that language in another generally suggests that the omission was intentional.
The decision made a similar point about waivers. Congress expressly created protections for certain adjustment applicants through the Nicaraguan Adjustment and Central American Relief Act and the Haitian Refugee Immigration Fairness Act. The Board said those provisions showed that Congress knew how to create an exception when it intended one.
Earlier agency practice supported the reversal
Before Arrabally and Yerrabelly was decided in 2012, the Department of Homeland Security and the former Immigration and Naturalization Service had treated travel under the document as a departure for this inadmissibility ground. Internal policy memoranda reflected that position.
The documents themselves warned travelers that they could be found inadmissible and ineligible for adjustment without a valid waiver. The Board cited that warning, as did the Eleventh Circuit in Cheruku v. U.S. Attorney General.
The judges rejected the idea that the plain-text reading produced an absurd result. Citing Matter of Forjoe, 29 I&N Dec. 463 (BIA 2026), the Board said it could depart from statutory language only when the result was “demonstrably at odds with the intentions of its drafters.”
The ruling did not resolve how the term applies when someone leaves by accident, deception, threat, or violence. Those scenarios had concerned the panel that decided the 2012 case.
Eleventh Circuit precedent remains part of the dispute
The Board acknowledged that the Eleventh Circuit had applied the earlier definition in Ortiz-Bouchet v. U.S. Attorney General, 714 F.3d 1353 (11th Cir. 2013). The circuit controls review of Delcarmen-Lara’s proceedings.
The Board nevertheless concluded that Ortiz-Bouchet did not stop it from revisiting its own definition nationwide. The interaction between the new Board rule and circuit precedent could therefore produce further litigation, particularly in cases arising within the Eleventh Circuit.
A discretionary waiver remains available in limited circumstances under INA § 212(a)(9)(B)(v), including where the applicant can establish extreme hardship to a qualifying relative. Statutory protections under NACARA and HRIFA also remain intact.
People who have accrued unlawful presence should evaluate waiver eligibility before any later trip. The result may depend on the length of the unlawful presence, the date of travel, the controlling court’s precedent, and the individual’s procedural history.
The Board left future cases to address departures caused by involuntary or coercive circumstances. It also left unresolved how courts will apply the new interpretation when an adjustment application is still pending.
This article provides general information and is not legal advice. Consult a qualified immigration attorney about your specific case.
