## Facts

- Respondents, a married couple from India, were admitted to the United States as nonimmigrants in 1999 and 2000 and overstayed, accruing more than one year of unlawful presence.
- The husband became the beneficiary of an approved employment-based immigrant petition, and both filed adjustment of status applications under INA § 245(i), which were held while awaiting visa availability.
- While adjustment applications were pending, respondents obtained advance parole under INA § 212(d)(5)(A) and traveled abroad temporarily, returning to the United States multiple times pursuant to that authorization.
- USCIS denied adjustment, concluding respondents were inadmissible under INA § 212(a)(9)(B)(i)(II) because their post-unlawful-presence travel constituted a “departure” triggering the 10-year bar.
- In removal proceedings, the Immigration Judge found respondents inadmissible and ineligible for adjustment, relying in part on the § 212(a)(9)(B)(i)(II) unlawful-presence bar, and ordered removal.
- Respondents appealed, disputing that travel under advance parole is a “departure” for purposes of § 212(a)(9)(B)(i)(II).

## Issues

1. Whether a noncitizen’s temporary travel outside the United States pursuant to a grant of advance parole constitutes a “departure” that triggers inadmissibility under INA § 212(a)(9)(B)(i)(II).
2. Whether the Immigration Judge erred by treating advance-parole travel as a triggering event for the 10-year unlawful-presence bar when evaluating eligibility for adjustment under INA § 245(i).

## Decision

- The Board sustained the appeal in part and remanded for further proceedings.
- The Board held that a noncitizen who leaves the United States temporarily under advance parole does not thereby make a “departure” within the meaning of INA § 212(a)(9)(B)(i)(II).
- Because respondents’ travel occurred pursuant to advance parole, the Board concluded the 10-year unlawful-presence bar did not apply on that basis and the Immigration Judge’s contrary ruling was erroneous.
- The Board clarified its prior decision in Matter of Lemus, limiting it insofar as it did not address the effect of travel under advance parole.
- A dissent would have applied a more literal interpretation treating any physical exit, including on advance parole, as a “departure” triggering § 212(a)(9)(B).

## Legal Principles

- “Departure” in INA § 212(a)(9)(B)(i)(II) does not include a temporary exit undertaken pursuant to advance parole granted to permit return and continued pursuit of a pending immigration benefit.
- Advance parole functions as preauthorized parole on return and is designed to preserve the pendency of an adjustment application rather than terminate eligibility through travel.
- Statutory terms in § 212(a)(9)(B) must be read in context, including the statutory and regulatory scheme permitting certain adjustment applicants to travel temporarily without self-defeating consequences.
- Prior Board precedent discussing “departure” does not control where it did not consider the distinct legal effect of advance-parole travel.

## Conclusion

The Board held that respondents’ temporary travel under advance parole was not a “departure” for purposes of INA § 212(a)(9)(B)(i)(II), so their return did not trigger the 10-year unlawful-presence bar on that ground; the case was remanded for reconsideration of adjustment eligibility without applying that bar based solely on advance-parole travel.


Matter of Arrabally & Yerrabelly, 25 I. & N. Dec. 771 (B.I.A. 2012)