RESOLVING THE LEDGER
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0 Share Newsweek is a Trust Project member See more of our trusted coverage when you search. Prefer Newsweek on Google to see more of our trusted coverage when you search. A major immigration ruling issued Thursday could have significant implications for Deferred Action for Childhood Arrivals (DACA) recipients and other immigrants who have relied on advance parole travel as part of their path toward obtaining lawful permanent residency, otherwise known as a green card .
The Board of Immigration Appeals at the Department of Justice (DOJ) overturned its 2012 ruling that protected immigrants who were brought to the United States illegally as children from triggering so-called unlawful presence bars when traveling abroad with advance parole—a temporary travel document issued when a more permanent immigration status is pending.
In its decision Thursday, the board held that a trip outside the United States using advance parole could still be considered a "departure" under immigration law, potentially exposing some applicants to the three- and 10-year bars from the U.S. when seeking admission or adjustment of status.
The policy change comes amid a wide range of other decisions by the Trump administration to place limits on legal immigrants and those applying for permanent residency. Several protections, including for those with Temporary Protected Status and humanitarian parole, have also been rolled back, some with the backing of the Supreme Court.
"This decision is yet another part of a deliberate effort to dismantle DACA piece by piece, without ever announcing it," Todd Schulte, FWD.us President, told Newsweek in a statement. "Advance parole has been an incredibly successful policy that has allowed tens of thousands of people to travel outside of the U.S. with the government's permission and return to their jobs and families without disruption. A future administration can and should immediately reverse this devastating decision."
The decision, Matter of Delcarmen-Lara , marks one of the most consequential immigration policy shifts affecting advance parole travel in more than a decade and is likely to draw close scrutiny from immigration attorneys and advocacy groups.
The Board of Immigration Appeals (BIA) said Congress did not create an exception for advance parole travel in the relevant section of the Immigration and Nationality Act, finding that its ruling over a decade ago was at odds with immigration law, and decided to overturn that decision.
The board did say, however, that because immigrants had relied on the 2012 ruling for years, the new interpretation should apply only to cases filed after the decision date.
Charles Kuck, an immigration attorney with Kuck Baxter in Atlanta, Georgia, noted that the decision does not prevent DACA recipients from traveling on advance parole, but it does add an additional step.
"It does, however, create a requirement for a DACA recipient who accrued unlawful presence prior to the grant of DACA to file a waiver with the adjustment of status application," he told Newsweek .
USCIS Spokesman Zach Kahler told Newsweek that the decision affirmed a "straightforward principle" that leaving the U.S. had meaning.
“The immigration laws enacted by Congress impose consequences when someone who has accrued unlawful presence leaves the country and later seeks admission, including when that departure occurs under advance parole," Kahler said. "U.S. Citizenship and Immigration Services will ensure that immigration filings are decided based on the laws, regulations, and binding legal precedent that govern each case.”
The DOJ declined to comment further on the decision.
Advance parole is a travel authorization issued by U.S. Citizenship and Immigration Services ( USCIS ) that allows certain noncitizens, including some DACA recipients, to leave the United States temporarily and seek reentry.
For DACA recipients, advance parole has historically been available for limited purposes, including certain educational, employment-related, and humanitarian travel. Immigration attorneys have frequently used advance parole as part of broader strategies for eligible clients seeking to address immigration status issues or pursue lawful permanent residence.
The 2012 BIA ruling in Matter of Arrabally and Yerrabelly provided a key protection by finding that a temporary trip taken under advance parole did not constitute a "departure" for purposes of triggering unlawful presence bars. Thursday's ruling reverses that interpretation.
Applicants typically file Form I-131, Application for Travel Documents, and must receive approval before departing the United States. Immigration attorneys have long advised applicants to carefully evaluate potential immigration consequences before traveling because advance parole does not guarantee admission upon return.
USCIS may, in limited circumstances, provide emergency advance parole appointments for individuals facing urgent travel needs that cannot wait for standard processing.
Emergency requests are often associated with serious humanitarian situations, such as visiting a critically ill relative or attending a funeral overseas. Eligibility and documentation requirements can vary depending on the circumstances presented to immigration officials.
While emergency advance parole may expedite the authorization process, immigration experts typically emphasize that recipients should still understand the potential consequences of departing from the United States.
That issue has now taken on added significance following the BIA's ruling, which states that travel undertaken with advance parole can qualify as a departure under the unlawful presence provisions of U.S. immigration law.
The decision is likely to generate significant legal debate because advance parole has been an important tool for many DACA recipients and other immigrants for more than a decade. Immigration attorneys and advocacy organizations are expected to analyze the prac...
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