Matter of Arrabally and Yerrabelly: travel on advance parole was once not a "departure," and the rule was overruled in 2026Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012)

Wang Law Firm, LLC · David Wang, Managing Attorney · Attorney-reviewed · Updated October 2026

Case at a glance

Background: the unlawful presence bars and "departure"

INA 212(a)(9)(B)(i) sets out two reentry bars tied to unlawful presence: a person who was unlawfully present in the United States for more than 180 days but less than one year and then voluntarily departs is inadmissible for 3 years; a person who departs (or is removed) after one year or more of unlawful presence is inadmissible for 10 years. Both bars are triggered by a "departure," but the statute does not define "departure."

The problem arose for adjustment of status applicants. Under federal regulations, leaving the United States while an I-485 is pending without first obtaining advance parole generally causes the application to be treated as abandoned. Many applicants therefore apply for advance parole (on Form I-131). But if the applicant had previously accrued more than one year of unlawful presence in the United States (for example, a person who overstayed a visa and then applied to adjust under 245(i) or as the immediate relative of a U.S. citizen), would leaving on advance parole trigger the 10-year bar, making the person inadmissible and unable to get a green card after returning? Before Arrabally, internal immigration agency memoranda leaned toward saying it would, and advance parole documents carried a corresponding warning.

Facts

The Arraballys are citizens of India. The husband entered in December 1999 and the wife in October 2000 in nonimmigrant status; both remained in the United States after their visas expired and stayed without status for years (the husband for more than 5 years). In May 2004 an employment-based petition filed for the husband was approved, and in June 2004 the couple applied to adjust status under INA 245(i), then waited because their priority date was not yet current. To return to India to care for aging parents without abandoning their adjustment applications, they applied for advance parole and traveled abroad several times between 2004 and 2006, each time returning as parolees.

In 2007, USCIS denied their adjustment applications on the ground that their departures had triggered the 10-year bar. The Department of Homeland Security then issued notices to appear, and in 2009 the immigration judge found both inadmissible under 212(a)(9)(B)(i)(II) and ineligible to adjust under 245(i), and ordered them removed. They appealed to the BIA.

Questions presented

• When an adjustment applicant who has accrued more than one year of unlawful presence leaves temporarily on advance parole and returns as a parolee, is that a "departure" under 212(a)(9)(B)(i)(II) that triggers the 10-year bar?

How the BIA ruled (2012)

The majority held that it is not. The holding of the decision is that a noncitizen who leaves the United States temporarily on advance parole does not thereby make a "departure" within the meaning of 212(a)(9)(B)(i)(II). The main reasons included:

• Although the word "departure" is literally very broad, it should be read in light of the statute's context and purpose. The purpose of the bar is to put people who are unlawfully present on notice that leaving the United States has consequences.
• Advance parole differs fundamentally from other departures: it is a discretionary benefit approved by the government in advance, premised on a lawful return, and applicants seek it precisely in order to preserve their adjustment applications.
• Treating such travel as a departure that triggers the 10-year bar would serve none of the statute's purposes and would instead turn a humanitarian benefit into an obstacle to obtaining relief.
• The Department of Homeland Security's earlier position treating travel on advance parole as a departure appeared only in internal memoranda, not in regulations, and the BIA considered it non-binding on the Board.

At the same time, the BIA framed its holding narrowly: an applicant is not inadmissible under 212(a)(9)(B)(i)(II) merely because of travel on advance parole; the decision does not affect other grounds of inadmissibility, nor does it prevent such travel from being treated as a departure for other purposes. In this case, the couple remained removable for lacking valid immigrant documents at entry, and the case was remanded to the immigration judge to reconsider their adjustment applications.

Dissent: Board Member Pauley argued that "departure" should be given its ordinary meaning and that the Department of Homeland Security's longstanding interpretation should be respected; Congress could have written an exception for travel on advance parole but did not.

How it was applied from 2012 to 2026

• Over the following decade and more, Arrabally was widely relied on and read expansively: not only for I-485 applicants but also for other groups such as DACA recipients traveling on advance parole; USCIS also applied the same reasoning to the 3-year bar.
• The U.S. Court of Appeals for the Eleventh Circuit applied Arrabally's interpretation of "departure" in Ortiz-Bouchet v. U.S. Attorney General, 714 F.3d 1353 (11th Cir. 2013).
• Arrabally also opened a practical path for some people who had entered without inspection: after leaving on advance parole and returning as a parolee, they could meet the INA 245(a) requirement of having been "inspected and admitted or paroled" without triggering the bar through that trip.

2026: Matter of Delcarmen-Lara overrules Arrabally

The decision

On August 13, 2026, a three-member BIA panel (Deputy Chief Appellate Immigration Judge Gorman writing, with Appellate Immigration Judges Montante and Gallow) issued Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026). The holding of the decision reads:

“A departure from the United States pursuant to a grant of advance parole is a "departure" within the meaning of section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II). Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), overruled.”

The BIA's main reasons were: the statute does not define "departure," so it should be given its ordinary meaning (leaving), and the text sets out no exception for advance parole; Congress expressly addressed advance parole and brief trips abroad elsewhere in the INA but did not do so in 212(a)(9)(B); and Congress expressly provided exemptions for specific groups (such as NACARA and HRIFA applicants) but not for people traveling on advance parole.

Prospective application

• Applying the five factors of Matter of Cordero-Garcia, 27 I&N Dec. 652 (BIA 2019) to determine retroactivity, the BIA concluded that overruling a longstanding precedent should apply only prospectively ("we will apply this new holding prospectively"). Attorneys widely understand this to mean that advance parole trips completed before August 13, 2026 should not trigger the bars under the new rule.
• The decision does not address in detail the exact boundaries of "prospective application" (for example, a person who left before August 13 and returned afterward); these may need to be clarified by later guidance or litigation.
• The respondent in this case is a citizen of El Salvador who was ordered removed by an immigration judge in 2006 (affirmed by the BIA in 2008), later traveled briefly on advance parole, returned to the United States as a parolee on January 1, 2024, and in 2025 again moved to reopen her removal proceedings. The BIA denied the motion as untimely and number-barred; because the new rule applies only prospectively, the BIA did not decide whether her trip was a departure.
• The decision expressly states that it does not address the situations mentioned in Arrabally of departures caused by accident, deception, threats or force.

USCIS follow-up

According to reports from the Immigrant Legal Resource Center (ILRC) and others, USCIS then added a notice to the adjustment of status section of its website stating that, as of August 13, 2026, leaving the country after obtaining an advance parole document is a "departure" within the meaning of INA 212(a)(9)(B)(i). Delcarmen-Lara itself deals only with the 10-year bar provision, but USCIS's statement refers to 212(a)(9)(B)(i) as a whole, meaning the 3-year bar may also be triggered. As of the time this page was checked, we could not confirm whether the USCIS Policy Manual has been revised accordingly. Check current USCIS announcements.

What this means for applicants

Who is most affected

• People who accrued more than 180 days of unlawful presence after turning 18, for example people who overstayed a visa and then applied to adjust as the spouse, parent or minor child of a U.S. citizen, people applying under 245(i), and DACA recipients. Traveling on advance parole now may trigger the 3-year bar (more than 180 days but less than one year of unlawful presence) or the 10-year bar (one year or more).
• Generally, the period while an I-485 is pending is a period of authorized stay and does not accrue unlawful presence; the issue is unlawful presence accrued before the I-485 was filed.
• For people who have never been unlawfully present (for example, those who maintained lawful status such as H-1B or F-1 throughout and then filed an I-485), this issue usually does not arise, but they should still check their status records before traveling.

Situations Arrabally never protected (even before it was overruled)

• Arrabally addressed only 212(a)(9)(B)(i)(II) and expressly stated that it does not affect other grounds of inadmissibility.
• 212(a)(9)(C) (entering or attempting to enter without authorization after more than one year of aggregate unlawful presence or after a prior removal) is a separate bar with different elements and exceptions, and Arrabally could never be relied on to address it; people who have been removed, have a removal order or have entered unlawfully more than once must have this assessed separately before traveling (see Form I-212).
• Advance parole has never guaranteed admission; U.S. Customs and Border Protection (CBP) can still decide at the port of entry whether to parole you in.

TPS holders

• Since 2022, TPS holders travel on a dedicated TPS travel authorization, which differs from advance parole (see Sanchez v. Mayorkas explained). Delcarmen-Lara does not directly address TPS travel authorization, but attorneys widely worry that its reasoning could be extended to it. As of October 2026, there is no clear official answer.

Practical advice: what to do now

1. If you have advance parole and are planning a trip, pause first: before departing, have an attorney calculate the unlawful presence you accrued after turning 18 and confirm whether any exception under 212(a)(9)(B)(iii) or (iv) applies (for example, time spent under age 18 does not count as unlawful presence). You can start with a preliminary self-check using Can I travel while my application is pending? Travel check.
2. If you traveled and returned before August 13, 2026: keep your advance parole document, entry and exit records and proof of your itinerary. These trips should generally be treated under the old rule, but you may need to explain them at your adjustment interview.
3. If you must travel, assess waivers first: 212(a)(9)(B)(v) allows the spouse, son or daughter of a U.S. citizen or green card holder to apply for a waiver by showing that the U.S. citizen or green card holder spouse or parent would suffer "extreme hardship" (inside the U.S. on Form I-601). People without a qualifying relative usually have no access to this waiver.
4. If you are processing at a consulate: immediate relatives who must return home for the consular interview and have unlawful presence can consider applying for an I-601A provisional waiver before departing.
5. If you have already triggered a bar and returned to the U.S. as a parolee: in Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023), the BIA held that the 3-year / 10-year bar period can run while the person is inside the United States. Whether this applies to you must be assessed case by case.
6. Watch for further changes: Delcarmen-Lara may be challenged in federal court; the Eleventh Circuit (Florida, Georgia, Alabama) has the Ortiz-Bouchet precedent, and while the BIA stated in a footnote that this precedent does not prevent it from reinterpreting "departure," it remains debated whether Ortiz-Bouchet can still be relied on there. As of October 2026, follow the latest BIA, USCIS and court developments.

Frequently asked questions

Opinion text and sources

• EOIR: Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) (PDF)
• EOIR: Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026) (PDF)
• EOIR: BIA and Attorney General precedent decisions
• U.S. Code, 8 U.S.C. 1182 (INA 212(a)(9)(B), (a)(9)(C))
• USCIS Policy Manual, Volume 7, Part B (245(a) adjustment)

Related reading

• Form I-131 explained: application for travel document (advance parole)
• Can I travel while my application is pending? Travel check
• Form I-601A explained: provisional unlawful presence waiver
• Form I-601 explained: application for waiver of grounds of inadmissibility
• Sanchez v. Mayorkas: TPS is not a lawful "admission"

This page is a general introduction to a court decision and is not legal advice. The law and case law change, and outcomes depend on the specific facts. To evaluate your situation, consult an attorney.