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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

In one sentence: In 2012 the Board of Immigration Appeals (BIA) held that leaving the country temporarily on advance parole is not a "departure" for purposes of the 10-year bar of INA 212(a)(9)(B)(i)(II). On August 13, 2026, the BIA overruled this precedent in Matter of Delcarmen-Lara, holding that leaving on advance parole is a "departure," with the new rule applying prospectively. People who have accrued unlawful presence in the United States may now trigger the 3-year / 10-year bars by traveling on advance parole.

Case at a glance

ItemDetails
Case nameMatter of Arrabally and Yerrabelly
BodyBoard of Immigration Appeals (BIA), part of the Executive Office for Immigration Review (EOIR), U.S. Department of Justice
Citation25 I&N Dec. 771 (BIA 2012); Interim Decision #3748
Decision dateIssued April 17, 2012; amended August 16, 2012 (footnote 6 added)
Vote2–1 three-member panel. Board Member Wendtland wrote the majority opinion, joined by Board Member Greer; Board Member Pauley dissented
Provisions involvedINA 212(a)(9)(B)(i)(II) (8 U.S.C. 1182(a)(9)(B)(i)(II), the 10-year bar for departing after one year or more of unlawful presence); INA 212(d)(5)(A) (parole); INA 245(i)
TopicTravel on advance parole and the unlawful presence bars; travel by adjustment of status applicants
Current statusOverruled (as of October 2026). On August 13, 2026, the BIA expressly overruled this case in Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), with the new rule applying prospectively
Decision textEOIR precedent volume Vol. 25 (PDF); overruling decision: Matter of Delcarmen-Lara (PDF)

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

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:

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

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

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

Situations Arrabally never protected (even before it was overruled)

TPS holders

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

My I-485 is pending and I have advance parole. Can I still travel abroad safely?

There is no one-size-fits-all answer. If you have never accrued more than 180 days of unlawful presence in the United States, travel generally does not implicate this bar, though other risks must still be considered. If you have ever overstayed or been out of status for more than 180 days, traveling on advance parole after August 13, 2026 may trigger the 3-year or 10-year bar and prevent you from adjusting status. Have an attorney assess your situation before you travel.

I traveled on advance parole before August 2026. Am I affected?

The BIA decided that the new rule applies prospectively, which attorneys widely understand to mean that trips completed before August 13, 2026 should not trigger the bars as a result. Keep all travel documents and entry and exit records. If you left before August 13 and returned afterward, the boundary is unclear and must be assessed case by case.

Can DACA recipients still travel on advance parole?

They can apply, but the risk has changed. Many DACA recipients accrued unlawful presence after turning 18 and before receiving DACA, and traveling on advance parole now may trigger the bars. Calculate your unlawful presence before traveling.

Does this decision affect people who travel and return on an H-1B visa?

This decision concerns travel on advance parole. Under the regulations, I-485 applicants who maintain valid H-1B or L-1 status and travel on a valid visa do not abandon their I-485 by traveling. Whether unlawful presence is an issue depends on whether you have had any past gaps in status; check your complete status history before traveling.

Is there anything I can do if I have triggered the 10-year bar?

Possibly. The spouse, son or daughter of a U.S. citizen or green card holder who can show that the U.S. citizen or green card holder spouse or parent would suffer extreme hardship may apply for a 212(a)(9)(B)(v) waiver; in addition, BIA precedent holds that the bar period can run while inside the United States. What is feasible depends on your family relationships, circumstances in the U.S. and any other grounds of inadmissibility.

Opinion text and sources

Related reading

Do you hold advance parole and plan to travel, or did you once overstay in the U.S. and worry that leaving could trigger a bar? Since August 2026, the risks of this kind of travel have changed. Book an attorney consultation; we will first calculate your unlawful presence and review your entry and exit records, then explain the risks of travel and the alternatives available.

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.