Cite as 25 I&N Dec. 771 (BIA 2012) Interim Decision #3748
1Upon a motion of the Department of Homeland Security that is expressly unopposed by the
respondents, we amend the April 17, 2012, order in this case. The amended order adds
footnote 6 and makes editorial changes to reflect its inclusion.
771
Matter of Manohar Rao ARRABALLY, Respondent
Matter of Sarala YERRABELLY, Respondent
Decided as amended August 16, 20121
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien who leaves the United States temporarily pursuant to a grant of advance parole
does not thereby make a “departure . . . from the United States” 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) (2006). Matter of Lemus, 24 I&N Dec. 373 (BIA 2007), clarified.
FOR RESPONDENTS: Jon Eric Jesson, Esquire, Stamford, Connecticut
FOR THE DEPARTMENT OF HOMELAND SECURITY: John P. Marley, Senior
Attorney
BEFORE: Board Panel: WENDTLAND and GREER, Board Members. Dissenting
Opinion: PAULEY, Board Member.
WENDTLAND, Board Member:
In a decision dated August 20, 2009, an Immigration Judge found the
respondents inadmissible as charged under section 212(a)(7)(A)(i)(I) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2006),
as intending immigrants not in possession of valid immigrant visas or other
entry documents. He further found them ineligible for adjustment of status
under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2006), based on their
inadmissibilityunder section 212(a)(9)(B)(i)(II), and he ordered them removed
from the United States.
This case presents the question whether the respondents, who left
the United States temporarily under a grant of advance parole, thereby
effected a “departure,” which resulted in their inadmissibility under section
212(a)(9)(B)(i)(II). We hold that they did not. Consequently, the respondents’Cite as 25 I&N Dec. 771 (BIA 2012) Interim Decision #3748
2 The respondents seek adjustment of status under section 245(i) of the Act (rather than
section 245(a)) because they “failed . . . to maintain continuously a lawful status since entry
into the United States” within the meaning of section 245(c) of the Act. Section 245(i)
adjustment is available for a fee to certain aliens who are “physically present in the
United States” but covered by section 245(c). Section 245(i)(1)(A)(ii) of the Act.
772
appeal will be sustained in part and the record will be remanded to the
Immigration Judge for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondents, a husband and wife, are natives and citizens of India. The
male respondent and his wife were admitted to the United States temporarily
as nonimmigrants on December 15, 1999, and October 29, 2000, respectively.
The male respondent’s visa expired on June14, 2000, but he remained in the
United States without lawful immigration status for more than 5 years
thereafter, and his wife also remained in this country for several years after her
visa expired on April 28, 2001.
On May 11, 2004, the male respondent became the beneficiary
of an approved employment-based immigrant visa petition, Form I-140
(Immigrant Petition for Alien Worker), with a priority date of April 27, 2001.
On June 2, 2004, he and his wife applied for adjustment of status under section
245(i) of the Act before the United States Citizenship and Immigration
Services (“USCIS”), a component of the Department of Homeland Security
(“DHS”).2
The respondents’ applications for section 245(i) adjustment were
prima facie approvable when filed, but they were held in abeyance for several
years to await the availability of visa numbers in the male respondent’s
oversubscribed preference category. During this interval, the respondents
found it necessary to return to India to attend to their aging parents, but they
were appropriately concerned that the USCIS would deem their adjustment
applications abandoned if they left the United States.
To prevent their applications from being deemed abandoned, the
respondents applied for “advance parole” from the USCIS pursuant to section
212(d)(5)(A) of the Act. See 8 C.F.R. §§ 212.5(f) (providing for the advance
authorization of parole); 245.2(a)(4)(ii)(A) (2004) (providing that “the
departure of an [adjustment] applicant . . . shall be deemed an abandonment
of the application constituting grounds for termination of any pending
application for adjustment of status, unless the applicant was previously
granted advance parole by the Service for such absences, and was inspected
upon returning to the United States”). The respondents’ requests for advanceCite as 25 I&N Dec. 771 (BIA 2012) Interim Decision #3748
3 The respondents are not eligible for a waiver under section 212(a)(9)(B)(v) because they
lack a qualifying relative whose hardship could be considered under that provision.
773
parole were granted, and they traveled to India and back on several occasions
between 2004 and 2006, returning each time in accordance with the terms
of their advance parole. On September 10, 2006, the respondents returned
from India for the last time and were paroled into the United States.
In separate notices issued on October 15, 2007, the USCIS informed the
respondents that their applications for adjustment of status were denied.
Specifically, the notices informed the respondents that they were no longer
“admissible” to the United States, as required for adjustment of status, because
they had departed this country (under grants of advance parole) after having
been “unlawfully present” here for 1 year or more and were seeking admission
less than 10 years after having departed, a set of circumstances that rendered
them inadmissible under section 212(a)(9)(B)(i)(II) of the Act.
The male respondent promptly sought reopening of his adjustment
application before the USCIS, noting the humanitarian considerations that had
prompted his request for advance parole and contending that he and his wife
should not be punished for having departed the United States when the DHS
knew about, and expressly approved of, those departures by granting them
advance parole. On July 21, 2008, a USCIS Field Office Director issued
a decision acknowledging the force of some of the male respondent’s
arguments but ultimately concluding that his inadmissibility under section
212(a)(9)(B)(i)(II) of the Act necessitated the denial of his application.
In arriving at that conclusion, the Field Office Director invoked Matter
of Lemus, 24 I&N Dec. 373 (BIA 2007) (“Lemus I”), in which we held that
section 245(i) adjustment is unavailable to aliens who are inadmissible under
section 212(a)(9)(B)(i)(II) and are not eligible for a section 212(a)(9)(B)(v)
waiver.3
See also Matter of Lemus, 25 I&N Dec. 734 (BIA 2012) (“Lemus II”)
(reaffirming the holding of Lemus I).
On November 21, 2008 the DHS commenced these removal proceedings
by filing notices to appear in Immigration Court, charging the respondents
with inadmissibility under section 212(a)(7)(A)(i)(I) of the Act. By serving
these notices to appear on the respondents, the DHS terminated their
parole, thereby restoring them to the status they allegedly held at the time
of their last parole into the United States, that is, as intending immigrants who
are not in possession of valid admission documents. See 8 C.F.R.
§§ 212.5(e)(2)(i), 245.2(a)(4)(ii)(A) (2008). On February 12, 2009, the
respondents conceded removability through counsel and sought to renew their
adjustment applications before the Immigration Judge. At the conclusionCite as 25 I&N Dec. 771 (BIA 2012) Interim Decision #3748
774
of an evidentiaryhearing conducted on August 20, 2009, the Immigration Judge
found the respondents inadmissible under section 212(a)(9)(B)(i)(II) of the Act
and ineligible for section 245(i) adjustment, and he ordered them removed
to India.
II. ANALYSIS
The respondents’ first argument on appeal is that their departures from the
United States under a grant of advance parole were not the sort of “departures”
that render aliens inadmissible under section 212(a)(9)(B)(i)(II) of the Act. For
the following reasons, we agree.
As previously noted, the USCIS and the Immigration Judge found the
respondents inadmissible to the United States under section 212(a)(9)(B)(i)(II)
of the Act, which provides as follows:
Any alien (other than an alien lawfully admitted for permanent residence) who—
. . .
(II) has been unlawfully present in the United States for one year or more, and who
again seeks admission within 10 years of the date of such alien’s departure or removal
from the United States, is inadmissible.
(Emphasis added.)
The terms “depart” and “departure” are employed in numerous different
contexts throughout the Act, but they are not statutorily defined. This
is understandable. It would be a daunting task for any statutory draftsman
to supply a single comprehensive definition for terms of such broad and
variable application. Nevertheless, according to one dictionary, “depart” means
simply “to go away: leave,” while “departure” denotes “the act or an instance
of departing.” Merriam-Webster’s Collegiate Dictionary 309 (10th ed. 2002).
As used in section 212(a)(9)(B)(i)(II) of the Act, a “departure” could thus
be interpreted to encompass any instance in which a person has “gone away”
from or “left” the territory of the United States. Indeed, we have stated that the
term “departure” should be given such a broad construction in the section
212(a)(9)(B)(i)(II) context. Lemus I, 24 I&N Dec. at 376-77.
InLemus I, the respondent maintained that section 212(a)(9)(B)(i)(II) should
be construed so that the term “departure” would cover only a formal “voluntary
departure” under section 240B of the Act, 8 U.S.C. § 1229c (2006), that is,
a departure made after the commencement of removal proceedings and in lieu
of an order of removal. Id. at 376. We disagreed, concluding that this
interpretation of “departure” was too narrow. Id. Indeed, in refuting the
argument presented, we opined that the term should be interpreted broadly,
“to encompass any ‘departure’ from the United States, regardless of whether
it is a voluntary departure in lieu of removal or under threat of removal,Cite as 25 I&N Dec. 771 (BIA 2012) Interim Decision #3748
775
or it is a departure that is made wholly outside the context of a removal
proceeding.” Id. at 376-77.
We continue to espouse the view that an alien like the respondent
in Lemus I—who accrued more than 1 year of unlawful presence in the
United States and then departed of his own volition without having obtained
advance permission to return—fell within the class of individuals that Congress
intended to cover when it enacted section 212(a)(9)(B)(i)(II). See Lemus II,
25 I&N Dec. 734. However, our unqualified declaration in Lemus I that
inadmissibility under section 212(a)(9)(B)(i)(II) could be triggered by literally
“any departure” from the United States has had implications that bear
additional consideration. Specifically, as this case illustrates, immigration
adjudicators have interpreted our “anydeparture” statement to cover departures
made pursuant to a grant of advance parole. See Cheruku v. Att’y Gen.
of U.S., 662 F.3d 198 (3d Cir. 2011) (affirming unpublished decisions
of an Immigration Judge and this Board concluding that an alien who had
departed the United States under a grant of advance parole was inadmissible
under section 212(a)(9)(B)(i)(II) and, by extension, ineligible for section 245(i)
adjustment).
Purely as a matter of semantics, there is nothing to preclude the term
“departure” from being interpreted to encompass departures made by advance
parolees. Indeed, viewed in isolation and taken in its broadest possible sense,
“departure” would also presumably include departures by people who stray
across the border by accident, are induced to cross the border by deception
or threat, or are kidnaped outright and spirited across the border against their
will. It is well established, however, that we do not interpret statutory terms
in isolation.
Instead, when interpreting the Act, we should be guided to a degree
by common sense, taking into account Congress’ intention to enact
“a symmetrical and coherent regulatory scheme” in which all parts are fit into
a harmonious whole. FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 133 (2000) (citing Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995)).
The words of section 212(a)(9)(B)(i)(II) of the Act should thus “be read in their
context and with a view to their place in the overall statutory scheme,” since
it is only by reading the language in context that its meaning can become
evident. Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644,
666 (2007) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
at 132-33) (internal quotation mark omitted). When section 212(a)(9)(B)(i)(II)
is understood in context, it becomes clear to us that Congress did not intend
it to cover aliens—like the respondents—who have left and returned to theCite as 25 I&N Dec. 771 (BIA 2012) Interim Decision #3748
4 USCIS officials and their predecessors at the former Immigration and Naturalization
Service (“INS”) have consistently taken the position that departure under a grant of advance
parole is a “departure” for purposes of section 212(a)(9)(B)(i)(II). See Memorandum from
Donald Neufeld, Acting Assoc. Dir., Domestic Operations Directorate, et al., to USCIS
Field Leadership, at 16, 17 (May 6, 2009), reprinted in 86 Interpreter Releases, No. 20,
May 18, 2009, app. I at 1393, 1394 (“Neufeld Memo”); Memorandum from Paul W. Virtue,
Acting Exec. Assoc. Comm’r, INS Office of Programs, to INS Officials, at 3-4 (Nov. 26,
1997), reprinted in 74 Interpreter Releases, No. 46, Dec. 8, 1997, app. III at 1842, 1844
(“Virtue Memo”). Because this interpretation of the statutory scheme is embodied
in internal DHS memoranda rather than in regulations, it is entitled to respect to the extent
it has the “power to persuade,” but it is not binding. Christensen v. Harris County, 529 U.S.
576, 587 (2000) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)) (internal
quotation marks omitted); see also Matter of Castillo-Padilla, 25 I&N Dec. 257, 263 (BIA
2010) (declining to defer to internal DHS policy statements equating “conditional parole”
under section 236(a)(2)(B) of the Act, 8 U.S.C. § 1226(a)(2)(B) (12006), with “parole”
under section 212(d)(5)(A)); Matter of Briones, 24 I&N Dec. 355, 363-65 & n.7 (BIA 2007)
(disagreeing with an INS policy memorandum stating that section 245(i) of the Act contains
an “implicit waiver” of inadmissibility for aliens covered by section 212(a)(6)(A)(i)).
Although the Neufeld and Virtue Memos declare that one who leaves the United States
under a grant of advance parole has thereby “departed” for section 212(a)(9)(B)(i)(II)
purposes, we find them unpersuasive because they provide little substantive explanation for
that conclusion and grapple with none of the counterarguments. We observe, moreover, that
the Attorney General’s determination is ultimately controlling when it comes to questions
of statutory interpretation. Section 103(a)(1) of the Act, 8 U.S.C. § 1103(a)(1) (2006).
776
United States pursuant to a grant of advance parole.4 To the extent that Lemus I
suggested otherwise, we hereby clarify it accordingly.
As we have noted elsewhere, section 212(a)(9)(B)(i)(II) was enacted
pursuant to section 301(b) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.
3009-546, 3009-575 (effective Apr. 1, 1997). See Matter of Rodarte,
23 I&N Dec. 905, 909 (BIA 2006). The legislative history of section
212(a)(9)(B)(i)(II) is rather sparse. Nevertheless, the manifest purpose of the
provision (and of the related provisions surrounding it) is to “compound the
adverse consequences of immigration violations by making it more difficult for
individuals who have left the United States after committing such violations
to be lawfully readmitted thereafter.” Id.
Section 212(a)(9)(B)(i)(II) thus places most aliens who are unlawfully
present in the United States for a significant period of time on fair notice that
if they leave this country—whether through removal, extradition, formal
“voluntary departure,” or other means—they will be unwelcome to return for
at least 10 years thereafter. But the same cannot be said for the respondents,
who left the United States and returned with Government authorization
pursuant to a grant of advance parole.Cite as 25 I&N Dec. 771 (BIA 2012) Interim Decision #3748
5 By its terms, section 212(d)(5)(A) authorizes the “Attorney General” to parole aliens into
the United States. Until 2002, this parole authority was exercised exclusively by the former
INS as the Attorney General’s delegate. See, e.g., Matter of Singh, 21 I&N Dec. 427, 434
(BIA 1996) (citing cases). On March 1, 2003, however, the INS was dissolved and its
functions—including those pertaining to the inspection, admission, and parole
of aliens—were transferred from the Department of Justice to the DHS pursuant to section
441 of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2192
(Nov. 25, 2002) (“HSA”) (codified at 6 U.S.C. § 251 (2006)). As a result, parole authority
is now exercised exclusively by the DHS. 8 C.F.R. §§ 212.5, 1212.5 (2011). The reference
to the Attorney General in section 212(d)(5)(A) is thus deemed to refer to the Secretary
of Homeland Security. See HSA § 1517, 116 Stat. at 2311 (codified at 6 U.S.C. § 557
(2006)).
777
Typically, an alien who presents himself for inspection at a United States
port of entry is permitted to enter only if he possesses a valid visa or other
document authorizing his “admission.” Sections 211, 214, 222 of the Act,
8 U.S.C. §§ 1181, 1184, 1202 (2006 & Supp. III 2009). Sometimes, however,
an alien who lacks a valid visa or other entry document may need to come into
the United States temporarily “for urgent humanitarian reasons or [for]
significant public benefit,” in which case, with certain exceptions not pertinent
here, the DHS may, in its discretion, “parole” the alien into this country for
a limited time, subject to conditions. Section 212(d)(5)(A) of the Act.5
Although a grant of parole does not “admit” an alien into the United States, see
section 101(a)(13)(B) of the Act, 8 U.S.C. § 1101(a)(13)(B) (2006), it does
typically allow him to leave the inspection facility free from official custody
and to be physically present inside the United States until the purpose of his
parole is completed. See Ibragimov v. Gonzales, 476 F.3d 125, 134 (2d Cir.
2007) (discussing the purposes of parole). Once the DHS determines that the
purpose of an alien’s parole has been satisfied, parole is terminated and the
alien reverts to the status of any other applicant for admission by operation
of law. Section 212(d)(5)(A) of the Act;see also 8 C.F.R. § 245.2(a)(4)(ii)(A).
As its name implies, “advance parole” is simply parole that has been
requested and authorized in advance based on an expectation that the alien
will be presenting himself for inspection without a valid visa in the future.
8 C.F.R. § 212.5(f). Advance parole can be requested from abroad or at a
port of entry, but typically it is sought by an alien who is already inside
the United States and who wants to leave temporarily but fears that he
will either be excluded as an inadmissible alien upon return or be
deemed to have abandoned a pending application for an immigration
benefit. See Matter of G-A-C-, 22 I&N Dec. 83, 88 (BIA 1998); see also
8 C.F.R. §§ 245.2(a)(4)(ii)(A), 1245.2(a)(1)(ii) (2011).Cite as 25 I&N Dec. 771 (BIA 2012) Interim Decision #3748
6 Nothing in the foregoing discussion is intended to suggest that a grant of parole into the
United States following a trip abroad is ever guaranteed. Rather, we acknowledge that at the
time of the returning alien’s application for admission, the DHS possesses discretionary
authority under section 212(d)(5) of the Act to determine whether parole is appropriate. See
Eligibility of Arriving Aliens in Removal Proceedings To Apply for Adjustment of Status
and Jurisdiction To Adjudicate Applications for Adjustment of Status, 71 Fed. Reg. 27,585,
27,586 n.1 (May 12, 2006) (“[A] decision authorizing advance parole does not preclude
denying parole when the alien actually arrives at a port-of-entry, should DHS determine that
parole is no longer warranted.”). A grant of advance parole before the alien’s trip abroad
simply provides him with a practical expectation that, so long as circumstances do not
meaningfully change and the DHS does not discover material information that was
previously unavailable, the DHS’s discretion to parole him at the time of his return to a port
of entry will likely be exercised favorably.
778
The DHS takes the position that a grant of advance parole does not
technically authorize such an alien to depart from the United States.
See Neufeld Memo, supra, at 16. But as a practical matter, the DHS is well
aware that aliens who are inside the United States only request advance parole
in order to facilitate foreign travel. By granting advance parole, the DHS thus
understands that, as a discretionary humanitarian measure, it is telling the alien
that he can leave the United States with assurance that his pending applications
for immigration benefits will not be deemed abandoned during his absence and
“that he will be paroled back into the United States upon return, under
prescribed conditions, if he cannot establish that he is admissible at that time.”
Matter of G-A-C-, 22 I&N Dec. at 88. To obtain this assurance, the alien
submits an Application for Travel Document (Form I-131), which requires him
to explain how he qualifies for advance parole—such as through the pendency
of an adjustment application together with a need to travel abroad for emergent
personal or bona fide business reasons—and to identify the circumstances that
warrant its issuance. Advance parole is thus treated as a distinct benefit for
which the alien must demonstrate his eligibility and worthiness.
In short, an undocumented alien’s departure under a grant of advance parole
is qualitativelydifferent from other departures, because it presupposes both that
he will be permitted to return to the United States thereafter and that he will,
upon return, continue to pursue the adjustment of status application he filed
before departing.6 We do not believe that Congress intended an alien
to become inadmissible under section 212(a)(9)(B)(i)(II) and, by extension,
ineligible for adjustment of status solely by virtue of a trip abroad that (1) was
approved in advance by the United States Government on the basis of an
application demonstrating the alien’s qualification for and worthiness of the
benefit sought, (2) presupposed the alien’s authorized return thereafter, and
(3) was requested solely for the purpose of preserving the alien’s eligibility for
adjustment of status. Applying section 212(a)(9)(B)(i)(II) to such an alienCite as 25 I&N Dec. 771 (BIA 2012) Interim Decision #3748
7 As the DHS points out on appeal, documents authorizing advance parole bear explicit
warnings that the parolee may be inadmissible under section 212(a)(9)(B) and ineligible for
adjustment of status upon return. See also Cheruku v. Att’y Gen. of U.S., 662 F.3d at 208
& n.10 (noting the existence of such warnings). However, because we do not believe that
Congress understood a trip under a grant of advance parole to be a “departure” within the
meaning of section 212(a)(9)(B)(i)(II), the nature or clarity of such warnings is ultimately
beside the point.
8 Our dissenting colleague opines that “[i]t would have been an easy drafting task to except
departures under a grant of advance parole [from the scope of section 212(a)(9)(B)(i)(II)]
had Congress been inclined to do so.” Matter of Arrabally and Yerrabelly, 25 I&N Dec.
771, 782 (BIA 2012) (Pauley, dissenting). The premise underlying the dissenting opinion
seems to be that Congress must be presumed to use words like “departure” in their broadest
conceivable sense, regardless of the statutory context and purpose, unless it affirmatively
enumerates exceptions. We disagree with that premise because it is antithetical to the
well-established principle that statutes must be read in context and with a view
to their purpose. See, e.g., Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006) (“A word
in a statute may or may not extend to the outer limits of its definitional possibilities.
Interpretation of a word or phrase depends upon reading the whole statutory text,
considering the purpose and context of the statute, and consulting any precedents
or authorities that inform the analysis”); King v. St. Vincent’s Hosp., 502 U.S. 215, 221
(1991) (“[T]he meaning of statutory language, plain or not, depends on context.”).
We also do not share our dissenting colleague’s concern that tension exists between this
opinion and that of the Third Circuit in Cheruku v. Attorney General of U.S., 662 F.3d 198.
In Cheruku, the Third Circuit did not hold that it was compelled by unambiguous language
in section 212(a)(9)(B)(i)(II) to treat an alien’s trip abroad under a grant of advance
parole as a “departure” that would trigger inadmissibility. Rather, the court simply
afforded deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc, 467 U.S.
837 (1984), to a nonprecedential Board decision applying section 212(a)(9)(B)(i)(II)
to an advance parolee. There is nothing in Cheruku that precludes the Board from revisiting
that issue. See generally Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967 (2005). On the contrary, the Third Circuit emphasized that the petition for
review did not challenge the Board’s interpretation of the term “departure” or otherwise
dispute its determination that the alien was inadmissible under section 212(a)(9)(B)(i)(II).
Cheruku v. Att’y Gen. of U.S., 662 F.3d at 205 n.5.
779
vindicates none of the purposes for which the statute was enacted, largely
defeats the regulatory purpose of preserving advance parolees’ eligibility for
adjustment of status, and has the paradoxical effect of transforming advance
parole from a humanitarian benefit into a means for barring relief.7 The
language of section 212(a)(9)(B)(i)(II) does not require such a result.8
Accordingly, we hold that an alien who has left and returned to the
United States under a grant of advance parole has not made a “departure . . .
from the United States” within the meaning of section 212(a)(9)(B)(i)(II) of the
Act.Cite as 25 I&N Dec. 771 (BIA 2012) Interim Decision #3748
780
We emphasize that we hold only that an alien cannot become inadmissible
under section 212(a)(9)(B)(i)(II) solely by virtue of a trip abroad undertaken
pursuant to a grant of advance parole. Our decision does not preclude a trip
under a grant of advance parole from being considered a “departure” for other
purposes, nor does it call into question the applicability of any other
inadmissibility ground. On the contrary, it is well settled that an alien who
leaves the United States and returns under a grant of advance parole is subject
to the grounds of inadmissibility once parole is terminated, even if he had been
“deportable” rather than “inadmissible” before the trip’s commencement.
See Matter of G-A-C-, 22 I&N Dec. at 89-91; Matter of Torres, 19 I&N Dec.
371, 373 (BIA 1986); see also Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321,
1326-27 (11th Cir. 2003); Dimenski v. INS, 275 F.3d 574, 577-78 (7th Cir.
2001); 8 C.F.R. § 245.2(a)(4)(ii)(B).
This can sometimes lead to harsh consequences, particularly for aliens with
criminal convictions, when the relevant grounds of inadmissibility are more
expansive than the corresponding deportability grounds. But ordinarily the
relevant inadmissibility grounds were already applicable to the alien before
he traveled abroad (as potential bars to adjustment of status, for instance), and
thus the alien’s trip outside the United States only affects the manner in which
the fact of inadmissibility arises, by also making it an available basis for
a removability charge. Section 212(a)(9)(B) is fundamentally different,
however, because its focus on “departure” means that it alone creates
a condition of inadmissibility that may not have existed before the alien left the
United States. The respondents were not even arguably covered by section
212(a)(9)(B) until they left under grants of advance parole.
In light of the foregoing, we conclude that the respondents are not
inadmissible to the United States under section 212(a)(9)(B)(i)(II) of the Act.
Consequently, they are not ineligible for section 245(i) adjustment based
on the rationale of Lemus I and Lemus II. In light of this disposition, we have
no occasion to address the remaining issues raised in the respondents’ appeal,
all of which are premised on the assumption of their inadmissibility under
section 212(a)(9)(B)(i)(II).
III. CONCLUSION
In conclusion, the respondents are inadmissible and removable under section
212(a)(7)(A)(i)(I) of the Act, but they are not inadmissible under section
212(a)(9)(B)(i)(II) or ineligible for section 245(i) adjustment on that basis. The
respondents’ appeal will therefore be sustained in part, and the record will be
remanded to the Immigration Judge for further proceedings.
ORDER: The appeal is sustained in part.Cite as 25 I&N Dec. 771 (BIA 2012) Interim Decision #3748
781
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.
DISSENTING OPINION: Roger A. Pauley, Board Member
I respectfully dissent. The majority labors unpersuasively to find that
a departure under a grant of advance parole is not a “departure” for purposes
of inadmissibility under section 212(a)(9)(B)(i)(II) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2006), such that the
respondents are not ineligible for adjustment of status under section 245(i)
of the Act, 8 U.S.C. § 1255(i) (2006). As noted in the majority opinion,
however, such a construction is at odds with the straightforward meaning
of “departure.” Moreover, no claim is made that giving the term “departure”
an expansive meaning, as we explained was appropriate in Matter of Lemus,
24 I&N Dec. 373, 376-77 (BIA 2007), leads to absurd results. Rather, it merely
leads to an outcome that the majority apparently deem undesirable.
Moreover, the majority’s position is not merely at odds with the normal and
natural meaning of the term “departure”; it is contrary to the consistent
understanding of the Department of Homeland Security (“DHS”) and its
predecessors at the former Immigration and Naturalization Service
(“INS”), which, from shortly after the April 1, 1997, effective date of section
212(a)(9)(B) to the present time, have interpreted a departure under a grant
of advance parole as a “departure” for purposes of section 212(a)(9)(B)(i)(II).
See Memorandum from Donald Neufeld, Acting Assoc. Dir., Domestic
Operations Directorate, et al., to USCIS Field Leadership, at 16, 17 (May 6,
2009), reprinted in 86 Interpreter Releases, No. 20, May 18, 2009, app. I at
1393, 1394 (“Neufeld Memo”); Memorandum from Paul W. Virtue, Acting
Exec. Assoc. Comm’r, INS Office of Programs, to INS Officials, at 3-4
(Nov. 26, 1997), reprinted in 74 Interpreter Releases, No. 46, Dec. 8, 1997,
app. III at 1842, 1844 (“Virtue Memo”). While such internal interpretive
policies are not binding on the Board, courts, including the Supreme Court,
have found that similar agency policies are entitled to “great deference,”
“[p]articularly . . . when the administrative practice at stake ‘involves a
contemporaneous construction of a statute by the men charged with the
responsibility of setting its machinery in motion; of making the parts work
efficiently and smoothly while they are as yet untried and new.’” Udall
v. Tallman, 380 U.S. 1, 16 (1965) (quoting Power Reactor Dev. Co. v. Int’l
Union of Elec., Radio and Mach. Workers, AFL-CIA, 376 U.S. 396, 408 (1961)
(quoting Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315
(1933))) (internal quotation marks omitted); see also Davis v. United States,Cite as 25 I&N Dec. 771 (BIA 2012) Interim Decision #3748
782
495 U.S. 472, 484 (1990) (“[W]e give an agency’s interpretations and practices
considerable weight where they involve the contemporaneous construction
of a statute and where they have been in long use.”); Bankers Life and Cas. Co.
v. United States, 142 F.3d 973, 979-80 (7th Cir. 1998).
Not only does the majority not accord these agency understandings “great
deference,” it gives them no weight. Furthermore, the relevant enforcement
agency (INS and DHS) reached this conclusion because, in the words of the
Neufeld Memo, supra, at 16, “[b]y granting advance parole or a refugee travel
document, USCIS does not authorize the alien’s departure from the
United States; it merely provides a means for the alien to return to the
United States, regardless of admissibility.” In short, a grant of advance parole
is not a Government-authorized departure such as might support a finding that
Congress could not have intended to subject an alien who thereby departs to the
provisions of section 212(a)(9)(B).
In light of the above, and notwithstanding the majority’s view, Congress
could reasonably determine that aliens who leave the United States under
a grant of advance parole do so at their own risk in terms of eligibility for relief
upon their return as applicants for admission and must weigh the benefit
of leaving pursuant to such a grant against the possible adverse consequences.
Furthermore, as the majorityacknowledges, grants of advance parole come with
an explicit warning (mandated by, and applicable ever since the 1997 Virtue
Memo, supra) that the alien may, upon return, be inadmissible under section
212(a)(9)(B) and ineligible for adjustment of status. See Matter of Arrabally
and Yerrabelly, 25 I&N Dec. 771, 779 n.7 (BIA 2012). While the majority may
disagree with requiring such an election, aliens may be put to such a choice, and
whether or not to do so is precisely the sort of consideration that is for the
Congress, not adjudicators like the Board. See Brady v. United States, 397 U.S.
742 (1970) (finding that criminal defendants maybe put to the difficult decision
whether to plead guilty or go to trial and that a guilty plea is not involuntary
because it is induced by a potentially higher sentence if guilt is determined after
trial).
In our original decision in Matter of Lemus, 24 I&N Dec. at 378,
we emphasized that Congress had not created a waiver in section 212(a)(9)(B)
preserving eligibility for section 245(i) adjustment, as it had with other
immigration provisions. That observation applies here as well. It would have
been an easy drafting task to except departures under a grant of advance parole
had Congress been inclined to do so, such as by inserting the parenthetical
phrase “other than pursuant to a grant of advance parole” after “departure.”
The majority decision also creates tension with the recent decision
in Cheruku v. Attorney General of U.S., 662 F.3d 198 (3d Cir. 2011),
which deferred to our decision in Matter of Lemus and found section
212(a)(9)(B)(i)(II) applicable to bar eligibility for adjustment of status underCite as 25 I&N Dec. 771 (BIA 2012) Interim Decision #3748
1 Moreover, it is not true that “[t]he premise underlying [this] dissenting opinion seems
to be that Congress must be presumed to use words like ‘departure’ in their broadest
conceivable sense, regardless of the statutory context and purpose, unless it affirmatively
enumerates exceptions.” Matter of Arrabally and Yerrabelly, 25 I&N Dec. at 779 n.8.
Rather, my premise is that, absent absurdity, Congress should be found to have used words
in their ordinary meaning. In this instance, that includes, in my view, finding that an alien’s
intentional choice to leave the United States constitutes a “departure,” notwithstanding
it may come at a price in terms of triggering a new ground of inadmissibility and resultant
ineligibility for certain relief upon return. Specifically, to rebut the majority’s assertion,
I would likely not (though there is no need to resolve the question here) find that an alien
who involuntarily left the country as a result of being kidnapped, for example, had engaged
in a “departure” because the term “departure” may well connote a voluntary act. Nor would
such a kidnapping necessarily constitute a “removal” within the meaning of section
212(a)(9)(B)(i)(II), which speaks in terms of an “alien’s departure or removal from the
United States,” since the latter term may well connote only a removal in the immigration
sense.
783
section 245(i) in the context, as here, where the alien had departed pursuant
to a grant of advance parole. It is also contrary to the position taken by the
Board in unpublished orders, all of which the majority acknowledges.
Moreover, the majority’s creation of an exception to the term “departure” for
aliens who leave the country under a grant of advance parole injects uncertainty
and will give rise to future claims that other types of departures should not
be considered such. I would, absent absurdity, give the term “departure” its
ordinary and natural meaning to include the instant case and, accordingly,
would affirm the Immigration Judge’s decision.1