New Board of Immigration Appeals case says leaving the U.S. with advance parole does not trigger 10 year ban

[grrrrreat 109]

I think everyone should know about a newish BIA case that says leaving the U.S. after the issuance of advance parole does not trigger the ban resulting from an overstay, because leaving with advance parole does not constitute a "departure" for the purpose of the bans. At least one field office has begun to reopen adjustment cases that were denied as a result of the ban. This is an ongoing development, so I do not think that people who have overstays should be confident about leaving the U.S. with advance parole, but it is something to think about (especially if someone has left with advance parole, returned to the U.S. and has a pending adjustment application).

Personally, I think the decision is poorly reasoned and unpersuasive. The rule that leaving with advance parole does not constitute "departure" from the U.S. breaks with longstanding law that leaving the U.S. is generally a "departure" for the purpose of the overstay bans. The decision was result-oriented and probably was made because the BIA found it unfair that USCIS was issuing advance paroles to individuals who had overstays. The decision would result in unintended consequences, such as USCIS refusing to issue advance paroles to adjustment applicants without a good reason, or refusing to issue AP to people who have overstayed at all. I do not know if the case will be appealed to a higher court.

Here is the decision: http://www.justice.gov/eoir/vll/intdec/vol25/3748.pdf

Edited June 14, 2012 by grrrrreat

[Darnell 8,478]

I am of the opinion that unless it's a K-1 visa applying for the AOS, the AP shouldn't be granted if currently in overstay.

[juliava 80]

I am of the opinion that unless it's a K-1 visa applying for the AOS, the AP shouldn't be granted if currently in overstay.

I agree!

[isa30 4]

If aprroved I will also like to add that this new law may benefit TPS Holders who EWI who left for a Humanitarian Reason and entered with Advance Parole.

I now know a couple of TPS holders who had the same case and have also heard of others successfully able to AOS but don't have too many details. (only that they did not need a waiver and got approved within 4 months).

I Have had TPS for over 10 yrs and have entered twice on Advance Parole and am now on AOS pending Status.

[grrrrreat 109]

I am of the opinion that unless it's a K-1 visa applying for the AOS, the AP shouldn't be granted if currently in overstay.

Why though? Just to punish overstayers? And why would K-1s get an exception. They could have applied to adjust status before their I-94 expired as well.

[AF-Wife 181]

Why though? Just to punish overstayers? And why would K-1s get an exception. They could have applied to adjust status before their I-94 expired as well.

True statement!

Just because people are able to adjust their status faster within the states, doesn't mean they shouldn't be allowed to leave the country. If many of you had the chance to do that (legally!) adjust while being with your loved one, you would!

[DC85 113]

Why though? Just to punish overstayers? And why would K-1s get an exception. They could have applied to adjust status before their I-94 expired as well.

agreee

True statement!

Just because people are able to adjust their status faster within the states, doesn't mean they shouldn't be allowed to leave the country. If many of you had the chance to do that (legally!) adjust while being with your loved one, you would!

agree, you hit the spot

[JimVaPhuong 4,863]

Why though? Just to punish overstayers? And why would K-1s get an exception. They could have applied to adjust status before their I-94 expired as well.

I don't think that's how Darnell meant his statement to be taken. USCIS has long had a policy to issue advance parole to people with sufficient overstay to trigger a ban if they left. Many well-meaning but uninformed intending immigrants left the US after receiving advance parole, only to be told they triggered a ban when they left. Whether they trigger a ban now depends on how informed the CBP officer is when they try to reenter, since many field offices don't move until a formal policy directive is issued by the director. Issuing advance parole to someone who might trigger a ban if they leave is irresponsible on the part of USCIS, and borders on government entrapment. Bold text warnings in the I-131 instructions are not sufficient. If someone might trigger a ban when they leave then USCIS shouldn't issue them advance parole. That's what Darnell meant. I agree with him.

[grrrrreat 109]

I don't think that's how Darnell meant his statement to be taken. USCIS has long had a policy to issue advance parole to people with sufficient overstay to trigger a ban if they left. Many well-meaning but uninformed intending immigrants left the US after receiving advance parole, only to be told they triggered a ban when they left. Whether they trigger a ban now depends on how informed the CBP officer is when they try to reenter, since many field offices don't move until a formal policy directive is issued by the director. Issuing advance parole to someone who might trigger a ban if they leave is irresponsible on the part of USCIS, and borders on government entrapment. Bold text warnings in the I-131 instructions are not sufficient. If someone might trigger a ban when they leave then USCIS shouldn't issue them advance parole. That's what Darnell meant. I agree with him.

But the whole point of this thread is that applicants who leave with advance parole do not incur overstay bans, even if they overstayed...so why can't USCIS issue them AP and let them leave the U.S. temporarily? There's no entrapment here because there are no overstay bans!

[ChrisPG 30]

But the whole point of this thread is that applicants who leave with advance parole do not incur overstay bans, even if they overstayed...so why can't USCIS issue them AP and let them leave the U.S. temporarily? There's no entrapment here because there are no overstay bans!

I believe that JimVaPhuong was speaking in the past-tense, i.e. prior to this decision and I do have to agree, it was irresponsible of the USCIS to issue AP's to those who may trigger a ban if they leave.

Edited June 30, 2012 by ChrisPG

[Darnell 8,478]

I don't think that's how Darnell meant his statement to be taken. USCIS has long had a policy to issue advance parole to people with sufficient overstay to trigger a ban if they left. Many well-meaning but uninformed intending immigrants left the US after receiving advance parole, only to be told they triggered a ban when they left. Whether they trigger a ban now depends on how informed the CBP officer is when they try to reenter, since many field offices don't move until a formal policy directive is issued by the director. Issuing advance parole to someone who might trigger a ban if they leave is irresponsible on the part of USCIS, and borders on government entrapment. Bold text warnings in the I-131 instructions are not sufficient. If someone might trigger a ban when they leave then USCIS shouldn't issue them advance parole. That's what Darnell meant. I agree with him.

Yup. Exactly.

[Darnell 8,478]

But the whole point of this thread is that applicants who leave with advance parole do not incur overstay bans, even if they overstayed...so why can't USCIS issue them AP and let them leave the U.S. temporarily? There's no entrapment here because there are no overstay bans!

It's a circular problem, to be certain.

My preferred method of dealing with it is to NOT issue AP to those who are NOT doing an AOS from a K-1 Visa.

I said nothing about entrapment or overstay bans. I'm leaning to NO AP whatsoever, unless you came in on a K-1 visa.

The 'why' is obvious - or it should be, to an immigration attorney. I know, I know, less paperwork for you? Less fees you can collect - but that's a side issue, and not my issue.

Those folk slinging through an AOS (non K-1s) really should sit out the process in the USA until the greencard is in hand. That's my opinion, and I'm sticking to it, regardless.

[Darnell 8,478]

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fwiw, ONE case with the BIA does not change the law, or make something 'workable' with the INA, or adds new paragraphs to 9FAM.

[VanessaTony 3,567]

I'm not sure that this really changes anything... yet.

There is no USCIS law that states it's okay yet. So someone who should get a ban leaves, do CBP know that they're supposed to let them enter? Or do they have to take it to the BIA in order to get their ban overturned? Or what?

I think until there is official word from USCIS no-one should risk leaving if they have 180 days or more of overstay. It's just not worth the stress. Esp when they should get the GC in around 6 months so if they already have that much overstay they've already been "stuck" in the US for a while, a little while longer won't kill them.

[grrrrreat 109]

I'm not sure that this really changes anything... yet.

There is no USCIS law that states it's okay yet. So someone who should get a ban leaves, do CBP know that they're supposed to let them enter? Or do they have to take it to the BIA in order to get their ban overturned? Or what?

I think until there is official word from USCIS no-one should risk leaving if they have 180 days or more of overstay. It's just not worth the stress. Esp when they should get the GC in around 6 months so if they already have that much overstay they've already been "stuck" in the US for a while, a little while longer won't kill them.

BIA decisions are binding on immigration judges--who are part of the USCIS. If CBP were to wrongfully deny entry, they could seek a hearing with an immigration judge.

It's a circular problem, to be certain.

My preferred method of dealing with it is to NOT issue AP to those who are NOT doing an AOS from a K-1 Visa.

I said nothing about entrapment or overstay bans. I'm leaning to NO AP whatsoever, unless you came in on a K-1 visa.

The 'why' is obvious - or it should be, to an immigration attorney. I know, I know, less paperwork for you? Less fees you can collect - but that's a side issue, and not my issue.

Those folk slinging through an AOS (non K-1s) really should sit out the process in the USA until the greencard is in hand. That's my opinion, and I'm sticking to it, regardless.

I think I am being insulted but I can't figure out why. And no it's not obvious why we'd deny advance parole to all adjustment applicants except K-1s.

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fwiw, ONE case with the BIA does not change the law, or make something 'workable' with the INA, or adds new paragraphs to 9FAM.

The BIA decides what's workable with the INA and its decisions are binding on USCIS and the Department of Justice.