The Board of Immigration Appeals (BIA) ruled on August 13, 2026, that travel on Advance Parole now counts as a “departure” under U.S. immigration law, potentially triggering 3- or 10-year inadmissibility bars for immigrants with prior unlawful presence, overturning a 14-year precedent.
The Board of Immigration Appeals (BIA) issued a landmark decision on August 13, 2026, redefining how U.S. immigration authorities treat departures by individuals traveling on Advance Parole. The ruling, outlined in Cliniclegal, overruled a 2012 precedent that had shielded certain immigrants from the consequences of leaving the country on Advance Parole. Now, such trips are considered “departures” under the Immigration and Nationality Act (INA) § 212(a)(9)(B)(i)(II), which imposes inadmissibility bars based on the length of unlawful presence.
The BIA’s Ruling and Its Legal Implications
The BIA’s decision in Matter of Milagro Delcarmen-Lara marked a sharp departure from the 2012 Arrabally and Yerrabelly ruling, which had allowed immigrants with unlawful presence to travel on Advance Parole without triggering the statutory “departure” that initiates the inadmissibility bars. The new interpretation, according to Cliniclegal, hinges on a strict reading of the INA’s text: “departure” is no longer exempted for Advance Parole travelers. This means individuals who leave the U.S. on Advance Parole may now face a 3-year bar if they accrued more than 180 days of unlawful presence, or a 10-year bar for one year or more.
The BIA emphasized that Congress did not explicitly create an exception for Advance Parole departures in § 212(a)(9)(B), unlike other provisions of the INA. It also cited historical practices where Advance Parole documents warned applicants of potential inadmissibility.
Impact on Immigrants, Particularly Kenyans
The change disproportionately affects immigrants who relied on the 2012 precedent to travel abroad without fear of inadmissibility. People Daily highlighted the risks for Kenyans in the U.S., who may now face 3- or 10-year bars if they have accrued unlawful presence before obtaining Advance Parole. For example, a Kenyan who overstayed a visa and later traveled home on Advance Parole could now be barred from reentry, depending on the duration of their unlawful presence.
The ruling does not automatically apply to all Advance Parole travelers. People Daily noted that the consequences depend on individual immigration histories, including whether the person entered the U.S. without inspection or had prior legal status.
What This Means for Future Immigration Cases
The BIA’s decision introduces uncertainty for immigrants seeking to adjust their status. While waivers under INA § 212(a)(9)(B)(v) remain possible via Form I-601, the process now requires proving extreme hardship
to a U.S. citizen or lawful permanent resident.
People Daily noted the August 13 ruling is prospective, meaning it applies to future departures, not past ones.
The Broader Context and Ongoing Legal Uncertainties
For now, the key takeaway is clear: Advance Parole is no longer a guaranteed safeguard. Immigrants must carefully evaluate their unlawful presence history before traveling. As People Daily noted, the path forward requires navigating a landscape reshaped by this ruling.
