ARRABALLY AND YERRABELLY
25 I. & N. Dec. 771
BIA2012Background
- Husband and wife ARRABALLY and YERRABELLY, Indian nationals, entered U.S. temporarily as nonimmigrants; their visas expired years earlier and they overstayed; they sought to adjust status under 245(i) while in the U.S.
- They repeatedly traveled to India using advance parole between 2004–2006 to care for parents while their adjustment petitions were pending.
- USCIS granted advance parole, allowing travel with assurances of reentry if admissible and continued pursuit of their adjustment applications.
- Upon final parole in 2006, they reentered the U.S. but USCIS later denied their adjustment as inadmissible under 212(a)(9)(B)(i)(II) due to unlawful presence and timing after departure.
- Removal proceedings were initiated in 2008; the IJ found inadmissibility under 212(a)(9)(B)(i)(II) and ineligibility for 245(i) adjustment, and ordered removal.
- The Board held they were not inadmissible under 212(a)(9)(B)(i)(II) for departures under advance parole and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether advance parole departures count as a departure under 212(a)(9)(B)(i)(II) | Lemus I broad interpretation; any departure triggers inadmissibility | Departure under advance parole not clearly excluded; context matters | Not a departure under 212(a)(9)(B)(i)(II) for advance-parole trips |
| Impact on 245(i) eligibility because of 212(a)(9)(B)(i)(II) inadmissibility | Advance parole departures should preserve eligibility for 245(i) | Lemus I/II bar 245(i) for those inadmissible under 212(a)(9)(B)(i)(II) | -remand to resolve 245(i) eligibility consistent with holding on departure- |
| Appropriate interpretation of the term 'departure' in the statutory scheme | Term should be interpreted broadly to include advance-parole departures | Context and purpose require limiting 'departure' when advance parole is involved | Court clarifies that 'departure' does not include advance-parole departures for 212(a)(9)(B)(i)(II) purposes |
| Whether the decision conflicts with Cheruku and agency practice | Cheruku aligned with Lemus I/II; advance parole departure should trigger inadmissibility | Cheruku deferential but not controlling; agency practice acknowledges departure via advance parole | No binding conflict; majority reaffirms context-based interpretation; remand for further proceedings |
Key Cases Cited
- Matter of Lemus, 24 I&N Dec. 373 (BIA 2007) (departs broadened to include advance-parole departures in 245(i) context)
- Matter of Lemus, 25 I&N Dec. 734 (BIA 2012) (reaffirms Lemus I holding on inadmissibility and 245(i))
- Cheruku v. Att’y Gen. of U.S., 662 F.3d 198 (3d Cir. 2011) (affirms Lemus-based view on advance parole departure)
- Matter of G-A-C-, 22 I&N Dec. 83 (BIA 1998) (parole as humanitarian measure; not admission; assists understanding of advance parole)
- Matter of Torres, 19 I&N Dec. 371 (BIA 1986) (departure/removal distinction in admissibility)
- Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321 (11th Cir. 2003) (discussion of inadmissibility vs deportability)