August 28, 2026: The Board of Immigration Appeals (BIA) has overturned a 14-year-old precedential decision, limiting an important pathway to permanent residence for certain long-residing noncitizens, including Deferred Action for Childhood Arrivals (DACA) recipients. For years, “advance parole” has allowed some undocumented noncitizens—who previously entered the United States without authorization—to travel abroad with the government’s permission and reenter the country lawfully. This lawful entry, in turn, removed a key barrier to adjusting their status to permanent resident within the U.S. through pathways that had previously been unavailable to them.
But on August 13, the BIA ruled in Matter of Milagro Delcarmen-Lara, that leaving the United States under advance parole is now considered a “departure” under immigration law, which disqualifies them from those pathways. In other words, that same trip abroad can now trigger a penalty that blocks them from receiving permanent residence, typically for at least 10 years.
This BIA decision, which applies prospectively to departures on advance parole made after the date it was published, represents the latest Trump administration action to hamper the already-thin pathways to lawful permanent residency available to long-residing noncitizens in the United States.
Why advance parole mattered, and how it worked
Many undocumented noncitizens who could otherwise obtain a green card while in the United States are unable to do so. Under federal law, adjustment of status (a process through which someone may receive lawful permanent status while being physically present inside the United States) requires that a person must have first been “inspected and admitted or paroled” into the country.
Advance parole—which constitutes permission from the Department of Homeland Security (DHS) to reenter the United States after travel abroad—offered some people an option to overcome that obstacle. By receiving authorization before traveling abroad, they could then be paroled back into the United States upon return. This satisfied the “inspected and admitted or paroled” requirement necessary to pursue adjustment of status if they were otherwise eligible.
Without advance parole, undocumented noncitizens who leave the country face the serious risk of being unable to reenter the United States. Under a 1996 law, people who have accumulated more than 180 days of unlawful presence can be barred from re-entering the country for three years following their departure. For those with at least one year of unlawful presence, the same penalty is 10 years. These are known as three- and 10-year bars. Unlawful presence generally begins to accrue only when a noncitizen without an immigration status turns 18, and it stops during periods of authorized stay, like when someone is granted DACA.
Before the recent decision in Delcarmen-Lara, a prior BIA case created an opportunity to use advance parole as a way for undocumented noncitizens to overcome these bars if they otherwise met the requirements to seek adjustment of status.
BIA overrules Arrabally decision
In 2012, the BIA reconciled the grant of advance parole with the consequences imposed by leaving the United States with more than 180 days of accrued unlawful presence. In Matter of Arrabally and Yerrabelly, it held that temporary international travel under advance parole was not considered a “departure” because it would transform “a humanitarian benefit into a means for barring relief.” The BIA was clear that advance parole could not be used against undocumented noncitizens given that DHS has provided permission to the person to travel out of and return to the United States.
In Matter of Delcarmen-Lara, however, the BIA decided that it would no longer preserve the distinctness of those trips. As a result, the risk of that double bind now reemerges for undocumented noncitizens seeking to satisfy the lawful entry requirement for adjustment of status, but who entered without permission and have accumulated more than 180 days of unlawful presence.
While an undocumented person can seek a waiver for the unlawful presence bars, they must demonstrate that a denial of admission to the United States would result in extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent. Thus, these waivers are not universally available, and certainly not guaranteed. In addition, a noncitizen would still be required to leave the United States and pursue their residency through a consular process, creating a risk that they may not be able to return to the United States if the waiver is denied.
For more information on Advance Parole,
We would be happy to set a phone consultation with you using our self-service system where you choose your date and time for your phone consultation and upload your documents for the attorney to review.
Click link to set phone consultation – https://gaillaw.as.me
text/call 407-292-7730 | whatsapp 407-353-1363 |email gail@gaillaw.com
Copyright © 2004-2026, Law Offices of Gail S. Seeram. All Rights Reserved.
