The Board of Immigration Appeals has reversed a longstanding rule protecting people who travel on advance parole, a decision that could affect people who have accrued unlawful presence, including many DACA recipients pursuing a green card.
For over a decade, a 2012 case called Matter of Arrabally and Yerrabelly held that a person who left the U.S. on advance parole and was paroled back in was generally not considered to have made a "departure" for purposes of the unlawful presence bars under INA 212(a)(9)(B).
On August 13, 2026, the Board of Immigration Appeals reversed that rule in Matter of Milagro Delcarmen-Lara. The Board held that a departure on advance parole can now count as a "departure" under the statute, meaning that someone who accrued a year or more of unlawful presence before traveling may become subject to the 10-year unlawful presence bar.
The decision specifically addresses the provision covering one year or more of unlawful presence, the ten-year bar. It does not address the separate, shorter threshold that can trigger the three-year bar.
In Practice
Picture a DACA recipient who entered the U.S. without inspection as a child, accrued a year or more of unlawful presence before receiving DACA, later married a U.S. citizen, and traveled abroad on advance parole.
Under the old rule: that trip generally would not have triggered the unlawful presence bar under Arrabally and Yerrabelly.
Under the new ruling: that same trip could now be treated as a departure that exposes her to the bar, a risk that didn't exist before this decision.
The Board specifically limited the new rule to prospective application, stating in the decision that it "will apply this new holding prospectively." It even declined to decide whether the respondent's own past trip counted as a departure under the new standard. The decision therefore does not retroactively apply the new rule to advance parole trips that occurred before August 13, 2026.
Anyone with a prior advance parole trip who is concerned about how this ruling affects their case should have their individual immigration history reviewed by an attorney.
The legal holding isn't limited to DACA recipients. It applies to advance parole travel generally, for anyone who has accrued a year or more of unlawful presence. Coverage of the decision has focused heavily on DACA recipients because the respondent in the case had DACA, and because DACA recipients who entered without inspection and later adjust status through marriage or a family petition are a common profile that relies on advance parole travel.
Southwest Florida falls under the Eleventh Circuit, which in 2013 applied the old Arrabally rule to a similar advance parole case, Ortiz-Bouchet v. U.S. Attorney General. The Board's new decision addresses that case directly, stating it does not read Ortiz-Bouchet as preventing the Board from revisiting the definition of departure. How this new interpretation interacts with existing Eleventh Circuit precedent is likely to keep developing, which makes it particularly relevant for DACA recipients in Florida pursuing permanent residence through a family-based process.
For some applicants who become inadmissible under the bar, a waiver (Form I-601) may be available under INA 212(a)(9)(B)(v). Eligibility depends on factors including immigration history, the basis for adjustment, and qualifying relatives, and it isn't automatic.
Every case is different. If you have accrued significant unlawful presence and have advance parole travel planned, or you're unsure how this ruling affects a case already in progress, we're here to help.
Schedule a consultation →This article is for informational purposes only and does not constitute legal advice. Individual immigration cases depend on each person's specific circumstances.