The Board of Immigration Appeals (“BIA”) issued a major precedential decision on August 13, 2026 that changes more than a decade of immigration practice involving Advance Parole and unlawful presence. In Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), the BIA expressly overruled Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) and held that a person who leaves the United States pursuant to Advance Parole makes a “departure” for purposes of INA § 212(a)(9)(B)(i)(II). This distinction is critical.
For approximately fourteen years, Arrabally provided an important protection for many immigrants who had accumulated unlawful presence but later traveled with Advance Parole. USCIS ultimately interpreted that protection broadly, including in cases involving both the three-year and ten-year unlawful-presence bars. The new BIA decision changes the starting point of that analysis.
The Old Rule: Matter of Arrabally and Yerrabelly
To understand the importance of the new decision, it is necessary to understand what Arrabally actually did. Under INA § 212(a)(9)(B), certain periods of unlawful presence followed by a departure from the United States can result in a three-year or ten-year ground of inadmissibility.
The critical question therefore became:
Does a person who leaves the United States with Advance Parole make the type of “departure” that triggers the unlawful-presence bars? In 2012, the BIA answered that question favorably in Matter of Arrabally and Yerrabelly.
The BIA reasoned that travel pursuant to Advance Parole was qualitatively different from an ordinary departure. A person traveling with Advance Parole had received authorization in advance to leave temporarily and seek parole back into the United States, generally so the person could continue pursuing an adjustment-of-status application. As a result, the BIA held that this type of travel was not a “departure” for purposes of the ten-year unlawful-presence bar.
The practical consequence was extremely important: A person could have accumulated unlawful presence, leave pursuant to Advance Parole, return pursuant to that authorization, and the Advance Parole trip itself would not trigger the ten-year bar under the rule announced in Arrabally.
USCIS Eventually Adopted an Even Broader Application of Arrabally
An important part of this history is that Arrabally itself addressed the ten-year bar, but USCIS later applied its reasoning to both the three-year and ten-year unlawful-presence bars. As discussed in the October 2024 analysis provided with this article, USCIS updated its guidance in September 2024 to state that Arrabally applied to INA § 212(a)(9)(B)(i)(I) as well as § 212(a)(9)(B)(i)(II). In other words, USCIS applied the Advance Parole protection to both the three-year and ten-year bars.
This was particularly significant for individuals with DACA, adjustment-of-status applicants, and others who obtained Advance Parole after having accrued unlawful presence. The practical USCIS interpretation could therefore be summarized as:
Advance Parole departure → not a triggering “departure” under INA § 212(a)(9)(B) → unlawful-presence bar not triggered merely because of that authorized trip. That interpretation became an important component of immigration planning for many families.
An Important Historical Distinction: USCIS and the State Department Did Not Interpret Arrabally the Same Way
Even before the BIA issued Delcarmen-Lara, there was an important disagreement between USCIS and the Department of State (“DOS”) concerning how far Arrabally extended. This distinction is especially important for clients because Advance Parole cases involving adjustment of status inside the United States and cases involving visa applications at a U.S. consulate abroad were not necessarily being treated the same way.
The October 2024 analysis explains that USCIS broadly recognized Arrabally for purposes of determining inadmissibility under the three-year and ten-year unlawful-presence bars. The Department of State, however, took a considerably narrower position.
DOS’s Narrower Interpretation Before Delcarmen-Lara
In an October 2024 response to the American Immigration Lawyers Association (“AILA”), DOS explained its view that Arrabally protected an individual who used Advance Parole to temporarily leave and return to the United States in order to continue pursuing adjustment of status.
But DOS did not believe that Arrabally permitted Advance Parole to be used as a mechanism for leaving the United States and then obtaining a visa abroad without confronting the unlawful-presence inadmissibility provisions.
According to the DOS position described in the source material, Arrabally did not mean that someone could use Advance Parole to leave the United States and then obtain a visa—as opposed to returning on Advance Parole to continue an adjustment application—without application of the unlawful-presence visa ineligibility provisions. That produced a significant agency disagreement.
Under USCIS’s prior interpretation:
A qualifying departure under Advance Parole generally was not treated as the triggering departure for purposes of the three-year or ten-year unlawful-presence bar.
Under DOS’s narrower interpretation:
Advance Parole did not necessarily protect an individual who left the United States and subsequently sought to obtain a new immigrant or nonimmigrant visa at a U.S. consulate rather than simply returning pursuant to Advance Parole.
The 2024 analysis criticized this distinction, reasoning that if the act of leaving pursuant to Advance Parole was not a statutory “departure,” the person’s later choice to seek a visa rather than return under Advance Parole should not transform the original exit into a departure. Therefore, even before August 13, 2026, there was uncertainty depending upon which federal agency was adjudicating the immigration benefit.
What Matter of Delcarmen-Lara Changes
The new decision takes a fundamentally different approach from Arrabally. Instead of asking whether Advance Parole travel is sufficiently different from an ordinary departure to avoid INA § 212(a)(9)(B), the BIA focused on the statutory language itself. The Board concluded that the ordinary meaning of “departure” includes leaving the United States pursuant to Advance Parole. According to the BIA, Congress did not write an Advance Parole exception into INA § 212(a)(9)(B). The Board therefore concluded:
A departure pursuant to Advance Parole is a “departure” for purposes of INA § 212(a)(9)(B)(i)(II). The BIA expressly overruled Arrabally. This means that the fundamental premise upon which the old USCIS interpretation rested has changed.
Old Rule vs. New Rule
The distinction can be understood simply:
| Prior Arrabally Rule | New Delcarmen-Lara Rule | |
| Travel with Advance Parole | Treated differently from an ordinary departure | Constitutes a “departure” under § 212(a)(9)(B)(i)(II) |
| 10-year unlawful-presence bar | Advance Parole trip itself did not trigger the bar | Advance Parole departure may trigger the bar if the other statutory requirements are satisfied |
| USCIS historical practice | Broadly applied Arrabally protection | Prior legal foundation has now been expressly overruled |
| DOS historical practice | Had already taken a narrower view in the visa context | New BIA decision further undermines reliance on Arrabally going forward |
| Previously completed Advance Parole travel | Governed by the law applicable before the new prospective rule | BIA expressly states its new holding applies prospectively |
| Future travel | Previously planned in reliance upon Arrabally | Requires careful unlawful-presence analysis before departure |
This is why the new decision is much more than a technical reinterpretation of Advance Parole. It changes the legal characterization of the departure itself.
Why the Word “Departure” Matters So Much
INA § 212(a)(9)(B)(i)(II) provides that a person who has been unlawfully present in the United States for one year or more and again seeks admission within ten years of the person’s departure or removal is inadmissible. Under Arrabally, the Advance Parole trip was not considered the relevant “departure.” Under Delcarmen-Lara, it can be. That single change can dramatically alter the immigration consequences of international travel.
The new rule can be summarized as:
Unlawful presence + Advance Parole departure + statutory requirements satisfied = potential unlawful-presence inadmissibility. Importantly, Advance Parole itself does not create unlawful presence. The concern is whether the person accumulated the required unlawful presence before departing and whether the subsequent departure activates INA § 212(a)(9)(B).
This Does NOT Mean Every Advance Parole Traveler Has a 10-Year Bar
Clients should not interpret the decision to mean: “If I travel on Advance Parole, I automatically receive a 10-year bar.” That is incorrect.
The BIA changed how the departure is treated. The government must still determine whether the remaining statutory requirements for inadmissibility exist. Each case therefore requires an individualized analysis of factors including the amount of unlawful presence accumulated, when it accrued, the person’s age during the relevant period, whether particular periods count as unlawful presence, previous entries and departures, prior immigration proceedings, removal orders, and possible statutory exceptions or waivers.
For some people, Advance Parole travel may not create an unlawful-presence problem at all. For others, the consequences may be extremely serious.
The Most Important Limitation: The New Rule Is Prospective
One of the most important protections contained in Delcarmen-Lara is the BIA’s treatment of retroactivity. The Board expressly recognized that Arrabally was longstanding precedent upon which individuals had relied. It also recognized that overruling Arrabally represents a significant change affecting both the meaning of “departure” and potential eligibility for adjustment of status. For those reasons, the BIA stated:
“We will apply this new holding prospectively.” This language is critically important for people who already traveled under Advance Parole in reliance upon Arrabally**.** The decision should not be interpreted as automatically converting every historical Advance Parole trip into a triggering departure under the newly announced rule. Past travel and future travel therefore require separate legal analyses.
DACA Recipients Should Pay Particular Attention
The respondent in Delcarmen-Lara had received DACA and later temporarily departed the United States and returned pursuant to Advance Parole. This makes the decision particularly important for DACA recipients.
Under the prior USCIS interpretation of Arrabally, Advance Parole could be an important planning tool because the authorized departure itself was not treated as triggering the unlawful-presence bars. After Delcarmen-Lara, that assumption cannot safely be made for future travel. A DACA recipient considering Advance Parole should therefore have his or her entire unlawful-presence history calculated before leaving the United States.
Approval of Advance Parole Does Not Mean It Is Safe to Travel
This distinction has become even more important after Delcarmen-Lara. There are two separate questions:
Question 1: Has the government issued an Advance Parole document?
and
Question 2: What immigration consequences will occur if this particular person actually uses that document and leaves the United States?
Those are not the same question.
An approved Advance Parole document should not be understood as a government determination that the traveler has no unlawful-presence issue or other ground of inadmissibility. The BIA itself noted historical warnings that Advance Parole travelers could face inadmissibility and potentially become ineligible for adjustment without an available waiver.
What Clients Should Do Before Traveling
Anyone considering Advance Parole travel—particularly a person with DACA, prior unlawful presence, a pending adjustment application, previous immigration proceedings, or a removal order—should obtain an individualized legal analysis before leaving the United States.
An immigration attorney should determine, among other issues:
- How much unlawful presence has actually accrued;
- Whether any period is excluded from the unlawful-presence calculation;
- Whether the three-year or ten-year bar could apply;
- Whether there are previous departures or removal orders;
- Whether another ground of inadmissibility could apply;
- Whether the person intends to return on Advance Parole or seek a visa abroad;
- Whether a waiver is available if inadmissibility is triggered;
- Whether the proposed travel occurs after the prospective effective application of Delcarmen-Lara; and
- Whether the person’s pending immigration strategy should be reconsidered before departure.
Bottom Line
For more than a decade, Matter of Arrabally and Yerrabelly established an important principle: leaving the United States pursuant to Advance Parole was not treated as a “departure” triggering the ten-year unlawful-presence bar. USCIS later extended that reasoning to both the three-year and ten-year bars. The Department of State had already adopted a narrower interpretation, particularly when a traveler attempted to obtain a visa abroad rather than simply return pursuant to Advance Parole. Now, Matter of Delcarmen-Lara changes the underlying rule itself.
Going forward, the BIA considers an Advance Parole trip a “departure” for purposes of INA § 212(a)(9)(B)(i)(II). The Board expressly states that an individual may therefore become inadmissible as a result of a trip abroad undertaken pursuant to Advance Parole. At the same time, the BIA expressly made its new rule prospective, an extremely important distinction for individuals who previously traveled in reliance upon Arrabally.
The practical message is therefore not simply “Do not travel.” It is: Do not assume that Advance Parole protects you from the unlawful-presence bars. Have your immigration history and unlawful presence analyzed before you leave the United States.
Questions About Advance Parole or the New BIA Decision?
If you currently have Advance Parole, are considering applying for Advance Parole, have DACA, have accumulated unlawful presence, or previously traveled outside the United States under Advance Parole, we strongly recommend obtaining an individualized legal evaluation before making any future international travel decisions.
The impact of Matter of Delcarmen-Lara will depend on each person’s immigration history, including prior unlawful presence, entries and departures, prior removal proceedings, pending applications, and possible grounds of inadmissibility.
LAW OFFICE OF ERIKA RODRIGUEZ
Erika Rodriguez, Esq.
Immigration Attorney – San Diego, California
Office Address:
1450 Frazee Rd., Suite 303
San Diego, CA 92108
Telephone: 619-289-8090
Email: Info@ERLawSD.com
Website: erikarodriguezesq.com
Office Hours:
Monday–Thursday: 10:00 a.m.–7:00 p.m.
Friday: 10:00 a.m.–6:00 p.m.
Saturday–Sunday: Closed
Schedule a Consultation:
Contact our office at 619-289-8090 or visit our website to request a consultation regarding how this new BIA decision may affect your immigration case or your ability to travel using Advance Parole.
Important Legal Disclaimer
This article is provided for general educational and informational purposes only and does not constitute legal advice or create an attorney-client relationship. Immigration law is highly fact-specific, and the consequences of Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026) may vary depending on an individual’s immigration history.
If you have Advance Parole or are considering international travel, you should obtain individualized legal advice before departing the United States.
