Matter of Arrabally and Yerrabelly
Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), historically held that an adjustment applicant who temporarily traveled abroad under advance parole did not make a “departure” that triggered the unlawful-presence ground in INA §212(a)(9)(B)(i)(II). That rule changed on August 13, 2026. In Matter of DELCARMEN-LARA, 29 I&N Dec. 830 (BIA 2026), the Board expressly overruled Arrabally and held that advance-parole travel is a departure for §212(a)(9)(B)(i)(II). Critically, the Board stated that its new holding applies prospectively.
Is Matter of Arrabally and Yerrabelly still good law?
An applicant should no longer assume that obtaining advance parole prevents a future departure from triggering the three- or ten-year unlawful-presence bar.
The original Arrabally rule
Arrabally involved adjustment applicants who had accrued unlawful presence and later traveled abroad after receiving advance parole.
The government argued that the trips triggered INA §212(a)(9)(B)(i)(II), which applies to a person who:
- Was unlawfully present in the United States for one year or more;
- Departed or was removed; and
- Again sought admission within ten years of that departure or removal.
The Board's 2012 majority concluded that temporary travel pursuant to advance parole was qualitatively different from an ordinary departure and therefore did not constitute the statutory “departure” for that provision.
Immigration attorneys and applicants relied on Arrabally when evaluating advance-parole travel after unlawful presence.
Why Arrabally mattered
Before Arrabally, an adjustment applicant with significant unlawful presence faced the possibility that travel—even with advance parole—would trigger a three- or ten-year inadmissibility bar.
Arrabally substantially changed that analysis by permitting qualifying applicants to travel without treating the advance-parole trip itself as the departure required by §212(a)(9)(B).
The decision became especially important for:
- Immediate relatives;
- INA §245(i) applicants;
- DACA recipients who later obtained advance parole;
- Applicants with pending family-based adjustment;
- Applicants with humanitarian travel needs; and
- Persons who had accumulated unlawful presence before filing Form I-485.
Matter of DELCARMEN-LARA
On August 13, 2026, the BIA decided Matter of DELCARMEN-LARA, 29 I&N Dec. 830.
The Board reconsidered the statutory meaning of “departure” and held that:
- The ordinary meaning of departure is to leave the United States;
- INA §212(a)(9)(B)(i)(II) contains no exception for departure under advance parole;
- Congress expressly addressed advance parole in other provisions but did not create such an exception here;
- A temporary advance-parole trip can therefore constitute a departure under §212(a)(9)(B)(i)(II); and
- Arrabally and Yerrabelly is overruled.
A grant of advance parole does not prevent a trip abroad from being treated as a departure for purposes of INA §212(a)(9)(B)(i)(II).
The new rule is prospective
DELCARMEN-LARA performed an express retroactivity analysis because the Board was overruling longstanding precedent.
The Board concluded that:
- Arrabally had been established precedent since 2012;
- Applicants had relied on the former rule;
- The change imposed a significant burden;
- The government's interest did not outweigh past expectations; and
- The new holding therefore would apply prospectively.
For travel occurring after the August 13, 2026 decision, applicants should plan under DELCARMEN-LARA. Earlier advance-parole departures require analysis of the Board's express prospectivity holding and the law governing when the travel occurred.
What does “prospective” mean for case analysis?
The correct analysis should identify:
- Date unlawful presence accrued;
- Amount of unlawful presence before departure;
- Date advance parole was granted;
- Date the applicant actually departed;
- Date the applicant returned;
- Whether the departure occurred before or after August 13, 2026;
- Whether another statutory exception applies;
- Whether a waiver is available; and
- Whether another inadmissibility ground applies independently.
The BIA expressly chose prospective application. Pre-decision travel should therefore not automatically be treated as though the new rule had always governed.
The three-year unlawful-presence bar
INA §212(a)(9)(B)(i)(I) generally applies when a person:
- Was unlawfully present for more than 180 days but less than one year;
- Voluntarily departed before commencement of proceedings as specified by the statute; and
- Again seeks admission within three years of departure.
Because the statutory wording differs from the ten-year provision, each bar should be analyzed from its own text rather than assuming every rule is identical.
The ten-year unlawful-presence bar
INA §212(a)(9)(B)(i)(II) generally applies to a person who:
- Was unlawfully present for one year or more;
- Departed or was removed from the United States; and
- Again seeks admission within ten years of that departure or removal.
DELCARMEN-LARA specifically addresses the meaning of departure in this provision.
Advance parole can preserve I-485 procedure but still create inadmissibility
Two separate legal questions must now be asked.
| Question | Rule |
|---|---|
| Is Form I-485 abandoned? | Advance parole can protect a qualifying pending I-485 from the ordinary travel-abandonment rule. |
| Did departure trigger §212(a)(9)(B)? | For departures governed by DELCARMEN-LARA, advance parole does not prevent the trip from being a statutory departure. |
Permission to seek parole back into the United States does not itself waive grounds of inadmissibility that become relevant because the applicant left.
Advance parole does not guarantee admission
Advance parole generally permits the holder to travel to a port of entry and seek parole.
It does not guarantee:
- Admission to the United States;
- Parole by CBP;
- Freedom from inadmissibility;
- Approval of Form I-485;
- Waiver of unlawful presence;
- Waiver of prior removal;
- Waiver of criminal grounds;
- Waiver of fraud; or
- Protection from every immigration consequence of departure.
INA §212(a)(9)(B)(v) waiver
A person who becomes inadmissible under the three- or ten-year unlawful-presence bar may need to evaluate the statutory waiver.
INA §212(a)(9)(B)(v) generally requires:
- A qualifying U.S. citizen or LPR spouse or parent; and
- Extreme hardship to that qualifying relative.
Hardship to a child can still be relevant insofar as it affects a qualifying spouse or parent, but the statutory qualifying-relative requirement remains controlling.
Other departure-related grounds must be checked
Advance-parole travel can implicate more than §212(a)(9)(B).
Review:
- INA §212(a)(9)(A) — prior removal;
- INA §212(a)(9)(B) — unlawful presence;
- INA §212(a)(9)(C) — unlawful reentry after specified violations;
- Outstanding removal orders;
- Reinstatement risk;
- Criminal inadmissibility;
- Fraud or misrepresentation;
- Security grounds;
- Existing nonimmigrant status; and
- Pending immigration court proceedings.
DELCARMEN-LARA changes one major rule, but an applicant should never evaluate advance parole solely through §212(a)(9)(B).
DACA advance parole
DELCARMEN-LARA is particularly significant for applicants who use advance parole to create a qualifying parole entry for later INA §245(a) adjustment.
Before departure, analyze:
- Prior unlawful presence;
- Age during periods of presence;
- DACA periods;
- Prior removal proceedings;
- Prior departure history;
- Prior reentry history;
- Family-based immigrant basis;
- Need for §212(a)(9)(B) waiver;
- Potential §212(a)(9)(C); and
- The DELCARMEN-LARA prospective rule.
Example: departure after August 13, 2026
An applicant accrued more than one year of unlawful presence and plans to leave the United States under advance parole after August 13, 2026. The applicant should not rely on Arrabally. Under DELCARMEN-LARA, the advance-parole trip is a departure for §212(a)(9)(B)(i)(II), so the ten-year bar and any available waiver must be analyzed before travel.
Example: travel before DELCARMEN-LARA
An applicant traveled under advance parole in 2024 while Arrabally was published BIA precedent. DELCARMEN-LARA expressly states that its new holding applies prospectively. The effect of that 2024 departure should therefore be analyzed under the prospectivity ruling and the law applicable to the earlier travel rather than automatically applying the 2026 rule retroactively.
Advance-parole travel checklist after DELCARMEN-LARA
- Calculate unlawful presence before departure.
- Identify all prior departures.
- Identify all removal orders.
- Identify all prior unlawful reentries.
- Determine planned departure date.
- Apply DELCARMEN-LARA to prospective travel.
- Analyze pre-August 13, 2026 travel separately.
- Analyze §212(a)(9)(A).
- Analyze §212(a)(9)(B).
- Analyze §212(a)(9)(C).
- Identify qualifying relatives for any waiver.
- Determine whether another statutory exception applies.
- Confirm advance-parole validity.
- Confirm I-485 abandonment rules.
- Review criminal and fraud history.
- Review removal-proceeding posture.
- Do not rely on pre-2026 travel advice without updating it.
Common Arrabally mistakes after August 2026
Still Treating Arrabally as Current
The applicant assumes advance-parole travel can never trigger the unlawful-presence bar.
Ignoring Prospectivity
DELCARMEN-LARA is mechanically applied to an advance-parole departure that occurred years before the new decision.
Confusing Abandonment With Inadmissibility
Because advance parole protects the pending I-485 from abandonment, the applicant assumes it also prevents unlawful-presence inadmissibility.
Ignoring the Waiver
The applicant identifies the ten-year bar but never determines whether §212(a)(9)(B)(v) relief is available.
Ignoring §212(a)(9)(C)
The travel analysis stops after the unlawful-presence bar even though the applicant has a prior unlawful reentry history.
Using Old Online Guidance
A webpage or memo written before August 13, 2026 is treated as current without checking DELCARMEN-LARA.
Primary authorities
Related INA245.com guides
Frequently asked questions
What did Matter of Arrabally originally hold?
It held that temporary travel under advance parole was not a departure for INA §212(a)(9)(B)(i)(II).
Is Arrabally still controlling?
No. Matter of DELCARMEN-LARA expressly overruled that holding on August 13, 2026.
What is the current rule?
An advance-parole trip can constitute a departure under INA §212(a)(9)(B)(i)(II).
Does DELCARMEN-LARA apply retroactively?
The BIA expressly stated that its new holding applies prospectively. Earlier travel therefore requires separate analysis.
Does advance parole still prevent I-485 abandonment?
It can under the applicable adjustment travel regulation. But abandonment and inadmissibility are separate questions.
Should someone with unlawful presence travel on advance parole now?
Only after individualized analysis of the amount of unlawful presence, departure date, prior removal and reentry history, waiver eligibility and other grounds of inadmissibility.
Arrabally is now a historical rule, not a safe-travel rule for future departures. After DELCARMEN-LARA, unlawful-presence analysis must occur before advance-parole travel.
The Messersmith Law Firm, P.A. represents adjustment applicants in matters involving advance parole, unlawful presence, INA §212(a)(9)(A), (B) and (C), prior removal, waivers, DACA travel and complex Form I-485 strategy.
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