A significant immigration decision came down from the Board of Immigration Appeals that changes the landscape for DACA recipients and others who have relied on advanced parole as a pathway to lawful re-entry and potential green card eligibility. The BIA has overturned Matter of Arrabally, a ruling that has been a cornerstone of immigration strategy for DACA recipients for over a decade, and the implications are serious and immediate.
What was Matter of Arrabally and why did it matter?
Matter of Arrabally was a Board of Immigration Appeals decision issued in 2012, that established a critical protection for people who traveled outside the United States using advanced parole. The core holding of that decision was that when a person traveled on an approved advance parole document and returned to the United States, that departure did not trigger the unlawful presence bars that would normally apply.
To understand why this mattered, you need to understand how the unlawful presence bars work. If a person is in the United States without lawful status, they begin accruing what is called unlawful presence. If they accumulate more than 180 days of unlawful presence and then depart the United States, they are subject to a three-year bar to re-entry. If they accumulate more than 365 days of unlawful presence before departing, they face a ten-year bar. These bars prevent the person from returning to the United States for those periods unless they obtain a waiver.
Matter of Arrabally said that departing on advance parole did not count as the kind of departure that triggers these bars. This was enormously significant for DACA recipients in particular, because many of them had accrued unlawful presence before receiving DACA protection. The ruling meant they could travel on advanced parole and return without activating the three or ten-year bar, preserving their ability to potentially apply for a green card from within the United States through a lawful re-entry.
What did the BIA just decide?
The BIA has now overturned Matter of Arrabally. The ruling that protected advance parole travelers from triggering the unlawful presence bars upon departure is no longer valid. This means that for people who have accrued unlawful presence, traveling on advance parole and returning may now trigger the three or ten-year bar to re-entry depending on how much unlawful presence they accumulated.
The full implications of this decision are still being worked out and will depend significantly on how the decision is applied in individual cases. There may be some circumstances where the change does not create a problem. For example, a person who received DACA when they were 17 years old and therefore never accrued unlawful presence would not be affected by a bar that is triggered by unlawful presence they never accumulated. But for those who did accrue significant unlawful presence before receiving DACA or advance parole, the risk of travel is now substantially higher than it was under Matter of Arrabally.
What does this mean for DACA recipients specifically?
For DACA recipients, this decision requires an immediate reassessment of any plans involving international travel. The advanced parole document that many DACA recipients have sought specifically because it enabled lawful re-entry and potentially preserved green card eligibility through a qualifying U.S. Citizen marriage must now be evaluated very differently.
Before this decision, a DACA recipient who had accrued unlawful presence, obtained advance parole, traveled, and returned could potentially use that lawful re-entry as the basis for adjustment of status. That strategy depended on Matter of Arrabally’s protection against triggering the unlawful presence bars. Without that protection, the calculation changes significantly. A person who departs on advance parole and has significant unlawful presence in their background may now face a three or ten-year bar upon that departure, making re-entry subject to those consequences. Potentially a waiver will be required to adjust.
It is important to note that advance parole applications for DACA recipients have largely not been approved for the past year. The administration has been sitting on these applications without action. But for anyone who has an approved advance parole document and is considering whether to use it, this decision is a major factor that must be analyzed before any travel takes place.
What should you do right now?
The first and most important step is to consult with an experienced immigration attorney before making any decisions about travel. Do not use an approved advance parole document without a thorough analysis of how the overturning of Matter of Arrabally affects your specific situation. The analysis requires knowing how much unlawful presence you accrued, when you received DACA, what your immigration history looks like, and how the new ruling applies to the specific facts of your case.
Do not cancel a pending advance parole application based on this decision alone. The situation is still developing, there may be legal challenges to the BIA’s decision, and the full scope of how it will be applied is not yet known. But do not proceed with travel as if Matter of Arrabally still protects you, because it does not.
If you were relying on the advance parole and lawful re-entry strategy as part of a plan to obtain a green card through marriage, that plan needs to be completely re-evaluated in light of this ruling. The pathway that existed under Matter of Arrabally may still have some viability depending on your specific circumstances, but the analysis is now more complex and the risks are higher.
This is a rapidly evolving situation. The legal landscape around DACA and advance parole has changed more in the past year than in the prior decade, and it is continuing to change. Staying informed and getting individualized legal guidance is the only way to navigate it safely.
Do not wait until September. Plan ahead now so that when the changes take effect you are prepared, not caught off guard.Download our free Ultimate Marriage Green Card Guide at MarriageImmigrationLaw.com, join Attorney John Khosravi, Esq. live every Tuesday at 4 PM PT / 7 PM ET on YouTube, LinkedIn, Instagram, and TikTok for a free Q&A, or book a one-on-one consultation to talk through your specific situation. Schedule a consultation at JQKLaw.com/contact
