Understanding Matter of Delcarmen-Lara - The New Meaning of "Departure" Under INA § 212(a)(9)(B)

Sep 19, 2026

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Practice advisory analyzing the Board of Immigration Appeals decision in Matter of Delcarmen-Lara and how it redefines “departure” under INA § 212(a)(9)(B)(i)(II) for advance parole travel. Explains prospective application, its impact on triggering 3- or 10-year unlawful presence inadmissibility bars, and key practical questions for noncitizens and advocates. Also outlines how advance parole functions, how unlawful presence accrues, applicable exceptions, CBP’s discretion at the port of entry, and risk tradeoffs for urgent travel.

LanguageEnglish

CategoryGeneral

FormatPDF

Pages11

Reading Time4 min

AccessFree to download

I. Introduction

II. Overview of Matter of Delcarmen-Lara

A. The BIA Redefines “Departure” Under INA § 212(a)(9)(B)(i)(II)

B. The New Rule Applies Prospectively

III. General Overview of Advance Parole

Immigration Law & Advocacy Clinic 133 Hughes Hall Ithaca, NY 14853 Last Updated: 9/1/26 Understanding Matter of Delcarmen-Lara: The New Meaning of “Departure” Under INA § 212(a)(9)(B) Authors: Krsna Avila, Veronica Garcia, Camiel Becker I. Introduction On August 13, 2026, the Board of Immigration Appeals (BIA) issued a decision on Matter of Delcarmen-Lara1, that overruled Matter of Arrabally and Yerrabelly2 and held that travel on advance parole is now a "departure" for purposes of the unlawful presence bars at INA § 212(a)(9)(B)(i) . Under this new interpretation, a person who has accrued more than 180 days of unlawful presence and then leaves the United States on advance parole will trigger the 3-or 10-year bar to admissibility. The BIA applied its holding prospectively, so trips taken before this decision was issued should not have triggered the bars. This practice advisory explains the effect of this decision and walks through the practical questions it raises for noncitizens and their advocates. It discusses how advance parole works, how unlawful presence accrues for purposes of these bars, and which exceptions apply, and provides a general overview of how Customs and Border Protection retains discretion over paroling someone at the port of entry. It closes by considering how a person with an urgent need to travel might weigh associated risks, and how, in narrow circumstances, deliberately triggering a bar and waiting for it to lapse from within the United States may open longer-term immigration relief options. II. Overview of Matter of Delcarmen-Lara A. The BIA Redefines “Departure” Under INA § 212(a)(9)(B)(i)(II) In Matter of Delcarmen-Lara, the BIA reinterpreted what it means to depart the United States with advance parole, stating that for purposes of INA § 212(a)(9)(B)(i)(II), travel on advance parole is considered a “departure” and as such, the 10-year unlawful presence bar would be 1 Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026) . 2 Matter of Arrabelly and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) . triggered upon leaving the United States on advance parole. In this case, Delcarmen-Lara was seeking to reopen her removal proceedings so she could adjust status after having traveled on advance parole. To support her eligibility for adjustment of status, Delcarmen-Lara submitted evidence that she had been paroled back into the United States after traveling on advance parole and was now eligible to adjust her status. The BIA ultimately denied the motion toreopen and overruled Matter of Arrabally and Yerrabelly, which held that leaving the United States temporarily with advance parole was not a “departure” within the meaning of INA § 212(a)(9)(B)(i)(II). In Matter of Delcarmen-Lara, the BIA noted that it was clarifying the term“departure” under this section of the INA and concluded that the plain language of the statute does not support an exception for those departing under advance parole. To do this, the BIA looked at the plain language and Congress’ intent when writing this law. In Arrabally and Yerrabelly, the BIA had reasoned that a person’s departure under a grant of advance parole was “qualitatively different from other departures,” because it “presupposes both that he [or she] will be permitted to return to the United States thereafter and that he [or she] will, upon return, continue to pursue the adjustment of status application he [or she] filed before departing.3 In examining the plain meaning of the statutory text, the BIA in DelcarmenLara turned to the dictionary definition of “departure,”which is “to go away: leave,” and found insufficient evidence that Congress intended to limit the definition of the word “departure.”4 B. The New Rule Applies Prospectively The BIA addressed retroactivity since this decision was overturning long-standing precedent. In doing so, they considered the following factors: (1) whether the particular case is one of first impression; (2) whether

FAQs

Does the decision affect whether advance parole re-entry can satisfy INA § 245(a) adjustment eligibility?

The advisory states the decision only changes whether an advance parole “departure” triggers the unlawful presence ground of inadmissibility. It does not change that re-entering on advance parole gives a parole entry meeting the INA § 245(a) “inspected and admitted or paroled” threshold, if other requirements are met.

Sep 19, 2026

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