In Matter of Milagro Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), decided August 13, 2026, the Board held that a departure under a grant of advance parole is a “departure” under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act. The decision expressly overruled Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).

What changed

The 2012 precedent treated qualifying temporary travel on advance parole differently from other departures for purposes of the unlawful-presence bars. The new ruling says the statutory term “departure” does not contain an exception for people who temporarily leave the country under advance parole.

That interpretation matters because the INA can make a person inadmissible after qualifying unlawful presence in the United States. A person who has accumulated at least 180 days but less than one year of qualifying unlawful presence may face a three-year bar after departing. One year or more of qualifying unlawful presence can lead to a 10-year bar after departure.

These bars are separate from several other questions: whether a person accrued unlawful presence, whether a particular trip qualifies as a departure, whether a waiver is available, and whether the person otherwise qualifies to adjust status or receive an immigrant visa.

Who may be affected

The ruling may affect some people who rely on advance parole while pursuing another immigration pathway. That could include certain DACA recipients, TPS holders, asylum applicants and adjustment-of-status applicants. It does not mean every person in those categories will face a bar or lose eligibility for an immigration benefit.

Bloomberg Law reported that the decision could narrow some green-card options for DACA recipients who travel internationally with advance parole. The practical effect will depend on a person’s immigration history, the amount and type of unlawful presence involved, the timing of the trip, available waivers and the legal pathway being pursued.

The ruling applies prospectively

The Board said it would apply the new interpretation prospectively because it was overruling a longstanding precedent and because people may have relied on the former rule. It described the decision as a significant change to the meaning of “departure” under section 212(a)(9)(B)(i)(II) and to some adjustment-of-status questions.

Because the holding was prospective, the Board did not decide whether the respondent’s temporary 2024 trip actually triggered inadmissibility. Instead, it applied the new interpretation going forward and addressed the remaining issues in her case.

What happened in the case

The respondent was a citizen of El Salvador who had a final removal order and later received DACA. She filed a second motion to reopen proceedings on May 27, 2025, seeking to pursue adjustment of status based on an approved family petition. She submitted evidence that she had temporarily left the United States and was paroled back into the country on January 1, 2024, under advance parole.

The BIA denied the motion. It found that the filing was untimely because it came more than 16 years after the final administrative order entered on June 17, 2008. It was also number-barred because it was her second motion to reopen. The Board declined to use its limited sua sponte authority to reopen the case.

What travelers should understand

Advance parole is permission to return to the United States after travel abroad. The Department of State says it must be granted by the Department of Homeland Security before departure. People who leave without obtaining it may be unable to return, and advance parole does not guarantee admission or approval of an immigration benefit.

People with prior unlawful presence should not assume that government-issued travel authorization eliminates every immigration risk. Before traveling, they should review their unlawful-presence history, any removal orders, pending applications and possible waivers with a qualified immigration lawyer or accredited legal-service provider.

The BIA’s published precedent is an administrative adjudication, not a statute enacted by Congress or a Supreme Court ruling. The next developments to watch include how immigration agencies and adjudicators implement it, whether federal courts review or limit it, and how the rule is applied to travelers with different immigration histories. The decision also does not resolve every possible advance-parole scenario.

Sources

• Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026)
• DACA Green Card Options Narrowed in Justice Department Decision
• Advance Parole, U.S. Department of State Visa Glossary