On August 13, 2026, the Board of Immigration Appeals upended more than a decade of settled immigration practice with a single precedential decision.
In Matter of DelCarmen-Lara, 29 I&N Dec. 830 (BIA 2026), the Board immediately changed how practitioners and noncitizens should evaluate advance-parole travel.
The Board held that when a person departs the United States under a grant of advance parole, that trip is still a "departure" for purposes of INA § 212(a)(9)(B)(i)(II), the unlawful-presence inadmissibility bar — overruling Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the precedent that had long been cited for the opposite proposition.
The decision was issued by
a three-member panel composed of Deputy Chief Appellate Immigration Judge Gorman, and Appellate Immigration Judges Montante and Gallow.
What Changed — and Why It Matters
For more than a decade, the Arrabally framework served as a critical legal shield.
It allowed many individuals — including DACA recipients, TPS beneficiaries, and pending adjustment-of-status applicants — to briefly leave the U.S. and return without accidentally triggering a 3-year or 10-year bar to re-entry.
Understanding the mechanics of the unlawful presence bars is essential to grasping the ruling's impact.
Under INA § 212(a)(9)(B), someone who accrues more than 180 days but less than one year of unlawful presence, and then "departs" the United States, is barred from re-admission for three years.
Someone who accrues one year or more of unlawful presence and then "departs" is barred for ten years.
Before Delcarmen-Lara, the Arrabally rule essentially carved out an exception: traveling on advance parole was not considered a "departure" that would activate these bars.
The Board has now stated that it had "impermissibly read an exception into the statute"
and has reversed course.
The BIA's Reasoning
The BIA relied heavily on the statutory text. Neither "depart" nor "departure" is defined in the INA, and the BIA found no language in § 212(a)(9)(B) creating an exception for departures pursuant to advance parole.
The Board looked up the ordinary meaning of the word "depart," which the dictionary defines as "to go away: leave," and found nothing in the statute that carves out a trip taken on advance parole.
The Board also employed a structural argument.
Because Congress included exceptions in other provisions of the INA but not in the unlawful-presence statute, the Board concluded that it could not read an advance-parole exception into Section 212(a)(9)(B)(i)(II).
The Case Behind the Decision
The ruling arose from the case of Milagro Delcarmen-Lara, a native and citizen of El Salvador. An immigration judge ordered Delcarmen-Lara removed on Dec. 7, 2006, after finding her removable and ineligible for Temporary Protected Status. The BIA affirmed that decision on June 17, 2008.
The respondent was later granted DACA in 2013, departed temporarily, and was paroled back into the United States on January 1, 2024, pursuant to advance parole.
U.S. Citizenship and Immigration Services had approved an I-130 immigrant petition filed by her U.S. citizen husband on July 9, 2014.
Notably,
the new interpretation didn't even apply to Delcarmen-Lara herself: because its opinion was not retroactive, the BIA denied her motion to reopen based on other grounds.
Prospective Application: A Critical Safeguard
In what may be the most important practical element of the decision,
the BIA stated that its new holding will apply prospectively, recognizing that it is a significant change from longstanding Board precedent on which individuals may have relied.
After considering the reliance interests created by Arrabally, the BIA stated that it would apply its new holding prospectively and declined to decide whether the respondent's own 2024 advance-parole trip constituted a § 212(a)(9)(B) departure.
Someone who completed advance-parole travel while Arrabally governed has a strong argument directly from Delcarmen-Lara itself that the new interpretation cannot be applied retroactively to that historical trip.
However,
the decision does not resolve all questions about how the prospective rule will be implemented in individual cases.
Who Is Most Affected?
DACA recipients will be among the most affected, since those who had accrued unlawful presence before obtaining DACA had been able to use advance parole to travel abroad without triggering § 212(a)(9)(B). But the ruling will also affect adjustment of status applicants, U-visa and T-visa holders, and others who are eligible for advance parole.
People with no accrued unlawful presence are not affected — no unlawful presence, no bar to trigger.
The decision is specifically dangerous for those who accumulated more than 180 days of unlawful presence and were relying on advance parole travel as part of their path to permanent residence.
An adjustment applicant who is using advance parole to preserve a pending case while traveling — and who has more than 180 days of historical unlawful presence — can now have that same trip used against the application. USCIS can deny the I-485 on inadmissibility grounds under § 212(a)(9)(B) if there is no approved waiver on file.
It is also worth noting that
advance parole has not been eliminated. The travel document still exists and may still be available to eligible applicants. What changed is an important legal protection related to the consequences of leaving the United States after accruing unlawful presence.
Is There a Waiver?
A Form I-601 waiver may be available. An eligible applicant adjusting status inside the U.S. may be able to request a discretionary waiver under INA § 212(a)(9)(B)(v) on Form I-601. However, eligibility and approval are not automatic.
The waiver survives — the Board overruled a definition, not the statutory waiver.
An Interagency Disagreement, Now Resolved
USCIS and the Department of State had previously disagreed over whether Arrabally applied at consular posts abroad. Both agencies now apply the same, stricter standard — the disagreement is resolved, but against the traveler.
What Should Immigrants Do Now?
The practical takeaway is urgent and clear:
if you currently have advance parole and are considering international travel, do not assume that the document alone makes the trip safe. Following Matter of Delcarmen-Lara, it is especially important to review your immigration history before leaving the United States.
Any person considering travel on or after August 13, 2026, should obtain individualized legal advice before departing.
Every case hinges on specific facts — particularly whether and how much unlawful presence was accrued, and whether a waiver is available or already approved.
Matter of Delcarmen-Lara does not close the door on advance parole travel entirely. But it fundamentally reshapes the risk calculation for hundreds of thousands of noncitizens who had relied on the safety net that Arrabally provided for 14 years. Immigration attorneys, applicants, and their families must now approach every advance parole trip with extreme caution and a thorough case-by-case legal analysis.
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This article is for informational purposes only and does not constitute legal advice. If you or someone you know may be affected by the Matter of Delcarmen-Lara decision, consult with a qualified immigration attorney to evaluate your specific circumstances.