On August 13, 2026, the Board of Immigration Appeals issued what may be the most consequential administrative immigration decision in years.
In Matter of Milagro Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), the BIA held that a trip outside the United States pursuant to a grant of advance parole is a "departure" for purposes of INA § 212(a)(9)(B)(i)(II).
The Board expressly overruled Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), which for more than 14 years has provided protection to people who had accrued unlawful presence and traveled abroad on advance parole.
The ruling — Interim Decision #4233 — has sent shockwaves through the immigration bar and the communities it serves.
What Changed
For more than a decade, Arrabally allowed individuals who had accrued unlawful presence to travel on advance parole without triggering the three-year or 10-year unlawful presence bars upon return.
Under immigration law, the stakes around these bars are severe:
a foreign national who accrues more than 180 days of unlawful presence and then departs may trigger a three-year bar to admission, while a person who accrues one year or more of unlawful presence and then departs may trigger a ten-year bar.
The Arrabally framework treated advance parole travel as fundamentally different from a traditional departure — reasoning that government-authorized temporary travel should not carry the same legal consequences as other forms of leaving the country.
The BIA has now rejected that interpretation, concluding that the statute does not provide an exception for travel authorized through advance parole.
The Board reasoned in plain language — it 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 Case Behind the Decision
The respondent, Milagro Delcarmen-Lara, is a national of El Salvador who entered the United States illegally at some point in the distant past (more than two decades ago). She was placed into removal proceedings in the early 2000s
and was ordered removed in December 2006.
Delcarmen-Lara was not subsequently removed, however, and in 2013 she was granted Deferred Action for Childhood Arrivals (DACA).
She was paroled into the United States on January 1, 2024, pursuant to a grant of advance parole.
Her case came before the BIA on a motion to reopen her removal proceedings so she could pursue adjustment of status — a strategy that had been routine under the old Arrabally framework. The BIA denied reopening and used the decision as the vehicle to overturn Arrabally entirely.
Prospective Application Only
In a critical limitation,
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.
It emphasized that Arrabally had been longstanding precedent, that the new rule represents a significant change, and that the government's interest in applying the new interpretation did not outweigh the reliance interests created by the former rule.
This means that the decision does not apply to clients who traveled and returned on advance parole before August 13, 2026.
The BIA 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 Affected
Advance parole has not been eliminated. The travel document still exists and may still be available to eligible applicants.
But the legal consequences of using it have changed dramatically for certain populations.
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 it will also affect adjustment of status applicants, U-visa and T-visa holders, and others who are eligible for advance parole.
The impact on TPS holders presents an additional wrinkle.
USCIS policy since July 1, 2022, has been that TPS beneficiaries have traveled pursuant to "authorized travel" and not technically advance parole.
However, it is likely that USCIS will take the position that the reasoning of Delcarmen-Lara applies equally to TPS beneficiaries traveling and "departing" pursuant to authorized travel.
Prior to Delcarmen-Lara, a DACA or TPS recipient who may have entered the U.S. without inspection could depart under advance parole, and this would render them eligible for adjustment of status, as under INA 245(a) an eligible applicant has to be "inspected and admitted or paroled" into the U.S. The return of the applicant under advance parole rendered them eligible for adjustment of status.
This is no longer the case under Delcarmen-Lara as the trip under advance parole would now trigger the 3 or 10-year bar.
Notably,
people with no accrued unlawful presence are not affected. No unlawful presence, no bar to trigger.
This distinction is critical, and underscores why individual case analysis matters.
Agency Alignment — Against the Traveler
One frequently overlooked dimension of this decision is its effect on interagency disagreements.
USCIS and the Department of State 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.
Waiver Options Remain
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.
For people applying for a green card, this matters a great deal. To get a green card, you must be admissible to the United States. If your trip triggers one of these bars, you may become ineligible unless you qualify for a waiver.
Reactions and Outlook
The ruling has drawn sharp criticism. Todd Schulte, President of FWD.us, called the decision part of "a deliberate effort to dismantle DACA piece by piece," noting that
"advance parole has been an incredibly successful policy that has allowed tens of thousands of people to travel outside of the U.S. with the government's permission."
Immigration advocates have noted that federal court challenges are likely, and that a future administration could direct the BIA to revisit the decision. But for now, Delcarmen-Lara is binding precedent.
What You Should Do Now
Individuals considering advance parole travel after August 13, 2026, particularly those who may have accrued unlawful presence, should obtain case-specific legal advice before leaving the United States.
If you have already traveled on advance parole before August 13, 2026,
the ruling is prospective, and a completed trip should still fall under the old rule.
But if you have a pending case, you should have your timeline reviewed by an attorney.
A person considering a new advance-parole departure should no longer assume Arrabally prevents that trip from constituting a departure under § 212(a)(9)(B).
But even here, the answer is not automatically "do not travel." First determine whether the person has the requisite unlawful presence at all.
The bottom line: advance parole still exists, but the safety net that once protected travelers with unlawful presence histories has been removed. Before booking any international travel on advance parole, consult a qualified immigration attorney who can evaluate your specific circumstances, calculate your unlawful presence accrual, and advise whether a waiver may be required.
---
This article is for informational purposes only and does not constitute legal advice. If you believe this decision may affect your case, contact an immigration attorney for a personalized assessment.