On August 13, 2026, the Board of Immigration Appeals upended more than a decade of settled immigration law with a single precedential decision.
In Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), the Board overruled Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), and held that a departure from the United States under advance parole is indeed a "departure" within the meaning of INA § 212(a)(9)(B)(i)(II) — with no exception for government-authorized travel.
The decision marks one of the most consequential immigration policy shifts affecting advance parole travel in more than a decade
, sending shockwaves through the immigration bar and affecting potentially hundreds of thousands of noncitizens who rely on advance parole to travel internationally.
What Changed — and Why It Matters
To understand the magnitude of this ruling, some background is essential.
Under INA § 212(a)(9)(B), a foreign national who accrues more than 180 days of unlawful presence and then departs may trigger a three-year bar to admission. A person who accrues one year or more of unlawful presence and then departs may trigger a ten-year bar.
These are among the harshest penalties in immigration law, effectively locking people out of the country for years.
For more than a decade, Matter of Arrabally and Yerrabelly provided that a temporary trip abroad using advance parole did not constitute a "departure" that triggered these unlawful-presence bars.
Under that decision, temporary travel abroad under advance parole was not treated as a statutory "departure," which 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.
That protection is now gone for future travelers.
The Case Behind the Ruling
The case involved a Salvadoran woman with a final order of removal who later became the beneficiary of an approved family-based petition filed by her husband. After traveling abroad and returning under a grant of advance parole, she sought to reopen her removal proceedings to pursue adjustment of status. The Board ultimately denied her motion to reopen on separate procedural grounds.
The respondent had been granted DACA in 2013, later departed temporarily, and was paroled back into the United States on January 1, 2024, pursuant to advance parole.
But the BIA used the case as a vehicle to revisit the Arrabally framework entirely.
The BIA's Reasoning
The Board concluded that because Congress did not explicitly write an exemption for advance parole into the statute, "departure" simply carries its plain meaning: "to go away or leave."
The Board also stressed that elsewhere in the INA, Congress knew how to address advance-parole departures expressly when it wanted to do so — a textual argument that became the foundation for overruling Arrabally.
The Board acknowledged the statutory scheme is designed to "compound the adverse consequences of immigration violations" by making lawful readmission harder after departure, and it cited authority recognizing that treating advance-parole travel as a triggering departure may produce "a harsh result."
Nevertheless, the BIA concluded that the statutory text did not permit an exception.
Some commentators have noted a broader trend at work.
The BIA's citation to Forjoe in Delcarmen-Lara reflects what some see as a troubling post-Chevron trend in which the BIA is invoking Loper Bright to overturn its own more generous readings of INA provisions.
A Critical Safeguard: Prospective Application
In one of the most important aspects of the decision,
the BIA expressly made Delcarmen-Lara prospective. The respondent herself had departed and returned pursuant to advance parole on January 1, 2024. If the Board had applied its newly announced interpretation retroactively, that historical trip could have been analyzed as a triggering departure. The Board refused to do so, stating that it would apply its new holding prospectively after considering the reliance interests created by Arrabally.
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.
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 the bars. But the decision will also affect adjustment of status applicants, U-visa and T-visa holders, and others who are eligible for advance parole.
Prior to Delcarmen-Lara, a DACA or TPS recipient who entered the U.S. without inspection could depart under advance parole, and the return would render them eligible for adjustment of status — since an applicant must have been "inspected and admitted or paroled" into the U.S. This is no longer the case, as the trip under advance parole would now trigger the 3- or 10-year bar.
After this decision, an advance parole trip can still supply the parole entry. What it no longer does is come free of consequences. A person can now come back correctly paroled and therefore eligible to file, yet inadmissible under the ten-year bar because of the same trip.
Regarding TPS beneficiaries specifically,
USCIS policy since July 1, 2022, has treated TPS travel as "authorized travel" rather than advance parole, but it is likely that USCIS will take the position that the reasoning of Delcarmen-Lara applies equally to TPS beneficiaries.
Practical Implications and What Comes Next
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.
It is also important not to overstate what the decision does. Not every person who travels on advance parole has accrued unlawful presence.
Those who have always maintained lawful status face no new risk from this decision.
The analysis must be individualized: some DACA recipients may not have accrued the requisite unlawful presence, while for others, a previously triggered bar period may have already expired. For still others with substantial unlawful presence, future travel is now dramatically riskier.
Individuals affected by the new rule may need to explore waivers, such as the I-601 unlawful-presence waiver, which requires demonstrating extreme hardship to a qualifying U.S. citizen or lawful permanent resident spouse or parent.
Advocates are already mobilizing.
Todd Schulte, President of FWD.us, called it a "flawed decision" that "will impose harsh inadmissibility bars on DACA recipients who re-enter the country after lawfully using Advance Parole."
Because the BIA is an administrative body within the Department of Justice, its decisions are reviewable by the federal Courts of Appeals, and advocacy organizations are already signaling that they intend to challenge this interpretation. Until a Circuit Court or the Supreme Court says otherwise, however, Matter of Delcarmen-Lara is binding nationwide.
The Eleventh Circuit had previously applied Arrabally in Ortiz-Bouchet v. U.S. Attorney General, 714 F.3d 1353 (11th Cir. 2013), holding that a departure under advance parole did not qualify as a departure under § 212(a)(9)(B). The BIA stated it did not read Ortiz-Bouchet as preventing it from revisiting its interpretation, but practitioners within that circuit can argue that Ortiz-Bouchet remains binding until the circuit itself rules otherwise.
The Bottom Line
Anyone with accrued unlawful presence who is considering advance parole travel after August 13, 2026, faces an entirely new legal landscape.
Individuals considering advance parole travel, particularly those who may have accrued unlawful presence, should obtain case-specific legal advice before leaving the United States.
Those who already traveled under the old rule have strong protections under the decision's prospective framework — but should still have their cases reviewed by qualified counsel.
This article is for informational purposes only and does not constitute legal advice. Immigration cases are highly fact-specific, and individuals should consult with a qualified immigration attorney to assess how this decision may affect their particular situation.