In re Arrabally
| Decision Date | 17 April 2012 |
| Docket Number | Interim Decision #3748 |
| Citation | 25 I&N Dec. 771 |
| Parties | Matter of Manohar Rao ARRABALLY, Respondent Matter of Sarala YERRABELLY, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
An alien who leaves the United States temporarily pursuant to a grant of advance parole does not thereby make a "departure . . . from the United States" within the meaning of section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2006). Matter of Lemus, 24 I&N Dec. 373 (BIA 2007), clarified.
FOR RESPONDENTS: Jon Eric Jesson, Esquire, Stamford, Connecticut
FOR THE DEPARTMENT OF HOMELAND SECURITY: John P. Marley, Senior Attorney
BEFORE: Board Panel: WENDTLAND and GREER, Board Members. Dissenting Opinion: PAULEY, Board Member.
WENDTLAND, Board Member:
In a decision dated August 20, 2009, an Immigration Judge found the respondents inadmissible as charged under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2006), as intending immigrants not in possession of valid immigrant visas or other entry documents. He further found them ineligible for adjustment of status under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2006), based on their inadmissibility under section 212(a)(9)(B)(i)(II), and he ordered them removed from the United States.
This case presents the question whether the respondents, who left the United States temporarily under a grant of advance parole, thereby effected a "departure," which resulted in their inadmissibility under section 212(a)(9)(B)(i)(II). We hold that they did not. Consequently, the respondents' appeal will be sustained in part and the record will be remanded to the Immigration Judge for further proceedings.
The respondents, a husband and wife, are natives and citizens of India. The male respondent and his wife were admitted to the United States temporarily as nonimmigrants on December 15, 1999, and October 29, 2000, respectively. The male respondent's visa expired on June14, 2000, but he remained in the United States without lawful immigration status for more than 5 years thereafter, and his wife also remained in this country for several years after her visa expired on April 28, 2001.
On May 11, 2004, the male respondent became the beneficiary of an approved employment-based immigrant visa petition, Form I-140 (Immigrant Petition for Alien Worker), with a priority date of April 27, 2001. On June 2, 2004, he and his wife applied for adjustment of status under section 245(i) of the Act before the United States Citizenship and Immigration Services ("USCIS"), a component of the Department of Homeland Security ("DHS").1
The respondents' applications for section 245(i) adjustment were prima facie approvable when filed, but they were held in abeyance for several years to await the availability of visa numbers in the male respondent's oversubscribed preference category. During this interval, the respondents found it necessary to return to India to attend to their aging parents, but they were appropriately concerned that the USCIS would deem their adjustment applications abandoned if they left the United States.
To prevent their applications from being deemed abandoned, the respondents applied for "advance parole" from the USCIS pursuant to section 212(d)(5)(A) of the Act. See 8 C.F.R. §§ 212.5(f) (); 245.2(a)(4)(ii)(A) (2004) (providing that "the departure of an [adjustment] applicant . . . shall be deemed an abandonment of the application constituting grounds for termination of any pending application for adjustment of status, unless the applicant was previously granted advance parole by the Service for such absences, and was inspected upon returning to the United States"). The respondents' requests for advance parole were granted, and they traveled to India and back on several occasions between 2004 and 2006, returning each time in accordance with the termsof their advance parole. On September 10, 2006, the respondents returned from India for the last time and were paroled into the United States.
In separate notices issued on October 15, 2007, the USCIS informed the respondents that their applications for adjustment of status were denied. Specifically, the notices informed the respondents that they were no longer "admissible" to the United States, as required for adjustment of status, because they had departed this country (under grants of advance parole) after having been "unlawfully present" here for 1 year or more and were seeking admission less than 10 years after having departed, a set of circumstances that rendered them inadmissible under section 212(a)(9)(B)(i)(II) of the Act.
The male respondent promptly sought reopening of his adjustment application before the USCIS, noting the humanitarian considerations that had prompted his request for advance parole and contending that he and his wife should not be punished for having departed the United States when the DHS knew about, and expressly approved of, those departures by granting them advance parole. On July 21, 2008, a USCIS Field Office Director issued a decision acknowledging the force of some of the male respondent's arguments but ultimately concluding that his inadmissibility under section 212(a)(9)(B)(i)(II) of the Act necessitated the denial of his application. In arriving at that conclusion, the Field Office Director invoked Matter of Lemus, 24 I&N Dec. 373 (BIA 2007) ("Lemus I"), in which we held that section 245(i) adjustment is unavailable to aliens who are inadmissible under section 212(a)(9)(B)(i)(II) and are not eligible for a section 212(a)(9)(B)(v) waiver.2 See also Matter of Lemus, 25 I&N Dec. 734 (BIA 2012) ("Lemus II") ().
On November 21, 2008 the DHS commenced these removal proceedings by filing notices to appear in Immigration Court, charging the respondents with inadmissibility under section 212(a)(7)(A)(i)(I) of the Act. By serving these notices to appear on the respondents, the DHS terminated their parole, thereby restoring them to the status they allegedly held at the time of their last parole into the United States, that is, as intending immigrants who are not in possession of valid admission documents. See 8 C.F.R. §§ 212.5(e)(2)(i), 245.2(a)(4)(ii)(A) (2008). On February 12, 2009, the respondents conceded removability through counsel and sought to renew their adjustment applications before the Immigration Judge. At the conclusion of an evidentiary hearing conducted on August 20, 2009, the Immigration Judgefound the respondents inadmissible under section 212(a)(9)(B)(i)(II) of the Act and ineligible for section 245(i) adjustment, and he ordered them removed to India.
The respondents' first argument on appeal is that their departures from the United States under a grant of advance parole were not the sort of "departures" that render aliens inadmissible under section 212(a)(9)(B)(i)(II) of the Act. For the following reasons, we agree.
As previously noted, the USCIS and the Immigration Judge found the respondents inadmissible to the United States under section 212(a)(9)(B)(i)(II) of the Act, which provides as follows:
(Emphasis added.)
The terms "depart" and "departure" are employed in numerous different contexts throughout the Act, but they are not statutorily defined. This is understandable. It would be a daunting task for any statutory draftsman to supply a single comprehensive definition for terms of such broad and variable application. Nevertheless, according to one dictionary, "depart" means simply "to go away: leave," while "departure" denotes "the act or an instance of departing." Merriam-Webster's Collegiate Dictionary 309 (10th ed. 2002). As used in section 212(a)(9)(B)(i)(II) of the Act, a "departure" could thus be interpreted to encompass any instance in which a person has "gone away" from or "left" the territory of the United States. Indeed, we have stated that the term "departure" should be given such a broad construction in the section 212(a)(9)(B)(i)(II) context. Lemus I, 24 I&N Dec. at 376-77.
In Lemus I, the respondent maintained that section 212(a)(9)(B)(i)(II) should be construed so that the term "departure" would cover only a formal "voluntary departure" under section 240B of the Act, 8 U.S.C. § 1229c (2006), that is, a departure made after the commencement of removal proceedings and in lieu of an order of removal. Id. at 376. We disagreed, concluding that this interpretation of "departure" was too narrow. Id. Indeed, in refuting the argument presented, we opined that the term should be interpreted broadly, "to encompass any 'departure' from the United States, regardless of whether it is a voluntary departure in lieu of removal or under threat of removal,or it is a departure that is made wholly outside the context of a removal proceeding." Id. at 376-77.
We continue to espouse the view that an alien like the respondent in Lemus I—who accrued more than 1 year of unlawful presence in the United States and then departed of his own volition without having obtained advance permission to return—fell within the class of individuals that Congress intended to cover when it enacted section 212(a)(9)(B)(i)(II). See Lemus II, 25 I&N Dec. 734. However, our unqualified declaration in Lemus I that inadmissibility under section 212(a)(9)(B)(i)(II) could be triggered by literally "any departure" from the United States has had implications that bear additional consideration. Specifically, as this case illustrates, immigration adjudicators have interpreted our ...
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