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Client Approval: Humanitarian Parole Approved for Medical Emergency within 23 Days of Filing

October 12, 2014 By Michael Cho Immigration Lawyer Leave a Comment

Client Approval: Humanitarian Parole Approved for Medical Emergency within 23 Days of Filing

Our office recently received approval of a Humanitarian Parole request filed on behalf of a client who is subject to the 10 year “unlawful presence bar” pursuant to INA Section 212(a)(9)(B)(2).  She previously entered the U.S. on a B-2 visitor visa but remained out of status in the U.S. for over 3 years before departing back to her home country.

Parole is governed my numerous Public Laws and U.S. national policy that includes INA Section 212(d)(5) which states:

The Attorney General may, except as provided in subparagraph (B) or in section 1184 (f) of this title, in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.

It is important to realize that parole is a discretionary authority that allows for the temporary  entry of individuals into the United States for urgent humanitarian reasons or for significant public benefit.  

It does not constitute “admission” to the United States and it does not convey any immigration benefits to the beneficiary.  Common parole requests include medical emergencies, the unification of family members (particularly parents and young children), civil and criminal proceedings, as well as other emergent requests.

The USCIS, ICE and CPB exercise concurrent parole authority.  The USCIS authorizes parole for aliens outside the United States for many reasons, including humanitarian.  ICE authorizes parole for aliens outside of the United States for  many reasons, including law enforcement and intelligence  purposes as well as to release detained aliens from custody.  CBP authorizes parole at United States ports of entry, including pre-flight inspection facilities.

Humanitarian Parole is an extraordinary measure that allows an otherwise inadmissible alien to come to the United States for a compelling emergency.  Cases involving life-threatening medical emergencies, family unification, children under 16 years of age, and physically and/or mentally challenged individuals receive immediate expedited review.

Approximately 1200 Humanitarian Parole requests are received per year and only 25% are granted.  The vast majority of Humanitarian Parole requests as thus denied.

I prepared a comprehensive Humanitarian Parole application package on behalf of my client that included:

  • A detailed point-by-point memorandum presenting the emergency, compelling, and urgent nature of her request
  • A discussion of my client’s strong, permanent, and irrefutable ties to her country of residence that refuted any notion of “immigrant intent”
  • A discussion of her rehabilitation from her previous violation of U.S. immigration laws, her good moral character, and that she poses no risk of harm to the United States upon her entry
  • A discussion of the life-threatening consequences to her U.S. citizen brother should she not be allowed immediately into the United States
  • A discussion of the significant public benefits to the United States and its citizens served by my client’s entry into the U.S.
  • A table of exhibits with objective evidence that documented every statement made in the memorandum

Within 23 days of submitting our Humanitarian Parole application package, our request was approved by the USCIS.  Our client was granted parole authorization to enter the United States for 7 weeks despite being subject to the 10 year “unlawful presence bar.”

Filed Under: Blog, Humanitarian Parole, Inadmissibility, Parole, Unlawful Presence, Waiver Approvals

Temporary Protected Status (TPS), Advance Parole, and Adjustment of Status under Arrabally

February 9, 2014 By Michael Cho Immigration Lawyer Leave a Comment

Temporary Protected Status (TPS), Advance Parole, and Adjustment of Status under Arabally

Overview of Adjustment of Status

According to INA  Section 245(a), the status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if:

  1. the alien makes an application for such adjustment,
  2. the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
  3. an immigrant visa is immediately available to him at the time his application is filed.

Overview of the 3 and 10 Year Unlawful Presence Bars

INA Section 212(a)(9)(B)(i) is broken into two (2) sub-groups:

  • Section 212(a)(9)(B)(i)(I) of the Act (3-year bar). This provision renders inadmissible for three (3) years those aliens, who were unlawfully present for more than 180 days but less than one (1) year, and who departed from the United States voluntarily prior to the initiation of removal proceedings.
  • Section 212(a)(9)(B)(i)(II) of the Act (10-year bar). This provision renders inadmissible an alien, who was unlawfully present for one (1) year or more, and who seeks again admission within ten (10) years of the date of the alien’s departure or removal from the United States.

Section 212(a)(9)(B)(ii) of the Act defines “unlawful presence” for purposes of sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act to mean that an alien is deemed to be unlawfully present in the United States, if the alien is:

  • present after the expiration of the period of stay authorized by the Secretary of Homeland Security; or
  • present without being admitted or paroled.

Both the 3 and 10 year unlawful presence bars can be waived pursuant to section 212(a)(9)(B)(v) of the Act which states:

Waiver. – The [Secretary] has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the [Secretary] that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.

This waiver pursuant to 212(a)(9)(B)(v) is applied for through the I-601 “extreme hardship” waiver discussed extensively on this web site.

Triggering the Bar by Departing the United States and Matter of Arrabally

In the past, an alien who was not inspected and admitted or paroled into the United States was ineligible for adjustment of status (unless protected under INA Section 245(i)).  Such a person, when petitioned for permanent residence by a U.S. citizen spouse for example, had to leave the U.S. and attend a consular interview at the U.S. embassy abroad in order to complete the immigrant visa process.

By leaving the U.S. after accruing more than 180 days or one (1) year of unlawful presence, the 3-year or 10-year bar to admission under section 212(a)(9)(B) of the Act was triggered.  The I-601 waiver was subsequently required.

In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the Board of Immigration Appeals held that an alien who leaves the United States temporarily pursuant to advance parole under section 212(d)(5)(A) of the Act does not make a departure from the United States within the meaning of section 212(a)(9)(B)(i)(II) of the Act.

Advance parole is an administrative practice derived from the general parole authority in INA § 212(d)(5), giving an individual who is in the United States advance authorization to enter the United States after temporary travel abroad.  U.S. Citizenship and Immigration Services (USCIS) has the authority to grant advance parole and issue a Form I-512L, an advance parole authorization document.  Form I-512L allows a Customs and Border Protection (CBP) or other immigration inspector at a U.S. port-of-entry to parole an individual into the United States.  Advance parole does not guarantee subsequent parole into the United States.  The inspecting immigration official may, in his or her discretion, deny parole at the port-of-entry.

In a series of AAO decisions citing Matter of Arrabally and Yerrabelly thereafter, applicants who entered without inspection and subsequently obtained Temporary Protected Status (TPS), were allowed to use advance parole obtained pursuant to section 212(d)(5)(A) to temporarily leave the U.S., re-enter the U.S., and pursue pending applications for adjustment of status.  They were deemed to have NOT made a “departure” from the United States for purposes of section 212(a)(9)(B)(i)(II) of the Act.

In other words, the 3 and 10 year unlawful presence bars were not triggered.  Accordingly, the applicants were not deemed inadmissible under section 212(a)(9)(B)(i)(I) and 212(a)(9)(B)(i)(II) of the Act.  Additionally, they were deemed to have been paroled into the United States, and now eligible for adjustment of status under INA Section 245(a).

In these cases, the applicants were allowed to proceed with their adjustment of status applications in the United States based upon their  marriage to a U.S. citizen spouse.  Just as importantly, the I-601 extreme hardship waiver  was deemed unnecessary since the 3 and 10 year unlawful presence bars were not triggered.

It should be noted that this “beneficial interpretation” using Matter of Arrabally and Yerrabelly would extend to any immediate relative of a U.S. citizen applying for adjustment of status (i.e. the spouse, child under 21, or parent of a U.S. citizen son or daughter over 21 years old).

In summary, this has been welcome news for those granted TPS since Matter of Arrabally and Yerrabelly was decided.  Those who entered the U.S. without inspection and overstayed for 6 months or longer, subsequently obtained Temporary Protected Status (TPS), and are married U.S. citizens, have been able to obtain advance parole, leave the United States, and re-enter the U.S. to proceed with their adjustment of status to permanent residence without need for the I-601 extreme hardship waiver.

Other Inadmissibility Considerations

Prior to traveling abroad under advance parole, it is important to determine whether other grounds of inadmissibility may apply. Keep in mind that Matter of Arrabally and Yerrabelly discussed above benefits those who are only subject to the 3 or 10 year bar upon their departure from the United States.  As such, the inspecting immigration officer may deny  entry into the United States for those holding advance parole if the officer finds that any of the other inadmissibility grounds apply.

For example, an applicant who has already triggered the unlawful presence bars under INA Section 212(a)(9)(B) or the permanent bar under INA Section 212(a)(9)(C) (by previously leaving and re-entering without advance parole) may still be subject to these bars.

Future travel under advance parole will not cure previously incurred bars.  Immigration-related fraud or misrepresentation and false claims to U.S. citizenship can also bar admission.  Thus, prior to departing the United States, applicants with advance parole must consider all other inadmissibility grounds including criminal inadmissibility grounds identified at INA Section 212(a)(2).

Unexecuted deportation or removal order. If such an order exists, and if the applicant were to depart the United States on advance parole, he or she likely would be found to have executed the deportation/removal order and may not be able to re-enter the United States for a prescribed period of time.

To avoid this, an applicant with an unexecuted removal order can submit a motion to reopen removal proceedings with the Immigration Court or the BIA.  Once removal proceedings are reopened, the removal order no longer exists.  The applicant can then move to administratively close or terminate the reopened proceedings.  If either termination of proceedings or administrative closure is granted, the applicant can travel on advance  parole without risking the consequences of an executed removal order.  I typically contact the relevant ICE Office of the Chief Council (OCC) to request that the parties  jointly move to reopen and then administratively close or terminate the removal proceedings.

Filed Under: 601 Waiver News, Advance Parole, Blog, Entered Without Inspection, I-601 Waivers, Inadmissibility, Overstay, Parole, Temporary Protected Status, Unlawful Presence

Parole In Place and the I-601 Waiver or I-601A Provisional Waiver

November 15, 2013 By Michael Cho Immigration Lawyer Leave a Comment

Parole In Place and the I-601 Waiver or I-601A Provisional Waiver

The USCIS has release a policy memorandum concerning the parole of  spouses, children and parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve.

INA § 212(d)(5)(A) gives the Secretary the discretion, on a case-by-case basis, to “parole” for “urgent humanitarian reasons or significant public benefit” an alien applying for admission to the United States.  Although it is most frequently used to permit an alien who is outside the United States to come into U.S. territory, parole may also be granted to aliens who are already physically present in the U.S. without inspection or admission.  This latter use of parole is sometimes called “parole in place.”

The basic authority for parole in place is INA § 212(d)(5)(A), which expressly grants discretion to parole “any alien applying for admission to the United States.”  INA § 235(a)(1), in turn, expressly defines an applicant for admission to include “an alien present in the United States who has not been admitted.”

According the new policy memorandum issued by the USCIS:

“As noted above, the decision whether to grant parole under INA § 212(d)(5)(A) is discretionary.  Generally, parole in place is to be granted only sparingly.  The fact that the individual is a spouse, child or parent of an Active Duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve, however, ordinarily weighs heavily in favor of parole in place. Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual.  If USCIS decides to grant parole in that situation, the parole should be authorized in one-year increments, with re-parole as appropriate.”

Thus, for an alien who entered without inspection, a grant of parole under INA § 212(d)(5)(A) affects at least two of the eligibility requirements for adjustment of status.  First, adjustment of status requires that the person be “admissible.” INA § 245(a)(2).  Parole eliminates one ground of inadmissibility, section 212(a)(6)(A)(i).  Second, adjustment of status requires that the alien have been “inspected and admitted or paroled.” INA § 245(a).  The grant of parole under INA § 212(d)(5)(A) overcomes that obstacle as well.

The alien must still, however, satisfy all the other requirements for adjustment of status. One of those requirements is that, except for immediate relatives of United States citizens and certain other individuals, the person has to have “maintain[ed] continuously a lawful status since entry into the United States.” INA § 245(c)(2).  Parole does not erase any periods of prior unlawful status.

Consequently, an alien who entered without inspection will remain ineligible for adjustment, even after a grant of parole, unless he or she is an immediate relative or falls within one of the other designated exemptions.  Moreover, even an alien who satisfies all the statutory prerequisites for adjustment of status additionally requires the favorable exercise of discretion.

The practical effect of this memorandum is that immediate relatives of active or former members of the U.S. Armed Forces (or Selected Reserve of the Ready Reserve), who entered the U.S. “illegally” (without inspection or parole), can apply for adjustment of status inside the United States once parole in place has been granted.  They no longer need to travel back to their home country to consular process for their permanent residence.  This also means that the I-601A Provisional Waiver, or I-601 Extreme Hardship Waiver, is no longer required for this group of applicants, who would have been subject only to the unlawful presence ground of inadmissibility upon departure from the U.S.

Keep in mind that the I-601 waiver may still be required as part of the adjustment of status process for those subject to other grounds of inadmissibility, such as fraud/misrepresentation or conviction of a crime of moral turpitude.

Filed Under: Adjustment of Status, Blog, Entered Without Inspection, I-601 Waivers, I-601A Provisional Waiver, Inadmissibility, Overstay, Parole, Unlawful Presence

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