Monday, October 20, 2014

Advance Parole for Deferred Action for Childhood Arrivals (DACA) Recipients – Legal Issues

On June 15, 2012, the Secretary of the United States Department of Homeland Security (DHS) issued a memorandum allowing individuals who entered the United States before turning sixteen and who meet certain guidelines to pursue Deferred Action for Childhood Arrivals (DACA). DACA recipients are entitled to apply for certain benefits, including permission to travel abroad for humanitarian, educational or employment purposes. A DACA recipient who seeks to temporarily leave and re-enter the U.S. must apply for what is known as advance parole. Advance parole allows an individual who is in the U.S. advance authorization to enter the U.S. after temporary travel abroad. USCIS has the authority to grant advance parole and issue an advance parole document on Form  I-512L. This documents allows a Customs and Border Protection (CBP) officer or other inspector at a U.S. port of entry to parole an individual into the U.S. However, the possession of an advance parole does not guarantee parole into the U.S. as the inspecting immigration official may deny parole at the port of entry.

Prior to applying for advance parole, an individual must apply for and receive a DACA approval. An individual is disqualified from DACA if he or she leaves the U.S. at any time after August 12, 2012 unless he or she is first granted both DACA and advance parole. To apply for advance parole, a DACA recipient must submit Form I-131 to the USCIS and must submit proof of DACA status. DACA recipients must provide as much evidence as possible to explain the purpose of their intended travel abroad. For a trip involving a humanitarian purpose, proper evidence may include a letter from a hospital or medical professional explaining a relative’s illness. Evidence that may be provided to support a request for travel for educational purposes may include a letter from an educational institution explaining the purpose of travel abroad. For a trip that is necessary due to employment, evidence may include a letter from an employer explaining the need to travel abroad. A single Form I-131 may be used to request permission to leave and reenter the U.S. multiple times. However, the DACA recipient must document that each trip is intended to serve a humanitarian, employment or educational purpose and explain why the DACA recipient needs to travel multiple times.

The issued advance parole document, Authorization for Parole of an Alien into the United States (I-512L) contains an expiration date by which the individual must present the document to the inspector at a port of entry in order to seek parole into the U.S.

Prior Removal Orders

It is very important that the DACA recipient consider several legal issues before traveling abroad with an advance parole.  The individual must determine whether he or she has an unexecuted deportation or removal order. If such an order exists, and if the DACA recipient were to depart the U.S. on advance parole, he or she would likely to be found to have executed the deportation/removal order and would face severe future immigration consequences, such as the inability to reenter the U.S. for a given period of time.

To avoid the above-mentioned harsh immigration consequences, a DACA recipient with an unexecuted removal order can submit a motion to reopen removal proceedings with the Immigration Court or the Bureau of Immigration Affairs (BIA). Once removal proceedings are reopened, the removal order no longer exists. Then, the DACA recipient may move to administratively close or terminate the reopened proceedings. If the termination of proceedings or administrative closure is granted by the government, the DACA recipient may travel on advance parole without risking the consequences of an executed removal order.  

Unlawful Presence Bars

In addition, any decision regarding travel outside of the U.S.  by a DACA recipient should include an analysis of a DACA recipient’s unlawful presence in the U.S. to determine whether the recipient is subject to the 3- or 10-year inadmissibility bars of the Immigration and Nationality Act (INA). Individuals under the age of 18 do not accrue unlawful presence for purposes of these bars and DACA recipients are considered to be lawfully present in the U.S. during the DACA grant period. However, DACA recipients who applied for DACA after turning 18 and DACA recipients who departed the U.S. and reentered or attempted to reenter the U.S. without being admitted – including those who are under the age of 18 – will likely have accrued unlawful presence prior to obtaining DACA.

According to a recent BIA precedent decision, Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) an individual who accrued unlawful presence under INA §212(a)(9)(B) prior to obtaining DACA and subsequently travels with advance parole, should not become subject to the unlawful presence ground of inadmissibility upon departure from the U.S.  The BIA held in this case that travel on advance parole does not constitute a “departure” for purposes of the 10-year-bar for unlawful presence under the INA. 

However, Matter of Arrabally and Yerrabelly addressed advance parole in the context of adjustment of status to permanent residence applications, not DACA recipients. However, the USCIS Administrative Appeals Office (AAO) has subsequently applied this analysis in several cases involving individuals holding Temporary Protected Status (TPS). Based on Matter of Arrabally and Yerrabelly, the AAO found that these applicants were not inadmissible and that they did not need waivers of inadmissibility.

While there has been no formal written guidance yet on this issue, it appears likely that the USCIS would apply the decision in Matter of Arrabally and Yerrabelly to DACA recipients.

Additional Inadmissibility Considerations

There are other inadmissibility considerations that DACA recipients must consider before they travel with advance parole and seek admission to the U.S. DACA recipients must consider whether they are subject to all of the inadmissibility grounds, except for those concerning documentation requirements, such as criminal inadmissibility grounds.

Impact of Travel on Future Immigration Benefits

A DACA recipient who is granted advance parole and returns to the U.S. in considered an applicant for admission.  If a DACA recipient travels abroad and returns under advance parole, she or he is “paroled” into the U.S. with the meaning of INA §245(a) and may qualify to apply for adjustment of status to permanent residence. However, this eligibility will probably only apply to those DACA recipients who qualify as “immediate relatives,” the spouse or child of a U.S. citizen or the parent of an adult U.S. citizen as immediate relatives of U.S. citizens may apply for adjustment of status to permanent residence despite having been employed without authorization or who have overstayed their lawful period of admission to the U.S.


The DACA recipient should confer with counsel before contemplating travel outside the U.S. on advance parole.

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