Advance Parole Is No Longer a Safe Harbour: the BIA Has Overruled Arrabally
Board of Immigration Appeals · Decided August 13, 2026 · JBNP Law
For fourteen years, leaving the United States on advance parole did not count as a “departure” for the unlawful presence bars. That was the rule in Matter of Arrabally & Yerrabelly, and a great many adjustment applicants relied on it to travel safely. On August 13, 2026, in Matter of Delcarmen-Lara, the Board of Immigration Appeals overruled it.
What changed
The Board held that departing the United States on advance parole is a departure for the purposes of the unlawful presence ground of inadmissibility. The practical consequence is direct: an adjustment applicant who has accrued a year or more of unlawful presence and then travels on advance parole can trigger the ten-year bar — the precise outcome Arrabally was understood to prevent.
Three limits worth knowing
It applies going forward. The Board expressly declined to apply its new rule to the respondent’s own 2024 trip. Travel that took place before August 13, 2026 is arguably still governed by Arrabally, and that argument is worth preserving.
The holding is narrow. The Board confined itself to voluntary temporary trips taken on advance parole. It expressly reserved departures caused by accident, deception, threat or violence.
There is circuit friction. The decision acknowledges that the Eleventh Circuit applied Arrabally in Ortiz-Bouchet v. U.S. Attorney General, while asserting the Board may revisit the question anyway. Expect this to be litigated, and expect the answer to vary by circuit for a while.
Who should pay attention
Anyone with a pending adjustment application who has accrued unlawful presence and is considering travel. That includes people who entered without inspection, people who overstayed a prior status, and people whose lawful status lapsed at some point before filing.
It also includes anyone who was told at some earlier stage that advance parole made travel safe. That advice was correct when it was given. It is no longer reliable.
What to do before you travel
Get your unlawful presence recalculated before advance parole is used, not after. The calculation is fact-specific — it turns on your entries, your periods in and out of status, your age at relevant times, and any tolling that applies. Two people with similar-looking histories can land in very different places.
If you have already travelled on advance parole since mid-August, that is worth reviewing promptly rather than waiting for it to surface at an interview.
This post is general information, current as of when it was written — not legal advice, and no substitute for talking to an attorney about your own case. Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), Interim Decision #4233, was decided August 13, 2026 and overrules Matter of Arrabally & Yerrabelly, 25 I&N Dec. 771 (BIA 2012). Its application in the Eleventh Circuit and elsewhere may be contested. Unlawful presence calculations are highly fact-specific. Reading this does not make us your lawyers. Please get advice on your specific situation before you make travel plans.