BIA Finds § 236(a)(2)(B) Conditional Parole Is Not Parole into the U.S. for AOS Purposes: Matter of Luis CASTILLO-PADILLA

(1) Conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)(2)(B) (2006), is a distinct and different procedure from parole under section 212(d)(5)(A) of the Act, 8 U.S.C. § 1182(d)(5)(A) (2006).

(2) An alien who was released from custody on conditional parole pursuant to section 236(a)(2)(B) of the Act has not been “paroled into the United States” for purposes of establishing eligibility for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006).

Matter of Luis CASTILLO-PADILLA, Respondent
Cite as 25 I&N Dec. 257 (BIA 2010) Interim Decision #3683
Decided June 18, 2010

The issue in this case is whether an alien who has been released from custody on conditional parole pursuant to section 236(a)(2)(B) of the Act, 8 U.S.C. § 1226(a) (2006), has been “paroled into the United States” for purposes of establishing eligibility for adjustment of status under section 245(a) of the Act.

The Board of Immigration Appeals (BIA or Board) in Matter of Castillo-Padilla, 25 I. & N. Dec. 257 (B.I.A. June 18, 2010), held that (1) conditional parole under INA § 236(a)(2)(B) [8 USCA § 1226(a)(2)(B)] (2006) is a distinct and different procedure from parole under INA § 212(d)(5)(A) [8 USCA § 1182(d)(5)(A)] (2006) and (2) an alien who was released from custody on conditional parole pursuant to INA § 236(a)(2)(B) has not been “paroled into the United States” for purposes of establishing eligibility for adjustment of status (AOS) under INA § 245(a) [8 USCA § 1255(a)] (2006).

The respondent, a native and citizen of Mexico, entered the U.S. on or about October 15, 1999, without being “admitted or paroled after inspection by an Immigration Officer.” The respondent was charged under INA § 212(a)(6)(A)(i) [8 USCA § 1182(a)(6)(A)(i)] (2006) as an alien present in the U.S. without being admitted or paroled. The respondent was detained at the Krome Service Processing Center and was released by the Department of Homeland Security (DHS) on a $12,000 cash bond on November 9, 2006. He was issued a Form I-94 (Arrival-Departure Record) with a stamp indicating that he was released after posting the bond. Before the immigration judge (IJ), the respondent conceded that he was removable as charged but sought to apply for AOS under INA § 245(a) based on his marriage to a U.S. citizen. The IJ denied the respondent’s application for relief, finding that, although he was released from custody and given a Form I-94, he had not been “paroled into the United States” as required by INA § 245(a) to establish eligibility for AOS. The IJ also concluded that the respondent was ineligible to adjust his status under INA § 245(i) because of the filing date of his visa petition. The respondent appealed to the BIA, arguing on appeal and at oral argument that he received “conditional parole” under § 236(a)(2)(B) and thus is eligible to adjust status under § 245(a).

INA § 212(d)(5)(A) provides:

The Attorney General may, except as provided in subparagraph (B) or in section 214(f), 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.

INA § 236(a) provides: On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General–

(1) may continue to detain the arrested alien; and

(2) may release the alien on–

(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or

(B) conditional parole …