The Board of Immigration Appeals just took away the only clean path a whole category of DACA recipients had left. Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA Aug. 13, 2026) (Interim Decision #4233), overrules Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), and holds that a trip abroad on advance parole is now a “departure” under INA § 212(a)(9)(B)(i)(II), 8 U.S.C. § 1182(a)(9)(B)(i)(II). For fourteen years, advance parole let a person with unlawful presence leave the country and come back without triggering the three- or ten-year bar. That workaround is gone for anyone who travels from here forward.
This is not a technical correction. It is the removal of the last functioning bridge between “here without status” and “here with a green card” for people who cannot use § 245(i) because Congress let that provision die in 2001 and has not revived it since. I do not think the sky is falling. I think the ceiling just came down on one specific room, and a lot of young people were standing in it.
📋 What Happened to Milagro Delcarmen-Lara
She is a native and citizen of El Salvador. An Immigration Judge ordered her removed in December 2006; the Board affirmed in June 2008. In 2013 she received DACA. In 2015 she tried to reopen her case to seek a provisional unlawful-presence waiver after her husband’s visa petition for her was approved — the Board denied that motion as untimely and barred by her final removal order.
In May 2025 she tried again, this time to pursue adjustment of status under INA § 245(a) based on that approved petition. She had left the country and been paroled back in on January 1, 2024, under a grant of advance parole. That single trip is what put her case in front of the Board and gave it the vehicle to reconsider Arrabally.
The Board denied Ms. Delcarmen-Lara’s motion on independent grounds — it was both untimely (filed sixteen years after the final order) and her second motion to reopen, which the regulations bar without an exception she didn’t show. Because those grounds were dispositive, the Board never decided whether her own January 2024 trip counts as a departure under the new rule. It announced a rule that will govern thousands of cases without deciding whether it governs the one case in front of it. That is not a minor point for litigation. It means the temporal line — grant date, travel date, or the date of this decision — was never actually tested against a real set of facts.
⚖️ The Ruling — Plain Language, Then the Statute
In plain terms: leaving the country on advance parole now counts as a departure. If you had accrued a year or more of unlawful presence before you left, and you left under advance parole, you are inadmissible under the ten-year bar when you come back and try to adjust or get a visa. The rule under § 212(a)(9)(B)(i)(II) reaches the ten-year bar for one year or more of unlawful presence; the Board’s reasoning sweeps just as easily into the three-year bar under (i)(I) for 180 days or more, though that wasn’t the precise question presented.
The Board’s statutory case rests on three moves. First, “departure” is undefined in the INA, so the Board went to the dictionary — “to go away: leave” — and found no textual carve-out for advance parole. Second, it invoked Russello v. United States, 464 U.S. 16, 23 (1983): Congress wrote express advance-parole exceptions into other INA provisions (INA § 201(c)(4)(A); INA § 245A(g)(2)(B)(ii)) but wrote none into § 212(a)(9)(B)(i)(II), and the Board treated that silence as intentional. Third, it pointed to pre-Arrabally agency practice: INS and DHS memoranda and the standard advance-parole warnings both treated these trips as departures before 2012.
Arrabally had reasoned the opposite way — that a departure taken with a guarantee of return and a pending case to resume back home is “qualitatively different” from an ordinary departure, and Congress could not have meant to punish someone for doing exactly what the government authorized. The Board rejected that as an atextual gloss the statute doesn’t support, and noted that neither the statutory text nor the sparse legislative history exempts advance parolees the way Congress explicitly did for NACARA and HRIFA applicants.
🎯 What This Actually Does — And Who It Hits
The rule: anyone who accrued one year or more of unlawful presence, then leaves the United States on advance parole after August 13, 2026, becomes inadmissible under the ten-year bar upon return, unless a waiver applies. This is not every DACA recipient. Time spent in DACA status itself does not accrue unlawful presence, and unlawful presence does not run for most people before age 18. The people caught are those who banked a year or more of adult unlawful presence before DACA protection attached, or during any gap or lapse in status — a large and identifiable population, but not the entire program.
It is also not a total dead end. INA § 212(a)(9)(B)(v), 8 U.S.C. § 1182(a)(9)(B)(v), still allows a discretionary waiver on a showing of extreme hardship to a qualifying U.S. citizen or lawful permanent resident spouse or parent. No qualifying relative, no waiver. That is the honest version of how bad this is — not “no path,” but “a path that now requires a discretionary waiver and a specific family relationship that not everyone has.”
| Before Aug. 13, 2026 — under Arrabally | After Aug. 13, 2026 — under Delcarmen-Lara | |
|---|---|---|
| Advance parole travel with 1+ yr unlawful presence | Not a “departure” — no bar triggered | A “departure” — 10-year bar triggered on return |
| Path to adjust under § 245(a) after such travel | Open, no waiver needed on this ground | Requires § 212(a)(9)(B)(v) extreme-hardship waiver |
| Waiver requires qualifying USC/LPR spouse or parent | Irrelevant — no bar to waive | Yes — no qualifying relative, no waiver |
| Travel already completed before Aug. 13, 2026 | Protected under old rule | Board applied the new rule prospectively — protected |
🗡️ The Litigation Roadmap — How to Fight This
The Board wrote this opinion to survive judicial review without deference, because it no longer gets any. That shapes where the attack lives.
Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), abolished Chevron deference. Courts now exercise independent judgment on what a statute means; they do not defer to the agency’s reasonable reading. That cuts both ways for the Board — it no longer owes deference, but it also no longer gets any protection from a reviewing court that reads “departure” differently. The Board built this opinion entirely on “plain meaning” precisely because plain-meaning arguments are the ones that survive a court doing its own reading rather than checking the agency’s reasonableness. Circuits are already re-running BIA statutory calls from scratch post-Loper Bright — the Tenth Circuit did exactly that in Rangel-Fuentes v. Bondi (10th Cir. Sept. 29, 2025), re-reviewing a BIA statutory interpretation de novo and reaching its own reading. A petitioner does not need the Board to have been unreasonable. A petitioner needs a court to find Arrabally‘s reading — a departure conditioned on guaranteed return is not the ordinary kind Congress had in mind — the better one. That is a live argument in every circuit that hasn’t ruled on this question, including the Seventh.
I checked. No Seventh Circuit decision squarely addresses whether advance-parole travel is a “departure” under § 212(a)(9)(B)(i)(II). The only circuit that has ruled on the merits is the Eleventh, in Ortiz-Bouchet v. U.S. Att’y Gen., 714 F.3d 1353, 1357 (11th Cir. 2013), which applied the old Arrabally rule — and the Board itself conceded in a footnote that Ortiz-Bouchet doesn’t preclude it from revisiting the question. There is no binding Seventh Circuit law forcing an Illinois practitioner’s hand either way. That means the first real case out of this circuit sets the rule here, and it means a petition for review is not fighting uphill against unfavorable circuit precedent. It is writing on a clean page.
The Board leaned on Russello v. United States, 464 U.S. 16, 23 (1983) — Congress named advance parole expressly elsewhere in the INA, so its silence in § 212(a)(9)(B)(i)(II) must be intentional. That argument runs the other way just as easily: Congress treating advance parole as its own defined category throughout the statute (INA § 201(c)(4)(A); § 245A(g)(2)(B)(ii); § 240A(d)(2)’s different rule for absences) supports reading it as functionally distinct from an ordinary departure, not as silently swept into one.
And the government cannot credibly claim it never said otherwise. On November 20, 2014, Secretary of Homeland Security Jeh Charles Johnson issued a directive titled “Directive to Provide Consistency Regarding Advance Parole,” instructing USCIS, ICE, and CBP to apply Arrabally consistently and to give individuals with advance parole “greater assurance” about the consequences of their travel. USCIS extended that same assurance to the three-year bar as recently as September 2024. People planned marriages, jobs, and years of their lives around a rule the government itself told them was settled. That reliance is the exact factor the Board’s own retroactivity test is supposed to weigh — and it’s why the Board pulled its punch on retroactivity in the first place.
The Board applied its new rule “prospectively” — a word that sounds tidy and isn’t. Prospective from what moment? The decision doesn’t say whether the trigger is the date of travel, the date advance parole was granted, or August 13, 2026 itself. And because the Board declined to decide whether Ms. Delcarmen-Lara’s own January 2024 trip counts as a departure, it never actually applied its own rule to a single set of facts. That is an opening. Anyone whose travel sits near the line — advance parole granted before this decision but travel completed after, or vice versa — has a genuine argument that the Board’s own retroactivity analysis, built for this case, doesn’t cleanly answer their case.
🕰️ Why This Matters So Much: There Is No Legalization Program
Here is the piece a non-lawyer needs to understand to see why this ruling is a big deal rather than a technical footnote. Congress created § 245(i) of the INA in 1994. It let people who entered without inspection, or who fell out of status, pay a penalty fee and adjust to a green card without leaving the country — instead of facing consular processing abroad, which for many people meant triggering the very unlawful-presence bars we’re discussing here. Bill Clinton signed a final revival of it through the LIFE Act Amendments on December 21, 2000, reopening the filing window to April 30, 2001.
After that date, the window closed. It has not reopened. Not after 9/11 reoriented the politics of immigration toward enforcement. Not through any of the reform pushes in the twenty-five years since. Anyone whose qualifying petition wasn’t filed by April 30, 2001, has never had that door available to them.
Advance parole was the workaround. It let a DACA recipient with unlawful presence leave, come back paroled rather than admitted, and adjust in place — sidestepping the closed § 245(i) door and the bars that consular processing abroad would trigger. That is what Delcarmen-Lara just shut. In the absence of any revival of § 245(i) and in the absence of any legalization program from Congress, this was not one option among several for a large slice of this population. For many, it was the only one.
📌 Practice Advisory
For attorneys advising clients with unlawful presence and pending or completed advance parole travel
- Any advance parole trip completed on or before August 13, 2026 should still be protected under the Board’s own prospective application — document the travel dates precisely and keep the evidence.
- Do not file a new I-131 for a client with a year or more of unlawful presence without a hard conversation about what a future trip now risks. The document being issued does not mean the trip is safe.
- For any client near the temporal line — parole granted before August 13, 2026, travel planned after — flag the unresolved trigger-date question before they book anything.
- Preserve the Loper Bright and Russello arguments in any petition for review; do not assume Skidmore-style deference language in a decision below forecloses a de novo challenge.
- Check for a qualifying USC or LPR spouse or parent early — if the extreme-hardship waiver under § 212(a)(9)(B)(v) is the only remaining path, the hardship record needs to start now, not at the interview.
- Watch for circuit splits developing outside the Seventh — a favorable ruling elsewhere strengthens an argument here even without binding effect.
✅ What To Do Now
-
If you have a valid advance parole document and haven’t traveled yet: talk to counsel before you use it. The document being valid does not mean the trip is safe under the new rule.
-
If you already traveled on advance parole and returned before August 13, 2026: gather your travel records — passport stamps, the I-512 or I-512L, CBP entry records — and keep them. That trip should remain protected, and you want the proof ready.
-
If you are weighing whether to file for adjustment based on past advance parole travel: get the exact dates of your grant and your travel confirmed before filing anything.
-
If you have no qualifying USC or LPR spouse or parent: understand that a future advance parole trip may now close your adjustment path rather than preserve it, absent a change in the law.
-
If you are an attorney with a case near the trigger-date line: preserve the retroactivity and de novo review arguments now, in the administrative record, so they’re not waived if this goes up on review.
🔚 Where This Goes Next
Matter of Delcarmen-Lara overrules fourteen years of settled practice, does it in a case where the Board never had to apply the rule it announced, and does it on reasoning built specifically to survive a court that owes the Board no deference at all. That last part is the opening. The Board wrote a plain-meaning opinion because plain meaning is what survives Loper Bright — but plain meaning is also exactly the kind of question a court of appeals can look at fresh and answer differently. The Seventh Circuit hasn’t spoken. Neither has most of the country. The next real case is the one that matters, and there is no reason it has to come out the same way the Board did.
Download the Full Decision (PDF)
This post is legal analysis and commentary, not legal advice, and it does not create an attorney-client relationship. Immigration consequences depend on your specific facts. If this affects you, talk to a licensed immigration attorney before you travel, file, or make any decision based on this post.
Check back here for developments.
