A major change to Advance Parole could affect immigrants who have accumulated unlawful presence in the United States. On August 13, 2026, the Board of Immigration Appeals (BIA) ruled in Matter of Delcarmen-Lara that travel on Advance Parole counts as a “departure” for purposes of the 10-year unlawful-presence bar under INA § 212(a)(9)(B)(i)(II). In doing so, the BIA overruled Matter of Arrabally and Yerrabelly, a precedent that had stood since 2012. The new rule applies prospectively, making the timing of travel especially important.
Here’s what changed, who may be affected, and what Advance Parole travelers should know before leaving the United States.
A Major Change to Advance Parole: What Matter of Delcarmen-Lara Means
For more than a decade, many immigrants and immigration practitioners relied on an important Board of Immigration Appeals precedent when evaluating travel with Advance Parole.
That precedent has now changed.
On August 13, 2026, the Board of Immigration Appeals (BIA) issued its precedential decision in Matter of Milagro Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026). The Board held that leaving the United States pursuant to a grant of Advance Parole is a “departure” for purposes of the 10-year unlawful-presence bar under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (INA). In reaching that conclusion, the BIA expressly overruled Matter of Arrabally and Yerrabelly, a 2012 decision that had provided important protection to certain people traveling with Advance Parole. The change could have serious consequences for some immigrants who have accumulated unlawful presence in the United States and are considering international travel using Advance Parole.
What Was the Rule Before Matter of Delcarmen-Lara?
To understand why this decision is so significant, it helps to look at the previous rule. Under the INA, a person who has been unlawfully present in the United States for one year or more and then departs may be inadmissible if the person seeks admission within 10 years of that departure or removal. Ordinarily, that means leaving the United States after accumulating substantial unlawful presence can create a major immigration problem. But in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the BIA created an important distinction for people traveling with Advance Parole.
The Board concluded that a person who temporarily left the United States pursuant to Advance Parole did not make the type of “departure” that triggered the 10-year unlawful-presence bar.
For years, this interpretation played an important role in immigration strategies involving Advance Parole.
What Did the BIA Decide in Matter of Delcarmen-Lara?
The BIA has now reversed course. In Matter of Delcarmen-Lara, the Board concluded that the word “departure” in INA § 212(a)(9)(B)(i)(II) does not contain an exception for someone who leaves the United States temporarily under Advance Parole.
In other words: Leaving the United States on Advance Parole is now considered a departure for purposes of the 10-year unlawful-presence bar addressed by the decision.
The Board expressly overruled Matter of Arrabally and Yerrabelly. This means that a person who has accumulated one year or more of unlawful presence and later travels outside the United States using Advance Parole may trigger the 10-year inadmissibility bar as a result of that trip.
Who Was Milagro Delcarmen-Lara?
The respondent in the case, Milagro Delcarmen-Lara, is a native and citizen of El Salvador.
According to the BIA decision, an Immigration Judge ordered her removal in 2006, and the BIA affirmed that decision in 2008. She later received Deferred Action for Childhood Arrivals (DACA) in 2013. Her U.S. citizen husband had also filed an I-130 family petition on her behalf, which USCIS approved.
The respondent subsequently traveled outside the United States and was paroled back into the country on January 1, 2024, pursuant to Advance Parole. In 2025, she filed a motion to reopen her immigration proceedings so that she could pursue adjustment of status under INA § 245(a).The case eventually gave the BIA the opportunity to reconsider whether Matter of Arrabally and Yerrabelly correctly interpreted the meaning of “departure.”
The Board concluded that it did not.
Why Did the BIA Overrule Arrabally?
The Board focused heavily on the language of the immigration statute.
According to the BIA, neither “depart” nor “departure” is specially defined in the INA (Immigration and Nationality Act) for this purpose. The Board therefore looked to the ordinary meaning of the term and concluded that Congress did not create an exception for people leaving the United States with Advance Parole.
The BIA also pointed out that Congress has expressly created exceptions for certain types of travel elsewhere in the INA. Because Congress did not create a similar Advance Parole exception in INA § 212(a)(9)(B)(i)(II), the Board concluded that it should not read one into the statute. As a result, the BIA overturned the rule that immigration practitioners and applicants had relied upon since 2012.
The Decision Applies Prospectively
This is one of the most important parts of Matter of Delcarmen-Lara.
The BIA recognized that it was overturning a long-standing precedent on which immigrants may have relied. It therefore conducted a retroactivity analysis and determined that its new interpretation should apply prospectively.
The Board specifically noted that Arrabally and Yerrabelly had been a long-standing BIA precedent and that the new interpretation represents a significant change affecting both the meaning of “departure” and potential eligibility for adjustment of status. In fact, because Delcarmen-Lara’s own Advance Parole trip occurred before the new decision, the Board did not apply its new interpretation to determine that her January 2024 trip triggered the unlawful-presence bar.
This distinction is extremely important for people who already traveled on Advance Parole while the previous precedent was in effect. The decision should not simply be interpreted to mean that every prior Advance Parole trip suddenly triggers the 10-year bar.
What Does This Mean for People Who Are Out of Status?
This is where careful terminology matters. Being “out of status” and accumulating “unlawful presence” are related concepts, but they are not always the same thing under U.S. immigration law.
Matter of Delcarmen-Lara specifically concerns inadmissibility under INA § 212(a)(9)(B)(i)(II), which applies when a person has accumulated one year or more of unlawful presence and then makes a qualifying departure.
Therefore, someone should not assume that merely being out of status automatically means Advance Parole travel will trigger the 10-year bar. The person’s complete immigration history matters, including when unlawful presence began, whether any periods are excluded from unlawful-presence calculations, the person’s age during particular periods, any immigration benefits or protections held, prior departures, removal proceedings, and other factors.
Why This Is Particularly Important for DACA Recipients
The facts of Matter of Delcarmen-Lara involved a DACA recipient, making the decision especially important for DACA recipients who have considered Advance Parole as part of an immigration strategy.
Advance Parole has been used by some DACA recipients for authorized travel outside the United States. A return through parole may also be relevant to the “inspected and admitted or paroled” requirement for adjustment of status under INA § 245(a). But after the Matter of Delcarmen-Lara, the analysis cannot stop there. A person must also consider whether leaving the United States could trigger an inadmissibility ground based on prior unlawful presence.
Having an approved Advance Parole document does not by itself eliminate other grounds of inadmissibility.
Does This Mean Nobody Should Use Advance Parole?
No. The decision does not abolish Advance Parole, nor does it mean that every person who travels with Advance Parole will trigger a 10-year bar.
The critical issue addressed in Matter of Delcarmen-Lara is unlawful presence before departure.
For example, a person who has not accumulated the unlawful presence required by INA § 212(a)(9)(B)(i)(II) is in a different legal position from someone who has accumulated one year or more. There may also be statutory exceptions or waivers applicable in particular cases. What has changed is that immigrants and their attorneys can no longer rely on Matter of Arrabally and Yerrabelly for the proposition that an Advance Parole trip simply does not count as a departure for purposes of the 10-year unlawful-presence provision.
Already Have Advance Parole Approved? Do Not Assume Approval Means Travel Is Risk-Free
An approved Advance Parole document is permission to seek parole upon returning to the United States. It should not be understood as a government determination that international travel will have no immigration consequences.
That distinction has become even more important recently. Someone who already has an approved Advance Parole document but has accumulated unlawful presence should consider having their immigration history reviewed before departing the United States. The analysis should occur before travel – not at the airport after the person has already left.
What About People Who Already Traveled?
People who previously traveled using Advance Parole should pay particular attention to the BIA’s discussion of retroactivity. The Board expressly determined that its new holding would apply prospectively and declined to use the new rule to treat Delcarmen-Lara’s own 2024 Advance Parole trip as a triggering departure.
Therefore, someone who traveled under the prior Arrabally framework should not automatically conclude that the new decision retroactively created a 10-year bar based on that earlier trip. However, the person’s full immigration history still matters, particularly if there were other departures, removal orders, unlawful reentries, or potential grounds of inadmissibility.
The Bottom Line
The Matter of Delcarmen-Lara represents a significant change in U.S. immigration law. For approximately 14 years, The Matter of Arrabally and Yerrabelly provided that temporary travel pursuant to Advance Parole did not constitute a “departure” for purposes of the unlawful-presence provision at issue.
The BIA has now overruled that precedent.
Going forward, a person who has accumulated one year or more of unlawful presence and travels outside the United States using Advance Parole may trigger the 10-year inadmissibility bar under INA § 212(a)(9)(B)(i)(II). At the same time, the BIA made its new holding prospective, an important protection for people who relied on the previous rule when they traveled in the past. Before traveling, applicants – particularly those with DACA, prior periods without status, unlawful presence, previous removal proceedings, or complicated entry histories – should understand exactly how a departure could affect their immigration case. An Advance Parole approval may authorize travel, but after the Matter of Delcarmen-Lara, determining whether that travel is legally advisable requires a much more careful review.
Official Government Sources
- Official BIA Decision
- USCIS — Unlawful Presence and Inadmissibility
- USCIS — Adjustment of Status
- USCIS — Travel Documents
- Matter of DELCARMEN-LARA, 29 I&N Dec. 830 (BIA 2026) — U.S. Department of Justice.
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SIANA J.MCLEAN is a Partner at Richards and Jurusik, who practices immigration law with a focus on asylum, removal defense, and immigration court matters. She has extensive experience representing clients before U.S. Immigration Courts and the Board of Immigration Appeals. (Full Bio)
