On August 13, the Board of Immigration Appeals (BIA) — the DOJ tribunal that reviews immigration decisions — issued an opinion in Matter of Delcarmen-Lara, finding that an alien who departed from the United States with advance parole while under a final removal order is inadmissible and therefore unable to receive a green card in the United States — proving dictionaries are still good for something. More importantly, the Board reversed its own 14-year-old misinterpretation of the law, but if you want to understand how difficult it is to remove even an alien who entered illegally, read on.
Milagro Delcarmen-Lara
The respondent, Milagro Delcarmen-Lara, is a national of El Salvador who entered the United States illegally at some point in the distant past (more than two decades ago).
She was placed into removal proceedings in the early 2000s and charged with removability under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA), as an alien who is “present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by” DHS — that is, because she entered illegally.
Note that DHS had designated Delcarmen-Lara’s country of El Salvador for Temporary Protected Status (TPS) in March 2001, “based on ... the devastation resulting from a series of earthquakes that occurred” that year (the impacts of which have been resolved, though the designation is still in place), and as a Salvadoran national, she applied for that status.
For reasons not explained in the BIA’s opinion, however, the immigration judge (IJ) assigned to her case found Delcarmen-Lara was not eligible for TPS and ordered her removed in December 2006.
She appealed the IJ’s order to the BIA, but the Board affirmed the decision and dismissed her appeal in June 2008. Delcarmen-Lara was not subsequently removed, however, and in 2013 she was granted Deferred Action for Childhood Arrivals (DACA).
That DACA grant may have barred DHS from executing her June 2008 final order of removal, but aside from that protection (and work authorization), it didn’t provide her with any permanent benefits.
At some point, however, she got married, and her husband filed a “Petition for Alien Relative” (Form I-130) on her behalf, which USCIS approved in June 2014.
The approval of the I-130 alone, however, didn’t do her much good, either. For reasons I’ll explain below, certain aliens with approved visa petitions can “adjust” to lawful permanent resident (LPR) status (i.e., receive a “green card”), but because she entered illegally, that wasn’t an option for Delcarmen-Lara.
Instead, to become a legal immigrant, at that point she had to go through consular processing abroad.
The Three- and 10-Year Bars
To do so, in June 2015, she submitted a motion to reopen her removal proceedings with the BIA (under section 240(c)(7) of the INA) so she could file an “Application for Provisional Unlawful Presence Waiver” (Form I-601A), a request for a de facto pardon of her unlawful presence in the United States, prior to her departure, with USCIS.
Delcarmen-Lara needed that waiver, because if she had departed the United States without it, she would have been inadmissible upon her return under section 212(a)(9)(B) of the INA, which is commonly called the “three- and 10-year bars” because of the restrictions on lawful reentry therein.
First, section 212(a)(9)(B)(i)(I) of the INA bars the lawful admission for a period of three years from the date of departure any alien who “was unlawfully present in the United States for a period of more than 180 days but less than 1 year” and “voluntarily departed the United States”, who then seeks to return.
Section 212(a)(9)(B)(i)(II) of the INA, in turn, renders any alien who “has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure” inadmissible during such period, meaning the alien must wait a decade to return lawfully.
That said, section 212(a)(9)(B)(v) of the INA provides a waiver of the three- and 10-year bars, and since March 2013, spouses of U.S. citizens (among others) have been able to seek one from USCIS by filing the I-601A before leaving for to go abroad for their consular interviews by filing the Form I-601A.
Motions to Reopen
The Board, however, denied Delcarmen-Lara’s June 2015 motion to reopen, in part because she would not have been eligible for the waiver even if it had reopened her case, and in part because it was untimely filed.
Under section 240(c)(7)(C) of the INA, motions to reopen (with inapplicable exceptions) must be “filed within 90 days of the date of entry of a final administrative order of removal”, but the final order in Delcarmen-Lara’s case was entered final seven years before she filed her motion, in June 2008, when the BIA affirmed the IJ’s decision.
Note also that in addition to that 90-day, temporal limitation on motions to reopen, section 240(c)(7)(A) of the INA also imposes a numerical limitation: In general, respondents may file just “one motion to reopen” their removal proceedings.
Congress imposed those restrictions in 1996 because it was concerned that aliens were filing motions to reopen for dilatory purposes, echoing various Supreme Court opinions that had preceded that change.
For example, in 1981, in INS v. Jong Ha Wang, a majority of the justices quoted a lower-court judge who had observed:
Granting [motions to reopen] too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatically required by the prima facie allegations.
Seven years later, in INS v. Abudu, the justices described motions to reopen as “disfavored” because of the “strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases”.
Finally, in its 1992 opinion in INS v. Doherty (involving another motion to reopen), the Supreme Court reaffirmed the disfavored nature of such motions and observed that “in a deportation proceeding ... every delay works to the advantage of the deportable alien who wishes merely to remain in the United States”.
Delcarmen-Lara’s Second Motion to Reopen
Notwithstanding the numerical cap of “one” on such motions, Delcarmen-Lara filed a second motion to reopen with the BIA in May 2025, this time so she could apply for “adjustment of status”, that is, receive a green card without leaving the United States to undergo consular processing abroad. Here’s how that works, and why she contended she’d be able to adjust status if her case were reopened.
Under section 245(a) of the INA:
(a) The status of an alien who was inspected and admitted or paroled into the United States ... may be adjusted by the Attorney General, in his discretion ... to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. [Emphasis added.]
Delcarmen-Lara argued she now was eligible to adjust because between the time she filed her first and second motions to reopen, she briefly departed the United States and returned on January 1, 2024, with “advance parole”, which the Congressional Research Service (CRS) has described as:
the issuance of a document to a foreign national (other than an LPR) residing in the United States who needs to depart and wants to return, and whose conditions of stay do not otherwise allow for re-entry.
An advance parole document authorizes an alien to appear at a U.S. port of entry to seek parole after travelling abroad. However, it does not entitle the bearer to be paroled into the United States. That remains a discretionary decision to be made by CBP when the person arrives at the port of entry. Among the categories of individuals in the United States that need to request advance parole to be able to return to the country after traveling abroad are most applicants for LPR status, holders of and applicants for TPS, and individuals with parole. [Emphasis added.]
Prior to receiving advance parole, Delcarmen-Lara would have been barred from applying for adjustment under section 245(a) of the INA because, having entered illegally, she hadn’t been “inspected and admitted or paroled into the United States”.
When she returned with her advance parole document, however, she was “inspected and paroled”, and thus, she contended, was now eligible to adjust her status here.
Matter of Delcarmen-Lara
Which sounds reasonable except that she “departed” the United States before she returned — raising the question of whether she now was subject to the “10-year bar” to admission in section 212(a)(9)(B)(i)(II) of the INA.
In short, if she was found to have “departed” for purposes of that bar, she’d be “inadmissible to the United States for permanent residence” for a decade from the date of her departure and thus would be ineligible for adjustment of status under section 245(a)(2) of the INA.
Curiously, this is not the first time the Board considered this question.
In its 2012 opinion in Matter of Arrabally and Yerrabelly, a divided three-member panel of the BIA held that two Indian nationals who traveled to India “on several occasions between 2004 and 2006, returning each time in accordance with the terms of their advance parole” nonetheless never made “a departure” from the United States for purposes of the 10-year bar to admissibility, and thus were eligible to adjust.
The majority concluded that applying the 10-year bar to an alien who departed and returned on advance parole “vindicates none of the purposes for which the statute was enacted ... and has the paradoxical effect of transforming advance parole from a humanitarian benefit into a means for barring relief”.
Board Member Roger Pauley, in dissent (and in vain) argued that “the majority’s position is not merely at odds with the normal and natural meaning of the term ‘departure’; it is contrary to the consistent understanding of ... DHS ... and its predecessors at the former Immigration and Naturalization Service” (INS).
Which it was on both counts, which is why the BIA in Matter of Delcarmen-Lara revisited the issue and overruled Matter of Arrabally and Yerrabelly, concluding that there is no exception to the 10-year bar for aliens who make a temporary “departure” from the United States on advance parole.
As the (now unanimous) BIA explained, neither the term “depart” nor the term “departure” is defined in the INA, and thus it was appropriate to turn to the Merriam-Webster dictionary definition: “to go away: leave”.
“The statutory text”, the Board held, didn’t “contain limiting language that exempts certain departures from this definition”, nor did the “rather sparse” legislative history.
Noting the “the unifying theme of section 212(a)(9) is that all its subparagraphs seek to compound the adverse consequences of immigration violations by making it more difficult for individuals who have left ... after committing such violations to be lawfully readmitted thereafter”, the Board concluded that interpreting a departure on advance parole as a “departure” for purposes of the bar was consistent with the INA and with pre-Matter of Arrabally and Yerrabelly DHS and INS applications of the law.
Finally, it should be noted that the majority in Matter of Arrabally and Yerrabelly warned that:
viewed in isolation and taken in its broadest possible sense, “departure” would also presumably include departures by people who stray across the border by accident, are induced to cross the border by deception or threat, or are kidnaped outright and spirited across the border against their will.
The BIA, concluding that “these additional scenarios” were “beyond the scope of” this case, implicitly promised to revisit the question in any case that included the forced or inadvertent departure of an alien in the future.
Why Removals Are So Difficult
Just to review, Delcarmen-Lara: entered illegally; unsuccessfully applied for TPS; received a final order of removal in June 2008; didn’t leave and wasn’t deported; received DACA in 2013; got married, and her husband filed an immediate-relative visa petition on her behalf that was approved by USCIS in June 2014; filed a motion to reopen that was denied in August 2015; left the United States on advance parole and returned in January 2024; filed a second motion to reopen in May 2025; and is still here, albeit now without relief (pending any circuit-court review).
That’s more than two decades of presence for an alien who entered illegally and who has never had any statutory status in the United States. No wonder the Supreme Court concluded that “every delay works to the advantage of the deportable alien who wishes merely to remain in the United States”.
Countless other aliens between the time the BIA issued Matter of Arrabally and Yerrabelly in 2012 and the latest Board opinion did exactly what Milagro Delcarmen-Lara tried to do — leave on advance parole and return to adjust their statuses — and more will in the future.
In April 2021, CRS reported that, as of the end of December 2015 — three years after that earlier BIA opinion, more than 22,000 DACA recipients had been approved for advance parole, more than 5,000 had applied for adjustment, and almost 3,000 of those applications had been approved.
That was more than eight years ago and given that Biden’s CBP granted more than 121,500 advance paroles at the nation’s ports of entry in FY 2022 alone, it’s safe to say that — even though those paroles are not broken down by the status the alien had prior to departure — that total has only multiplied in the interim.
The BIA’s latest interpretation of departure in this context only applies prospectively — to future cases — and likely will not bar the adjustment of any alien who departed and returned to the United States on parole before August 13, 2026.
In fact, it didn’t even apply to Delcarmen-Lara herself: Because its opinion was not retroactive, the BIA denied her motion to reopen based on the numerical bar in section 240(c)(7) of the INA, after concluding that none of the exceptions therein applied and finding that her case didn’t merit sua sponte reopening (by the Board on its own accord).
Sua sponte reopening is appropriate only in exceptional circumstances, and as the BIA concluded: “Becoming potentially eligible for relief from removal years after a final administrative removal order does not, in itself, constitute an exceptional situation.”
If you’re wondering why this or any other administration struggles to deport aliens, look no further than the facts in this case. There’s a lot of “due process” involved in any removal, but nothing slows removals like administrative interference — be it from the president or the BIA — in the law Congress has written.