Grant of Advance Parole is not considered “Departure” Under 212(a)(9)(B)

Ortiz-Bouchet v. Attorney General (11th Circuit, April 23, 2013)

Kelvin Ortiz-Bouchet and his wife, Edith Malpica-Zapata petitioned for a review of an order by the Board of Immigration Appeals (BIA), stating that the Immigrant Judge’s (IJ) order or removal on the grounds that they were inadmissible at the time of their adjustment of status. First, the IJ found that Mr. Ortiz and Ms. Zapata were inadmissible under 8 U.S.C. Section 1182(a)(7)(A)(i)(I) because they were not in possession of valid entry documents at the time of their adjustment of status. Second, the IJ found that Mr. Ortiz was inadmissible under 8 U.S.C. Section 1182(a)(6)(C)(i) because he procured the immigration documentation he did have by fraud or willful misrepresentation of a material fact. Finally, the Immigration Judge found that Ms. Zapata was inadmissible under 8 U.S.C. Section 1182(a)(9)(B)(i)(II) because she sought admission into the United States within ten years of departing the United States after being unlawfully present there for one year or more.

The Eleventh Circuit court granted the petition, vacated the order and remanded. Citing its decision in Lanier V. U.S. Atty Gen., 631 F.3d1363 (11th Cir. 2011), the court found 1. That 8 U.S.C. Section 1182(a)(7)(A)(i)(I) did not apply to petitioner on their adjustment of status because they were not seeking admission s the term is understood in that section; 2. Petitioner were not inadmissible under 8 U.S.C. Section 1182(a)(6)(C)(i) because there was no “willful misrepresentation” of a fraudulent petition as an alleged ordrained minister because the petitioner were not aware of the content of the petition that was prepared by a third party; and 3. Applying Matter of Arrabally, 25 I. & N. Dec. 771, 779 (BIA 2012) the Court found that the petitioner’s departure on advanced parole did not qualify as “departure” for purposes of the 10-year unlawful presence bar. 8 U.S.C. Section 1182(a)(9)(B)(i)(II)

This case is very important because it gives a glimpse of hope for applicants for adjustment of status who will trigger the 10-year bar for having been unlawfully present in the United States for more than 1 year.  This means that they will be allowed to travel because their departure from the US is not really a “departure” under that law that would trigger the 10 year bar.  Having said this, I still continue to caution my clients whom this case law applies to not leave the country until they have received their green card.  Custom officers may not always understand the most current law and immigration law is regional, and the same rule may not apply everywhere on this issue.  Adjustment of status nowadays take less than 6 months to complete, so I advise clients to wait until it is done and not risk it unless it is an absolutely an emergency.

For an experienced immigration attorney in the Greater Los Angeles Area, contact JCS Immigration and Visa Law Office for a FREE Consultation.

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One comment

  1. This is very good news because it allows applicant to travel for emergency without the risk of the 10 year penalty.

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