Matter of Arrabally
Board of Immigration Appeals
25 I. & N. Dec. 771 (2012)
A husband and wife, Indian citizens who overstayed their nonimmigrant visas and applied for adjustment of status while an employment-based visa application was pending, needed to travel back to India to care for elderly family members while their applications were held in abeyance; to avoid having USCIS deem their applications abandoned, they obtained advance parole under section 212(d)(5)(A), which lets adjustment applicants leave without risking abandonment, and traveled back and forth multiple times. USCIS later denied their adjustment applications, finding them inadmissible under section 212(a)(9)(B)(i)(II) because they had "departed" the country after unlawful presence and sought readmission within ten years; removal proceedings followed, and an immigration judge ordered them removed. They appealed.
Whether an alien who leaves the United States temporarily pursuant to a grant of advance parole thereby makes a 'departure from the United States' within the meaning of section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act.