For fourteen years, a client with unlawful presence could leave the United States on advance parole and come back without tripping the unlawful-presence bars. On August 13, 2026 the Board of Immigration Appeals ended that. In Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), the Board overruled Matter of Arrabally and Yerrabellyand held that a trip taken under a grant of advance parole is a "departure" under the statute. The holding is prospective — but if you have a client holding an approved advance parole document, the travel advice on file for them was written under the old rule.
What the Board actually held
The headnote is one sentence, and it is the whole case:
A departure from the United States pursuant to a grant of advance parole is a "departure" within the meaning of section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II). Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), overruled.
The respondent is a native and citizen of El Salvador, ordered removed in 2006, granted DACA in 2013, and paroled back into the United States on January 1, 2024 under a grant of advance parole. She moved to reopen to pursue adjustment under INA § 245(a). In denying that motion, the Board took the opportunity to revisit Arrabally, which since 2012 had held that a temporary trip on advance parole was not a departure for purposes of INA § 212(a)(9)(B)(i)(II). The panel was Deputy Chief Appellate Immigration Judge Gorman, writing, with Appellate Immigration Judges Montante and Gallow. There is no dissent.
The reasoning is plain-language statutory construction. Neither "depart" nor "departure" is defined in the INA, so the Board went to the dictionary — the same dictionary it consulted when it decided Arrabally:
We observe, as we did at the time we issued Matter of Arrabally and Yerrabelly, that "depart" is defined as "to go away: leave." … The statutory text does not contain limiting language that exempts certain departures from this definition.
The Board also reads Congress's silence as deliberate. It points to places where Congress didaddress brief absences expressly — INA § 240A(d)(2) for cancellation of removal, INA § 244(c)(4)'s "brief, casual, and innocent" language for TPS — and concludes that the absence of any comparable carve-out in § 212(a)(9)(B)(i)(II) means advance parolees were never exempt: "We presume that Congress acted intentionally in treating departures pursuant to advance parole differently throughout the INA."
Read the subsection number before you quote the rule
Nearly every summary of this decision — press and attorney channels alike — describes it as reviving "the three- and ten-year bars." The decision itself is narrower on its face. Both the headnote and the holding are framed on section 212(a)(9)(B)(i)(II), the provision covering one year or more of unlawful presence: the ten-year bar. The slip opinion never cites subsection (i)(I) — the 180-day-to-one-year, three-year bar — and never analyzes it.
In practice the distinction may not hold: the Board's reasoning is about the meaning of one word, "departure," and that word appears in both subsections. It would be a strange result for the same term to mean one thing in (i)(I) and another in (i)(II). Advise clients on the assumption that both bars are live. But when you write it into a memo, write what the Board held, and note that the extension to the three-year bar is the logical implication of the reasoning rather than the text of the holding.
Prospective — and what that leaves undecided
The Board applied the five-factor retroactivity test from Matter of Cordero-Garciaand came down on the side of prospective application, because it is "explicitly overruling Matter of Arrabally and Yerrabelly, a longstanding Board precedent." On the burden factor:
We also conclude that the Board's interest in applying the newly articulated rule does not outweigh past expectations based on the prior rule.
Two consequences follow. First, clients who traveled on advance parole and returned before August 13, 2026 are not reached by this holding. Second — and this is the part worth flagging in your notes — the Board declined to decide the case in front of it on this ground: "As our holding is prospective, we will not determine whether the respondent's temporary trip constitutes a 'departure' within the meaning of section 212(a)(9)(B)(i)(II)." The motion to reopen was denied on other grounds. The new rule arrives without a worked example of how it applies to a real record.
What attorneys are telling clients
The decision reached attorney social media within days, in more than one language, and the two loudest readings are aimed at different audiences.
Turkish-speaking firm @marsanakguclawfirm (Marsan Akguc Law Firm, Newport Beach) took the client-facing route in an August 18 reel — what the rule was, what it is now, who is exposed, and a plain instruction to call a lawyer before booking anything. On the mechanics:
Yani 180 günden fazla yasa dışı bulunuşunuz varsa 3 yıl, 1 yıldan fazlaysa 10 yıl giriş yasağı devreye giriyor.
("So if you have more than 180 days of unlawful presence, the 3-year bar kicks in; if more than a year, the 10-year bar.") And on the limit that matters most to anyone who already traveled:
Karar geriye yürümüyor. 13 Ağustos 2026'dan önce çıkıp dönenler bundan etkilenmiyor.
("The decision does not apply retroactively. Those who left and returned before August 13, 2026 are not affected by this.") The reel also raises an inspection risk that sits outside the bars entirely — "döndüğünüzde CBP sizi hiç içeri almayabilir" ("when you return, CBP may not let you in at all") — and lists the most exposed groups as "DACA sahipleri, Adjustment of Status başvurusu bekleyenler, U ve T [vize] sahipleri" (DACA holders, pending adjustment applicants, U and T visa holders). On TPS, the firm is careful to mark it as an expectation: USCIS adopting the same interpretation is "bekleniyor" — expected. Expected is not decided, and the decision itself cites the TPS statute only as a contrast, for the proposition that Congress addressed absences expressly where it meant to.
@andyatlaw (Andrew Lattarulo), posting August 17 in English to a Portuguese-speaking audience, went at the downstream strategy that depended on Arrabally — the pitch that an out-of-status applicant can self-petition under EB-2 NIW, cure the status problem with an advance parole trip, and adjust:
I can't believe that now that advance parole is practically dead, these fraudsters keep pretending online that everything is fine. Your EB2 NIW status scam ended. Your house collapsed.
The substantive argument in that reel is about the difference between discretion and exemption. On INA § 245(a), Lattarulo concedes it "does make adjustment of status discretionary in a general sense," but adds: "that does not mean that USCIS has the discretion to ignore a legal barrier and a law to approve an I-485." The pivot is INA § 245(k), described in the reel this way:
For an employment-based adjustment, INA 245K is the relevant exception to the status where it basically says that your total time of failure to maintain status or you're working cannot exceed 180 days. So you can't be out of status for more than six months or that's it.
That is an attorney's characterization of the provision, offered on video, and it is worth reading against the statute yourself before it lands in a client memo — Delcarmen-Laradoes not mention § 245(k) anywhere. The reel closes by proposing to put the question to "a former immigration judge, some former USCIS officers."
The two readings are in tension, and the tension is worth naming for clients. One says the structure has already collapsed; the other says the collapse is prospective only and leaves completed trips untouched. Both are true at once — the strategy is dead going forward, and clients who already traveled are not retroactively harmed — but a client who hears only the first will make worse decisions than one who hears both.
Why this matters
For anyone with unlawful presence and a pending or planned adjustment, advance parole has flipped from a tool into a trap. The document still gets issued; using it is now the risk. That changes the standard intake conversation for DACA recipients weighing a family emergency abroad, for adjustment applicants who assumed a two-week trip was routine, and for employment-based filers whose eligibility theory ran through a parole trip.
For firms, the exposure is in the file drawer. Every client holding an unexpired advance parole document received travel guidance built on Arrabally. That guidance is now wrong, and it went out under your letterhead. This is a proactive-notice problem, not a wait-for-the-call problem, and the clock on it runs until one of those clients books a flight.
What to do now
- Run a list. Every open matter with an approved or pending Form I-131 advance parole request, plus anyone advised on parole travel in the last twelve months. That list is your outreach queue.
- Send a hold notice. Tell affected clients in writing not to depart on advance parole until their case has been individually re-reviewed. Short, unambiguous, dated.
- Reconstruct the unlawful presence timeline before advising anyone on travel. The exposure turns on the 180-day and one-year thresholds, and an estimate from memory is not good enough here.
- Re-examine adjustment theories that assumed a parole trip cured a status defect, including EB-2 NIW filings for out-of-status beneficiaries — and read INA § 245(k) directly rather than relying on any summary of it, including this one.
- Note the open questions in the file rather than assuming an answer: whether the same reading extends to the three-year bar under (i)(I), and whether USCIS applies it to parole-adjacent categories such as TPS. Neither is settled by this decision.
Every case differs, and none of the above substitutes for individual analysis of a specific client's history.