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September 4, 2012

MANOHOR RAO ARRABALLY UPDATED


Posted by: Norka M. Schell 
New York Immigration Attorney
Law Offices of Norka M. Schell, LLC

 Here is the amended on the decision of Matterr of Manohar Rao Arrabally and Yerrabelly which was 
decided on August 16, 2012. 

The Board of Immigration Appeals held that the Respondents, who left the United States temporarily under a grant of advance parole, thereby effected a “departure,” which resulted in their inadmissibility under section
212(a)(9)(B)(i)(II). We hold that they did not.


Background

An alien who leaves the United States temporarily pursuant to a grant of advance parole
does not thereby make a “departure . . . from the United States” 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) (2006). Matter of Lemus, 24 I&N Dec. 373 (BIA 2007), clarified.

In a decision dated August 20, 2009, an Immigration Judge found the
Respondents inadmissible as charged under section 212(a)(7)(A)(i)(I) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2006),
as intending immigrants not in possession of valid immigrant visas or other
entry documents. He further found them ineligible for adjustment of status
under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2006), based on their
inadmissibility under section 212(a)(9)(B)(i)(II), and he ordered them removed
from the United States.

Board of Immigration Appeals

This case presents the question whether the respondents, who left
the United States temporarily under a grant of advance parole, thereby
effected a “departure,” which resulted in their inadmissibility under section
212(a)(9)(B)(i)(II). We hold that they did not. Consequently, the respondents’
Cite as 25 I&N Dec. 771 (BIA 2012).

The respondents seek adjustment of status under section 245(i) of the Act (rather than
section 245(a)) because they “failed . . . to maintain continuously a lawful status since entry into the United States” within the meaning of section 245(c) of the Act. Section 245(i) adjustment is available for a fee to certain aliens who are “physically present in the United States” but covered by section 245(c). Section 245(i)(1)(A)(ii) of the Act. The appeal will be sustained in part and the record will be remanded to the
Immigration Judge for further proceedings.

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