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April 20, 2012


IMMIGRATION AND POLICY: Matter of Manohar Rao ARRABALLY and Sarala YERRABE...: www.lawschell.com By: Norka M. Schell, Esq.  Beginning April 1, 1997, a person who has been unlawfully present in the U.S. for one year ...

Matter of Manohar Rao ARRABALLY and Sarala YERRABELLY


By: Norka M. Schell, Esq. 

Beginning April 1, 1997, a person who has been unlawfully present in the U.S. for one year or more consecutively and again seeks admission is barred for 10 years from the date of such person's departure or removal from the U.S. INA section 212(a)(9)(B)(i)(II), 8 U.S.C. section 1182(a)(9)(i)(II). In order to trigger the 10-year bar, departure from the U.S. is required, H.R. Conf. Rep. 104-828, 104th Cong., 2d Sess. at 207.

The Board of Immigration Appeal (BIA) has clarified the term - departure --  in the Matter of Arrabally on April 17, 2012 which will help thousands of immigrant applicants who like Manohar Rao Arrabally have been entangled in the web of statutes, regulations, case law, and agency memoranda.

  Manohar Rao Arrabally and Sarala Yerrabelly (husband and wife) are natives and citizens of India who had overstayed their nonimmigrant visas. While they were unlawfully present in the U.S., they filed for their applications to adjust status to legal permanent residents with the United States Citizenship and Naturalization Services (USCIS). 

While their applications still pending, Mr. Arrabally and Mrs. Yerrabelly applied and were granted advance parole documents which gave them the authorization to travel to India to care for their aging parents and return to the U.S. to resume their Adjustment Status Applications. So, they travelled to India and returned to the United States within few month. 

Mr. Arrabally and Mrs. Yerrabelly adjustment status interview was scheduled. They appeared before an Immigration officer as required and were interviewed. The Immigration Officer did not issue a decision on that day. 

Few days later, Mr. Arrabally and Mrs. Yerrabelly received a correspondence from the USCIS informing them that their applications for the adjustment status were denied because they had departed this country (under grants of advance parole) after having been “unlawfully present” here for 1 year or more and were seeking admission less than 10 years after having departed, a set of circumstances that rendered them inadmissible under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act.

Mr. Arrabally became very confused. He promptly sought reopening of his adjustment application before the USCIS, noting the humanitarian considerations that had prompted his request for advance parole and contending that he and his wife should not be punished for having departed the U.S. when the Department of Homeland Security (DHS) knew about, and expressly approved of, those departures by granting them advance parole. 

In response to Mr. Arrabally's request, a USCIS Field Office Director issued a decision acknowledging the force of some of the male respondent’s arguments but ultimately concluding that his inadmissibility under section 212(a)(9)(B)(i)(II) of the Act necessitated the denial of his application.

In arriving at that conclusion, the Field Office Director invoked Matter of Lemus, 24 I&N Dec. 373 (BIA 2007) (“Lemus I”), in which hold that section 245(i) adjustment is unavailable to aliens who are inadmissible under section 212(a)(9)(B)(i)(II) and are not eligible for a section 212(a)(9)(B)(v) waiver. Short thereafter, DHS started removal proceedings against Mr. Arrabally and  Mrs. Yerrabelly.

Mr. Arrabally and Yerrabelly appeared before an Immigration Judge as requested, conceded removability, and sought to renew their adjustment applications. The Immigration Judge found them inadmissible under section 212(a)(9)(B)(i)(II) of the Act and ineligible for section 245(i) adjustment, and he ordered them removed to India.

Mr. Arrabally and Yerrabelly appealed of the decision to the Board of Immigration Appeal. So the question presented to the Board of Immigration Appeal in this case was "whether the respondents (Mr. Arrabally and Mrs.Yerrabelly) 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)." 

The Board of Appeal hold that they did not. --- "An alien who leaves the  United States temporarily pursuant to a grant of an advance parole (I-131) does not thereby make a "departure ... from the United States" within the meaning of the section 212(a)(9)(B)(i)(II) (2006). Matter of Lemus, 24. I. & N. Dec. 373 (BIA) (2007). Clarified.

Consequently, Mr. Arraball's and Mrs. Yerrabelly's appeal were sustained in part and the records were remanded to the Immigration Judge for further proceedings. Decided on April 17, 2012. (Matter of Arrabally, & Yerrabelly, 25 I.&N. De. 771 (BIA 2012)).