EWI adjusted legal status through Advanced Parole

Hi everyone, I've been reading about AP acceptance and adjusting legal status.
My question is: if you're an EWI and have been approved for DACA, do I have to be married to a U.S citizen to travel and return safely to the USA because I'm married and have kids with a US citizen? Most of the AP travelers are married with kids I'm seeing on the threads.

I'm interested in applying for AP for humanitarian reasons to my homeland.
My grandfather passed away a few weeks ago. I'm not married and I'm an EWI.
I would like to adjust my legal status after AP through marriage in the near future.

I've renewed my DACA last October.
Any single DACA without kids EWI traveled with AP and returned without problems?

It's safe to go even if you're not married. The only difference would be is that they stamp your passport with "Parole" instead of "AOS"(adjustment of status). And yes there were people who went and they didn't have a pathway...yet

Thank you for responding, have you traveled with AP?

No, you do not need to be married to use this loophole. The legal entry will be yours forever, so if somewhere down the line you marry a US citizen (or become a parent to one and then twiddle your thumbs until he/she turns 21), you'll be eligible for adjustment of status.

yeah if you havent used AP and your status is EWI for entry, I would use AP. I am surprise DACA allowed for AP because we can adjust status via marriage much much easier.

You think this is just incidental? This is a result of Matter of Arrabally (hereby called MoA). If you'd look closely at the travel section for DACA, between June 15th 2012 to roughly August 17th 2012. The section basically said "Uhh yeah, we don't know, yet.".

Afterward it basically turned into "OMFGYES... er... well you need a valid reason for travel".


Also the decision itself in MoA is somewhat questionable and I feel like USCIS planned this ahead, and they simply needed a good test case to get rid of AP triggering re-entry bans. MoA has been pending for over 3 years and suddenly got a decision, and it became a published precedent.

However, the most curious thing being that MoA overturned Matter of Lemus, which was the same exact case - 245(i) applicant traveled using AP and was denied AOS. However the argument in Lemus was different - there he argued that 245(i) should triumph against 212(a)(9)(B)(i)(II) or the 10 year ban, rather than argue that the ban shouldn't trigger in the first place.


This is of course speculation on my part, and it's overall a chicken or egg argument - did Arrabally happen because of DACA, or can we use AP due to Arrabally. Regardless, USCIS saw the resulting loophole and let us use it. This is even more evident if you'd look at the planned AP expansion for DACA and DAPA, that you could request it together with the original application or renewal, possibly without need for a "valid reason".

@Demise.

I was reading a case last week that actually scared me a little. It was an unpublished BIA decision where they disputed whether or not parole was a legal entry permit. Even though the law says "admitted or paroled" AOS was denied because applicant did not have a legal entry permit. Does that mean AP is not a legal entry permit? I was thinking, maybe it isn't but they will give you an I-94, which meets that requirement. For the life of me I cannot remember that case, but I do remember it was March 2015. Has anyone heard anything about that?

Link me to the case if you can, I'm unable to find anything from March 2015.

However I feel like you or whoever wrote the article (if you read about the case instead of the court decision), misinterpreted some things.

AP is not a valid entry permit, basically - it's not a visa, it's not a green card, it's not a US passport. Therefore you fall into a class that's known as "Arriving Alien", or defined as "applicant for admission not in possession of a valid entry document". Arriving aliens fall under a special set of rules when coming to adjustment of status:
1) Arriving aliens can seek adjustment of status in US pursuant to 245(a) or 245(i), provided no other inadmissibilities apply.
2) Arriving aliens can adjust status even if in removal proceedings, or when subject to a final order of removal.
However:
3) Arriving aliens do not have the right to have their adjustment of status application reviewed by an immigration judge, the decision for AOS of Arriving Aliens rests solely with USCIS. With one exception: You seek adjustment of status, get AP as a part of the AOS application, and then return using this AP, in this case a judge can review this case only. Any subsequent I-485 is up to USCIS only. Your only avenue of appeal for a denied I-485 is the USCIS's AAO, or challenging the regulation itself in a federal court.

I guess the AOS might've been denied for other reasons. He was placed into removal proceedings. The judge said that he can't do anything, ordered him removed, this was appealed to BIA who said the same thing. Without seeing the decision there's nothing I can really say.

However: Unpublished decisions are not binding outside the applied case. Unless the court formally reverses Arrabally we can use AP to seek adjustment. Alternatively the court would need to strike down the USCIS regulations pertaining to definition and AOS eligibilty of Arriving Aliens.

Overall, we should be fine.

I remembered the case number for ABRAHAM, Raymond, 3/19/2015 but I can't find the link. It was sent to me at work, so here it is. It is not quite AOS but it argues that AP is not an entry document.

Li, K. Thomas, Esq.
Li, Latsey & Guiterman, PLLC
451 Hungerford Drive, Suite 218
Rockville, MD 20850
Name: ABRAHAM, RAYMOND
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Palls Church, Virginia 20530
OHS/ICE Office of Chief Counsel - BAL
31 Hopkins Plaza, Room 1600
Baltimore, MD 21201
A 089-487-598
Date of this notice: 3/19/2015
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Pauley, Roger
Greer, Anne J.
Wendtland, Linda S.
Sincerely,
DoYLJU, c: a.AA)
Donna Carr
Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit
www.irac.net/unpublished/index
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Cite as: Raymond Abraham, A089 487 598 (BIA March 19, 2015)
U.S. Department of Justice
Executive Office for Immigration Review
Decision· of the Board of Immigration Appeals
Fall' Church, Virginia 20530
File: A089 487 598 - Baltimore, MD
In re: RAYMOND ABRAHAM
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: K. Thomas Li, Esquire
CHARGE:
Date:
Notice: Sec. 212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. § 1182(a)(7)(A)(i)(I)] -
Immigrant - no valid immigrant visa or entry document
APPLICATION: Termination; administrative closure; voluntary departure
MAR 19 2015
The respondent, a native and citizen of Tanzania, appeals the Immigration Judge's
November 1, 2012, decision finding him removable as charged and denying his motion to
administratively close proceedings. The Immigration Judge granted the respondent's request for
voluntary departure. See section 240B(b) of the Immigration and Nationality Act, 8 U.S.C.
§ 1229c(b ). The record will be remanded.
The Board reviews an Immigration Judge's findings of fact, including credibility
determinations and (under the law of the Circuit with jurisdiction over this case) the likelihood of
future events, under a "clearly erroneous" standard. 8 C.F.R. § 1003. l(d)(3)(i); see Turkson
v. Holder, 667 F.3d 523, 530 (4th Cir. 2012). We review all other issues, including questions of
law, judgment, or discretion, under a de'novo standard. 8 C.F.R. § 1003.l(d)(3)(ii).
The Immigration Judge did not err in finding the respondent removable as charged (l.J. at 2;
Tr. at 37-3. The respondent argues that the ground of removability with which he is charged,
section 212(a)(7)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I), is not applicable to him
because the Form I-512L (Authorization for Parole of an Alien Into the United States) (Exh. 3,
Tab A) that he possessed on the date of his application for admission permitted him to travel to
the United States, and therefore qualifies as a "valid entry document" (Respondent's Br. at .
We disagree. The respondent's parole into the United States in order to pursue a then-pending
application for adjustment of status does not qualify as an entry, and therefore his Form I-512L
was not a "valid entry document." See Matter of Hinojosa, 17 I&N Dec. 322, 322-23
(BIA 1980) (stating that an applicant for admission who is paroled into the United States does
not make an ''entry"). Further, although the respondent is correct in stating that his Form I-512L
was a valid travel document, it does not follow that it was a "valid entry document." 1
1 While the respondent asserts in that regard that the Department of Homeland Security had the
burden to prove his inadmissibility by clear and convincing evidence, the burden of proof instead
(continued ... )
Immigrant & Refugee Appellate Center | www.irac.net
Cite as: Raymond Abraham, A089 487 598 (BIA March 19, 2015)
A089 487 598
Accordingly, the Immigration Judge did not err in finding that, at the time of his application for
admission, the respondent was not in possession of "a valid unexpired immigrant visa, reentry
permit, border crossing identification card, or other valid entry document" required by the Act,
and therefore that the respondent is inadmissible under section 212(a)(7)(A)(i)(I) of the Act.
However, we will remand to the Immigration Judge to reconsider the respondent's request
for administrative closure (see I.J. at 2). See Matter of Avetisyan, 25 I&N Dec. 688, 696
(BIA 2012). The evidence indicates that the Department of Homeland Security (OHS) took
possession of the respondent's passport in 2007 or 2008 (Exh. 5, Tabs I-J), and the respondent
claims that it has not been returned to him. The parties detailed the efforts that have been made
to locate the passport, to document its loss, and to obtain a new passport from the Embassy of
Tanzania, none of which were successful (Tr. at 16-19, 22, 41-44, 46, 53-57; Exh. 5 at 1-3). As
in Matter of Avetisyan, the respondent here contends that he is awaiting resolution by the DHS of
a matter potentially involving a need for internal coordination by DHS components-in this case
Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP)-that
the DHS may need to address eventually in order to obtain a travel document for the
respondent's repatriation2 (Tr. at 16-19, 22, 41-44, 46, 53-57; Exh. 5 at 1-3, Tabs 1-J). On
remand, the Immigration Judge may conduct further fact-finding with regard to the foregoing
contentions by the respondent, in the course of weighing the factors set forth in Matter of
Avetisyan to determine whether administrative closure is warranted. The Immigration Judge
should also explore whether the DHS may be willing to either extend the period of voluntary
departure until the issue concerning the respondent's passport is resolved, or agree to some other
form of deferred action.
ORDER: The record is remanded to the Immigration Judge for further proceedings consistent
with this order and for the entry of a new decision.
Board Member Anne J. Greer respectfully dissents given that the respondent
did not pay the required voluntary departure bond.
( ... continued)
is upon him to establish that he is admissible, given his status as an applicant for admission.
See section 240(c)(2)(A) of the Act, 8 U.S.C. § 1229a(c)(2)(A); see also section 212(d)(5)(A) of
the Act (stating that parole is not an admission).
2 While we acknowledge that neither the Board nor an Immigration Judge may compel the DHS
to produce the respondent's passport or an explanatory letter, such an action is not beyond the
power of a federal court.
2
Immigrant & Refugee Appellate Center | www.irac.net
Cite as: Raymond Abraham, A089 487 598 (BIA March 19, 2015)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BALTIMORE, MARYLAND
File: A089-487-598
In the Matter of
RAYMOND ABRAHAM
RESPONDENT
November 1, 2012
IN REMOVAL PROCEEDINGS
CHARGE: Immigration and Nationality Act Section
2 12 (a) (7) (A) (i) (I).
APPLICATIONS: Termination of proceedings and postconclusion
voluntary departure.
Individual hearing date: November 1, 20 12.
ON BEHALF OF RESPONDENT: K. THOMAS LI
ON BEHALF OF DHS: JENNIFER E. PIATESKI
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a native and citizen of Tanzania. He
entered the United States·most recently in October 2007. He was
issued a Notice to Appear on June 22, 2009. At previous Master
Calendar hearings, the respondent admitted some of the
allegations and conceded removability as charged. The
respondent, ultimately, in an amended pleading on September 20,
1
Immigrant & Refugee Appellate Center | www.irac.net
2011, admitted allegations 1, 2, 3 and 4. With respect to
allegation S, he claims that he did possess a valid entry
do cument when he tried to enter the United States, but that he
did not now have it. The respondent explained then and has
explained now that it was given to Customs and Border Protection
offi cers; however, the passport, a copy of which appears in the
re cord, has apparently gone missing. It no longer appears to be
in the possession of OHS. The respondent did concede
removability as charged. The respondent was also found
removable as charged by the Immigration Court.
The respondent had made various requests to include
prosecutorial discretion, administrative closure, and
termination of pro ceedings. The respondent was not granted
prosecutorial discretion by OHS, and the Court has declined to
grant administrative closure or termination of pro ceedings. The
Court concludes that that is not warranted in the case. The
Court shares the concern that the passport went missing;
however, the respondent does have a copy of the passport in the
record at Group Exhibit S, Tab H.
The respondent is seeking post-conclusion voluntary
departure. The requirements for post- conclusion voluntary
departure are set out in INA Section 240B and the accompanying
regulations at 8 C.F.R. Section 1240.26 (c). Specifically, the
respondent has demonstrated to the Court's satisfaction that he
meets the requirements for post- conclusion voluntary departure.
A089-487-598 2 November 1, 2012
Immigrant & Refugee Appellate Center | www.irac.net
As respondent's counsel points, out that given how the
proceeding went, the respondent does actually have more than a
year of physical presence inunediately preceding the date the
Notice to Appear was issued, even though he is an arriving
alien. Accordingly, the Court finds no reason that him being an
arriving alien would necessarily bar him in this case from postconclusion
voluntary departure.
The respondent has also satisfied the Court that he meets
the other requirements to include that he has "established by
clear and convincing evidence that the alien has the means to
depart the United States." The respondent does have a copy of a
valid passport in the record. That appears at Group Exhibit 5,
Tab H. The Court notes that under the regulations at 8 C.F.R.
Section 1240.26 (c) (2), the section on travel documentation, that
the respondent is to present a passport or other travel
documentation sufficient to assure lawful entry into the country
to which the alien is departing.
That section also notes that the Service shall have full
opportunity to inspect and photocopy the documentation and
challenge its authenticity or sufficiency before voluntary
departure is granted. The record does reflect that OHS was
provided with the passport. The fact that there is a copy of
the passport in the record at least satisfies the Court that the
respondent has a valid passport or other travel document, and
that he should, in fact, be able to get another passport or
A089-487-598 3 November 1, 2012
Immigrant & Refugee Appellate Center | www.irac.net
•.
other travel document from the embassy of Tanzania since he has
this copy. The Court realizes that the respondent is
representing that he has not been able to get such a replacement
passport; however, the Court is satisfied that he has made a
sufficient showing to be granted post-conclusion voluntary
departure. Of course, if he is not able to meet the
requirements, then the Court's order would become a removal
order.
Accordingly, the Court hereby grants the respondent's
application for post-conclusion voluntary departure. The
respondent is going to be granted post-conclusion voluntary
departure in the maximum amount of 60 days. That means the
respondent must leave the United States on or before December
3 1, 20 12. A voluntary departure bond is also set in the minimum
amount of $500. The respondent must post the bond with the OHS
Immigration and Customs Field Office within five business days
of the date of this order. See 8 C.F.R. Section 1240.26 (c) (i).
In the alternate, if the voluntary departure conditions are
not met, the respondent is ordered removed from the United
States to Tanzania.
In accordance with 8 C.F.R. Section 1240.26, the respondent
is hereby advised that if he files a post-decision motion to
reopen or reconsider during the period allowed for voluntary
departure, the grant of voluntary departure shall be terminated
automatically and the alternate order of removal shall take
A0 89-4 87-59 8 4 November 1, 2012
Immigrant & Refugee Appellate Center | www.irac.net
effect immediately. The respondent is also advised that within
30 days of the filing of any appeal with the Board of
Immigration Appeals, the respondent must submit sufficient proof
of having posted the required voluntary departure bond. If the
alien does not provide timely proof to the Board that the
voluntary departure bond has been posted with OHS, then the
Board will not reinstate the period of voluntary departure in
its final order. See generally 8 C.F. R. Section
1240. 26 (c) (3) (i) - (iii) .
Finally, the respondent is advised that the regulations
provide for a civil monetary penalty of $3,000 in the event that
the respondent fails to depart as required. See 8 C. F.R.
Section 1240.26(j).
A0 89-487-59 8
Please see the next page £or electronic signature
ELIZABETH A. KESSLER
Immigration Judge
5 November 1, 2012
Immigrant & Refugee Appellate Center | www.irac.net
"'
/Isl/
Immigration Judge ELIZABETH A. KESSLER
kesslere on January 22, 2013 at 5:42 PM GMT
A089-487-598 6 November 1, 2012
Immigrant & Refugee Appellate Center | www.irac.net
CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE
ELIZABETH A. KESSLER, in the matter of:
RAYMOND ABRAHAM
A089-487-598
BALTIMORE, MARYLAND
is an accurate, verbatim transcript of the recording as provided
by the Executive Office for Immigration Review and that this is
the original transcript thereof for the file of the Executive
Office for Immigration Review.
AMY D. LANE (Transcriber)
FREE STATE REPORTING, Inc.
JANUARY 8, 2013
{Completion Date)
Immigrant & Refugee Appellate Center | www.irac.net

@engineergirl

Well, I read through it and even if it was a precedent decision it wouldn't prevent us from using AP to adjust status. It's hard to say what the exact backstory is. However considering that his case was actually heard by an IJ and BIA, we can assume that he had an AOS application at some point, used AP during it, and the I-485 was later denied for whatever reason. If he'd use AP otherwise (via TPS or something), then the court would likely just quote lack of jurisdiction since he'd be an arriving alien. Also, his appeal seems to be really for technical reasons only. He was charged as removable under 212(a)(7)(A)(i)(I) and tried to argue that's not the case. Should he succeed, his removal proceedings would likely end and he'd be able to try other things or just get more time before the USCIS would issue a new NTA for some other removal ground. A long shot but people will make them if they're out of options.


Anyways. Let's go back to Arrabally. In Arrabally the decision had 3 parts:
1) They are inadmissible and removable under 212(a)(7)(A)(i)(I) (lack of proper entry document), same section as the Matter of Raymond Abraham (the case you linked).
2) They are not inadmissible under 212(a)(9)(B)(i)(II) (10 year ban).
3) They are eligible for 245(i) adjustment.

What does this mean? That 212(a)(7)(A)(i)(I) is not a bar to adjustment of status.

In addition, Matter of Raymond Abraham (the case you linked), doesn't really touch upon the topic of using AP to adjust status or clear an EWI. Instead, there the court has ruled that Advance Parole itself doesn't shield you from removal.


Bottom line: We're good.