BIA Ends Arrabally: Advance Parole Now Triggers the Unlawful Presence Bar

On August 13, 2026, the Board of Immigration Appeals decided Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026) and overruled a precedent that had protected travelers for fourteen years. Leaving the United States on advance parole is now a “departure” for the unlawful-presence bars. Atlanta attorney Charles Kuck of Kuck Baxter Immigration posted an emergency video after the decision because, as he put it, he had gotten a million phone calls in a day.

The overruled case, Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), held that a person who left on advance parole had not made a “departure” and so did not trip the three- or ten-year bar under INA § 212(a)(9)(B) (8 U.S.C. § 1182(a)(9)(B)). That let people with old unlawful presence travel, come back, and adjust status without a waiver. Delcarmen-Lara reverses the rule: after August 13, 2026, the trip itself can activate the bar.

The first thing to know is who this does not touch. Unlawful presence does not accrue before age 18, so someone who received DACA young never built the year of unlawful presence the bar requires.

The second thing is timing. The decision is prospective. A trip you already took does not get recharacterized, and being abroad on a parole document right now does not retroactively count against you.

For someone who did accrue unlawful presence (for example, a person who got DACA at 19), the path is not closed, it just costs a waiver. If they travel now and return, and they are married to a U.S. citizen, they can still adjust, but the filing has to carry a hardship waiver.

That waiver is the provisional unlawful-presence waiver on Form I-601A, which requires a qualifying U.S. citizen or lawful permanent resident spouse or parent who would face extreme hardship. Someone who already has a removal order and travels on advance parole reactivates that order too. But as Kuck noted, those applicants were headed for a waiver regardless, so the practical change for them is smaller.

There is a separate, blunter reason this may not alter many DACA cases: USCIS is largely not adjudicating new advance parole requests at all, leaving tens of thousands pending. For anyone eligible to move, the honest takeaway is to map the math before booking a flight. It is the same discipline that decides whether an overstay that began before 18 ripens into a 10-year bar, and whether a trip abroad to visit a spouse quietly weakens a hardship waiver. DACA recipients weighing travel should also track the litigation that keeps the program itself in limbo.