Board of Immigration Appeals
25 I. & N. Dec. 771 (2012)
A husband and wife (petitioners), citizens of India, were admitted temporarily to the United States as nonimmigrants in 1999 and 2000. Their visas expired in 2000 and 2001, but they remained in the U.S. for several years afterwards. In 2004, the husband obtained an employment-based visa, and they applied for adjustment of status under § 245(i) of the Immigration and Nationality Act. Although the applications were deemed approvable, they were held in abeyance for several years due to an excess of visas in the husband’s preference category. While the applications were in abeyance, the couple needed to return to India to care for their elderly family members. They did not want the United States Citizenship and Immigration Services (USCIS) to deem their applications abandoned if they left the United States, so they applied for “advanced parole” under § 212(d)(5)(A) of the Act, which allows adjustment applicants to leave the United States without risk of their applications being classified as abandoned. Advanced parole was granted and the couple traveled back and forth from the United States to India multiple times. In 2007, the USCIS denied the adjustment applications on account of the couple being inadmissible to the United States under § 212(a)(9)(B)(i)(II) because they had departed the country after having been unlawfully present and were seeking admission less than 10 years after departure. The husband sought reopening of his application, arguing that the couple should not be punished for having left the U.S. when the USCIS had granted advance parole. In 2008, the USCIS granted a decision concluding that inadmissibility under the statute necessitated denial of the application. The Department of Homeland Security commenced removal proceedings, and an Immigration Judge eventually ordered petitioners removed to India. They appealed.
Rule of Law
Holding and Reasoning (Wendtland, Board Member)
Dissent (Pauley, Board Member)
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