The Deferred Action for Childhood Arrivals (DACA) program, first announced by President Obama in 2012, allows undocumented immigrants who arrived in the U.S. as children, and who have graduated high school or served in the military, to remain in the U.S. and obtain work authorization. The program represents an agreement by immigration officials to defer any enforcement action. One question that seems to have received little public attention is whether a DACA recipient may leave the U.S. temporarily without jeopardizing their deferral. Any DACA recipient wanting to leave the U.S. must first obtain advance parole from U.S. Citizenship and Immigration Services (USCIS), a process that can unfortunately be both cumbersome and uncertain.
An article published by Vox in April 2015 describes the difficulties faced by a DACA recipient, who came to the U.S. from Ecuador at the age of eight, obtaining approval to travel to Ecuador for professional purposes. The woman works as an advocate for undocumented immigrant students, helps administer a $25 million scholarship fund, and frequently receives invitations to give speeches all over the country. When she was asked to speak at two events in Ecuador, she applied to USCIS for advance parole.
Advance parole is essentially an acknowledgment from the federal government that the recipient may leave the country without giving up their “continuous presence” in the U.S. Since DACA recipients are, by definition, potentially subject to deportation, voluntarily leaving the country could mean that they will not be allowed back in. Two immediate problems present themselves for people in the DACA program: USCIS can be very slow to process advance parole requests, and the applicability of advance parole to DACA is not at all settled.
The woman profiled in the Vox article was unable to go to Ecuador for the speaking engagements, since USCIS did not approve her advance parole request in time. According to the article, USCIS takes an average of eight days to send an initial response to an applicant, and another 59 days to approve or deny the application. The only way to deal with this issue is to file an application more than 67 days before one’s anticipated departure date.
The bigger issue for DACA recipients is how advance parole applies to them. Leaving the country without advance parole is not an option, since federal immigration law states that an alien with at least one year of unlawful presence in the U.S. is inadmissible for a period of 10 years after they leave or are removed from the country. 8 U.S.C. § 1182(a)(9)(B)(i)(II). Shortly before the White House announced DACA, however, the Board of Immigration Appeals (BIA) ruled that advance parole does not constitute a “departure” that would trigger the 10-year inadmissiblity period. Matters of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) (PDF file). This provision would likely not be a problem for a DACA recipient with advance parole. The difficulty could, in theory, be with a Customs and Border Protection (CBP) agent who thinks a DACA recipient might be inadmissible on a different ground. That question has yet to be resolved.
Immigration law attorney Samuel C. Berger represents immigrants, families, and businesses in the New York and New Jersey areas. We help families and businesses petition to bring immigrants to the U.S., and we advise immigrants who are seeking visas and green cards. To schedule a confidential consultation with a knowledgeable and experienced immigration advocate, contact us today online or at (212) 380-8117.
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BIA Standards in Deportation Cases are No Better than Rolling Dice, says Supreme Court, New York & New Jersey Immigration Lawyer Blog, January 10, 2012