Local advocates and attorneys say that a recent court decision is sowing confusion among some immigrants, including many brought to the U.S. as children and temporary protected status holders.
In August, the Board of Immigration Appeals — the nation’s highest immigration court under the Department of Justice — ruled that immigrants who have accrued more than 180 days of “unlawful presence” who then leave the country on advance parole would trigger a three- or 10-year bar on admissibility back into the U.S.
The decision forces some immigrants in the U.S. to risk abandoning pending green card applications, and the prospect of being unable to re-enter the country.
Most of the immigrants who apply to leave the U.S. temporarily are here under the Deferred Action for Childhood Arrivals, or DACA, or else temporary protected status, and some are in the middle of changing their immigration status.
Some seek to leave to visit family, or for medical procedures, and must ask the federal government for permission to leave to be re-admitted through a document called “advance parole.”
That protection is now flipped on its head by last month’s Board of Immigration Appeals decision.
“The consequence is that it effectively is going to leave stranded many thousands of individuals who would otherwise have been able to get their green card in the United States through a spousal petition or another type of relative petition, but now can’t and are left with the only option of leaving the United States and waiting 10 years before they can come back,” said Robin Nice, a local immigration attorney. “
For DACA recipients and TPS holders in the middle of changing status, this puts them in a Catch-22 without much clarity. Nice said she has TPS-holding clients who recently applied for advance parole, but now it’s unclear what will happen. If approved, there’s no guarantee they will be able to return from their trips.
Zach Kahler, spokesman for U.S. Citizenship and Immigration Services, defended the rule, saying “this decision confirms a straightforward principle: departing the United States means departing the United States.” .
“The immigration laws enacted by Congress impose consequences when someone who has accrued unlawful presence leaves the country and later seeks admission, including when that departure occurs under advance parole,” Kahler said in a statement to GBH News.
Previously, the government didn’t count a temporary trip abroad using advance parole as a “departure.” USCIS said that allowed immigrants to travel without “triggering penalties for their past unlawful presence.”
USCIS defines unlawful presence as a period where an immigrant was in the U.S. without being formally “admitted or paroled,” which can impact TPS and DACA holders who were undocumented and over 18 before they applied for their current statuses.
Immigrants who accrue more than six months of unlawful presence, and then leaves the U.S., won’t be able to return for three or 10 years. Additionally, USCIS now says an advance parole document doesn’t necessary guarantee reentry to the U.S., and that a U.S. Customs and Border Protection officer will make the final decision at an airport or border.
Hard to leave
There’s an advance parole filing fee of at least $575, and some have to pay a new $1,000 fee upon reentry. If approved for advance parole, an immigrant can leave the U.S. for a short period and return without putting their separate, pending immigration applications in jeopardy.
If a DACA recipient or TPS holder leaves the US without advance parole while in the process of adjusting their status, or having a pending green card application, the government has long considered the application abandoned—the main reason why immigrants apply for advance parole in the first place.
Estefany is a 28-year-old who came to the US at age 9 from El Salvador after her family received a death threat. She’s been here under the DACA program since 2012. That status was created by the Obama administration for children who were living without status, brought to the U.S. before a specific date. President Donald Trump ended DACA under his first administration for new applicants, but 455,000 people are still in the program.
GBH News is only using Estefany’s first name due to her fear of being detained. Estefany is one of over 4,000 DACA recipients in the state.
She was able to use advance parole in 2023 to visit her sick grandfather. “It was a great benefit to be honest, because not having to go back for years to your home country to wait to adjust status, it’s a huge benefit.” She believes that because she was able to use advance parole three years ago, the new rules won’t apply to her, but it’s unclear.
“Most people do seem to think that if you traveled before the date of this decision, then this shouldn’t apply to you. You should be in the clear. But the administration might interpret this decision differently,” said Sarang Sekhavat, chief of staff for the MIRA Coalition, a Massachusetts-based nonprofit organization that defends the rights of immigrants. “Part of the question is whether you’re allowed into the country at all, but also whether you can then apply for a green card or you’re barred from that.”
Estefany says this is one of many limitations on DACA and TPS recipients. “It just places more fear in individuals and it makes them want to maybe self-deport or go back to the shadows. Personally, it makes me anxious and it’s just a waiting game to see what’s gonna be decided next.”
DACA and TPS don’t specifically have a pathway to a green card, but some circumstances allow it for those who marry US citizens; are sponsored by an immediate relative who has permanent residency; or are in certain professions that allow employer-sponsored green cards through a lengthy process.
Allie Rojas is originally from Mexico, and came to the US when she was four, crossing a desert with her mother. She’s had DACA since 2013. She came to the U.S. and had status before she was 18, so hasn’t accrued “unlawful status.” Rojas used advance parole in 2024 for a medical issue, but says she’s not sure what her options would be now, or whether the changes would impact her ability to apply for permanent residency in the future.
She and other advocates say that the change puts people in an impossible position of risking not being able to come back into the country, or not see family abroad.
“It just seems as though this administration is set on making it difficult for people to have that pathway to citizenship,” she said. “I think it’s very sad for families that now they have to make a decision — are they going to go or continue to stay here and hope and wait that this ends after this administration is gone?”
