New Board of Immigration Appeals case says leaving the U.S. with advance parole does not trigger 10 year ban

[jdh 103]

My preferred method of dealing with it is to NOT issue AP to those who are NOT doing an AOS from a K-1 Visa.

I said nothing about entrapment or overstay bans. I'm leaning to NO AP whatsoever, unless you came in on a K-1 visa.

The 'why' is obvious - or it should be...

Those folk slinging through an AOS (non K-1s) really should sit out the process in the USA until the greencard is in hand. That's my opinion, and I'm sticking to it, regardless.

This stance makes no sense whatsoever, aside from your obvious bitterness towards anyone who doesn't adjust the way you did...

Just because someone didn't go the K-1 route does not mean they have incurred a possible ban. I adjusted as a Canadian visitor and abode by every law and policy the USCIS has in place, under their guidance and in their time frame - I would have incurred no possible ban had I applied for AP and used it....I have no clue why you feel I shouldn't have been able to have it issued aside from your aforementioned bitterness.

[DandT14 272]

It's a circular problem, to be certain.

My preferred method of dealing with it is to NOT issue AP to those who are NOT doing an AOS from a K-1 Visa.

I said nothing about entrapment or overstay bans. I'm leaning to NO AP whatsoever, unless you came in on a K-1 visa.

The 'why' is obvious - or it should be, to an immigration attorney. I know, I know, less paperwork for you? Less fees you can collect - but that's a side issue, and not my issue.

Those folk slinging through an AOS (non K-1s) really should sit out the process in the USA until the greencard is in hand. That's my opinion, and I'm sticking to it, regardless.

So, are you saying you think people who have overstayed SHOULD get overstay bans, whether or not they have AP?

I guess what I'm not understanding is this, do you want to deny AP because you think people AOSing shouldn't qualify for it, or because it's safest for them to wait it out here? Basically, is it for the good of the individual doing the AOS, or is because you think those people just shouldn't have the same rights as the K-1s?

[JimVaPhuong 4,863]

BIA decisions are binding on immigration judges--who are part of the USCIS. If CBP were to wrongfully deny entry, they could seek a hearing with an immigration judge.

I think you're misinterpreting what "binding" means. BIA decisions are binding on DHS officers and immigration judges. This means, for example, if the BIA issues a decision granting an immigrant a stay of deportation then neither a DHS immigration officer or an immigration judge can overrule that decision and deport the immigrant. BIA decisions are subject to judicial review, so only a federal court can overrule a BIA decision. That doesn't mean that a BIA decision automatically results in a policy change at DHS. The overwhelming majority of BIA decisions don't address DHS policies, but address decisions made by immigration officers and judges in specific cases, and usually involve cases where the BIA believes the immigration officer or judge has misapplied their discretion or misinterpreted the law.

DHS has an obligation to review BIA cases to determine if they impact current policy, but they aren't bound to change their policy because of the decision. Most BIA decisions don't result in policy changes at DHS, primarily because most BIA decisions aren't contrary to DHS policy. Most BIA decisions are specific to only one case. The decisions that might have an impact on policy need to be reviewed by a director who has authority to change the policy.

The point is that a CBP officer working at an immigration counter in a US airport is not obligated in any way to stay current on BIA decisions. He has a policy manual, and he's expected to follow it until that manual is revised.

[grrrrreat 109]

I think you're misinterpreting what "binding" means. BIA decisions are binding on DHS officers and immigration judges. This means, for example, if the BIA issues a decision granting an immigrant a stay of deportation then neither a DHS immigration officer or an immigration judge can overrule that decision and deport the immigrant. BIA decisions are subject to judicial review, so only a federal court can overrule a BIA decision. That doesn't mean that a BIA decision automatically results in a policy change at DHS. The overwhelming majority of BIA decisions don't address DHS policies, but address decisions made by immigration officers and judges in specific cases, and usually involve cases where the BIA believes the immigration officer or judge has misapplied their discretion or misinterpreted the law.

DHS has an obligation to review BIA cases to determine if they impact current policy, but they aren't bound to change their policy because of the decision. Most BIA decisions don't result in policy changes at DHS, primarily because most BIA decisions aren't contrary to DHS policy. Most BIA decisions are specific to only one case. The decisions that might have an impact on policy need to be reviewed by a director who has authority to change the policy.

The point is that a CBP officer working at an immigration counter in a US airport is not obligated in any way to stay current on BIA decisions. He has a policy manual, and he's expected to follow it until that manual is revised.

I understand your point and I wasn't advising anyone with an overstay to leave right now. I already had advised that people with potential overstays should seek AP and then revisit the situation if they need to leave before they have a Green Card. I also posted this to help individuals who were adjusting and who had departed and returned to the U.S., if application of the former overstay ban could prevent them from completing their adjustment of status, such as in the Arrabally case.

However, I do vigorously dispute that BIA decisions are not binding on immigration judges--and that was the statement I was responding to. Immigration judges are part of the DHS so in some sense BIA decisions are binding on DHS. Whether or not CBP has implemented it yet doesn't matter--I understand the risk that the CBP could deny someone entry but it's extremely misguided to suggest that this "doesn't change anything" as another OP did.

[SOflaherty 40]

If this is the case I think EVERYONE (CBP, DHS, etc) needs to be on the same page with it. We can't have one department saying it's fine, and others not following it or not allowing people back in.

I also don't see if that does happen why an overstay case shouldn't be allowed to use it if their AP is approved(although clearly it would be iffy until we KNOW all departments are following the same rules).

[grrrrreat 109]

If this is the case I think EVERYONE (CBP, DHS, etc) needs to be on the same page with it. We can't have one department saying it's fine, and others not following it or not allowing people back in.

I also don't see if that does happen why an overstay case shouldn't be allowed to use it if their AP is approved(although clearly it would be iffy until we KNOW all departments are following the same rules).

Seems reasonable!

[JimVaPhuong 4,863]

However, I do vigorously dispute that BIA decisions are not binding on immigration judges--and that was the statement I was responding to. Immigration judges are part of the DHS so in some sense BIA decisions are binding on DHS. Whether or not CBP has implemented it yet doesn't matter--I understand the risk that the CBP could deny someone entry but it's extremely misguided to suggest that this "doesn't change anything" as another OP did.

I never said they weren't binding. They absolutely are binding, but in the overwhelming majority of cases they are binding only in that specific case. Example: Joe Bloe is ordered removed by an immigration judge. Joe Bloe appeals to the BIA, who rules that the immigration judge erred and Joe Bloe's appeal is sustained. The immigration judge must honor that decision, and not try to deport Joe Bloe.

Now, given the current administration's habit of issuing directives to cabinet level officers without writing a formal executive order, I wouldn't be at all surprised if this BIA decision was influenced by the Attorney General, and an update to DHS policy is quietly made to support it. Until that happens, I think anyone who has sufficient accumulated unlawful presence to trigger a ban would be wise not to attempt to use advance parole.

My personal opinion is that the BIA interpretation of "departure" in this case is beyond ludicrous. Someone who never departed would not need advance permission to reenter. It would be more palatable if they'd determined that the approval of the advance parole constituted a waiver of inadmissibility. If the current administration doesn't survive the next election then I wouldn't be surprised to see this BIA decision reversed.