By Lindsay Gray
Some of you may have heard about the mother of three who had received DACA and advance parole and was deported upon returning to the U.S.. This has caused some panic for those who have a prior deportation order and DACA, and are thinking about leaving on advance parole. We want to give people correct information so that you can make decisions based on fact and not fear.
IMPORTANT UPDATE: The deported woman will be allowed to return to the United States and resolve her case here!
You can receive advance parole if you have DACA even if you have a prior removal order.
An article published by ThinkProgress.com states that USCIS has published that you cannot receive advance parole if you are in removal proceedings (this includes those who have outstanding orders that have not been executed). However, the article they link to is one specific to the issuance of advance parole for those adjusting status, not DACA recipients.
If you got to USCIS’s page specifically for DACA recipients, and scroll through the frequently asked questions, you will find the following at FAQ #57:
“If USCIS has deferred action in your case under the DACA process after you have been ordered deported or removed, you may still request advance parole if you meet the guidelines for advance parole described above.”
While There is an Argument to the Contrary, its Possible that Leaving on Advance Parole Executes the Outstanding Deportation Order
In 2012, the Board of Immigration Appeals held that someone who leaves the United States pursuant to a grant of advance parole does not make a “departure” from the United States. However, this ruling was specific to a question about “departure bars”, which occur when someone has been in the United States unlawfully and then leaves. There is currently no court ruling about whether someone who leaves on advance parole has “departed” the United States with an outstanding removal order and has thus has self-deported.
So while one could certainly argue that the BIA case applies to this circumstance as well, it has not been firmly ruled on by the courts.
USCIS cautions against leaving on advance parole with an outstanding order and suggests that you file a motion to reopen prior to leaving. (This is also found on FAQ question #57). This can work in certain circumstances, but oftentimes motions to reopen are very difficult to win.
If leaving on advance parole is considered a departure, one would need a waiver of inadmissibilitybefore being admitted to the United States. And if you depart the United States after failing to appear in immigration court, that can further complicate things.
Entry on Advance Parole is Not an Admission
When someone re-enters the U.S. with advance parole, this is not an “admission” and therefore you do not have to prove that you are admissible in order to re-enter. The Huffington Post published an article quoting a Customs and Border Patrol spokesperson saying that in order to re-enter on advance parole, you have to overcome all grounds of inadmissibility. And this simply isn’t the case.
It is Within Customs and Border Patrol Discretion to Deny Entry on a Case-By-Case Basis
Having said all of the above, CBP still reserves the right to deny entry to individuals on a case-by-case basis. Some attorneys recommend that their clients travel through certain airports so that they are less likely to run into issues. And even with precautions taken, there is always still some small risk.
We do not know all of the facts about the woman who was removed this week after attempting to re-enter on advance parole. There are rumors that she lied on her DACA application or had other problems with immigration. Hopefully as time goes on we can get more information about the facts of this case, and why this woman was deported when so many others re-enter without problems.
Talk to a Lawyer Before You Leave
Because of the sensitive and risky nature of advance parole with a prior order, it is so important to speak to an experienced immigration attorney before you leave the United States. For many, leaving on advance parole may provide a pathway to adjustment of status and a life free of fear that someday ICE will find you. For others, it may not be worth the risk. The most important thing is to make sure you are fully informed and therefore can make an educated decision that could affect your life so drastically.
This article was originally posted on Biesthal & Gray, and is published on AMIGA courtesy of the author.