State of Texas et al v. United States of America et al

Filing 130

SURREPLY to 5 Opposed MOTION for Preliminary Injunction, filed by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski. (Attachments: # 1 Exhibit 34, # 2 Exhibit 35, # 3 Exhibit 36, # 4 Exhibit 37, # 5 Exhibit 38, # 6 Exhibit 39, # 7 Exhibit 40, # 8 Exhibit 41, # 9 Exhibit 42, # 10 Exhibit 43, # 11 Exhibit 44, # 12 Exhibit 45, # 13 Exhibit 46)(Freeny, Kyle)

EXHIBIT 42

496

Secretary

U.S. Department of Homeland Security
Washington, DC 20528

Homeland
Security
November 20, 2014
MEMORANDUM FOR:

Stevan E. Bunnell
General Counsel
Office of the General Counsel
Leon Rodriguez
Director
U.S. Citizenship and Immigration Services
Thomas S. Winkowski
Acting Director
U.S. Immigration and Customs Enforcement
R. Gil Kerlikowske
Commissioner
U.S. Customs and Border Protection

FROM:

Jeh Charles Johnso
Secretary

SUBJECT:

Directive to Provide Consistency Regarding Advance
Parole

Advance parole is an established procedure by which U.S. Citizenship and
Immigration Services (USCIS) may authorize, as a matter of discretion, an individual to
travel abroad with advance authorization to be considered for parole into the United
States upon return. For example, USCIS regularly grants advance parole to individuals
with certain types of temporary status or with pending immigration applications.
Advance parole is subject to U.S. Customs and Border Protection (CBP) later considering
parole at the port of entry.
In April 2012, the Board of Immigration Appeals issued the precedent decision
Matter of Arrabally (later amended in August 2012),1 which held that individuals who
travel abroad after a grant of advance parole do not effectuate a "departure . . . from the
1

Matter of Arrabally, 25 I. & N. Dec. 771 (BIA 2012).

1
www.dhs.gov

497

United States" within the meaning of section 212(a)(9)(B)(i) of the Immigration and
N ationality Act (INA). That provision , along with section 212(9)(B)(i)(I) , establishes the
"3- and 10-year bars" for persons who have "departed " after more than 180 days of
unlawful presence in the United States.2 The Arrabally decision arose in the context of
two aliens who had been in unlawful status for multiple years , applied for adjustment of
status, and obtained advance parole to travel to Ind ia several times. The Board of
Immigration Appeals held that travel on advance parole was not a "departure" within the
meaning of the statute and hence did not trigger the ground of inadmissibility that bars
admission after the accrual of unlawful presence .
This is to notify you that I have asked the Department’s General Counsel to issue
written legal guidance on the meaning of the Arrabally decision , which will clarify that in
all cases when an ind ivid ual physically leaves the United States pursuant to a grant of
advance parole, that individual shall not have made a "departure" within the meaning of
section 21 2(a)(9)(B)(i) of the INA. This instruction will ensure consistent application of
the Arrabally decision across the Department , and provide greater assurance to
ind ividuals with advance parole of the consequences of their travel.
Nothing in this directive is intended to l imit the authority of CBP to conduct its
routine inspection and admission or parole of an individual returning to the United States.

2

I N A § 2 l 2(a)(9)(B)(i), 8 U .S.C. § l l 82(a)(9)(B)(i).

2
498