The Attorney General may “parole” noncitizens (including noncitizens who entered without inspection[346]) seeking admission into the United States or adjustment of status, or for humanitarian reasons.  The Attorney General has discretion whether to grant or deny parole.[347]  An illegal entrant may also be granted parole, even though s/he is already in the United States.[348]

 

            In Ortega-Cervantes v. Gonzales,[349] the court distinguished between two types of “parole” – humanitarian parole[350] and “conditional parole” on release from DHS detention,[351] noting that the latter “focuses primarily on aliens who are present in the United States but were not lawfully admitted or who were lawfully admitted but have become subject to removal.”  While “parole” as described under INA § 212(d)(5) may be spelled the same, and pronounced the same, it describes a different concept – i.e., being allowed physically to enter the United States without being officially “admitted.”

 

            Often parole is granted for the purpose of “deferred inspection,” allowing the noncitizen to obtain documents to present to a DHS officer, or to come before an immigration judge.[352]  See N Tooby & J. Rollin, Criminal Defense of Immigrants § 15.15 (4th Ed. 2007).  While the noncitizen is allowed to enter the United States, parole is not an admission to the United States, and the noncitizen may still be later found inadmissible.[353]  Parolee status is, however, lawful status until it expires or is revoked or terminated.[354]

 

Parolee status can also take the form of “advanced parole,” which allows certain persons within into the United States to leave and re-enter while a petition to adjust status is pending, even though they would not normally be allowed to travel outside the United States during this period.[355]

 

Done for purposes of “urgent humanitarian reasons or significant public benefit,” humanitarian parole is temporary, and may be granted under any conditions the Attorney General decides to impose.[11]

 

[356] See INA § 235(a)(1), 8 U.S.C. § 1225(a)(1).  See also Memo, Virtue, G.C. for Field (HQCOU 120/17-P) (Aug. 21, 1998), reprinted in 76 Interpreter Releases 1050, 1067-70 (July 12, 1999).

[346] Ibid.  See also Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir. 1981).

[347] Memo, Virtue, G.C. to Filed (HQCOU 120/17-P) (Aug. 21, 1998), posted on AILA InfoNet at Doc. No. 98082191.

[348] Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th Cir. Sept. 4, 2007) (noncitizens who are apprehended within the United States after illegal re-entry, who are detained by the DHS, and who are thereafter "conditional[ly] parole[d]," under INA § 236(a)(2)(B); 8 U.S.C. § 1226(a)(2)(B) are not "paroled into the United States" for purposes of being eligible for adjustment of status pursuant to 8 U.S.C. § 1255(a)).

[349] INA § 212(d)(5), 8 U.S.C. § 1182(d)(5).

[350] INA § 236(a), 8 U.S.C. § 1226(a).

[351] 8 C.F.R. § § 235.2, 1235.2.

[352] Leng May Ma v. Barber, 357 U.S. 185 (1958); Altamirano v. Gonzales, 427 F.3d 586 (9th Cir. Oct. 31, 2005) (a parolee has not been “admitted” to the United States, and therefore is subject to the grounds of inadmissibility, and bears the burden of showing admissibility).

[353] 8 C.F.R. § § 245.1(d)(1)(v), 1215(d)(1)(v).

[354] See, e.g., Ibragimov v. Gonzales, 476 F.3d 125 (2d Cir. Jan. 25, 2007) (noncitizen who was admitted to United States as visitor, overstayed, applied for adjustment of status, then left the United States under advance parole, was properly charged with inadmissibility upon revocation of parolee status; fact that noncitizen had initially been admitted does not overcome fact that subsequent entry into United States as parolee is not an “admission” to the United States).

[355] INA § 212(d)(5), 8 U.S.C. § 1184(d)(5); 8 C.F.R. § § 212.5, 1212.5 (listing persons eligible for parole).

BIA

RELIEF " PAROLE " PAROLING LPR INTO THE UNITED STATES FOR PROSECUTION
Matter of Valenzuela-Felix, 26 I&N Dec. 53 (BIA 2012) (the time at which the DHS must determine whether a LPR is an applicant for admission because he or she falls under INA 101(a)(13)(C)(v), 8 U.S.C. 1101 (a)(13)(C)(v), is generally at the earliest opportunity, before the initiation of removal proceedings; the DHS may delay this determination when paroling a noncitizen to face prosecution until after the prosecution has been resolved). http://www.justice.gov/eoir/vll/intdec/vol26/3773.pdf

RELIEF - ADJUSTMENT OF STATUS - PAROLE
Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA Jun. 18, 2010) (conditional parole under INA 236(a)(2)(B) is a distinct and different procedure from parole under INA 212(d)(5)(A), and does not count as "parole" under INA 245(a) for purposes of adjustment of status).

Second Circuit

RELIEF " ADJUSTMENT OF STATUS " RELEASE ON CONDITIONAL PAROLE PENDING REMOVAL PROCEEDINGS IS NOT PAROLED INTO UNITED STATES SO AS TO BE ELIGIBLE FOR ADJUSTMENT
Cruz-Miguel v. Holder, ___ F.3d ___, 2011 WL 1565847 (2d Cir. Apr. 27, 2011)(an alien released on conditional parole pending resolution of ongoing removal proceedings is not thereby paroled into the United States so as to be eligible for adjustment of status).

Ninth Circuit

PAROLE - ADVANCED PAROLE
Hassan v. Chertoff, 543 F.3d 564 (9th Cir. Sept. 11, 2008) (noncitizen traveled outside United States on advance parole while adjustment application was pending; DHS denied application while noncitizen was outside the U.S.; noncitizen placed in expedited removal upon attempted return to U.S.; court lacks jurisdiction to review DHS denial of adjustment application and revocation of advance parole).