BIA Holds That Release On Conditional Parole Per INA §236(a)(2)(B) Is Legally Distinct From Release On Humanitarian Parole Per INA §212(d)(5)(A). Matter Of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010), Followed. Applicants For Admission Who Are Released On Conditional Parole Rather Than Humanitarian Parole Have Not Been “Inspected And Admitted Or Paroled,” And Accordingly Are Not Eligible For Adjustment Of Status Under The Cuban Refugee Adjustment Act Of November 2, 1966.
On September 11, 2023, the Board of Immigration Appeals (BIA or Board) sustained the DHS appeal of an order by the Immigration Judge (IJ) granting Respondents’ applications for adjustment of status (AOS) under the Cuban Refugee Adjustment Act of November 2, 1966 (CRAA). DHS contended that Respondents had not been admitted or paroled; Respondents opposed the appeal. The BIA vacated the IJ’s AOS grant and remanded the record for further proceedings.
DHS has encountered Respondents near the Mexican border, about 40 minutes after they entered the U.S. without inspection. They were detained, then released on their own recognizance under DHS’ conditional parole authority per INA §36(a)(2)(B). Respondent were charged with inadmissibility per INA §212(a)(6)(A)(i) for being present without admission or parole.
In court, Respondents conceded removability and the IJ sustained the charges. However the IJ found them AOS-eligible under the CRAA, which requires that Respondents have been “inspected and admitted or paroled into the United States”; the IJ found that the Respondents’ release from DHS custody was per a grant of humanitarian parole under INA §212(d)(5)(A), rather than a grant of conditional parole under §236(a)(2)(B). Unlike a grant of conditional parole, noted the Board, a grant of humanitarian parole renders a respondent eligible for AOS citing to Matter of Castillo-Perez, 25 I&N Dec. 257 (BIA 2010). The IJ had concluded that when Respondents were apprehended, they were subject to expedited removal and, by extension, mandatory detention per INA §235(b)(1). Relying on Jennings v. Rodriguez, 138 S.Ct. 830 (2018), which describes §212(d)(5)(A) parole as “the sole mechanism authorizing the release of individuals detained for expedited removal,” the IJ reasoned that Respondents’ release was through humanitarian parole by operation of law. This analysis, held the BIA, was error.
Initially, stated the opinion, Respondents are applicants for admission due to “the circumstances surrounding their arrival and their encounter with immigration authorities.” When such applicants are charged with inadmissibility, DHS has authority to determine whether to initiate expedited removal proceedings under §235(b)(1)(A) or removal proceedings under INA §240.
Respondents did not dispute that DHS released them on their own recognizance per §236, rather than though the parole procedures of §212(d)(5); release on such conditional parole under §236(a)(2)(B),
concluded the decision, is “legally distinct” from release on humanitarian parole under §212(d)(5)(A), per Matter of Castillo-Padilla. The Board found no basis to treat Respondents’ release here as occurring per 212(d)(5); contrary to the IJ’s finding, the BIA did not read Jennings to “mandate a different result.”
Further, the IJ had relied on another Board precedent to find Respondents’ release on their own recognizance to be a release on parole per §212(d)(5)(A). Yet in that case, the BIA found the release of miliary evacuees from Vietnam to have been via parole, given the absence of an alternative statutory mechanism. In any event, that decision was inapposite because §236(a)(2)(B) provides DHS here with an “alternative statutory mechanism” for releasing the Respondents, a process which was, in fact, followed in this case.
Because they were applicants for admission released on conditional, not humanitarian parole and have therefore not been inspected and admitted or paroled, Respondents were held ineligible for AOS under the CRAA. The appeal was sustained. Matter of Cabrea-Fernandez, 28 I&N Dec. 747 (BIA 2023).
