A recent Board of Immigration Appeals (BIA) decision bars certain recently arrived noncitizens from becoming lawful permanent residents. In Matter of Cabrera-Fernandez, the BIA held that the petitioner had not been paroled into the United States when the Department of Homeland Security (DHS) released him from immigration detention. The decision will impact many thousands of Cubans and others hoping to gain legal status.
What changed
DHS arrested Mr. Cabrera-Fernandez, a Cuban national, less than one mile from the southern border, about 40 minutes after he had entered the United States without inspection. After detaining him for several days, DHS released him with an order of release on recognizance (Form I-220A).
The key dispute centered on which parole authority governed his release. Mr. Cabrera-Fernandez argued to the immigration judge that even though his order said he was released with conditional parole under Section 236, as a matter of law he could only have been released with humanitarian parole under Section 212 of the INA. This was significant because if he was paroled under Section 212 rather than Section 236, he would be able to apply for a green card under the Cuban Adjustment Act. The immigration judge agreed and allowed him to adjust his status to lawful permanent resident.
On appeal, the BIA disagreed. The BIA held that because DHS put Mr. Cabrera-Hernandez in full removal proceedings instead of fast-track expedited removal proceedings, DHS had authority to choose between release on conditional parole or humanitarian parole. Because DHS chose conditional parole, Mr. Cabrera-Hernandez was not eligible to adjust his status.
Why it matters
For practitioners advising recently arrived clients in removal proceedings who have been released from detention, the form DHS uses now determines eligibility for green card adjustment. Most noncitizens already in the United States who want to adjust their status to lawful permanent resident must be either inspected and admitted or “paroled into the United States.” Over a decade ago, the BIA decided that conditional parole did not count as being “paroled into the United States.” For a noncitizen who was not inspected and admitted, only humanitarian parole makes them eligible to adjust.
The Cabrera-Fernandez decision reinforces DHS’s broad discretion to choose between conditional and humanitarian parole when releasing someone from detention in full removal proceedings (as opposed to expedited removal). This means a client released on Form I-220A labeled “conditional parole” will be ineligible for adjustment under most pathways—including the Cuban Adjustment Act—even if an immigration judge previously found humanitarian parole was the only lawful option. The decision is particularly consequential for Cubans seeking protection under the Cuban Adjustment Act, which requires either inspection-and-admission or parole, and blocks adjustment under conditional parole.
It is inevitable that these issues will be raised in the federal courts of appeals—and possibly even make their way to the Supreme Court. However, immigration judges must apply this decision as binding precedent until overturned by federal court.
Way forward
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Review release documentation immediately. If your client was released from immigration detention, obtain the release order (Form I-220A or equivalent). Confirm whether the labeled parole authority is humanitarian (Section 212) or conditional (Section 236). If conditional parole is stated, adjustment eligibility is foreclosed under this precedent.
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Challenge on Jennings v. Rodriguez grounds. Cabrera-Fernandez’s argument relied on a 2018 Supreme Court decision called Jennings v. Rodriguez. In Jennings, the Court suggested that recent arrivals who enter without inspection must be held in mandatory detention under Section 235 of the INA—regardless of whether DHS puts them in expedited removal proceedings or full removal proceedings. Consider arguing that the Supreme Court’s Jennings framework prohibits DHS from choosing conditional parole for someone placed in full removal proceedings.
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Preserve federal court appeal rights. If your client is denied adjustment based on conditional parole status, preserve the record carefully for appeal to the Board and, if necessary, to federal circuit court. This precedent is new and contested; federal courts may reconsider the scope of DHS’s release authority.
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Explore alternative relief. For clients ineligible to adjust, investigate other forms of relief from removal (asylum, withholding of removal, CAT protection, cancellation of removal if eligible by time and other factors) to keep the client in the United States.
Disclaimer
This article explains a BIA precedent decision and is not legal advice. We are a software company, not a law firm. Always consult a licensed immigration attorney to discuss your specific case, review your release documentation, and determine the best strategy under your particular facts. Immigration policy and BIA precedent can change without notice. Verify all information against the source material linked above and current guidance from USCIS, the Executive Office for Immigration Review, or counsel in your jurisdiction.