(a) General. (Chapter 54.1 Revised 06-28-2005).

Parole of an alien into the U.S. pursuant to section 212(d)(5) of the Act is an extraordinary authority that must be exercised with discretion. It must not be utilized if the case under consideration can be satisfactorily disposed of under any other provision of the Act. (See Chapter 16 of the Inspector's Field Manual.)

There is no separate statutory authority for advance parole. Rather, the use of advance parole is an outgrowth of administrative practice stemming from the general parole authority at section 212(d)(5) of the Act, and is now incorporated into regulation. The practice of authorization of advance parole has also been recognized by Federal courts. In accordance with the delegations of authority implementing the Homeland Security Act of 2002 (and with the exception of requests for aliens who are authorized parole under SPBP, aliens who are in removal proceedings, and those who are the beneficiaries of a U.S. Congressional private bill, which should be forwarded to the ICE/PHAB), only United States Citizenshi p and Immigration Services (USCIS) has authority to authorize advance parole and issue advance parole documentation.

The advance authorization for parole authorizes the Department of Homeland Security (DHS) to permit an alien to come to the U.S. and enter the country as a parolee. It does not "authorize" his or her departure. Although many aliens seek an advance parole before departing the U.S. in order to have a means of returning so they may continue to pursue a pending application before DHS, most often an adjustment application, it is not the departure which is being authorized, but the parole upon return. We do not p arole people out of the U.S., we can only parole them into the U.S. However, when an advance parole is issued prior to an alien's departure from the U.S., the departure does not result in the alien's application for adjustment of status pending before USCIS being deemed abandoned (see 8 CFR 245.2(a)(4) regarding effect of departure).

Note:

In addition to the section 212(d)(5) use of the term "parole," the Act also refers to "conditional parole" in section 236(a) of the Act with regards to DHS's authority to release an arrested alien from custody without first requiring the posting of a delivery bond. A conditional parole should not be confused with an alien being paroled into the U.S. under section 212(d)(5) of the Act. For a discussion of "conditional parole" under section 236(a) of the Act, see the Deportation Officer's Field Manual.

(b) Justification .

Every parole authorization must be justified on a case-by-case basis. The justification for any parole under section 212(d)(5) of the Act must rest on either two statutory provisions (or conceivably, both):

·     Urgent humanitarian reasons - Most paroles fall into this category, whether authorized at a port of entry or in advance of the alien appearing at a port of entry. When authorized in advance, the request for parole must be submitted on Form I-131 and the fee prescribed in 8 CFR 103.7(b) must be paid (unless the fee is waived pursuant to 8 CFR 103.7(c) ). When authorized at a port of entry, neither application nor fee is required.

·     Significant public benefit reasons - This type of parole (which is normally referred to by its initials, SPBP) is authorized for an alien who is needed to participate in a law enforcement investigation, prosecution, or other legal proceedings. The initial authorization must be made by the Immigration and Customs Enforcement Parole and Humanitarian Assistance Branch (PHAB) upon a request from a recognized law enforcement entity. After the alien has been paroled into the United States, a re-parole may be auth orized by the local DHS office having jurisdiction over the alien's location in the U.S. for requests initiated by DHS entities. All other extensions are authorized by PHAB. As an adjudicator, you will not be involved in the consideration of this type of parole.

(c) Time of Authorization .

A parole may be authorized in advance of the alien applying for entry, while the alien is applying for entry, or even subsequent to the alien entering the U.S.:

·     In advance of alien who is outside the United States applying for entry ("overseas parole") - This type of parole is normally requested by an alien in his/her own behalf or by another party in the alien's behalf. If requested on the SPBP basis, it may be authorized by PHAB only; if requested for urgent humanitarian reasons, it may be authorized by PHAB or on rare occasions by the DHS overseas office. As an adjudicator, you would only be involved in the adjudication of this type of parole if you are statione d at a DHS overseas office.

·     In advance of an alien departing from the United States, where such alien is an applicant for a benefit and intends to return to the United States in order to pursue that application - Most commonly, this type of parole authorization is requested (on Form I-131 , with fee) for urgent humanitarian reasons by an alien who is an applicant for adjustment in the United States. As an adjudicator, you may be involved in the adjudication of this type of parole request.

·     At time of application for entry ("Port of Entry" parole) - This type of parole is authorized by the designated Bureau of Customs and Border Protection (CBP) official in charge of the port of entry at which the alien is seeking entry. It may not be authorized in advance. As an adjudicator, you will not be involved in the consideration of this type of parole.

Note:

A subset of the port of entry parole is the parole for deferred inspection, which is authorized to allow an alien to proceed to a USCIS or CBP office at an onward destination where he or she will present evidence to clear up an easily resolved issue affecting his or her admissibility. A deferred inspection may only be used if the inspecting officer (and his or her appropriate supervisor) has reason to believe that the alien will be admissible to the United States once the issue for which the alien's inspect ion is being deferred has been resolved.

·     Subsequent to entry into the U.S. - As a result of the 1996 amendments to the Act, an alien who is present in the United States without having been inspected and admitted or paroled is considered to be an applicant for admission. In a memorandum dated April 19, 1999, the Commissioner of the INS held that if the Service (now DHS) takes such person into custody and then releases him or her, the action of releasing the alien constitutes a parole under section 212(d)(5) of the Act (See Appendix 23-4 ). Note that this does not apply to an alien who is released from custody after having been arrested for any reason other than being present in the U.S. without inspection and admission or parole. As an adjudicator, you would not be involved in the adjudication of this type of parole request.