54.3 Adjudication.

(a) Eligible Classes .

Form I-131 may be approved and Form I-512 issued to an alien whose case falls into one or more of the following classes unless reasons of national security or public order dictate otherwise. It is important to note, however, that no alien is "entitled" to a grant of advance parole. Even if an alien is within one of these classes, whether to grant advance parole in an individual case remains a matter entrusted to DHS discretion.

(1) A member of the professions or a person having exceptional ability in the sciences or the arts who, on the basis of prior DHS policy, had been granted voluntary departure prior to April 1, 1997, for the duration of the validity of a third or sixth preference petition approved on his behalf, or to such a member or person who is a Western Hemisphere native and had applied for an immigrant visa and who had been granted voluntary departure prior to April 1, 1997, under that policy, who is going abroad in co nnection with the qualifying profession, art, or science, or to bring his spouse and children to the U.S., and to the spouse and children of such member or person who are abroad, notwithstanding that the principal beneficiary may have filed an application for adjustment to permanent resident status under section 245 of the Act;

(2) An alien who:

· is a Cuban in refugee, parole, or voluntary departure status;

· intends to depart temporarily to apply for a U.S. immigrant visa in Canada; and

· is in possession of an American consul's letter of invitation to apply.

Note

The Form I-512 issued in such case shall be endorsed to indicate the alien’s current status in the U.S. and shall be limited to one trip for the time necessary for its completion.

(3) An applicant for adjustment of status who:

· seeks to depart temporarily from the U.S. for any bona fide business or personal reason when his or her properly-filed adjustment application cannot be completed solely because visa numbers became unavailable subsequent to the application’s filing; or

· finds it necessary to depart temporarily for emergent personal or bona fide business reasons before a decision can be made on the pending application.

(4) A lawful permanent resident who, prior to embarkation abroad, has applied to a DHS office abroad for a duplicate Form I-551 or for a visa waiver under section 211(b) of the Act, but who, because of emergent conditions, must embark before action can be completed on his application;

(5) An alien who is not an exchange alien subject to the foreign residence requirement, is not the beneficiary of a private bill, and is not under deportation proceedings, in whose case parole has been authorized by the district director because of emergent or humanitarian considerations;

(6) An alien in whose case parole prior to embarkation abroad has been authorized by Headquarters; and

(7) An alien who is a legalization applicant under the provisions of the LIFE Act, is inside the U.S., and is seeking permission to travel abroad and return.

(b) Explanation of “Emergent Personal” and “Bona Fide Business” Reasons .

Most requests for advance parole submitted to District Directors will be considered under class (3) above. Class (3) is in two parts:

· The first part of class (3) authorizes advance parole for aliens who filed an adjustment application while a visa number was available and whose case cannot be completed solely because a visa number became unavailable. Any bona fide business or personal reason for travel will serve to justify approval of the advance parole request and issuance of Form I-512.

The Associate Commissioner for Examinations, in CO 212.28-C (July 6, 1992), stated:

"This instruction was clearly meant to accommodate the legitimate travel of persons inconvenienced by visa numbers becoming unavailable after they filed adjustment applications. Construction of the term 'bona fide business or personal reason' to require a showing of emergent or extreme need to travel is inappropriate. Accordingly, travel for a bona fide business or personal reason should be considered as travel for any reason which is not contrary to law or public policy ." (Emphasis added)

· The second part of class three deals with any other adjustment of status application that is pending. Temporary business travel can be authorized for any bona fide reason. However, personal travel must be for emergent reasons.

Webster's Ninth New Collegiate Dictionary (1990) defines emergent as: "a: arising unexpectedly b: calling for prompt action." The ordinary meaning of emergent is something unexpected, or something calling for prompt action, that may or may not rise to the level of being an emergency. The death of an immediate relative is an emergency, while the death of a favorite uncle might only be an event "arising unexpectedly." DHS uses the term “emergent” rather than "emergency," and Adjudicators should be aware of the different meanings for the two terms.

(c) Explanation of “Emergent or Humanitarian Considerations” .

Class (5) contains the authority for district directors to authorize parole "because of emergent or humanitarian considerations." This part allows the widest range of discretion. It also requires consideration of an advance parole request that might have been rejected under classes (1) through (4). For instance, an adjustment applicant's sister's long-planned wedding might not be an emergent reason for travel because it did not arise unexpectedly, but humanitarian consideration may be given to the closeness of the relationship, the planning and expense already incurred, and the length of time the applicant must wait for her adjustment interview due to a backlogged schedule.

(d) Adjudicative Issues .

Review the entire application, and pay particular attention to the following.

(1) Initial Filing Requirements .

DHS or contractor personnel handling receipting of applications should have verified that the initial filing requirements have been met, and the Adjudicator should only have to note that the receipting work was properly done:

· The correct filing fee was paid (unless waived pursuant to 8 CFR 103.7(c) ).

· The application was signed.

· The applications was sent to the office having jurisdiction (see Chapter 54.2(b) ).

(2) DHS and Other Checks .

· G-325A checks shall be made unless the file reflects that such checks were previously made or the applicant is a Cuban national in possession of an appointment letter furnished by a U.S. consular officer in Nassau, Bahamas, or Port-of Spain, Trinidad, advising him to apply for Form I-512. However, in the case of an alien departing under emergent circumstances, checks may be made on a post-audit basis.

· L ookout checks shall be made in accordance with existing DHS instructions and Chapter 10.3 of this field manual.

(3) Application Review .

Review the entire application, but pay particular attention to the following:

· If the alien seeks advance parole so as to preserve his or her pending adjustment of status application, determine whether the alien will remain eligible for adjustment after returning pursuant to a grant of advance parole. In particular, consider whether the alien's departure may trigger inadmissibility under section 212(a)(9)(B) or (C) of the Act (relating to inadmissibility due to unlawful presence).

· The applicant's identity should be verified, by whatever means are available. Walk-in applicants should have identity verified by information officers. I-512's should not be delivered to persons who are unable to identify themselves with proper credentials. Comparison of applicant's pictures to those already in the DHS file is always a good idea.

· Part 3 of Form I-131 gives information about the date of intended departure, and the expected length of the trip. In addition, the attachment for Part 7 should indicate the circumstances which would warrant issuance of the I-512. Make sure that the purpose and duration of the trip are in accord with DHS policy.

· The answer to the question about being in removal proceedings (including old exclusion or deportation proceedings) may affect eligibility and/or jurisdiction.

· Part 7 of Form I-131 indicates whether single or multiple trips are planned. If multiple trips are authorized, make sure that the instructions to the clerical staff are clear in this regard.

(4) Supporting Documentation .

Pursuant to I-131 instructions, the alien should have attached a copy of any document showing present status, and an explanation or other evidence demonstrating the circumstances that would warrant issuance of the advance parole.

· An adjustment applicant should attach a copy of the filing receipt for that application.

· If traveling to apply for an immigrant visa, a copy of the consular appointment should be attached.

· Care must be taken to assess credibility of evidence. Evidence of a death or serious illness of a relative in a foreign country should be verified, if questions exist about the credibility of the evidence. Documents transmitted on facsimile machines should be examined closely, with special attention given to the phone number of the transmitter. A phone number on a faxed document gives the area code from which the transmission was made. A missing phone number on a faxed document may mean that the purported t ransmission from overseas was, in reality, from an acquaintance elsewhere. Documentation from medical authority should be examined for merit. A good medical dictionary (such as Taber's Cyclopedic Medical Dictionary ) can be invaluable in deciphering what medical language really means.

(5) Abandonment of Application .

The application is considered abandoned if either:

· The alien applied for admission at a port of entry prior to the decision on a Form I-131 filed on behalf of an alien who was outside the U.S. at time of filing, or

· The alien departed from the U.S. prior to the decision on the Form I-131 in a case where the alien applied for advance parole in order to depart from and return to the U.S.

Note:

If the alien is an applicant for adjustment of status, departure prior to the approval of the Form I-131 also results in the adjustment application being deemed abandoned.

(e) Closing Action .

(1) Approval .

The adjudicator must check either Single Advance Parole or Multiple Advance Parole, on Form I-131, and indicate the validity of the document. DHS normally grants a 1-year, multiple entry advance parole to any alien applying based on a pending I-485. The action block of Form I-131 must be endorsed. Approval under class (1) shall require return within four months of the date of approval, except that the return of an alien who will be abroad in connection with his qualifying profession or occupation shall be required within the time needed for such purpose, not to exceed one year from the date of issuance of the parole authorization. For approvals under class (5), a reasonable and appropriate period of time should be allowed for the necessary travel, consistent with the purpose of the emergent or humanitarian factors considered in authorizing the parole.

Authority to issue Form I-512 shall not be redelegated below the level of assistant district director for examinations. Therefore, Form I-512 must be prepared for the signature authority of an officer at that level (or higher).

(2) Production and Delivery .

If advance parole is approved, Form I-512 is issued. (For paroles approved at ports of entry, Form I-512 is not issued.) In preparing the Form I-512, pay particular attention to the following:

· The Remarks block of Form I-512 shall show the basis for parole.

· For I-512's issued by district offices, the alien's photograph must be affixed to the original and file copies of Form I-512. For single entry documents, the second "alien" copy shall be destroyed. For multiple entry I-512's, pictures must be affixed to both "alien" copies of the I-512, as one will be kept by the first port of entry and the second "alien" copy will be retained by the alien for future travel. If a multiple entry document is requested, an additional picture is required (in addition to the two pictures specified on I-131 instructions).

· Forms I-512 shall be impressed with the DHS masceration die so that the stamp is partly on the alien's photograph. (If an office has not yet received a DHS masceration die stamp, the INS masceration die stamp should be used.)

(3) Denial .

When Form I-131 is denied, a written explanation of the reasons for the denial must be furnished to the applicant. (See 8 CFR 103.3(a)(1)(i) ). The written denial must indicate specifically why parole is denied. There is no appeal from a decision to grant or deny a request for advance parole, subject to possible judicial review of the refusal. See paragraph (g).

(f) Termination of Advance Parole .

If it is determined (subsequent to issuance but prior to the alien’s arrival) that an advance parole should not have been authorized, issue a USCIS Motion to Reopen or USCIS Motion to Reconsider the decision and a formal order denying the reopened application. The order should direct the alien to not use the Form I-512 and to immediately return it to DHS. A lookout should also be posted (see Chapter 31.5 of the Inspector’s Field Manual ).

After an alien’s arrival, an advance parole may be terminated just like any other parole. See Chapter 16.1 of the Inspector’s Field Manual .

(g) Judicial Review .

As noted, whether to grant advance parole is a matter entrusted to DHS discretion. Under section 242(a)(2)(B)(ii) of the Act, no court has jurisdiction to review a decision that is entrusted to DHS discretion. It is likely, however, that many courts will read section 242(a)(2)(B)(ii) of the Act narrowly, and hold that they still have jurisdiction to ensure that DHS actually did exercise discretion in denying advance parole. See, e.g., Montero-Martinez v. Ashcroft , 277 F.3d 1137 (9th Cir. 2002) (restriction on review of discretionary decisions limited only to the actual exercise of discretion, and not to the issue of the alien's eligibility for the benefit). An alien may still be able to challenge a denial of advance parole, therefore, on the ground that DHS did not consider the actual facts of the alien's individual case, and exercise discretion on the basis of those facts. See Jean v. Nelson , 472 U.S. 846, 857 (1985). The unfavorable exercise of discretion is proper so long as the written decision sets out a "facially legitimate and bona fide reason" for the denial. See Kleindienst v. Mandel , 408 U.S. 753, 769 (1972). For example, if the evidence shows that the alien would not be eligible for a benefit that he or she seeks to pursue after returning under a grant of advance parole, that ineligibility would likely be a sufficient basis for denying advance parole. See Massoud v. Attorney General , 459 F. Supp. 672, 675 (W.D.Mo. 1978). To ensure that this rationale, or any other rationale, will withstand judicial scrutiny, however, the DHS officer must set forth the relevant facts of the case and the actual reason(s) for the decision not to grant advance parole.