54.4 Special Considerations.

(a) General .

Adjudicators must remain informed of the special circumstances set forth in cables, memoranda, and regulations which authorize the issuance of advance parole by district directors. The general guideline of the person being within the district director's geographical jurisdiction remains in effect. These special circumstances include:

(1) Legalization/SAW Applicants .

The issuance of Form I-512 to aliens with legalization/SAW applications pending was first authorized in 1987. Generally, authorization for advance parole should be limited to 30 days. Otherwise, a grant of advance parole and issuance of Form I-512 is subject to the normal restrictions. There is no requirement that the beneficiary be legally in the U.S. Issuance of Form I-512 to class members under legalization litigation cases should be handled on a case-by-case basis by the district director having jurisdi ction over the applicant's place of residence. One consideration that may be given is whether the applicant has demonstrated prima-facie eligibility for the legalization/SAW benefit sought. Reference to LAPS codes will show whether the alien demonstrated prima-facie eligibility at the time the application for legalization/SAW was filed.

(2) Advance Parole for Aliens with U.S. Visa Interviews Scheduled in Third Countries .

CO 212.28-P, dated February 20, 1987, is quoted in its entirety:

There are certain aliens residing in the U.S. who are eligible for visa issuance but ineligible for adjustment of status under Section 245 of the Immigration and Nationality Act, and are also ineligible for the Stateside Criteria program. In these cases they may have their immigrant visas issued in third countries if the State Department has determined that they are unable to return to their country of citizenship for such issuance. However, some countries in which this visa issuance will take place will no t allow interviewees to enter unless they are in possession of a document (advance parole letter) which will ensure they will be readmitted to the U.S. in the event that they are not given the visa.

To ensure this population is given the opportunity to pursue acquisition of the visa, district directors should authorize advance parole in all cases except where the individual is in deportation proceedings or is an exchange alien subject to the foreign residence requirement and is not the beneficiary of a private bill.

In addition to proof that the interview has been scheduled, district directors may require that prospective interviewees provide proof that the foreign country to which they have been invited will not permit entry without a valid document. In instances where further assurance of admissibility back into the U.S. seems warranted, district directors may require that the G-325 and fingerprint check be completed before issuing advance parole.

This benefit should be extended to those with and without travel documents.

Normally, submission of Form I-131, with a copy of the interview notice from the American consulate will be sufficient. Forms G-325A and FD-258 should be requested, if there is no evidence in the person's A-file of record checks having been done. If there is a question about the foreign country requiring a travel document, proof can be requested from the applicant. The adjudicator's personal knowledge that a travel document is or is not required by countries such as Canada, Mexico, or the United Kingdom wil l suffice in most cases.

(3) Temporary Protected Status and Deferred Enforced Departure .

After a grant of Temporary Protected Status (TPS) or Deferred Enforced Departure (DED), an alien may be granted permission to travel by the director pursuant to DHS's advance parole provisions.

(A) TPS Advance Parole Procedures .

If a charging document has been issued, but not yet filed, a TPS registrant may be given permission to travel if the charging document is cancelled first. If the charging document has already been filed with the immigration court, proceedings would have to be terminated first in order for the district to issue the travel document. If the court does not agree to cancel the proceedings, jurisdiction over the advance parole request rests with Parole Unit at the Headquarters Office of International Affairs.

Note:

If the charging document is cancelled, it should be reissued upon the registrant's return to the U.S.; if proceedings are terminated, they should be reinstated upon the alien’s return to the U.S. This should be noted on the I-512 in language similar to the following:

Permission to travel authorized for TPS registrant. Subject will be allowed to reenter as "TPS" with stay granted to (the expiration of the authorized period). Charging document is to be re-issued upon return to the U.S.

In addition, consistent with section 304(c) of Public Law 102-232, as amended, all TPS registrants granted permission to travel shall also have their I-512's noted that re-entry as "TPS" is authorized. The statute did not require advance parole, but merely permission to travel. This is accomplished through use of the I-512 with fee. These individuals are then subject to removal proceedings as a deportable alien and as an inadmissible alien.

Once satisfied that the person is entitled to parole, Inspectors should endorse the I-94 with the parole stamp, indicate in the appropriate block the basis of parole (i.e., "I-512, TPS beneficiary"), the date to which paroled, the date of action, port and stamp number. Similarly, Inspectors should endorse the action block on the I-512 and the alien's passport. If the I-512 is valid for a single entry, it should be collected and forwarded to the file control office where the advance parole was issued. If the I-512 is valid for multiple entries, it should be returned to the applicant, after a photocopy is made for forwarding to the issuing office.

See 8 CFR 244.15 . See also the HQOPRD cable dated April 10, 1992, “Permission for TPS Registrant to Travel.”

(B) DED Advance Parole Procedures .

Once satisfied that the person is entitled to parole, Inspectors should endorse the I-94 with the parole stamp, indicate in the appropriate block the basis of parole (i.e., "I-512, DED beneficiary"), the date to which paroled, the date of action, port and stamp number. Similarly, Inspectors should endorse the action block on the I-512 and the alien's passport. If the I-512 is valid for a single entry, it should be collected and forwarded to the file control office where the advance parole was issued. If the I-512 is valid for multiple entries, it should be returned to the applicant, after a photocopy is made for forwarding to the issuing office.

(4) Entry of Canadians for Treatment of Chemical Dependency .

As a courtesy to Canadian citizens seeking entry into the U.S. for treatment of chemical dependency, an expedited 212(d)(3) waiver program has been initiated along the Canadian border for persons inadmissible under the Act as aliens who are narcotic drug addicts/abusers or alcoholics. This program was intended to assist individuals seeking immediate treatment not available in Canada. This treatment was to be on an inpatient basis only, thereby minimizing the risk to the general population.

IMMACT 90 redefined health-related exclusion (inadmissibility) provisions to include drug abusers as well as drug addicts. It also defined alcoholism as a mental/physical disorder. Individuals who are drug abusers or addicts are clearly inadmissible under the Act. Individuals who are seeking chemical dependency treatment for alcoholism at facilities in the U.S. should be considered inadmissible based upon the diagnosis of the referring medical center or physician. The diagnosis is required to establish grou nds of inadmissibility.

Aliens inadmissible solely under Section 212(a)(1)(A)(ii) or (iii) may file an application to waive that ground of inadmissibility at the Port-of-Entry in conjunction with their application for admission. For those applicants whose waiver application would be denied because of a recent criminal history, the district director may authorize parole if the applicant poses no danger to society and is in need of treatment that can only be provided in the U.S. Aliens convicted of violent crimes or considered to be aggravated felons are not eligible for parole.

Requests for parole must be adjudicated on a case-by-case basis, adhering to the following conditions:

(A) Evidence must be presented that shows the applicant has been accepted into an inpatient chemical dependency/alcohol program at a facility in the U.S. accredited by the Joint Commission of Accreditation of Health Care Organizations, and licensed and approved under applicable state and Federal regulations, and that such facility does not have a waiting list of prospective American patients.

(B) Evidence that the Canadian Ministry of Health (CMH) has approved the Canadian applicant's enrollment into the treatment program and will fund the costs of the applicant's care.

(C) Evidence that the applicant has voluntarily committed himself or herself to the facility for the purpose of such treatment and has signed a consent form which allows the facility to provide the DHS with information regarding the date inpatient treatment is completed.

(D) A statement from the facility that the Canadian applicant will be accompanied by a staff counselor from the port of entry to the treatment facility, and, upon termination of completion of treatment, will be accompanied back to the port of entry at which application for parole was made for departure verification.

(E) Immediate telephonic notification to the DHS office with jurisdiction over the location of the facility is required when any applicant absconds from the program and has disappeared from the facility. The health facility will be required to submit an explicit and comprehensive report on every Canadian applicant who has absconded from the program or has had behavioral problems while being treated in the U.S.

(F) Parole is to be authorized for up to a maximum period of 6 months depending on the normal length of treatment presented in the request. All parole decisions will be under the exclusive authority of the district director who is adjudicating the waiver request.

(G) If DHS determines that an inordinate number of parolees are terminating their treatment at a particular facility, that facility will lose the privilege of participating in this program.

(H) Finally, if DHS determines that the number of criminal alien parolees who have not completed treatment and have not returned to Canada has reached a level where it is obvious the parole initiative is not working as it was intended, DHS will terminate the parole portion of this program. Entry of Canadians for Treatment of Chemical Dependency, HQ 235-P, dated February 23, 1993.