Matter of M-R-I-: Going Home on Advance Parole Abandons the Asylum Case — CAT Included

Advance parole feels like permission. The document says the government will let you back in. What it does not say is what the trip does to a pending asylum application, and this decision answers that in the broadest terms the Board has used.

The case

The respondent, from Nepal, had asylum, withholding and Convention Against Torture claims pending. He obtained advance parole and returned to Nepal in 2016 for about two months — he missed his family, his mother was unwell, and the 2015 earthquake had struck — and later travelled to India on a second grant. The immigration judge found that under 8 C.F.R. § 1208.8(b) the return abandoned the application and that the reasons given were not compelling, because of the time that had passed since the events that prompted the trip and because he was later able to meet his family in India. The Board agreed and went further: the abandonment covers the entire application, including deferral of removal under the Convention Against Torture, because the regulations treat the asylum application as the application for all three forms of protection.

Headnote two addresses a procedural argument: “The application of a mandatory bar to relief is not triggered by the argument of counsel but is governed by the evidentiary record.” The respondent had argued that DHS’s closing argument raising abandonment was served late and unsigned, so that DHS had waived the issue; the Board found no prejudice and held that, in any event, the bar applies on the facts whether or not DHS argued it.

What “compelling” means here

The Board did not define the term, but its treatment of this record shows the direction. Missing family, a parent’s poor health, and a natural disaster were not enough on these facts: the mother’s last hospitalization was about four years before the trip, the earthquake about a year before, and the respondent later met the same family in India on a second grant of advance parole, which showed he had an alternative to going to Nepal. The decision grounds the rule in the regulation and in the refugee definition itself — a refugee is someone “unable or unwilling to return” — and cites circuit authority (De Santamaria v. U.S. Att’y Gen., 11th Cir. 2008; Toloza-Jiménez v. Gonzáles, 1st Cir. 2006) for the point that a voluntary return undercuts a claimed fear.

What it means

For anyone with a pending asylum case, the practical rule is short: a trip to the home country, even with advance parole in hand, can end the case, and the bar reaches CAT protection too. The decision does not address the separate question of whether advance-parole travel is a “departure” for unlawful-presence purposes — that was Matter of Delcarmen-Lara, which we covered in August. Read together, the two decisions mean advance parole now carries two distinct risks: the long-standing regulatory presumption of abandonment, which the Board has now extended to CAT protection, and — since Delcarmen-Lara — the unlawful-presence question. Anyone contemplating travel on a pending case should raise it with counsel before buying a ticket, not after.

This article is general legal information about a recent precedent decision, not legal advice, and does not create an attorney-client relationship. Whether a particular trip abandons an application depends on the facts and the reasons for it. Consult a qualified immigration attorney before travelling. This website is attorney advertising.