ALEJANDRO ROQUE., ESQ. | IMMIGRATION & CRIMINAL LAW ATTORNEY

I-220 A and Parole

The number one problem Cubans have had over the past five years trying to reach the United States either by land or by sea (a journey I do not suggest you take) is the elimination of the wet foot/dry foot policy. That policy allowed for decades for thousands of Cubans to adjust their status to that of lawful permanent residents after one year and one day of physical presence in the United States. Since then, immigration courts have had to deal with numerous cases involving aliens who were detained at the southwest border by the Department of Homeland Security (“Department”) and ultimately released into the United States. Most Cubans today are released under an I-220A (an order of release on one’s own recognizance) after entering the southwest border. Litigation has centered on the status under which these Cubans and other aliens are released. On January 4, 2021, His Honor Judge Timothy M. Cole issued an interlocutory decision in the Miami Immigration Court addressing the issue. The decision was then certified to the Board of Immigration Appeals in Virginia. The Board has not made a decision as of today. In essence, His Honor Judge Timothy M. Cole took the position that release on Form I-220 A (on one's own recognizance) is the equivalent of parole (paraphrasing). If the Board of Immigration Appeals agrees with that decision, it will mean that thousands of Cubans will be able to adjust their status to that of permanent residents after one year and one day of physical presence in the United States, unless they have other reasons that would disqualify them, a topic we are not addressing here, such as the commission of certain crimes, fraud, etc.

Judge Cole explained in his decision:

“The documentation documenting their release frequently says that they were released on bond pursuant to INA § 236(a), in accordance with the previously binding decision of the Board of Immigration Appeals (“Board”) in Matter of XK-, 23 I&N Dec. 731 (BIA 2005). But after their release, we learned from the Supreme Court in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), and the Attorney General in Matter of MS-, 27 l&N Dec. 509 (AG 2019), two important points. The first is that these aliens, as inadmissible applicants for admission, were detained under INA § 235(b). The second is that the exclusive statutory means for the release of inadmissible applicants for admission is parole authority under INA § 212(d)(5)(A).”

Judge Cole also explained in his decision: “The most persuasive reason for finding that these defendants have been placed on parole is the simple and direct message sent by the Supreme Court in Jennings: parole under INA § 212(d)(5)(A) is the exclusive statutory means for the release of inadmissible applicants for admission who are detained by the Department under INA § 235(b). See 138 S. Ct. at 844.”

“The application of this basic principle to the indisputable facts of these cases produces the following syllogism:

1. Inadmissible Applicants for Admission (Applicants for admission subject to mandatory detention include aliens arriving “without inspection” subject to expedited removal and “other aliens” who cannot establish their admissibility by clear and convincing evidence. See INA§ 2:35(a) )(l), (b)(l) (B) (iii) ( lV ), (b) (2) (A)) “shall” be detained under INA § 235(b). See INA§ 235(b)(l)(B)(ii), (iii)(IV), (2)(A).

2. Other than parole under INA § 212(d)(5)(A), “there are no other circumstances under which aliens detained under § 1225(b) [INA § 235(b)] may be released.” Jennings, 138 S. Ct. at 844 (emphasis in original).

3. Defendants were inadmissible applicants for admission who were detained and then released by the Department.

4. Therefore, defendants were detained under INA § 235(b), and their release qualifies as parole under INA § 212(d)(5)(A).”

Attorney Alejandro Roque knows the arguments that must be made to argue that the I-220A is parole. Please note that this is a good faith argument and that the Appeals Board has not yet decided that the I-220A is parole.