For immigrants residing in Florida, Georgia, and Alabama, traveling on advance parole does not constitute a "departure" under INA § 212(a)(9)(B)(i)(II) that triggers an unlawful presence bar. While the Board of Immigration Appeals (BIA) recently issued Matter of Delcarmen-Lara to alter its own administrative stance, that decision is not good law in the Eleventh Circuit. It does not overrule the Eleventh Circuit Court of Appeals binding precedent set in Ortiz-Bouchet v. U.S. Att’y Gen., 714 F.3d 1353 (11th Cir. 2013). Immigration Judges and USCIS officers within the Eleventh Circuit remain legally bound by Ortiz-Bouchet.
The Legal Hierarchy: Why BIA Precedent Cannot Overrule Circuit Courts
At Revilla Law Firm, P.A., we closely monitor legal updates that affect the status and safety of immigrants in our region. A common point of confusion arises when administrative boards attempt to alter established legal standards.
The Board of Immigration Appeals overruled its previous decisions in Matter of Arrabally and Yerrabelly through Matter of Delcarmen-Lara. However, Delcarmen-Lara only changed BIA precedent. The BIA lacks the constitutional and statutory authority to overrule a federal appellate court decision. Within the jurisdiction of the Eleventh Circuit, federal court decisions supersede agency decisions.
Ortiz-Bouchet Remains the Binding Law of the Land
In Ortiz-Bouchet v. U.S. Att’y Gen., the Eleventh Circuit addressed the specific statutory provision, INA § 212(a)(9)(B)(i)(II), regarding whether leaving the United States pursuant to a grant of advance parole triggers a statutory departure. The Court directly held that traveling outside the country under advance parole does not qualify as a "departure" within the meaning of the statute.
This finding was not mere background commentary, a headnote, or dicta. It represents the central holding and legal rule applied by the Court to reach its judgment. While the Eleventh Circuit considered the BIA's original reasoning in Arrabally, doing so did not turn appellate court authority into agency rule. Once the Eleventh Circuit adopted and applied that standard, it became binding federal court precedent.
Why Loper Bright Does Not Disrupt Ortiz-Bouchet
Arguments suggesting that recent Supreme Court rulings undermine Ortiz-Bouchet fall short for two distinct reasons:
No Reliance on Chevron Deference: Ortiz-Bouchet never cited or implied reliance on the Chevron framework. The Court did not declare the statutory text ambiguous, did not apply a Chevron two-step analysis, and did not state that it was deferring to BIA interpretation. The Court simply issued a direct statutory holding.
Prior Holdings Remain Intact: Even if an opposing party tries to frame Ortiz-Bouchet as a decision rooted in agency deference, the Supreme Court of the United States clarified in Loper Bright Enterprises v. Raimondo that overruling Chevron does not invalidate prior judicial holdings. Precedents established under earlier statutory interpretations remain firm law.
Unless and until the Eleventh Circuit sitting en banc or the U.S. Supreme Court explicitly overrules Ortiz-Bouchet, that case remains the governing law.
About Revilla Law Firm, P.A.
Located in Miami, Revilla Law Firm, P.A. represents clients across various facets of immigration law. Founded by Antonio G. Revilla III, a former U.S. Immigration Prosecutor, our firm is dedicated to keeping people in the United States. With over 30 years of collective legal experience, our Miami-based team offers a comprehensive approach to dealing with immigration issues, including Deportation Defense, Family-Based Residency, Employment-Based Immigration, Naturalization, and Removal Proceedings. We focus on providing legal representation that is both effective and attentive to the needs of each client. You can read feedback from past clients on our reviews page.
If you face complex travel considerations, advance parole questions, or deportation issues, having experienced legal representation is critical. Contact Revilla Law Firm, P.A. today to schedule a confidential consultation with our team.