Cabrera-Fernandez

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Matter of Olty CABRERA-FERNANDEZ, et al., Respondents
Decided September 11, 2023
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Release on conditional parole under section 236(a)(2)(B) of the Immigration and
Nationality Act, 8 U.S.C. § 1226(a)(2)(B) (2018), is legally distinct from release on
humanitarian parole under section 212(d)(5)(A) of the INA, 8 U.S.C. § 1182(d)(5)(A)
(2018). Matter of Castillo-Padilla, 25 I&N Dec. 257, 258–63 (BIA 2010), followed.
(2) Applicants for admission who are released on conditional parole rather than
humanitarian parole have not been “inspected and admitted or paroled,” and accordingly
are not eligible for adjustment of status under the Cuban Refugee Adjustment Act of
November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended.
FOR THE RESPONDENTS: Arno Lemus, Esquire, Miami, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: 	Janelle C. Cruz, Assistant
Chief Counsel
BEFORE: 	Board Panel: 	GREER and GORMAN, Appellate Immigration Judges;
CROSSETT, Temporary Appellate Immigration Judge.
GREER, Appellate Immigration Judge:
In a decision dated August 16, 2022, the Immigration Judge granted the
respondents’ application for adjustment of status under the Cuban Refugee
Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as
amended (“Cuban Adjustment Act”). The Department of Homeland Security
(“DHS”) has appealed that decision, arguing that the respondents have not
been admitted or paroled. 	The respondents oppose DHS’ appeal. 	We will
sustain the appeal, vacate the Immigration Judge’s order granting adjustment
of status, and remand the record to the Immigration Court for further
proceedings.
DHS encountered the respondents less than a mile from the southern
border, about 40 minutes after they had entered the United States without
being inspected and admitted or paroled. The respondents were detained for
a few days after their initial apprehension and then released on their own
recognizance pursuant to DHS’ conditional parole authority under section
236(a)(2)(B) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1226(a)(2)(B) (2018).

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The 	respondents 	were 	charged 	with 	inadmissibility 	under 	section
212(a)(6)(A)(i) of the INA, 8 U.S.C. § 1182(a)(6)(A)(i) (2018), based on
their presence in the United States without having been admitted or paroled.
The 	respondents 	conceded 	removability, 	and 	the 	Immigration 	Judge
sustained the charges.
Nevertheless, the Immigration Judge found the respondents eligible for
adjustment of status under the Cuban Adjustment Act, which requires the
respondents to have been “inspected and admitted or paroled into the United
States.” Cuban Adjustment Act § 1. The Immigration Judge concluded that
the respondents’ release from DHS custody occurred pursuant to a grant of
humanitarian parole under section 212(d)(5)(A) of the INA, 8 U.S.C.
§ 1182(d)(5)(A), rather than a grant of conditional parole under section
236(a)(2)(B) of the INA, 8 U.S.C. § 1226(a)(2)(B). 	Unlike a grant of
conditional 	parole, 	a 	grant 	of 	humanitarian 	parole 	would 	render 	the
respondents eligible for adjustment of status. See Matter of Castillo-Padilla,
25 I&N Dec. 257, 263 (BIA 2010) (involving applicant for adjustment of
status under section 245(a) of the INA, 8 U.S.C. § 1255(a) (2006)).
The Immigration Judge concluded that when the respondents were
apprehended by DHS near the border, they were subject to expedited
removal—and, by extension, mandatory detention—under section 235(b)(1)
of the INA, 8 U.S.C. § 1225(b)(1) (2018). Relying on Jennings v. Rodriguez,
138 S. Ct. 830 (2018), which describes section 212(d)(5)(A) parole as the
sole mechanism authorizing the release of individuals detained for expedited
removal, the Immigration Judge reasoned that the respondents’ release
occurred through a grant of humanitarian parole by operation of law. For the
following reasons, we conclude that the Immigration Judge erred.
The respondents are applicants for admission to the United States due to
the circumstances surrounding their arrival and encounter with immigration
authorities. 	See INA § 235(a)(1), 8 U.S.C. § 1225(a)(1); Matter of Lemus,
25 I&N Dec. 734, 743 (BIA 2012) (explaining that applicants for admission
include those seeking permission to enter and those who are present in the
United States without having requested or received permission to enter). For
applicants for admission charged as inadmissible, DHS has authority to
determine whether to initiate expedited removal proceedings under section
235(b)(1)(A)(i) 	of 	the 	INA, 	8 	U.S.C. 	§ 	1225(b)(1)(A)(i), 	or 	removal
proceedings under section 240 of the INA, 8 U.S.C. § 1229a.1 	Matter of
E-R-M- & L-R-M-, 25 I&N Dec. 520, 523 (BIA 2011).
1 	This authority is illustrated in the Attorney General’s decision in Matter of D-J-, 23 I&N
Dec. 572, 572–76 (A.G. 2003), which involved a similar fact pattern. In that case, DHS
apprehended a respondent shortly after he entered the United States without admission or
parole and charged him with the same ground of inadmissibility at issue here. The Attorney
General reviewed his eligibility for release from custody under section 236(a) of the INA,

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The respondents do not dispute that DHS released them on their own
recognizance under section 236 of the INA, 8 U.S.C. § 1226, rather than
through the procedures for parole under section 212(d)(5) of the INA,
8 U.S.C. § 1182(d)(5). 	Release on such conditional parole under section
236(a)(2)(B) of the INA, 8 U.S.C. § 1226(a)(2)(B), is legally distinct from
release on humanitarian parole under section 212(d)(5)(A) of the INA,
8 U.S.C. § 1182(d)(5)(A). 	Matter of Castillo-Padilla, 25 I&N Dec. at
258–63. See generally Biden v. Texas, 142 S. Ct. 2528, 2543 (2022) (stating
that DHS may exercise its discretion to parole applicants for admission
pursuant to section 212(d)(5) of the INA, 8 U.S.C. § 1182(d)(5), according
to the statutory 	terms, i.e., “only on a case-by-case 	basis 	for 	urgent
humanitarian reasons or significant public benefit”). We conclude that there
is no basis to treat the respondents’ release in this case as occurring under
section 212(d)(5) of the INA, 8 U.S.C. § 1182(d)(5). 	Contrary to the
Immigration Judge’s determination, we do not read Jennings to mandate a
different result.2
The Immigration Judge also relied on Matter of O-, 16 I&N Dec. 344
(BIA 1977), in deeming the respondents’ release on their own recognizance
to be a release on parole under section 212(d)(5)(A) of the INA, 8 U.S.C.
§ 1182(d)(5)(A). 	In Matter of O-, this Board found the release of military
evacuees 	brought 	to 	the 	United 	States 	from 	Vietnam 	to 	have 	been
accomplished by means of parole, given the absence of an alternative
statutory mechanism for effecting their release. Id. at 348–51. Matter of O-
is inapposite, however, because section 236(a)(2)(B) of the INA, 8 U.S.C.
§ 1226(a)(2)(B), provides DHS with an alternative statutory mechanism for
releasing the present respondents, which was followed in this case.3
In sum, the respondents in this case were detained soon after their
unlawful entry, placed in removal proceedings under section 240 of the INA,
8 U.S.C. § 1229a, charged with inadmissibility under section 212(a)(6)(A)(i)
of the INA, 8 U.S.C. § 1182(a)(6)(A)(i), and released on conditional parole
under section 236(a)(2)(B) of the INA, 8 U.S.C. § 1226(a)(2)(B). DHS did
not release them under the terms required to invoke the humanitarian parole
8 U.S.C. § 1226(a). Cf. Matter of M-S-, 27 I&N Dec. 509, 510–13 (A.G. 2019) (addressing
the detention and release of respondents whom DHS initially elects to place in expedited
removal proceedings, but who are later transferred to section 240 removal proceedings
after establishing a credible fear of persecution or torture).
2 	Jennings held that detained individuals in expedited removal proceedings are not
entitled to bond hearings under the terms of the statute irrespective of detention length.
138 S. Ct. at 844–45.
3 	The applicants in Matter of O- were ineligible for release on conditional parole because
they were in exclusion proceedings under prior law. See INA § 235(b), 8 U.S.C. § 1225(b)
(1970).

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authority under section 212(d)(5)(A) of the INA, 8 U.S.C. § 1182(d)(5)(A).
As applicants for admission who were released on conditional parole rather
than humanitarian parole, the respondents have not been “inspected and
admitted or paroled,” and accordingly are not eligible for adjustment of status
under the Cuban Adjustment Act. Cuban Adjustment Act § 1.
We will, therefore, sustain DHS’ appeal and vacate the Immigration
Judge’s decision granting adjustment of status. The record will be remanded
so the respondents can seek any other relief from removal for which they
may be eligible.
ORDER: The Department of Homeland Security’s appeal is sustained.
FURTHER 	ORDER: 	The 	Immigration 	Judge’s 	order 	dated
August 16, 2022, is vacated, and the record is remanded to the Immigration
Court for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.