BIA Redefines Parole Under Cuban Adjustment Act

Cuban immigrant detained in handcuffs holding up cuban passport.

In a noteworthy immigration case decided on September 11, 2023, the U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals delved into the critical differentiation between release on recognizance and parole under the Immigration and Nationality Act (INA).

Indeed, in this pivotal case, the BIA redefines parole under Cuban Adjustment Act as “humanitarian parole,” not “conditional parole.”  This distinction carries profound implications for individuals seeking adjustment of status under the Cuban Adjustment Act of 1966.

Case Overview

In the Matter of Olty CABRERA-FERNANDEZ et al. (28 I&N Dec. 747 (BIA 2023)), the Board of Immigration Appeals (BIA) examined the nuances between release on recognizance and parole under the INA, with far-reaching consequences for those seeking adjustment of immigration status.

The respondents in this case were apprehended less than a mile from the U.S. southern border shortly after entering the country without inspection or admission. Following a brief detention by the Department of Homeland Security (DHS), they were 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).”

They were then “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.”  Further, the respondents conceded removability.  The manner of their release became a pivotal aspect of this case.

Cuban Adjustment Act Eligibility

The Cuban Adjustment Act stipulates that applicants for adjustment of status must have been “inspected and admitted or paroled into the United States.” Initially, the Immigration Judge ruled that the respondents’ release constituted humanitarian parole, rendering them eligible for adjustment of status.  Subsequently, the Department of Homeland Security (DHS) appealed the decision.

Surprisingly, the BIA sided with the Department of Homeland Security, nullifying the Immigration Judge’s decision to grant adjustment of status. The BIA held that the lower court’s decision was premised on a misinterpretation of the type of release granted to the respondents. In the BIA’s view, the IJ incorrectly categorized the release as humanitarian parole, citing an unrelated case, Matter of O- (16 I&N Dec. 344 (BIA 1977)), which–in the BIA’s view–was not applicable to this situation.

In ruling the way it did, the BIA also distinguished Jennings v. United States (138 S. Ct. 830 (2018)), a United States Supreme Court decision holding that besides parole, “there are no other circumstances under which aliens detained under [INA § 235(b)] may be released.” Jennings v. Rodriguez, 138 S. Ct. 830 (2018).

BIA Redefines Parole Under the Cuban Adjustment Act

According to CABRERA-FERNANDEZ, conditional parole, as granted under Section 236(a)(2)(B) of the INA, significantly differs from humanitarian parole under Section 212(d)(5)(A).

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’).

In doing so, the BIA redefines parole eligibility under the Cuban Adjustment Act, a law that — as written in 1966 — does not distinguish between conditional or humanitarian.

Legal Implications

This case underscores the utmost importance of accurately determining the type of parole granted to individuals, and of not conceding removability without thorough legal analysis and evaluation of the facts of any given case. Applicants for admission who are released on their own recognizance, as the respondents were, do not necessary fulfill the criteria of being “inspected and admitted or paroled,” thus potentially rendering them ineligible for adjustment of status under the Cuban Adjustment Act.


The Matter of Olty CABRERA-FERNANDEZ et al. underscores the legal distinction between release on recognizance and parole in immigration cases. Properly identifying the type of release holds significant implications for eligibility for adjustment of status under the Cuban Adjustment Act. In this decision, the BIA redefines parole and establishes a precedent that will influence future immigration cases involving parole status.

In navigating the complexities of immigration law, consulting with an experienced immigration attorney, such as Emilio Jose Rodriguez, becomes paramount. An attorney’s expertise ensures that individuals facing immigration proceedings can make informed decisions and understand how legal distinctions, like those clarified in Matter of Olty Cabrera-Fernandez, can profoundly impact their cases, and ensure the best possible outcomes for their unique circumstances.


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