Matter of Luis Castillo-Padilla (6/18)

** Conditional parole under 236(a)(2)(B), AOS**

Conditional parole under INA section 236(a)(2)(B) is a distinct and different procedure from parole under INA section 212(d)(5)(A).  A respondent who was released from custody on conditional parole pursuant to section 236(a)(2)(B) of the Act has not been “paroled into the United States” for purposes of establishing eligibility for adjustment of status under section 245(a) of the Act. Under section 245(a) of the Act, adjustment of status is available only to aliens who were “inspected and admitted or paroled into the United States.”  It is true that section 236(a)(2)(B) uses the phrase “conditional parole,” but that is not the phrase used in section 245(a). Section 245(a) uses the phrase “paroled into the United States,” which is identical to the language used in section 212(d)(5)(A) of the Act.  Moreover, even if the statutory provisions at issue here were considered ambiguous, the same conclusion would be reached because interpreting a release from custody under section 236(a) to be the equivalent of “parole into the United States” under section 212(d)(5)(A) would create conflicts within the regulatory and statutory schemes.   Additionally, the regulations relating to parole under section 212(d)(5)(A) of the Act provide different standards from those in the regulations regarding conditional parole.  

Furthermore, while respondent was issued an I-94, it does not contain the stamp, as required by regulation, indicating that the respondent was granted parole under section 212(d)(5)(A) of the Act, but rather contains a stamp that explicitly states that the respondent was released from custody after posting a $12,000 bond.  Finally, even if internal memoranda could be relied on as support for the respondent’s interpretation of the statute, a 2007 DHS memorandum entitled “Clarification of the Relation Between Release Under Section 236 and Parole Under Section 212(d)(5) of the Immigration and Nationality Act” expressly superseded the paragraph in the 1998 memorandum that could be read as equating conditional parole under section 236(a)(2) with parole under section 212(d)(5)(A).