Asylum Abandoned: BIA Rules on Advance Parole Returns

What if you already traveled back to your home country while your asylum case was pending — does that mean your case is over? According to a Board of Immigration Appeals (BIA) decision issued on October 7, 2026, the answer is almost certainly yes, unless you had a truly compelling reason to go back.

In Matter of M-R-I-, the BIA upheld the denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT — a separate form of protection for people who fear being tortured) for a Nepali man who returned to Nepal twice while his asylum application was pending. The first trip, in 2016, lasted about two months. He said he went because he missed his family and was worried about his mother's health after the 2015 earthquake. The second trip, in 2018, took him to India, where he met with Nepalese family members who had traveled there. The BIA found that neither trip was justified by compelling reasons. The earthquake had happened a year before his first trip, and his mother's last hospitalization was about four years before he returned. The fact that he could meet his family in India — without going to Nepal — also worked against him.

The legal rule at the center of this case is 8 C.F.R. § 1208.8(b). Under that regulation, any asylum applicant who leaves the US on advance parole (a travel document that lets certain applicants travel abroad temporarily) and returns to the country where they claim persecution is presumed to have abandoned their entire application — asylum, withholding of removal, and CAT protection all together. The BIA made clear that this presumption covers all three forms of protection, not just asylum. The BIA also addressed a procedural argument: the respondent claimed that because the government's attorney raised the abandonment issue in a closing brief that was served late, the government had waived the argument. The BIA rejected this. It ruled that whether a mandatory bar applies is determined by the evidence in the record, not by what lawyers argue. The applicant always carries the burden of explaining a return to the country of claimed persecution — regardless of what the government says or doesn't say.

What to do if you have a pending asylum case

• Do not travel to your home country — or any country connected to your asylum claim — while your asylum application is pending, even if USCIS grants you advance parole. Doing so creates a legal presumption that you abandoned your case.
• If you already traveled back on advance parole, gather every document that shows why the trip was truly necessary: medical records, death certificates, emergency communications. The gap in time between the emergency and your trip matters — the closer in time, the stronger your argument.
• Do not assume that the government's silence or a procedural error by the other side protects you. The burden of proof in asylum cases is always on you, the applicant.
• Consult an immigration lawyer before any international travel while your asylum case is open. One trip can end years of legal work.

What to do, step by step — see our guide “Appealing to the BIA”.