Introduction
The Form I-213 reliability standard in removal proceedings took on new precision when the Board of Immigration Appeals (BIA) issued Matter of Ricardo Mercado-Martinez, 29 I&N Dec. 529 (BIA 2026), on March 26, 2026.
The Board held that an Immigration Judge who finds a Form I-213 unreliable and insufficient to establish alienage must point to specific evidence in the record sufficient to rebut the presumption of reliability. This decision directly affects how Immigration Judges evaluate government evidence of alienage and places a concrete analytical burden on fact-finders before they can disregard one of DHS’s most commonly used documents. Immigration practitioners, respondents in removal proceedings, and their counsel should understand this ruling carefully.
Background and Facts
Procedural History
The case originated in Immigration Court, where the Department of Homeland Security (DHS) initiated removal proceedings against Ricardo Mercado-Martinez by charging him as inadmissible under INA § 212(a)(6)(A)(i) as an alien present without admission or parole. On July 29, 2025, the Immigration Judge granted the respondent’s motion to terminate proceedings after concluding that DHS had not met its burden of proving alienage by clear and convincing evidence. DHS appealed to the BIA. Because the case arose in Arizona, the Ninth Circuit’s jurisdiction governed the applicable legal standards. The BIA sustained DHS’s appeal, vacated the Immigration Judge’s termination order, and remanded the record for further proceedings.
Operative Facts
DHS submitted a Form I-213 — the Record of Deportable/Inadmissible Alien — as its primary evidence of Mercado-Martinez’s alienage. The Form I-213 reflected that the respondent admitted he was born in Mexico and had been deported to Mexico in 1996. In addition, the respondent’s own written pleadings, filed July 11, 2025, admitted allegations one, two, and three of the notice to appear — specifically that he was not a U.S. citizen or national, that he was a native and citizen of Mexico, and that he entered the United States at or near an unknown place on an unknown date. Despite these written admissions and the Form I-213, the Immigration Judge concluded that DHS had not satisfied its burden because it had not submitted independent documentary corroboration such as a birth certificate. The respondent separately claimed he entered the United States following inspection with valid documents, arguing he was not inadmissible as charged.
Legal Issue
Whether an Immigration Judge may find a Form I-213 unreliable and insufficient to establish alienage — and thereby decline to shift the burden of proof to the respondent — without identifying specific record evidence that rebuts the document’s presumption of reliability.
Legal Authority and Binding Status
The controlling legal framework comes from multiple sources. Under 8 C.F.R. § 1240.8(c) (2026), when a respondent is charged as present without having been admitted or paroled, DHS bears the burden of proving alienage by clear and convincing evidence. Once DHS satisfies that burden, the burden shifts to the respondent to demonstrate lawful presence or non-inadmissibility. The BIA reviews alienage determinations de novo under 8 C.F.R. § 1003.1(d)(3)(ii) (2026).
The Form I-213’s presumptive admissibility and reliability is well established across circuits. The Ninth Circuit confirmed the presumption in Espinoza v. INS, 45 F.3d 308, 310–11 (9th Cir. 1995). The Second and Seventh Circuits have similarly affirmed it. See Vera Punin v. Garland, 108 F.4th 114, 125 (2d Cir. 2024); Antia-Perea v. Holder, 768 F.3d 647, 657 (7th Cir. 2014). The BIA’s own precedent in Matter of Barcenas, 19 I&N Dec. 609, 611 (BIA 1988), first established the presumption.
This decision is a published BIA precedent and is therefore binding on all Immigration Judges and the BIA itself. It is persuasive authority in the federal circuits but does not independently bind the courts of appeals. Practitioners should note the First Circuit’s holding in Rosa v. Bondi, 144 F.4th 37, 41 (1st Cir. 2025), which treats “clear, unequivocal, and convincing” as a higher standard than “clear and convincing” for alienage determinations — a distinction the BIA flagged without resolving for non-Ninth Circuit cases.
Court’s Reasoning
The BIA’s analysis centered on the gap between the Immigration Judge’s conclusion and the evidentiary record that supposedly supported it. The Board acknowledged that the Form I-213 is presumptively reliable, and that the presumption can be rebutted where the document contains material errors, inaccuracies, or evidence of coercion or duress. However, the rebuttal requires actual evidence — not merely the absence of additional corroborating documents from DHS.
Supplements to Form I-213
The Immigration Judge’s error was structural. He concluded that DHS had not met its burden solely because it did not supplement the Form I-213 with a birth certificate or similar independent documentation. This reasoning improperly elevated the evidentiary threshold for DHS beyond what the law requires. A Form I-213 is itself independent, probative evidence of alienage. Requiring corroboration as a precondition to satisfying the burden conflates two distinct questions: whether the Form I-213 is reliable, and whether DHS needs something more.
Respondent’s pleadings
Compounding the error was the Immigration Judge’s failure to address the respondent’s written admissions. Mercado-Martinez had explicitly admitted in pleadings that he was not a U.S. citizen or national, that he was a native and citizen of Mexico, and that he had entered without documentation of the date or place of entry. These written admissions were independent and significant evidence. The BIA found that the Immigration Judge offered no explanation for why the Form I-213’s reliability standard had not been met, and no evidence in the record actually contradicted the material information the document contained. Under the Form I-213 reliability standard, the burden of identifying contradictory evidence rests on the fact-finder reaching a finding of unreliability — not on DHS to anticipate and preempt every possible challenge.
Case records
The BIA also found the decision insufficient on a second ground. The Immigration Judge credited the respondent’s testimony about his method of entry — claiming he entered following inspection with valid documents — but failed to set out the factual findings supporting that determination. Under Matter of S-H-, 23 I&N Dec. 462, 464–65 (BIA 2002), Immigration Judges must issue clear and complete factual findings supported by the record. Without those findings, the Board could not conduct meaningful appellate review of the respondent’s removability defense.
Holding and Key Takeaways
The BIA held that where an Immigration Judge finds a Form I-213 unreliable and insufficient to establish alienage, the judge must point to specific evidence in the record sufficient to rebut the presumption of reliability. An Immigration Judge may not disregard a Form I-213 simply because DHS did not also produce corroborating documents. The presumption stands unless actual contradictory or impeaching evidence appears in the record.
The Board also reaffirmed that written admissions in pleadings to a notice to appear constitute significant independent evidence of alienage. Combined with a Form I-213, such admissions can satisfy DHS’s burden by clear and convincing evidence, shifting the proof obligation to the respondent.
The holding is both procedurally and substantively significant. It narrows the circumstances under which an Immigration Judge may terminate proceedings on evidentiary grounds before the burden shifts, and it signals that bare assertions of unreliability — without evidentiary anchoring — will not survive BIA review. The decision remanded without expressing any opinion on the ultimate outcome of the case.
Practical Immigration Implications
For practitioners representing respondents in removal proceedings, this decision recalibrates the litigation strategy around Form I-213 challenges. A challenge to a Form I-213’s reliability must be grounded in specific record evidence — material inaccuracies in the document, evidence of coercion or duress, or concrete contradictions in the record. Arguing that the government should have brought more evidence is not a sufficient basis to defeat the presumption.
Respondents who have made written admissions to a notice to appear face a compounded challenge. Those admissions now operate as independent corroboration of the Form I-213, making it harder to argue that DHS has not met its evidentiary burden. Practitioners advising clients on how to respond to a notice to appear must weigh the implications of admitting factual allegations carefully.
At the same time, the decision preserves legitimate avenues for challenging Form I-213 reliability. Evidence that the form contains factual errors, that statements were obtained under coercive conditions, or that the document merely parrots information from other sources without independent value — as discussed in Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 680 (9th Cir. 2005) — can still provide the basis for a successful challenge. The key is that the evidence must be specific and appear in the record.
For Immigration Judges, the decision reinforces that findings of unreliability must be grounded in articulable record evidence and accompanied by adequate factual findings. Vague or conclusory reliability rulings are vulnerable to reversal. Judges handling claims of lawful entry should also ensure their decisions contain clear factual findings supporting any credibility determination, to preserve the record for appellate review.
How Immigration Professional Association Can Assist
Immigration Professional Association regularly assists individuals facing removal proceedings, including cases where the government relies on a Form I-213 as evidence of alienage. Understanding when and how to challenge government documentation — and how to respond effectively to a notice to appear — requires experienced legal guidance. Immigration Professional Association’s Protection Against Removal / Deportation Defense services are designed to help respondents navigate exactly these procedural and evidentiary issues.
Clients with questions about their immigration status or the documents being used in their proceedings may also benefit from reviewing Immigration Professional Association’s analysis of Immigration Processing and Enforcement Under President Trump and the New BIA Appellate Rule to Fight Immigration Backlogs, both of which provide important context for understanding how removal cases are being handled today. For those with concerns about documentation, signatures, or procedural requirements, Immigration Professional Association’s coverage of USCIS May Reject or Deny Applications for Invalid or Missing Signatures offers useful background on how evidentiary standards are being applied across immigration adjudications.
Matter of Mercado-Martinez establishes a clear and binding standard: Immigration Judges cannot set aside a Form I-213 without pointing to specific rebutting evidence in the record. For anyone currently in removal proceedings or preparing a defense strategy, this ruling makes early legal consultation essential. Contact Immigration Professional Association at visainamerica.com/contact/ to speak with an experienced immigration professional.
