MERCADO-MARTINEZ

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Cite as 29 I&N Dec. 529 (BIA 2026) 	Interim Decision #4176
Matter of Ricardo MERCADO-MARTINEZ, Respondent
Decided March 26, 2026
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Where an Immigration Judge finds that a Form I-213 is unreliable and insufficient to
establish alienage, he or she must point to specific evidence in the record sufficient to rebut
the presumption of reliability.
FOR THE RESPONDENT: Jose L. Chaidez, Esquire, Phoenix, Arizona
FOR THE DEPARTMENT OF HOMELAND SECURITY: Michael T. Schmitz, Assistant
Chief Counsel
BEFORE: 	Board Panel: 	GEMOETS and VOLKERT, Appellate Immigration Judges;
MCCLOSKEY, Temporary Appellate Immigration Judge.
GEMOETS, Appellate Immigration Judge:
In a decision dated July 29, 2025, the Immigration Judge granted the
respondent’s motion to terminate his removal proceedings, concluding that
the Department of Homeland Security (“DHS”) had not met its burden of
proving the respondent’s alienage. 	DHS appealed from that decision. The
appeal will be sustained, the Immigration Judge’s order will be vacated, and
the record will be remanded.
When a respondent is charged with being in the United States without
having 	been 	admitted 	or paroled, 	DHS has the 	burden 	of 	proving a
respondent’s 	alienage 	by 	clear 	and 	convincing 	evidence. 	8 	C.F.R.
§ 1240.8(c) (2026); see also Mondac-Vega v. Lynch, 808 F.3d 413, 420–22
(9th Cir. 2015) (holding that “clear and convincing” and “clear, unequivocal,
and convincing” are equivalent standards and that they apply to alienage
determinations).1 	The burden then shifts to the respondent to prove either
that he is lawfully in the United States pursuant to a prior admission or that
he is not inadmissible as charged. See section 240(c)(2) of the Immigration
1 	This case arises within the jurisdiction of the Court of Appeals for the Ninth Circuit,
which has concluded that the “clear and convincing” standard applies to alienage
determinations. See Mondac-Vega, 808 F.3d at 420–22. We note that the First Circuit has
held that the “clear, unequivocal, and convincing” standard is applicable to proving
alienage and that this standard is different from “clear and convincing.” Rosa v. Bondi,
144 F.4th 37, 41 (1st Cir. 2025).

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and Nationality Act (“INA”), 8 U.S.C. § 1229a(c)(2) (2024); 8 C.F.R.
§ 1240.8(c). 	We review de novo whether DHS has satisfied its burden of
proof. 8 C.F.R. § 1003.1(d)(3)(ii) (2026).
Although 	the 	Immigration 	Judge 	recognized 	that 	the 	information
contained in a Form I-213 is presumed to be reliable, he concluded that the
Form I-213 did not satisfy DHS’ burden of proving the respondent’s alienage
by 	clear 	and 	convincing 	evidence. 	Because 	DHS 	did 	not 	provide
documentary evidence aside from the Form I-213, such as a birth certificate,
the Immigration Judge concluded that it did not satisfy its burden of proof
and the burden did not shift to the respondent to disprove alienage or
otherwise prove that he was not inadmissible as charged.
DHS challenges the Immigration Judge’s determination that it did not
meet its burden of proving the respondent’s alienage by clear and convincing
evidence. Specifically, DHS argues that the respondent conceded that he was
a native and citizen of Mexico in written pleadings and contends that the
Record of Deportable/Inadmissible Alien (“Form I-213”) establishes that the
respondent admitted that he was born in Mexico and that he was deported to
Mexico in 1996. 	DHS asserts that the Immigration Judge improperly
determined that the Form I-213 was not reliable.
A 	Form 	I-213 	is 	presumptively 	admissible 	and 	reliable.2 	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); Espinoza v. INS, 45 F.3d 308,
310–11 (9th Cir. 1995); Matter of Barcenas, 19 I&N Dec. 609, 611
(BIA 1988). 	The presumption of reliability can be rebutted if there are
material 	errors 	or 	inaccuracies 	in 	the 	document 	or 	evidence 	that 	the
information in the document was obtained through coercion or duress. 	See
Vera Punin, 108 F.4th at 125–26; Antia-Perea, 768 F.3d at 657; Espinoza,
45 F.3d at 310–11; Matter of Barcenas, 19 I&N Dec. at 611. Strong evidence
of unreliability may provide a basis to exclude a Form I-213, and the
Immigration Judge may properly consider probative evidence that undercuts
material aspects of the Form I-213. 	See 	Espinoza, 45 F.3d 	at 311;
cf. Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 680 (9th Cir. 2005)
(holding that the Form I-213 did not merit any weight where it merely
reiterated the statements of others and was of no independent value). Where
an Immigration Judge finds that a Form I-213 is unreliable and insufficient
2 	The Form I-213 is “a government document in which a government agent simply has
noted a person’s alienage, presumably from information out of the alien’s mouth.”
Espinoza v. INS, 45 F.3d 308, 311 (9th Cir. 1995); see also INS v. Lopez Mendoza, 468 U.S.
1032, 1049 (1984) (noting that the officer who completes the Form I-213 rarely must attend
the hearing).

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to establish alienage, he or she must point to specific evidence in the record
sufficient to rebut the presumption of reliability.
However, in the present case, the Immigration Judge has not identified,
and 	the 	respondent 	has 	not 	presented, 	evidence—including
documentation—that contradicts any material information in the Form I-213.
Moreover, the respondent has not explained, nor did the Immigration Judge
address, the contradiction between the respondent’s assertion that he did not
admit alienage and his written pleading to the notice to appear. In his written
pleading filed on July 11, 2025, the respondent admitted allegations 1, 2, and
3 in the notice to appear, which allege that the respondent is not a citizen or
national of the United States, is a native and citizen of Mexico, and entered
the United States at or near an unknown place and on an unknown date.
These written admissions provide significant evidence to establish the factual
allegations. 	Furthermore, the Form I-213 is evidence independent of the
written admissions and separately indicates that the respondent is a native
and citizen of Mexico. 	Consequently, the Immigration Judge erred in
concluding that DHS had not satisfied its burden of proving that the
respondent was a native and citizen of Mexico.
Where DHS presents probative and reliable evidence to meet its burden
of establishing alienage, the respondent is required to either rebut such
evidence of alienage or demonstrate the date, place, and manner of his entry.
See 8 C.F.R. § 1240.8(c). The respondent contends that he is not removable
as 	charged 	under 	section 	212(a)(6)(A)(i) 	of 	the 	INA, 	8 	U.S.C.
§ 1182(a)(6)(A)(i) (2024), because he entered the United States following
inspection. He further argues that he is not inadmissible pursuant to section
212(a)(7)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I), because he
entered 	with 	valid 	documents. 	The 	Immigration 	Judge 	credited 	the
respondent’s testimony regarding his method of entry but did not set forth
the factual findings underpinning that determination. 	See Matter of S-H-,
23 I&N Dec. 462, 464–65 (BIA 2002) (explaining that the Board has limited
fact-finding ability on appeal, which heightens the need for Immigration
Judges to include in their decisions clear and complete findings of fact that
are supported by the record and in compliance with controlling law).
We conclude that the Immigration Judge erred in finding that DHS did
not prove the respondent’s alienage by clear and convincing evidence of
record. See Mondac-Vega, 808 F.3d at 420–22; 8 C.F.R. § 1240.8(c) (2026).
The Immigration Judge’s decision lacks sufficient clarity as to his basis for
finding DHS’ evidence insufficient to satisfy its burden. 	Specifically, the
Immigration Judge did not identify any errors or contradictory evidence
rebutting the presumption that the Form I-213 was reliable and sufficient to

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establish alienage. 	See Espinoza, 45 F.3d at 310–11; Matter of Barcenas,
19 I&N Dec. at 611. 	The Immigration Judge’s decision failed to properly
evaluate DHS’ evidence such that the burden remained with DHS and did
not properly shift to the respondent. 	See INA § 240(c)(2), 8 U.S.C.
§ 1229a(c)(2); 8 C.F.R. § 1240.8(c).
Additionally, the Immigration Judge’s decision contains insufficient
findings of fact regarding the respondent’s method of entry for us to conduct
meaningful appellate review of the respondent’s claim that he is not
removable as charged. 	See Matter of S-H-, 23 I&N Dec. at 464–65.
Consequently, we will vacate the Immigration Judge’s order terminating the
proceedings and remand the record for the Immigration Judge to address
whether the respondent satisfied his burden of establishing that he is either
lawfully present in the United States or not inadmissible as charged. See INA
§ 240(c)(2), 8 U.S.C. § 1229a(c)(2); 8 C.F.R. § 1240.8(c). In doing so, the
Immigration Judge should make clear findings of fact and adequately set
forth his legal analysis. 	See Matter of S-H-, 23 I&N Dec. at 464–65;
Matter of A-P-, 22 I&N Dec.468, 477 (BIA 1999). We express no opinion
as to the outcome of the case.
ORDER: DHS’ appeal is sustained.
FURTHER ORDER: 	The Immigration Judge’s July 29, 2025, order
is vacated.
FURTHER ORDER: 	The record is remanded to the Immigration
Judge for further proceedings consistent with this order.