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Case History

The Department of Homeland Security (“DHS”) removal charge was not in controversy.

The respondent filed an application for adjustment of status with the Immigration Court. 

October 28, 2019, an Immigration Judge denied the respondent’s adjustment of status application under section 245(a) of the Immigration and Nationality Act, as amended ("the Act").

The respondent filed a notice of appeal.  

Facts

The respondent is a native and citizen of Mexico who was apparently admitted to the United States.

On September 27, 2016, the Respondent gave a sworn statement to a United States Citizenship and Immigration Services (“USCIS”) officer in which he admitted that he had possessed and used cocaine in Arizona.

The USCIS officer The USCIS officer:
 

made the respondent aware of the essential elements of section 13-3408(A)(1) of the Arizona Revised Statutes. The USCIS officer explained that it was against the law in Arizona to possess cocaine, to carry cocaine on your person, and to use cocaine. The USCIS officer also asked the respondent if he knew that it was illegal to commit such acts in Arizona. After the USCIS officer provided these explanations, the respondent admitted that he knew using cocaine in Arizona was illegal and that he purchased cocaine from people on the street to consume at his home and outside of his home. The respondent also admitted to using cocaine monthly for a period of 2 years. The respondent additionally admitted that he was arrested for using cocaine.

 Matter of Mendez Maldonado, 30 I&N Dec. 62, at 65 (BIA 2026)

The respondent also admitted during his testimony in immigration court that he had possessed and used cocaine.

The Immigration Judge determined that the respondent had admitted to committing a crime relating to a controlled substance and is therefore inadmissible under section 212(a)(2)(A)(i)(II) of the Act and concluded that he is ineligible for adjustment of status under section 245(a) of the Act which requires that an applicant, in addition to other requirements, be admissible to the United States for permanent residence at time of adjustment of status. See section 245(a)(2) of the Act.

The respondent appealed to the  Board of Immigration Appeals ("BIA").
 

Held

Appeal dismissed
 

Rationale

The respondent asserted on appeal that admission regarding posession and use of cocaine is invalid because he was not provided with a definition or the essential elements of the offense prior to his admission as required under Matter of K-, 7 I&N Dec. 594, 597 (BIA 1957).

The respondent also objected to the admission of his sworn statement into evidence, arguing that the statement was not reliable because it is printed in English without a Spanish translation.

The BIA reasoned as follows:

• Although the standards in Matter of K- were adopted to ensure that an alien receives “fair play” and to preclude any possible later claim by the alien that they were “unwittingly entrapped” into making an admission, informing a respondent about the statutory definition, including the elements of a crime, in advance of an admission is not necessary to ensure fairness in removal proceedings.  
• As long as a respondent’s admission is voluntary and the respondent receives a fair hearing, there is no denial of due process. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) (stating that immigration proceedings must conform “to traditional standards of fairness encompassed in due process of law”); see also Matter of Exilus, 18 I&N Dec. 276, 281 (BIA 1982) (stating that “the constitutional requirements of due process are satisfied by a full and fair hearing”).
• Immigration Judges have exclusive jurisdiction over applications filed for adjustment of status by respondents in removal proceedings (with the exception of “arriving aliens.” 8 C.F.R. § 1245.2(a)(1)(i), (ii)).
• The BIA lacks authority to impose standards regarding an alien’s admissibility beyond those set forth in our immigration laws. See Garland v. Ming Dai, 593 U.S. 357, 365 (2021) (recognizing that “a reviewing court is generally not free to impose additional judge-made procedural requirements on agencies that Congress has not prescribed and the Constitution does not compel.”).
• The BIA found no error in the admission of the respondent's sworn statement, since the respondent's interview was conducted with a Spanish interpreter, and government officials enjoy a “presumption of regularity” in the performance of their official duties. See Cruz v. Bondi, 146 F.4th 730, 739 (9th Cir. 2025) (“Courts have long presumed that official acts of public officers, in the absence of clear evidence to the contrary, properly discharged their official duties.”).
• Finally, the BIA determined that the respondent's admissions during his testimony in immigration court constituted and independent basis for determining that he was subject to  exclusion under section 212(a)(2)(A)(i)(II) of the Act.

Commentary

It is interesting to  note that the USCIS  officer in Matter of Mendez Maldonado appears to have fully complied with the safeguards articulated in Matter of K- during the sworn interview with the respondent. This seems to indicate that the same result would have been reached in Matter of Mendez Maldonado without overruling Matter of K-.

Before Matter of Mendez Maldonado, the extra-statutory rule applied to admissions of offense commission in the context of exclusion determinations had been applied, at least since 1957 when Matter of K- was decided.

In my experience as an Immigration and Naturalization Service ("INS") trial attorney in the late 1980s and early 1990s, the requirement to provide an adequate definition of a crime, including all essential elements along with an explanation in "understandable terms” before attempting to obtain an admission of commiting the crime severely curtailed the application of section 212(a)(2)(A) of the Act in the case of "any alien . . . who admits committing acts which constitute the essential elements of" crimes involving moral turpitude and controlled substances.

As a practical matter, by the time the INS trial attorney defined a criminal offense and explained  its elements during immigration court proceedings, no sane respondent would voluntarily admit to committing all the enumerated elements of the offense, especially if the definition and explanation were perfectly understood.

Now it appears that the DHS attorneys and USCIS officers will be able to more broadly apply section 212(a)(2)(A) of the Act in circumstances involving crimes involving moral turpitude and controlled substance offenses in the context of exclusion ground determinations.

Egregious circumstances that might justify suppression of evidence in immigration court proceedings are coercion, threats, abuse, or denial of food or drink, use of misinformation or long hours of interrogation in an attempt to obtain information.  See Navia-Duran v. INS, 568 F.2d 803 (1st Cir. 1977); Bong Youn Choy v. Barber, 279 F.2d 642 (9th Cir. 1960); Ex Parte Jackson, 263 F. 110 (D. Montana 1920); Matter of Toro, 17 I&N Dec. 340 (BIA 1980); Matter of Garcia, 17 I&N Dec. 319 (BIA 1980); cf. Adamson v. Commissioner, 745 F.2d 541 (9th Cir. 1984). 

Practitioners might find some traction by challenging the voluntary nature of a client's admissions based on egregious  circumstances or any circumstance that might support confusion or misunderstanding on the part of the client at or about the time the admissions were made (e.g. prescription drugs, under the influence of alcohol, psychological disorders, etc.).