The BIA has done it again. At first glance, Matter of Mercado-Martinez looks like a boring, technical decision. The Board repeats the usual rule: the government has the burden to prove you’re not a U.S. citizen. And one of the main ways it tries to do that is with a Form I-213, which is basically just a report an immigration officer writes up saying who you are and where you’re from. None of that is new.
What is new is what the Board says happens next. Yes, the DHS has the burden of proof. But according to this decision, if the government puts a form I-213 into evidence, the Immigration Judge has to treat it as true unless there is actual evidence in the record showing that it’s wrong. Not doubts. Not contradictions in the form itself. Evidence. In practice, that means the government can meet its burden to prove you weren’t born here by just writing it down on a piece of paper. And once that happens, it’s on you to prove the paper is wrong. You have to prove it, even though the government has the burden of proof. Because up is now down and black is now white and whatnot.
The I-213 and the Government’s Burden
Before Mercado-Martinez, the law around I-213s was pretty settled, at least at among the courts. Most agreed on three things.
First, an I-213 is generally admissible and “presumptively reliable.” That language has been around for decades. The Board said it outright in Matter of Barcenas, and the circuits have repeated it ever since. Even though, there has been growing proof that ICE and CBP regularly lie in these reports. The basic idea is that this is a routine government record, not something created for litigation, so it gets a baseline level of trust unless there’s some indication of coercion, material error, or unreliability.
Second, an I-213 has independent evidentiary value. DHS doesn’t have to call the officer who wrote it. Courts have been clear about that too. The Ninth Circuit in Espinoza v. INS described it as a document that simply records information, often from the respondent’s own statements, and doesn’t require live testimony to come in.
Third, and this is the part that matters, an I-213 can be enough on its own to meet DHS’s burden. You see that in cases like Espinoza, and more recently in cases like Vera-Punin. If there’s no reason to think the form is unreliable, it can establish alienage.
But here’s what those cases didn’t clearly require. They didn’t say that the respondent had to come forward with affirmative evidence in order for an IJ to reject the form. The question was still framed the usual way: has DHS met its burden? An IJ could look at a thin record, look at the form, and say, “This isn’t enough.” Or “I don’t find this persuasive.” Or “There are so many contradictions in the form that I can’t rely on this.” And that was still consistent with the idea that DHS has the burden of proof.
Mercado-Martinez changes that framing. It takes what used to be a general presumption of reliability and turns it into a rule that shifts the burden of proof, by requiring evidence to prove the form is wrong. And that is a giant shift.
The new rule post-Mercado-Martinez
So what exactly did the Board change?
It said this: if DHS submits a Form I-213, the Immigration Judge has to treat it as reliable proof that you’re not a citizen unless there is some other specific evidence in the record showing that the form is wrong.
Not just contradictions in the form itself. Not the lack of a signature from the preparer. Not concerns about how it was prepared or where the information came from. Those were all solid ways to challenge an I-213 before. But now the respondent has to submit evidence to disprove it or that it was obtained through coercion.
And it goes a step further. If the IJ decides the I-213 is not reliable, then the IJ has to point to whatever actual evidence in the record disproves the I-213 and explain how it undermines the document. It won’t be enough for them to say “I don’t find this persuasive” or “this isn’t sufficient.” The decision has to identify exactly what evidence in the record proves that the form is wrong.
That’s a monumental shift in the burden of proof. The question is no longer just whether DHS met its burden. They just have to write it on a piece of paper now. At that point, the burden shifts to the respondent to submit proof – even though the entire burden of proof belongs to the government. And if they can’t, then the IJ is supposed to treat the I-213 as enough.
Why is this such a big deal?
The whole reason the statute puts the burden on DHS is because alienage is the gateway issue. If the government can’t prove you’re not a U.S. citizen, then the case is over. It’s the ultimate safeguard to DHS deporting US citizens.
And there’s a reason for that safeguard. In the real world, not everyone has their documents with them at all times. People lose them. ICE throws stuff away when they arrest people. People get arrested when they’re out and about and don’t have their papers when they get picked up. Or maybe they never had them. Some people were born at home. Some people were raised by relatives who never kept paperwork. The system has always accounted for that by saying: if the government wants to remove someone, it has to prove they’re removable. Not the other way around.
Mercado-Martinez doesn’t explicitly say that it’s relieving DHS of its burden. But functionally, that’s what this does. If DHS can meet its burden by writing on a piece of paper, “this person was not born int he United States,” and that form has to be treated as true unless the respondent comes forward with documentsshowing it’s wrong, then the protection starts to look thinner.
Sure, if someone has a passport, a birth certificate, or even consistent testimony, they can push back. But in the cases where there might be actual confusion about where someone was born, or wheter the record is thin (which is exactly where the burden is supposed to matter most) the decision makes it harder for an IJ to say DHS hasn’t proven its case.