As I have written about earlier, the Board of Immigration Appeals is issuing precedent decisions by the boatload all facilitating quicker removals of non-citizens. In the first year of President Trump’s reign, 2025, the BIA issued 65 precedent decisions. So far, in the first five months of 2026, the Board has issued 33 precedent opinions. In 2023 and 2024, the last two Biden years, the Board issued 13 and 14 decisions, respectively. Few of the Trump-era decisions commend themselves for lucidity. Their anti-foreigner bent is marked. One would be hard-pressed to take away from these decisions a sense of the Board being a neutral arbiter calling balls and strikes. You would not need inside information to win bets on how this Board will decide a case.

The latest case, issued as a precedent on April 23, 2026, Matter of Arana Castillo, is a doozy of bias and incoherence. The family appeared in immigration court, charged with having entered the United States without permission. No government attorney showed up. The case does not state whether or not the family had an attorney, an attempt to simplify the case and mask the incoherence. The case does not indicate the nationality of the family, another give-away that something is up.

Before delving into the gory details, some procedural rules are useful to know. In removal proceedings for a family like the family in Matter of Arana Castillo who are present in the United States without inspection, the government has an initial duty to prove alienage – that the family members are not United States citizens. 8 CFR 1240.8(c). The non-citizens then must prove they are lawfully present or able to obtain lawful status through the court system or otherwise. In proving alienage, the government usually relies on an I-213, a report by ICE explaining how the person in removal proceedings was encountered and why he was placed in removal proceedings, i.e., why the alien is removable. It is presumptively accurate. This means that unless the I-213 is successfully challenged as to its reliability, an immigration judge must use it to determine alienage (that the non-citizen is indeed a non-citizen) and removability. Even without anyone in court, neither the non-citizen or the government attorney, an immigration judge must find removability and order removal based on the I-213, a scenario decided by the Board two weeks ago in its Matter of Bolivar-Bolivar decision.

In the case of the Arana family, a determinating issue in the case is alienage and the government’s ability to prove alienage. Since it is the government’s burden, the Arana family does not need to assist the government by admitting alienage. If asked, they could keep quiet and put the government to proving its burden. If asked about their nationality or where they were born, they could keep silent. (Since entering without inspection is a crime (INA § 275), it would be appropriate to invoke the 5^th Amendment protection against self-incrimination and remain silent.) Only if, subsequently, the government proved alienage, then the family would have the burden of proving they are lawfully in the United States or have a means of becoming lawful. Continuing to remain silence would mean they would fail to meet their burden.

In addition to preparing an I-213 to initiate proceedings, the government must prepare and file a Notice to Appear with the immigration court to initiate removal proceedings. It is akin to an information, complaint, or indictment in the criminal sphere. It alleges the non-U.S. alienage of the non-citizen and under what section of the law the person is removable. It also should tell the non-citizen where and when to go to immigration court.

Back to Matter of Arana Castillo. No government attorney was in court. The government had not earlier filed an I-213 or other proof of the family’s alienage. The immigration judge, in court with no prosecutor and no proof of alienage, terminated removal proceedings on her own initiative (sua sponte, in law-talk). The Board decided that the judge should not have done this. Rather, it held, that the immigration judge should have held a hearing and asked the Aranas to plead to the Notice to Appear. The complete legal argument of the Board in what may be the shortest appellate decision the Board ever issued, was:

Because the respondents appeared at the hearing, the Immigration Judge was obligated to take their pleadings to the notices to appear as contemplated in 8 C.F.R. § 1240.10 (2026). Specifically, the Immigration Judge “shall require the respondent[s] to plead to the notice[s] to appear.” 8 C.F.R. § 1240.10(c). The respondents may admit or deny the factual allegations and charge(s). 8 C.F.R. § 1240.10(c). If they deny the charge(s), or the Immigration Judge finds that issues of law or fact remain, then the Immigration Judge “shall request the assignment of DHS counsel[] and shall receive evidence as to any unresolved issues.” 8 C.F.R. § 1240.10(d). The Immigration Judge did not follow these provisions. Therefore, we will reverse the decision of the Immigration Judge and remand the record to the Immigration Court for further proceedings to include taking pleadings from the respondents.

What would be the outcome of a non-represented, not-legally-savvy non-citizen in immigration court being asked to plead to the Notice to Appear? Without an attorney or advice about the right not to make an admission about alienage, it is quite likely that if asked about alienage in a plea colloquy that would likely go like this:

Immigration Judge: The first allegation is that you are not a citizen of the United States. Is that true?

Ms. Arana Castillo: [Not knowing of her right against self-incrimination] Yes.

Immigration Judge: Did you enter the United States without inspection?

Ms. Arana Castillo: [Not knowing of her right against self-incrimination] Yes.

With that, alienage is determined and now the Arana family has to prove they are in lawful status or have a means of becoming lawful – that they have some relief from removal. In a universe where the only law affecting the conduct of a removal proceeding is 8 C.F.R. §§ 1240.10(c) and (d), the government can easily prove alienage in every case – barring some sophisticated non-represented non-citizen who knows enough to “take the 5^th.”

However, the universe has more laws than 8 C.F.R. §§ 1240.10(c) and (d). Among them:

1. People in removal proceedings have the right to a fair hearing where their rights are protected. Wong Wing v. United States.

2. The non-citizen may be represented at the hearing by an attorney or other qualified representative. 8 CFR § 1240.3.

3. The immigration judge may grant a reasonable adjournment either at his or her own instance or, for good cause shown, upon application by the non-citizen or the Department of Homeland Security. 8 CFR § 1240.6.

4. The immigration judge must advise the non-citizen of his or her right to an attorney or qualified representative and require the non-citizen to state then and there whether he or she desires representation and advise them of the availability of pro bono legal services. 8 CFR §§ 1240.10(a)(1) and (2).

In this universe, an immigration judge, under the burden of conducting a fair hearing (#1), encountering a family charged with removability for entering without inspection, may first inquire about representation (#2) and adjourn proceedings (#3) for them to find counsel (#4). Or the immigration judge could determine that the very first step is to determine whether there is proof alienage, see none, and in the interest of conducting a fair hearing (#1) and without the government’s presence to provide evidence or discuss the availability of such evidence, terminate proceedings with the government having the right to try again or set a new hearing with the expectation that the government will deign to appear in court or, at a minimum, present evidence of alienage and removability.

In the long run, it is likely the government would prove alienage in this case and a quick resolution of the alienage issue by having an uninformed, unrepresented client concede to their own alienage and removability saves time and resources. But, if putting the government to its burden is considered part of what protects all people in the United States – citizen or not – from the outrageous actions we have been witnessing by ICE and CBP over the past year and a quarter, Matter of Arana Castillo should be considered a dangerous infringement on not only the rights of people like the Arana family, but the rights of all people in the United States. Posted April 25, 2026.

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