What your client says can deport them: Matter of Mendez Maldonado and the end of the immigration safe plea?

Criminal Defense Newsletter | October 2026

On September 22, 2026, the Board of Immigration Appeals issued Matter of Mendez Maldonado, a precedential decision that quietly removes one of the oldest protections in immigration law.1 The Board held that a noncitizen's voluntary admission of drug possession, without any conviction, makes the person inadmissible to the United States. It also overruled two decisions from the 1940’s and 1950’s that had required the government to explain the legal elements of a crime before an admission could be used.

The case arose in Arizona, but its reach extends to every Michigan courtroom where a noncitizen enters a plea, speaks to a probation agent, or enters a treatment court. Michigan criminal defense attorneys already know that Padilla v Kentucky requires accurate advice about the immigration consequences of a plea. After Mendez Maldonado, that advice must cover not only what the client is convicted of, but what the client says.

The respondent, a Mexican national, applied for adjustment of status. At his 2016 USCIS interview in Tucson, he gave a sworn statement through a Spanish interpreter. He said he had bought cocaine on the street and used it about monthly for two years. The immigration judge found him inadmissible under INA § 212(a)(2)(A)(i)(II), which reaches any noncitizen who is convicted of a controlled-substance offense or who admits committing acts that make up its essential elements.2 Adjustment was denied.

On appeal, the respondent relied on Matter of K- and Matter of J-.3 Those decisions required that, before an admission could be used, the person receive an adequate definition of the crime and its essential elements, explained in understandable terms. The Board rejected the argument and overruled both cases. It reasoned that the statute's plain text requires only an admission of acts constituting the essential elements of the offense. Advance explanation of the law, it said, is not part of the statute. Due process is satisfied by a voluntary admission followed by a fair hearing. The Board also cited Garland v Ming Dai for the proposition that adjudicators may not impose procedural requirements that Congress did not.4

The Board noted that the USCIS officer had in fact explained the Arizona statute. It treated that explanation as more than the law requires. In a footnote, it also rejected a challenge to the English-language sworn statement, which lacked a translation certificate, relying on the presumption that officials regularly perform their duties.5

Finally, the Board gave an independent ground for affirming the IJ’s decision. The respondent had admitted cocaine use while testifying in Immigration Court under oath and with counsel present. That admission alone supported inadmissibility.6

Not just a drug case

It would be easy to read Mendez Maldonado as a narrow, controlled-substance decision. Footnote 2 of the decision forecloses that reading. The Board stated that the same admission analysis applies to crimes involving moral turpitude (CIMT) under § 212(a)(2)(A)(i)(I).7

The practical effect is broad. A client who admits conduct amounting to theft, fraud, or certain assaults can be inadmissible on the admission alone. It does not matter whether the charge was dismissed, reduced, or never filed. The admission must still cover the essential elements of the offense. But the government no longer has to explain those elements first.

Where Michigan clients make admissions

Most damaging admissions are not made to immigration officers. They are made in the ordinary course of Michigan criminal cases, and they end up in records DHS can obtain.

Plea colloquies. A careful plea to a non-drug, non-CIMT offense can be undone if the client describes drug possession or dishonest conduct while establishing the factual basis. The narrative the client gives on the record can supply exactly the admission the conviction was structured to avoid.

Deferrals. Dispositions under MCL 333.7411 and the Holmes Youthful Trainee Act already count as convictions for immigration purposes once there is a guilty plea and some form of penalty.8 Mendez Maldonado adds a second route. The admission itself can trigger inadmissibility, whatever happens to the case later.

Presentence interviews. Clients routinely describe their substance-use history to MDOC agents preparing the presentence investigation report. Those statements are recorded, and the report follows the client.

Specialty courts. Drug, sobriety, and veterans’ treatment courts require candid admissions of use. For a citizen, that candor is part of recovery. For a noncitizen, it can create a permanent bar.

Marijuana. Adult-use marijuana is legal under Michigan law but remains federally controlled. A client who tells USCIS, CBP, or a probation agent about lawful Michigan cannabis use may be admitting a federal controlled-substance violation. Counsel should confirm the current federal scheduling status when advising.

The border. At Michigan’s multiple border crossings, clients face CBP questioning in secondary inspection. Canadians who used legal cannabis at home are asked about it directly. Clients should understand before they travel that they may withdraw an application for admission rather than answer.

Testimony. Testimony at a co-defendant's trial, an evidentiary hearing, or a civil deposition can all surface later. Mendez Maldonado itself rested in part on in-court testimony given with counsel present.

The safe plea is no longer a safe harbor

A plea to an immigration-safe offense protects the conviction. It does not protect the record. DHS can now rely on admissions of the underlying drug or CIMT conduct even when the conviction itself carries no immigration consequence.

Where the safe plea still helps

Deportability versus inadmissibility. The admission grounds appear only in § 212, which governs inadmissibility. A lawful permanent resident who remains in the United States is generally removable only on the conviction-based grounds of § 237. For that client, a safe plea still does its job. The exception is the drug abuser or addict ground, which can rest on admitted use rather than a conviction.9

The lesser-offense and dismissal doctrines. Older Board precedent held that once a charge is prosecuted to a result short of conviction for that crime, the government may not use an admission of the same conduct to get around that result. Matter of C-Y-C- addressed acquittals and dismissals. Matter of E-V- addressed pleas to a lesser offense.10 Mendez Maldonado did not mention these decisions. But its reasoning, that adjudicators may not add protections the statute does not contain, gives DHS a ready argument against them. Counsel should expect that fight.

Identity of the substance. A controlled-substance admission must cover conduct involving a federally controlled substance.11 A vague statement such as “I had some pills” may not be enough. A statement naming cocaine is.

Where the safe plea will not help

Returning permanent residents. An LPR returning from abroad who “has committed” an offense identified in § 212(a)(2) can be treated as an applicant for admission.12 The government must prove the offense by clear and convincing evidence. An on-the-record admission can carry that burden. For Michigan clients who cross into Windsor or Sarnia routinely, this is the most immediate danger.

Applications for benefits. Adjustment of status, visas, waivers, cancellation of removal, and naturalization all look at admissions. The good-moral-character bar in § 101(f)(3) expressly incorporates them.13 

Reason to believe. The trafficking ground requires neither a conviction nor an admission. It requires only reason to believe the person is or has been a trafficker.14 A factual basis that describes distribution is dangerous on its own, no matter what offense the client pleads to.

Michigan drafting tools

Nolo contendere. With the court's consent, MCR 6.302(D) permits a no-contest plea, with the factual basis drawn from the police report or preliminary examination transcript rather than the defendant's own words.15 For a noncitizen client, this is often the cleanest option.

A counsel-stated factual basis. Where a guilty plea is required, counsel can propose a factual basis limited to the elements of the safe offense, with no narrative and no reference to any substance.

Preparing for the presentence interview. The safe plea can be undone in the PSIR interview. Prepare the client in advance, and object to or correct recorded admissions before sentencing.

Specialty courts. Avoid entry into a drug or sobriety court until immigration counsel has reviewed the admissions the program will require.

Practice points

Padilla v Kentucky and People v Fonville require defense counsel to give accurate advice about the immigration consequences of a plea.16 After Mendez Maldonado, competent advice for a noncitizen client should address several things:
  1. What the client says, not only the offense of conviction. The factual basis, the PSIR interview, and any specialty-court participation all need review.
  2. Travel. Permanent residents who cross the border, and Canadian clients who enter Michigan, face the greatest immediate risk from admissions already in the record.
  3. Early consultation. Bring in immigration counsel before the plea hearing, the presentence interview, or entry into a treatment court – not after.
  4. Correcting the record. Where a damaging admission has already been made, consider whether it can be corrected at sentencing or addressed through a motion to withdraw the plea.

Avenues of challenge

Mendez Maldonado is binding on immigration judges and DHS, but it is not the last word. After Loper Bright Enterprises v Raimondo, the Board's reading of the statute receives no Chevron deference in the Sixth Circuit.17 Arguments remain about whether an admission was truly voluntary, whether it covers every element of the offense, and whether an interpreted statement is reliable. Counsel should nonetheless assume that DHS will rely on the decision immediately.

Conclusion

For almost 80 years, Matter of K- and Matter of J- gave noncitizens a measure of protection against admissions made without an understanding of the law. That protection is gone. Michigan defense lawyers have long structured pleas to avoid convictions with immigration consequences. That work remains necessary, but it is no longer enough. For noncitizen clients, the transcript, the presentence report, and the client’s own words must now be protected as carefully as the conviction itself.

Endnotes
1 Matter of Mendez Maldonado, 30 I&N Dec 62 (BIA 2026) (Interim Decision #4247), available at https://www.justice.gov/eoir/media/1462126/dl. 
2 8 USC 1182(a)(2)(A)(i)(II).
3 Matter of K-, 7 I&N Dec 594 (BIA 1957); Matter of J-, 2 I&N Dec 285 (BIA 1945).
4 Mendez Maldonado, 30 I&N Dec at 64, citing Shaughnessy v United States ex rel Mezei, 345 US 206 (1953), and Garland v Ming Dai, 593 US 357 (2021).
5 Id. at 63 n 1, citing Cruz v Bondi, 146 F4th 730 (CA 9, 2025).
6 Id. at 66, citing Urzua Covarrubias v Gonzales, 487 F3d 742 (CA 9, 2007).
7 Id. at 64 n 2; 8 USC 1182(a)(2)(A)(i)(I).
8 8 USC 1101(a)(48)(A).
9 8 USC 1227(a)(2)(B)(ii).
10 Matter of C-Y-C-, 3 I&N Dec 623 (BIA 1950); Matter of E-V-, 5 I&N Dec 194 (BIA 1953).
11 See Mellouli v Lynch, 575 US 798 (2015).
12 8 USC 1101(a)(13)(C)(v); Matter of Rivens, 25 I&N Dec 623 (BIA 2011).
13 8 USC 1101(f)(3).
14 8 USC 1182(a)(2)(C).
15 MCR 6.302(D).
16 Padilla v Kentucky, 559 US 356 (2010); People v Fonville, 291 Mich App 363 (2011).
17 Loper Bright Enterprises v Raimondo, 603 US 369 (2024).

Stuart G. Friedman

Stuart G. Friedman is the principal of Friedman Legal Solutions, PLLC, in Southfield for more than 30 years, he practices criminal appellate defense, U.S. and Canadian immigration law, and crimmigration. He is the author of the criminal law chapter of ICLE’s Michigan Appeals Manual.