Your Lawyer's Mistake in Immigration Court Can Be Fixed
Your immigration lawyer filed paperwork saying you entered the US illegally — but that was wrong. A federal court ruled in September 2026 that you have the right to testify and correct that mistake. For thousands of people in removal proceedings, this decision could change everything.
A federal appeals court ruled in September 2026 that an immigration judge cannot block someone from testifying to correct a factual mistake made by their own lawyer. The Ninth Circuit Court of Appeals sided with Demetrio Martin Urias-Gaxiola, a Mexican citizen who had been ordered removed — at least in part because his attorney incorrectly admitted in writing that he had entered the US without a visa.
Here is what happened. When Urias-Gaxiola's case began, his lawyer filed a written response to the government's removal charge (called a Notice to Appear, or NTA). That response admitted he had entered the US without being inspected by an immigration officer. But Urias-Gaxiola says that was wrong — he says he actually entered with a border crossing card, which is a type of visitor visa. He later found the physical card at his home in North Carolina. His lawyer tried to correct the record by filing a motion to amend the pleading. The immigration judge denied that motion without explanation and then stopped Urias-Gaxiola from testifying about how he actually entered the country. The Board of Immigration Appeals (BIA) — the main appeals body for immigration cases — upheld that decision.
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The Ninth Circuit reversed. Writing for the panel, Judge Marsha Berzon said the BIA abused its discretion. Under existing legal standards — specifically a BIA precedent called In re Velasquez and a Ninth Circuit case called Santiago-Rodriguez v. Holder — a noncitizen can withdraw an attorney's factual admission if they can show it is untrue. The court found that Urias-Gaxiola was never given that chance. The immigration judge shut down his testimony before he could present evidence. The BIA then made its own factual findings — something only an immigration judge is allowed to do. The court sent the case back to the immigration judge with instructions to hold a full hearing, allow live testimony, and decide whether the original admission can be withdrawn and whether Urias-Gaxiola is still removable.
What this means for people in removal proceedings
This ruling matters if your attorney ever filed paperwork in immigration court that contained a factual error — especially about how or when you entered the US. An attorney's written admission is normally treated as binding. But this decision confirms that you have the right to challenge it if you can show it was wrong. You need evidence: documents, testimony, or both. The burden is on you to prove the admission was incorrect.
What to do
- Review all written pleadings your attorney filed in your immigration case. Look for any factual statements — especially about your entry date, entry method, or visa status — that do not match your actual history.
- If you find an error, gather documents that prove the correct facts. This could include a visa, a border crossing card, a passport stamp, or travel records. Physical evidence is critical.
- Ask an immigration lawyer about filing a motion to amend your pleading. Under the Velasquez/Santiago-Rodriguez standard, you must show the admission was factually untrue — not just inconvenient or poorly worded.
- If your case is already at the BIA or a federal appeals court, ask your attorney whether this September 2026 Ninth Circuit ruling applies to your situation.
Related: our step-by-step guide — “Appealing to the BIA”.
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Under the Velasquez/Santiago-Rodriguez standard, you can withdraw an attorney's factual admission in removal proceedings, but you must meet a real burden of proof — the admission has to be factually untrue, and you need evidence to show that. If you have documents like a visa or border crossing card that contradict what your lawyer admitted, preserve them and present them as soon as possible; waiting until appeal makes it much harder. Anyone who believes their attorney made a factual error in a pleading should consult an immigration attorney immediately to assess whether a motion to amend is still available in their case.
Frequently Asked Questions
Can my lawyer's written admission in immigration court be used against me even if it was wrong?
Generally yes — an attorney's factual admission in removal proceedings is binding on the noncitizen. But the Ninth Circuit confirmed in September 2026 that you can challenge it if you can prove the admission was factually untrue. You need evidence, such as a visa or border crossing card, and you must raise the issue through a formal motion to amend your pleading.
What is a motion to amend a pleading in immigration court?
A pleading is the written response your lawyer files after the government charges you with being removable. If that response contains a factual error, your lawyer can file a motion to amend — a formal request asking the immigration judge to allow a correction. The judge must give you a chance to present evidence before deciding whether to grant or deny it.
Does this Ninth Circuit ruling apply to my case if I am not in Arizona or California?
The Ninth Circuit covers nine western states: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. If your immigration case is in one of those states, this ruling directly applies. If you are in a different state, the ruling is not binding on your court, but it may still be persuasive. Talk to an immigration lawyer about the rules in your circuit.
What happens now in Urias-Gaxiola's case?
The Ninth Circuit sent the case back to the immigration judge. The judge must now hold a new hearing, allow Urias-Gaxiola to testify and present evidence about how he entered the US, and then decide whether he can withdraw the original admission. If the judge allows the withdrawal, the judge must also decide whether he is still removable on other grounds.