Two New BIA Decisions on Criminal Inadmissibility (October 2026): What Matter of Ozuna Mendoza and Matter of Mercader Mean for Waiver Applicants

In the last week of October 2026, the Board of Immigration Appeals (BIA) published two precedent decisions on criminal inadmissibility that make it easier for the government to establish criminal grounds. Neither case was a waiver case, but both affect who needs a waiver, and whether a waiver is available at all.

Matter of Ozuna Mendoza: “Reason to Believe” Drug Trafficking

A green card holder normally is not “seeking admission” when she returns from a trip abroad. Under INA § 101(a)(13)(C)(iii), that changes if DHS proves by clear and convincing evidence that she “has engaged in illegal activity after having departed the United States.”

In this case, about 200 pounds of methamphetamine were found hidden in the respondent’s vehicle at the border. She also had about $8,000 in cash. The Immigration Judge believed her claim that she didn’t know about the drugs. The BIA reversed. It found her testimony inconsistent, evasive and implausible, and it held that even if she didn’t know, she was willfully blind: she lent her car to a friend with known ties to traffickers and asked no questions.

There was no conviction. The BIA held that circumstantial evidence and the lack of credibility were enough to give the government “reason to believe” she was a knowing participant in drug trafficking.

Why this matters for waivers: The INA § 212(h) waiver cannot waive a “reason to believe” drug-trafficking finding under § 212(a)(2)(C). No extreme-hardship waiver exists for K-1 fiancée visa, immigrant visa or adjustment of status applicants on this ground. For visitors and other nonimmigrants, the INA § 212(d)(3) nonimmigrant waiver may still be an option. Ozuna Mendoza shows how little evidence the government may need: no arrest, no charge, and no conviction.

Matter of Mercader: Reckless Assault Can Be a CIMT

The BIA held that South Carolina second-degree assault and battery is categorically a CIMT. Its minimum mental state is recklessness, and it requires actual or attempted “moderate bodily injury.” The Board said that moderate injury, short of serious bodily injury, is enough of an aggravating factor. It also rejected the Immigration Judge’s reliance on the offense being labeled “non-violent” and on the light sentence imposed.

Mercader arose as a deportability case under INA § 237(a)(2)(A)(i). The same CIMT analysis applies to the inadmissibility ground at INA § 212(a)(2)(A)(i)(I), which matters for anyone applying for an immigrant visa or adjustment of status.

Why this matters for waivers: Many applicants assume a misdemeanor-level assault, or a short sentence, cannot be a CIMT. Under Mercader, that assumption is risky. The petty offense exception generally will not help when the offense carries a possible sentence of more than one year. When it does not apply, the applicant usually needs a § 212(h) waiver through the I-601 waiver process, based on either:

• extreme hardship to a U.S. citizen or permanent resident spouse, parent, son or daughter, or
• the passage of 15 years since the conduct, plus rehabilitation.

Who Is Affected by These Criminal Inadmissibility Decisions

• Green card holders who travel and have any arrest, investigation or border incident involving drugs.
• K-1 fiancé(e) visa, immigrant visa and adjustment applicants with assault, battery or other “reckless” offenses, especially from South Carolina, and anyone with a similar statute elsewhere.
• Applicants who were told a conviction “doesn’t count” because it was minor or the sentence was short.

What to Do Now About Criminal Inadmissibility

1. Have your criminal record reviewed before you file, travel or attend a consular interview. Get certified court dispositions and the exact statute and subsection.
2. Green card holders with any drug-related history should get legal advice before leaving the United States.
3. If a CIMT is likely, plan the § 212(h) waiver early. Extreme hardship evidence takes time to build.
4. If a “reason to believe” finding is possible, understand that no immigrant waiver exists. The strategy has to focus on contesting the finding itself.

Criminal Inadmissibility: Primary Sources

• Matter of Ozuna Mendoza, 30 I&N Dec. 177 (BIA 2026), decided Oct. 26, 2026
• Matter of Mercader, 30 I&N Dec. 185 (BIA 2026), decided Oct. 27, 2026
• EOIR, BIA Precedent Decisions, Volume 30

If you or a family member needs help with criminal inadmissibility or an I-601, I-601A, I-212 or 212(h) waiver, you may request a Free Immigration Consultation.

Related Waiver Approvals

• I-601 and I-212 Waivers Approved After Prior Removal and a Crime Involving Moral Turpitude
• I-601 Waiver Approved and CIMT Inadmissibility Removed After Writ of Mandamus

This post is general information, not legal advice. Every case is different, and you should consult an immigration attorney about your specific situation. Past results do not guarantee, warrant, or predict the outcome of any future legal matter.