When Invoking the Fifth Amendment Can Hurt Your Immigration Case: Lessons from Matter of Lopez Rico
For immigrants with pending criminal matters, exercising the Fifth Amendment right against self-incrimination can create an unexpected problem in immigration court. A new precedent from the Board of Immigration Appeals demonstrates why immigrants should never assume that a constitutional right can be exercised in immigration court without potential immigration consequences.
The Fifth Amendment provides an important protection against self-incrimination. In a criminal prosecution, the government generally cannot force a defendant to testify against himself, and the exercise of that right cannot ordinarily be used as evidence of guilt.
But immigration court is different.
Immigration proceedings are generally considered civil rather than criminal proceedings. And when an immigrant is asking an Immigration Judge for discretionary relief, the applicant often bears the burden of proving that he or she deserves that relief.
That distinction is at the heart of the Board of Immigration Appeals’ recent decision in Matter of Omar Eliodoro Lopez Rico, 29 I&N Dec. 780 (BIA 2026). The decision should serve as a warning to immigrants and their attorneys: invoking the Fifth Amendment may protect you from criminal exposure while simultaneously making it more difficult to obtain immigration relief.
What Happened in Matter of Lopez Rico?
Omar Eliodoro Lopez Rico was a lawful permanent resident who had lived in the United States for many years.
His immigration case involved multiple negative factors, including a prior DUI conviction and a pending DUI matter. When the Immigration Judge asked him questions about those matters, Lopez Rico invoked the Fifth Amendment because he was concerned that his answers could potentially be used against him in the pending criminal matter.
That decision became important in his immigration case.
Lopez Rico was seeking cancellation of removal, a form of discretionary immigration relief. To obtain cancellation, satisfying the statutory requirements is not necessarily enough. The Immigration Judge must also determine whether the applicant merits relief as a matter of discretion.
The Immigration Judge considered Lopez Rico’s overall record and denied relief.
The case eventually reached the Board of Immigration Appeals.
The BIA held that the Immigration Judge was permitted to consider Lopez Rico’s refusal to answer questions and draw reasonable adverse inferences from his silence when evaluating his eligibility for discretionary relief.
The BIA designated Lopez Rico as a precedent decision, meaning the decision is now binding on Immigration Judges nationwide unless and until it is modified, overruled, or displaced by a higher court. The decision is listed in the official EOIR Virtual Law Library as 29 I&N Dec. 780 (BIA 2026).
But Doesn’t the Fifth Amendment Protect You?
Yes.
This is where the law becomes complicated.
The Fifth Amendment remains a constitutional protection. Lopez Rico does not eliminate the privilege against self-incrimination, nor does it mean that an immigrant must answer every question posed by an Immigration Judge.
Instead, the decision recognizes a difficult distinction between using the Fifth Amendment to protect yourself from criminal prosecution and meeting your burden of proving that you qualify for immigration relief.
An immigrant can invoke the privilege.
But exercising the privilege does not necessarily prevent an Immigration Judge from considering the evidentiary consequences of the unanswered questions when deciding whether the immigrant has met his or her burden of proof or merits discretionary relief.
That distinction has existed in immigration law for decades.
The BIA has previously addressed the issue in cases including Matter of Marques, 16 I&N Dec. 314 (BIA 1977), Matter of Li, 15 I&N Dec. 514 (BIA 1975), and Matter of Mariani, 11 I&N Dec. 210 (BIA 1965).
The Supreme Court addressed a related issue more than a century ago in United States ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923), and later recognized the possibility of adverse inferences from silence in civil proceedings in Baxter v. Palmigiano, 425 U.S. 308 (1976).
More recently, the Supreme Court’s decision in Pereida v. Wilkinson, 592 U.S. 224 (2021), reinforced the importance of evidentiary gaps when an immigrant carries the burden of establishing eligibility for immigration relief.
Lopez Rico brings these principles into sharp focus for today’s immigration court.
Immigration Court Is Not Criminal Court
This is perhaps the most important lesson from the case.
If you are charged with a crime, the government generally has the burden of proving its case beyond a reasonable doubt.
Immigration court works differently.
For many forms of immigration relief, the immigrant has the burden of proving eligibility.
Imagine an immigrant applying for cancellation of removal.
The person may have lived in the United States for decades, have U.S.-citizen children, own a home, operate a business, and have deep family ties.
But the Immigration Judge may still need to determine whether the person has demonstrated the necessary statutory eligibility and whether the person deserves relief as a matter of discretion.
If the judge asks questions that could help establish the applicant’s eligibility or demonstrate positive equities, refusing to answer those questions may create an evidentiary gap.
That gap can matter.
The Fifth Amendment Can Protect You—and Still Create a Problem
Consider a hypothetical example.
A lawful permanent resident has a pending criminal case involving an allegation that could affect his immigration status.
He is placed in removal proceedings and seeks discretionary relief.
The Immigration Judge asks:
“Tell me what happened in the criminal case.”
The immigrant’s attorney knows that answering could potentially expose the client to additional criminal consequences.
The client invokes the Fifth Amendment.
That may be the correct decision from a criminal-defense perspective.
But the immigration judge may now have less evidence available to determine whether the immigrant deserves discretionary relief.
The judge cannot simply treat the silence as an admission that the immigrant committed the crime.
Nor can the government use the silence alone to establish removability where it otherwise has the burden of proving removability.
But when the immigrant bears the burden of proving eligibility for discretionary relief, the absence of an explanation can leave the record incomplete.
That is the problem highlighted by Lopez Rico.
Silence Does Not Automatically Make You Deportable
This distinction is extremely important.
Lopez Rico should not be interpreted to mean:
“If you invoke the Fifth Amendment, the government can deport you.”
That is not the holding.
The BIA recognized limits on the use of adverse inferences. In particular, an adverse inference cannot simply substitute for the government’s burden to establish removability.
The more precise rule is:
Silence may have consequences when an immigrant is attempting to satisfy a burden of proof or persuade an Immigration Judge to exercise discretion in the immigrant’s favor.
That difference could determine the outcome of a case.
Why This Creates a Difficult Problem for Immigrants
The practical dilemma is obvious.
An immigrant with an unresolved criminal matter may have two competing concerns.
First: Anything the immigrant says in immigration court could potentially have consequences for the criminal case.
Second: Refusing to answer may make it more difficult to establish eligibility for immigration relief or persuade the Immigration Judge that relief should be granted.
This is why immigration and criminal-defense strategy must sometimes be coordinated.
A person should not walk into immigration court and make statements about a pending criminal case without understanding the potential consequences.
But an immigrant also should not assume that simply saying “I plead the Fifth” ends the issue.
It may protect against one danger while creating another.
The Importance of Timing
Lopez Rico also demonstrates why timing can be critical.
Suppose an immigrant has both:
- A pending criminal prosecution; and
- A pending immigration case.
The order in which those proceedings are handled can dramatically affect the available legal strategies.
An attorney may need to consider whether the criminal matter can be resolved before testimony is required in immigration court, whether a continuance is appropriate, whether other evidence can establish the relevant facts without requiring the immigrant to testify, and whether the immigration case can proceed without creating unnecessary criminal exposure.
There is no universal answer.
The correct strategy depends on the criminal charge, the potential immigration consequences, the relief being requested, the procedural posture of the immigration case, and the particular facts.
What Immigrants Should Do
If you are currently facing removal proceedings and have an open criminal case, do not assume that you should simply refuse to answer questions, and do not assume that you should answer them.
Get legal advice before making statements.
An immigration attorney should determine:
- What is the government required to prove?
- What burden is the immigrant required to satisfy?
- Is the requested relief discretionary?
- What questions could create criminal exposure?
- Can the relevant facts be established through documents or other evidence?
- Would a continuance or other procedural strategy be appropriate?
- What are the immigration consequences of the underlying criminal matter?
These questions can be much more important than simply deciding whether to invoke the Fifth Amendment.
The Bigger Lesson From Lopez Rico
The Fifth Amendment is an important constitutional right.
But immigration court is not a criminal courtroom.
That means immigrants must understand that exercising constitutional protections in one context can have consequences in another. When an immigrant carries the burden of proving eligibility for relief, refusing to provide information can leave an evidentiary gap that may ultimately affect the judge’s decision.
Matter of Lopez Rico therefore provides an important warning for anyone with both criminal and immigration issues:
Do not make decisions about your criminal case without considering your immigration case—and do not make decisions about your immigration case without considering your criminal case.
A decision that appears beneficial in one proceeding may create significant problems in the other.
For immigrants facing removal, the safest approach is to have experienced immigration counsel evaluate the entire record before testimony is given or strategic decisions are made.
Final Note
Matter of Lopez Rico, 29 I&N Dec. 780 (BIA 2026), is a recent precedent decision and immigration law continues to evolve. The decision does not eliminate the Fifth Amendment privilege, and whether an adverse inference is appropriate depends on the particular circumstances and the nature of the relief being sought.
If you are in removal proceedings, have a pending criminal case, or are concerned that your criminal history could affect your immigration status, seek individualized legal advice before answering questions from immigration authorities or making statements about an unresolved criminal matter.
This article is for informational purposes only and does not constitute legal advice or create an attorney-client relationship.