U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike. Suite 2000

Falls Church. Virginia 22041

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Mendoza, Maria Guadalupe DHS/ICE Office of Chief Counsel - HOD
The Mendoza Law Firm 126 Northpoint Drive, Suite 2020
300 Massachusetts Ave NW HOUSTON, TX 77060
Suite 326
Washington, DC 20001

Name: GARCIA VARELA, ANTONIO A 074-573-762

Date of this notice: 3/27/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Antonio Garcia Varela, A074 573 762 (BIA March 27, 2017)
 .
' U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

MAR 2 7 2017
File: A074 573 762 - Houston, TX Date:

In re: ANTONIO GARCIA VARELA a.k.a. Antonio Garcia

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IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Maria G. Mendoza, Esquire

CHARGE:

Notice: Sec. 212(a)(2)(A)(i)(II), I&N Act [8 U.S.C. 1182(a)(2)(A)(i)(II)] -

Controlled substance violation

Sec. 212(a)(2)(C), l&N Act [8 U.S.C. 1182(a)(2)(C)] -

Controlled substance trafficker

APPLICATION: Termination; remand

The respondent appeals from an Immigration Judge's November 18, 2016, decision ordering
him removed from the United States. The respondent has also filed a motion to remand the
record to the Immigration Judge for further proceedings. The Department of Homeland Security
("OHS") has not responded to the appeal or the motion. The appeal will be dismissed, but the
motion to remand will be granted.

In both his appeal and his motion to remand, the respondent maintains that he cannot be
removed because he is a United States citizen. Specifically, he claims that he derived
United States citizenship in 1999 through the naturalization of his mother. This claim was not
asserted below, however, and therefore it is not properly before us as a ground for appeal. See
Matter of Fedorenko, 19 l&N Dec. 57, 74 (BIA 1984). Accordingly, the appeal will be
dismissed.

The respondent also raises his derivative citizenship claim through a motion to remand. See
8 C.F.R. 1003.2(c)(4). Remand is warranted when the new facts alleged in the motion,
together with the facts already of record, indicate a reasonable likelihood of success on the
merits, so as to make it worthwhile to develop the issues further at a hearing. Matter of L-O-G-,
21 l&N Dec. 413, 418-19 (BIA 1996). The evidence proffered in support of the respondent's
motion is not conclusive, but in our judgment it does indicate a "reasonable likelihood" that he
will be able to prove his citizenship claim if the record is remanded.

The respondent admits that he was born in Mexico on May 26, 1981. Accordingly, he is
presumed to be an alien and bears the burden of producing evidence to substantiate his
citizenship claim. See, e.g., Matter of Cross, 26 I&N Dec. 485, 487 n.2 (BIA 2015). According
to the respondent, he automatically derived United States citizenship through the naturalization
Cite as: Antonio Garcia Varela, A074 573 762 (BIA March 27, 2017)
A074 573 762

of his mother pursuant to pursuant to former section 32 l(a)(3) of the Immigration and
Nationality Act, 8 U.S.C. 1432(a)(3) (1998), which provided in pertinent part that a lawful
permanent resident, born outside the United States of alien parents, became a United States
citizen automatically upon "the naturalization of the mother if the child was born out of wedlock
and the paternity of the child has not been established by legitimation," provided that both the
mother's naturalization and the child's admission to lawful permanent resident status occurred

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before the child's 18th birthday. 1

The respondent's citizenship claim is predicated on the following factual assertions: (1) that
he was born out of wedlock in the State of Chihuahua, Mexico, in 1981; (2) that his biological
father never "legitimated" him thereafter via any of the methods for acknowledging paternity
recognized under Texas law; (3) that his mother, Maria Varela Garcia, became a naturalized
citizen of the United States in 1996, when he was 14 years old; and (4) that he became a lawful
permanent resident of the United States on January 25, 1999, at the age of 17, while residing in
the United States in his mother's custody. In support of the motion, the respondent proffers an
affidavit signed by his mother attesting to the foregoing facts, as well as copies of his mother's
naturalization certificate, his Mexican birth certificate, and a document reflecting his lawful
permanent resident status.

Based on this evidence, the respondent has made a prima facie showing that he was born out
of wedlock in Chihuahua, Mexico, and that his mother's naturalization and his own admission to
lawful permanent residence both occurred before his 18th birthday. His evidence is more
ambiguous, however, as it pertains to the question of "legitimation." The respondent's Mexican
birth certificate bears his father's name, suggesting that his father may have acknowledged
paternity in a manner that would constitute "legitimation" under Mexican law (and perhaps
under the law of Texas as well). See Iracheta v. Holder, 730 F.3d 419, 426-27 (5th Cir. 2013)
(addressing the Mexican "legitimation" issue in the context of a citizenship claim under section
309 of the Act, 8 U.S.C. 1409); see also TEX. FAMILY CODE 151.002(a)(4) (Vernon 1998)
(specifying that "a man is presumed to be the biological father of a child if ... without attempting
to marry the mother, he consents in writing to be named as the child's father on the child's birth
certificate"). But on the other hand, it does not appear that the respondent's biological parents
ever married each other;2 and for purposes of former section 32l (a)(3) of the Act, we have taken
the position that paternity of a child born out of wedlock is ordinarily "established by
legitimation" (so as to preclude the child from deriving citizenship solely through his mother)

1
The respondent also claims that he may have derived citizenship through his mother by virtue
of his parents' "legal separation," but that claim fails because his motion indicates that the man
from whom his mother separated was his stepfather (i.e., the biological father of his younger
siblings), not his biological father. A child cannot derive United States citizenship through his
mother's legal separation from his stepfather because a stepfather is not a "parent" under the
Act's citizenship provisions. See Matter of Guzman-Gomez, 24 l&N Dec. 824 (BIA 2009).
2
The respondent's motion asserts that his mother later married (and separated from) the father
of his younger brothers.

2
Cite as: Antonio Garcia Varela, A074 573 762 (BIA March 27, 2017)
A074 573 762

only if the parents married each other after the child's birth. See Matter of Cross, 26 l&N
Dec. at 490.

Although unanswered questions remain to be resolved, the evidence provided in conjunction

with the respondent's motion persuades that further review is worthwhile. See Matter ofL-O-G-,
supra, at 4 18-19 (citing Matter of Sipus, 14 I&N Dec. 229, 231 (BIA 1972)). On remand, the

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respondent shall bear the burden of proving all facts upon which his citizenship claim depends.
To the extent the respondent's claim turns on questions of foreign law, moreover, he shall bear
the burden of proving the content of such law. Matter of S-K-, 23 I&N Dec. 936, 939
(BIA 2006) (citing Matter ofAnnang, 14 I&N Dec. 502 (BIA 1973)).

The following orders shall be issued.

ORDER: The appeal is dismissed.

FURTHER ORDER: The motion to remand is granted and the record is remanded for
further proceedings consistent with the foregoing opinion.

Cite as: Antonio Garcia Varela, A074 573 762 (BIA March 27, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE

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EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
HOUSTON, TEXAS

File: A074-573-762 November 18, 2016

In the Matter of

ANTONIO GARCIA VARELA, IN REMOVAL PROCEEDINGS

RESPONDENT

CHARGES: INA Section 212(a}(6)(A)(i}, present in the United States without

having been admitted or paroled; INA Section 212(a}(2)(A}(i)(II},
conviction for controlled substance violation.

APPLICATIONS: None.

ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:

MARIA MENDOZA MELISSA SALAZAR

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE

On August 4, 2016, the Department of Homeland Security filed a Notice to
I Appear against the above:-named respondent.a. charging him with being inadmissible

under INA Section 212(a)(6)(A)(i), as an alien who is in the United States without having
been admitted or paroled, and INA Section 212(a)(2)(A)(i)(II), as an alien who has been
convicted for a controlled substance violation. See Exhibit 1. At a prior hearing the
respondent, through counsel, admitted the factual allegations in the Notice to Appear
and conceded inadmissibility as charged. Based upon his admissions, his concession
of inadmissibility, and the conviction record submitted by OHS, the Court ruled that the
respondent was inadmissible as charged.

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__... ( Formatted: Indent: First line: 0.5"
The respondent designated Mexico as the country of removal. Originally, the ..

respondent contended that he was not convicted of an aggravated felony and that he
was not foreclosed from cancellation of removal by virtue of his May 30, 2014 conviction
for possession with intent to deliver between one and 400 grams of cocaine. Today,
however, the respondent conceded that his crime is indeed an aggravated felony.
The respondent also had submitted a motion to apply for 212(h) relief. However,
the Court concluded {and the respondent's counsel concursl that the respondent is
ineligible for a waiver under INA Section 212(h) because he has been convicted of a
drug offense other than an offense involving possession for one's own use of 30 grams
or less of marijuana. See INA Section 212(h).
The respondent seeks no other form of relief. He simply seeks a stay of his
removal so that he could attempt to vacate his criminal conviction. That stay can be
sought from DHS. Furthermore. an adjournment of the instant proceedings to allow the
respondent to pursue post-conviction relief would be improper under the Fift Circuit's
_,.( Formatted: Underline
decision in ICabral v. Holder, 632 F.3d 886. 890 {5th Cir. 2011). Therefore, the Court
issues the following order-:-
ORDER
IT IS ORDERED that the respondent be removed from the United States to
Mexico on the charges contained in the Notice to Appear.

Please see the next page for electronic

signature

A074-573-762 2 November ts, 2016

.

SAUL E. GREENSTEIN

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Immigration Judge

A07 4-573-762 3 November 18, 2016

 (
i.

/Isl/

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Immigration Judge SAUL E. GREENSTEIN
GreenstS on January 12, 2017 at 1:19 PM GMT

A074-573-762 4 November 18, 2016