U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 leesburg Pike, Suite 2000

Falls Church, Vtrgm1a 22041

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Foster, Christopher John OHS/ICE Office of Chief Counsel - OMA
Foster Law Office 1717 Avenue H
720 South Dubuque Street, Suite 1 Omaha, NE 68110
PO Box 720
Iowa City, IA 52244

Name: PIZANA MADERA, ALEJANDRO A 044-566-261

Date of this notice: 4/20/2017

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:
Mullane, Hugh G.
Greer, Anne J.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
 U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virg1ma 22041

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PIZANA MADERA, ALEJANDRO OHS/ICE Office of Chief Counsel - OMA
6103500/A044-566-261 1717 Avenue H
HARDIN COUNTY JAIL Omaha, NE 68110
1116 14TH AVENUE
ELDORA, IA 50627

Name: PIZANA MADERA, ALEJANDRO A 044-566-261

Date of this notice: 4/20/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

Sincerely,

/l
/ : 11 . J. /Z_I
ur-AA...> "-
c
vw"a
Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Mullane, Hugh G.
Greer, Anne J.
Pauley, Roger

Userteam:
U.S Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A044 566 261 -Omaha, NE Date:

APR 2 0 2017
In re: ALEJANDRO PIZANA MADERA a.k.a. Alex Landeros

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Christopher J. Foster, Esquire

CHARGE:

Notice: Sec. 237(a)(2)(A)(ii), I&N Act [8 U.S.C. 1227(a)(2)(A)(ii)] -

Convicted of two or more crimes involving moral turpitude

Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -

Convicted of aggravated felony under section
101(a)(43)(G), I&N Act [8 U.S.C. 1101(a)(43)(G)] -
Theft offense or burglary offense

APPLICATION: Termination

The respondent appeals from an Immigration Judge's November 30, 2016, decision ordering
him removed from the United States. The appeal will be sustained in part and the removal
proceedings will be terminated.

The respondent is a native and citizen of Mexico who was admitted to the United States as a
lawful permanent resident in 1994. In October 2015, the respondent was convicted of
second-degree theft and fourth-degree theft in violation of sections 714.2(2) and 714.2(4) of the
Iowa Code, for which he was sentenced to terms of imprisonment of 5 years and 365 days,
respectively. Based on that conviction, the Department of Homeland Security ("DHS") initiated
removal proceedings against the respondent by filing a notice to appear in Immigration Court
charging him with removability from the United States as an alien convicted of an "aggravated
felony"-to wit, a "theft offense . . . for which the term of imprisonment [is] at least one year."
See sections 101(a)(43)(G) and 237(a)(2)(A)(iii) of the Immigration and Nationality Act,
8 U.S.C. 1101(a)(43)(G), 1227(a)(2)(A)(iii) (2011).1

In his pleadings before the Immigration Judge, the respondent admitted the theft conviction
but claimed that he is a citizen of the United States. He also denied the removal charge, arguing
that his theft offenses were not aggravated felonies. The Immigration Judge ultimately rejected

1 The notice to appear also charged the respondent with removability under section
237(a)(2)(A)(ii) of the Act and alleged a September 2015 Iowa conviction for third- degree
burglary. That charge and factual allegation were subsequently withdrawn by the DHS.
A044 566 261

the respondent's citizenship claim, sustained the aggravated felony charge, and ordered the
respondent removed. This timely appeal followed, in which the respondent reiterates the same
arguments he raised below: (1) that he is a United States citizen, thereby depriving us of
jurisdiction to order him removed; and (2) that his Iowa theft conviction does not support the
''theft offense" aggravated felony charge set forth in the notice to appear. We address each
argument in tum.

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I. CITIZENSHIP

We begin with the respondent's citizenship claim because it goes to the threshold question of
our jurisdiction. To support any removal charge under section 237(a) of the Act, the DHS must
prove by clear and convincing evidence that the individual charged is an "alien," that is, a person
who is "not a citizen or national of the United States." See section 101(a)(3) of the Act. The
respondent concedes that he was born in Mexico on March 30, 1989; therefore he bears the
burden of coming forward with evidence to establish his claim to United States citizenship.
See, e.g., Matter o/Cross, 26 I&N Dec. 485, 487 n.2 (BIA 2015).

According to the respondent, he automatically derived United States citizenship through the
naturalization of his father pursuant to section 320(a) of the Act, 8 U.S.C. 1431(a), which
provides as follows:

Children Born Outside the United States and Residing Permanently in the
United States; Conditions Under Which Citizenship Automatically Acquired

(a) A child born outside of the United States automatically becomes a citizen of
the United States when all of the following conditions have been fulfilled:

(1) At least one parent of the child is a citizen of the United States, whether by
birth or naturalization.

(2) The child is under the age of eighteen years.

(3) The child is residing in the United States in the legal and physical custody
of the citizen parent pursuant to a lawful admission for permanent residence.

To establish derivative United States citizenship under section 320(a) of the Act, which was
enacted pursuant to section lOl(a) of the Child Citizenship Act of 2000 ("CCA"), Pub. L. No.
106-395, 114 Stat. 1631, 1631, the respondent must prove that he satisfied all of its requirements
on or after February 27, 2001. See CCA 104, 114 Stat. at 1633; see also Matter of
Rodriguez-Tejedor, 23 l&N Dec. 153 (BIA 2001); 8 C.F.R. 320.2(a). 2 We conclude that he
has not carried that burden.

2 The respondent does not claim that he satisfied the conditions for derivative citizenship in
effect prior to the enactment of current section 320(a) of the Act.

2
A044 566 261

The respondent's father became a naturalized citizen of the United States in 1993, when the
respondent was 4 years old. In 1994, the respondent and his mother were admitted to the
United States for lawful permanent residence, but in 1995 the respondent's parents separated and
his father moved away from the respondent and his mother. On February 27, 2001, the
respondent was 11 years old and residing in Iowa with his mother, who was then a lawful
permanent resident of the United States, while his father resided in Texas. On March 2, 2002,

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when the respondent was 12 years old, his parents were legally divorced; an Iowa district court
judge awarded sole legal and physical custody of the respondent to his mother and ordered his
father to pay child support. Under the circumstances, we conclude that the respondent did not
derive United States citizenship through the naturalization of his father because he has not
demonstrated-as required by section 320(a)(3) of the Act-that he resided in his father's
"physical custody" at any time between February 27, 2001, and March 2, 2002, when his lawful
permanent resident mother was awarded sole legal and physical custody by the Iowa district
court.

As previously noted, section 320(a)(3) of the Act makes a child's acquisition of derivative
citizenship contingent upon proof that"[t]he child is residing in the United States in the legal and
physical custody of the citizen parent" (emphasis added). The term"legal custody" is defined by
8 C.F.R. 320. l to mean a parent's legal "responsibility for and authority over a child," typically
under state or foreign domestic relations law. See also BLACK'S LAW DICTIONARY 413 (8th ed.
2004) (defining "legal custody" as "[t]he authority to make significant decisions on a child's
behalf, including decisions about education, religious training, and healthcare").

In contrast, the term "physical custody"-which was added to the Act's citizenship
provisions by the CCA-is not defined by statute or regulation. Accordingly, we give the term
its ordinary contextual *1eaning. See Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997, 2002
(2012). With respect to the relationship between parents and children, the term "physical
custody"-as distinct from"legal custody"-denotes a parent's direct possession of and exercise
of supervision and control over a child, even if temporary or intermittent (as in the case of, for
instance, a shared custody or visitation arrangement). See BLACK'S LA w DICTIONARY 1183-84
(8th ed. 2004) (defiping "physical custody" as either "[t]he right to have the child live with the
person awarded custody by the court" or "possession of a child during visitation"); cf also
28 U.S.C. 1738A(b)(7) (defining "physical custody" for full faith and credit purposes to mean
"actual possession and control of a child").

This ordinary construction fits best with the plain language of section 320(a)(3), and is also
consistent with the interpretation adopted by the only federal circuit court of appeals to have
addressed the subject. See Karimijanaki v. Holder, 519 F.3d 710, 721-22 (6th Cir. 2009)
(holding that a lawful permanent resident child did not derive United States citizenship through
the naturalization of his father where the child had resided exclusively in the "physical custody"
of his mother before turning 18). We therefore reject the respondent's appellate argument that a
parent's "physical custody" of a child can be established by a showing that the parent has a mere
"legal right" to exercise such custody (R. Brief at 16). Such an interpretation would
impermissibly conflate the distinct concepts of"legal custody" and"physical custody," rendering
the term "physical" mere surplusage. See also Karimijanaki v. Holder, supra, at 721 (holding

3
A044 566 261

that a child who never "resided" with his father could not satisfy the "physical custody"
requirement of section 320(a)(3), even though the father claimed "legal custody" during the
relevant period).

As the respondent has not established by a preponderance of the evidence that he "resided in
the . . . physical custody" of his United States citizen father at any point between February 27,

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2001, and March 2, 2002, we agree with the Immigration Judge that he did not rebut the
presumption of alienage that arises by virtue of his birth in Mexico. Accordingly, the respondent
is an "alien," rendering him subject to the jurisdiction of the Immigration Court and this Board.

II. REMOV ABILITY

We now turn to the second question raised by the respondent's appeal, i.e., whether his 2015
Iowa theft conviction renders him removable as an alien convicted of an aggravated felony. To
determine whether a crime qualifies as an aggravated felony, we employ the "categorical
approach," which requires us to focus on the "elements" of the respondent's offenses rather than
his offense conduct. See Matter of Chairez, 26 I&N Dec. 819, 821 (BIA 2016). As noted
previously, the respondent's conviction was for two distinct offenses-second-degree theft under
section 714.2(2) of the Iowa Code and fourth-degree theft under section 714.2(4) of the Iowa
Code (hereafter "section 714.2(2)" and "Section 714.2(4)," respectively).

Section 714.2(2) defines second-degree theft as ''theft of property exceeding one thousand
dollars but not exceeding ten thousand dollars in value or theft of a motor vehicle . . . not
exceeding ten thousand dollars in value," while section 714.2(4) defines fourth-degree theft as
"theft of property exceeding two hundred dollars in value but not exceeding five hundred dollars
in value." Both provisions incorporate the definition of ''theft" set forth in section 714.l of the
Iowa Code (hereafter "section 714.l"). The respondent argues on appeal that his crimes were
not ''theft offenses" under section 10l(a)(43)(G) of the Act because some forms of theft under
section 714.1 involve takings with consent that was fraudulently obtained (Resp. Brief at 25).
We agree.

In an effort to distinguish "theft offenses" under section 10l(a)(43)(G) of the Act from
offenses that "involve fraud or deceit" under section 10l(a)(43)(M)(i), this Board has interpreted
the term "theft offense" to exclude crimes in which a person or institution is tricked into
voluntarily surrendering property to another. See Matter of Garcia-Madruga, 24 I&N Dec. 436,
440-41 (BIA 2008) (holding that welfare fraud under Rhode Island law is not a ''theft offense").
In light of Garcia-Madruga, we agree that sections 714.2(2) and 714.2(4) are categorically
overbroad vis-a-vis section 10l(a)(43)(G) of the Act because section 714.l defines theft
expansively, to include such acts as obtaining property by deception and uttering an
insufficient-funds check. Such acts are not "theft offenses" under Garcia-Madruga because they
do not require the nonconsensual taking of property; rather, they involve takings of property with
consent that was fraudulently obtained.

Because sections 714.2(2) and 714.2(4) are categorically overbroad vis-a-vis the "theft
offense" definition, the respondent's conviction cannot support the pending aggravated felony

4
A044 566 261

charge unless the statutes are "divisible." See Matter of Chairez, 26 I&N Dec. 819 (BIA 2016).
As we have explained,

a criminal statute is divisible only if it (1) lists multiple discrete offenses as

enumerated alternatives or defines a single offense by reference to disjunctive sets
of "elements," more than one combination of which could support a conviction,

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and (2) at least one (but not all) of those listed offenses or combinations of
disjunctive elements is a "categorical match" to the relevant generic standard.

Id. at 822 (following the definition of "divisibility" adopted by the Supreme Court in Descamps
v. United States, 133 S. Ct. 2276 (2013), and Mathis v. United States, 136 S. Ct. 2243 (2016)). If

sections 714.2(2) or 714.2(4) are divisible in this sense, then it would be permissible for the
Immigration Judge to conduct a "modified categorical" inquiry, in which the respondent's
conviction record is reviewed for the purpose of determining whether the particular set of
elements under which he was convicted is a categorical match to the "theft offense" concept.

Upon de novo review, we conclude that sections 714.2(2) and 714.2(4) are indivisible
statutes vis-a-vis the "theft offense" definition despite the fact that "theft" under section 714.1 is
defined in the alternative. In Mathis, the Supreme Court clarified that a disjunctively-worded
statute is "divisible" only if each statutory alternative defines a discrete "element" of the offense,
as opposed to a mere "brute fact" or factual "means" by which an element may be proven. See
Mathis v. United States, 136 S. Ct. at 2248. To help reviewing courts distinguish between
"elements" and "means," moreover, Mathis instructs us to look to state court decisions that
definitively answer the question, when available. Id. at 2256. As the respondent points out on
appeal, such decisions exist here (R. Brief at 22).

The Iowa Supreme Court has described section 714.1 as defining "alternative means of
committing the same offense," rather than distinct offenses. See State v. Williams, 328 N.W.2d
504, 506 n.3 (Iowa 1983). Further, the Iowa Court of Appeals has held that a defendant's
conviction for second-degree theft under section 714.2(2) remained valid, even though the jurors
may not have been unanimous about which type of theft the defendant committed under section
714.1, where the evidence at trial was consistent with the commission of multiple species of theft
and where the "different modes" of theft were "consistent with and not repugnant to each other."
State v. Conger, 434 N.W.2d 406, 409-10 (Iowa Ct. App. 1988). These cases establish that
the various types of conduct described as ''theft" in section 714.1 are alternative "means" by
which theft can be committed, not alternative "elements" defining distinct crimes within the
meaning of Mathis. Therefore, it follows that sections 714.2(2) and 714.2(4) are indivisible,
precluding resort to the modified categorical approach.

III. CONCLUSION

In conclusion, although the respondent is an "alien" subject to the jurisdiction of the

Immigration Court and this Board, his Iowa theft conviction does not render him removable as
an alien convicted of an aggravated felony because Iowa's definition of "theft" is categorically

5
A044 566 261

overbroad and indivisible vis-a-vis the generic "theft offense" definition embodied in section
101(a)(43)(G) of the Act. The following order shall therefore be issued.

ORDER: The respondent's appeal is sustained in part, the Immigration Judge's removal
order is vacated, and the removal proceedings are terminated.

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6
 L ;;:
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,,.,_ . ... JI U.S.DEP T OFJUS
EXECUTIVE OFFicE OF IMMIGATION REVIEW
IMMIGRATION COURT
1717 AVENUE H SUITE 100
OMAHA, NE 68110

In the Matter of: Case No.: A044-566-261

PIZANA MADERA, Alejandro
Respondent IN REMOVAL PROCEEDINGS

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ORDER OF THE IMMIGRATIONJUDGE

This is a summary of the oral decision entered on November 30, 2016.

This memorandum is solely for the convenience of the parties. If the proceedings should be appealed or reopened, the
oral decision will become the official opinion in the case.

[ X] The respondent was ordered removed from the United States to MEXICO.
[ ] Respondent's application for voluntary departure was denied and respondent was ordered removed to
MEXICO.
[ ] Respondent's application for voluntary departure was granted until upon poting a bond
in the amount of$ with an alternative order of removal to

Respondent's application for:

l' 4
[ ]
[ ]
Asylum was ()granted ()denied ()withdrawn ()other.
Withholding of removal was ()granted ()denied ()withdrawn ()other.
. of 1

[ ] Respondent's application for [ ] withholding of removal [ ] deferral of removal under Arti"1 'III of the
Convention Against Torture was ()granted {)denied ()withdrawn ()other.
[ ] A Waiver under section was ()granted ()denied ()withdrawn ()other.
[ ] Cancellation of removal under section 240A(a)was ()granted ()denied ()withdrawn ()other.
Respondent's application for:
[ ] Cancellation under section 240A(b)(I) was ()granted ()denied ()withdrawn ()other. If granted,
it was ordered that the respondent be issued all appropriate documents necessary to give effect to this order.
[ ] Cancellation under section 240A(b)(2)was ()granted ()denied ()withdrawn ()other. If granted, it
was ordered that the respondent be issued all appropriate documents necessary to give effect to this order.
[ ] Adjustment of Status under section was ()granted ()denied ()withdrawn ()other.
If granted, it was ordered that respondent be issued all appropriate documents necessary to give effect to
this order.
[ ] Respondent's status was rescinded under section 246.
[ ] Respondent is admitted to the United States as a until ------

[ ] As a condition of admission, respondent is to post a$ bond.

1[ ] Respondent knowingly filed a frivolous asylum application after proper notice. ,.
[ ] Respondent was advised of the limitation on discretionary relief for failure to appear as ordere<lht'
1 ',
,

Immigration Judge's oral decision.
l't '

[ ] Proceedings were terminated. ., ,
'
[ ] Other:
Date: 11130/2016 1 ..

Appeal: RESERVED BY RESPONDENT

Appeal due by: December 30. 2016 1, .,.
:ti':.

CERTIFICATE OF SERVIC
THIS DOCUMENT WAS SERVED BY:

MAIL (M) PERSONAL SERVICE (P) FAX (F)
TO: [ ] ALIEN [ ] ALIEN c/o Custodial Officer ALI /REP [ P] DHS
DATE: 11130 /20 16
Attachments: [ ] EOIR-33
BY: COURT STAFF
[ ] EOIR-28 [ ] Legal Services Li
[ ] Other Q6 W .
 ' (

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
OMAHA, NEBRASKA

File #: A044-566-26 l Date: November 29, 2016

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In the Matter of: )
)
Alejandro Pizana MADERA, ) IN REMOVAL PROCEEDINGS
aka Alejandro Landeros, )
)
Respondent. )

CHARGES: Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"

or "Act")-Admitted alien convicted of an aggravated felony under INA
10 l (a)(43)(G) at any time after admission;

Section 237(a)(2)(A)(ii) of the Act-Admitted alien convicted of two

crimes involving moral turpitude not arising out of a single scheme of
criminal misconduct at any time after admission [WITHDRAWN];

RE: Respondent's Motions to Terminate.

ON BEHALF OF RESPONDENT: ON BEHALF OF THE GOVERNMENT:

Christopher Foster, Esq. Alexandra Tinkham, Assistant Chief Counsel
720 S. Dubuque St., Ste. 1 U.S. Department of Homeland Security
Iowa City, IA 52244 immigration and Customs Enforcement
1717 Avenue H, Suite 174
Omaha, NE 68110

DECISION OF THE IMMIGRATION JUDGE

I. BACKGROUND AND PROCEDURAL HISTORY

On 14 January 2016 the Department of Homeland Security ("DHS") initiated removal

proceedings against Respondent by filing a Notice to Appear ("NTA") with the Court. See NTA.
In it, DHS alleged the following against Respondent: he is an alien; a native and citizen of
Mexico; adjusted his status to that of a lawful permanent resident effective 5 May 1994;
convicted of second- and fourth-degree theft under IOWA CODE 714.2(1), 714.2(2), and
714.2(4) on 26 October 2015; and was sentenced to terms of imprisonment of 5 years and 365
days respectively. 1 See id. Based on those allegations, OHS charged Respondent with

1 Three further allegations in the NTA-that Respondent was convicted and sentenced for burglary in Iowa, and that
his crimes did not arise out of a single scheme of criminal misconduct-were withdrawn by OHS. See OHS Motion
to Withdraw NTA Allegations (Oct. 13, 2016). That motion is granted.

I I A044-56261 Order
 ( (

removability on the remaining above-captioned ground. Id. 2 Respondent admitted all of the
allegations except the first; he denied that he is an alien. See NTA.

At a master calendar hearing in June 2016, Respondent requested more time for U.S. Citizenship
and Immigration Services ("USCIS") to adjudicate his Form N-600 ("N-600") application to
naturalize to United States citizenship. At a hearing on 31 August 2016, the Court was finally

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advised that USCIS had denied Respondent's N-600. See OHS Opposition to Respondent's
Motion to Tenninate Proceedings (Oct. 13, 2016) ("DHS Second Opposition"), at attachment
pgs. l-5. Respondent then moved to terminate proceedings on the basis of his United States
citizenship, and filed evidence in support. See Brief in Support of Motion to Dismiss (Aug. 31,
2016) ("Respondent's First Motion"); Appendix to Motion to Dismiss (Aug. 31, 2016)
("Respondent's Evidence"). OHS opposed that motion, arguing that Respondent was in fact an
alien because his citizen father never had legal, or-at the very least-physical custody of
Respondent. See OHS Opposition to Respondent's Motion to Dismiss (Sep. 12, 2016) ("OHS
First Opposition"). Respondent filed a second motion to terminate proceedings, containing
evidence in support of his first motion. See Respondent's Motion to Terminate Proceedings
(Oct. 3, 2016) ("Respondent's Second Motion"). In that motion, Respondent also argued that
neither of the charges against him could be sustained based on the record and existing law. See
id. OHS responded to that as well. See OHS Second Opposition.

At his hearing on 31 August 2016, the Court made clear to Respondent the consequences of
untimely filing his second motion to terminate. Specifically, the Court advised Respondent and
his counsel that his argument on the second motion-those relating to his removability as an
aggravated felon under Mathis v. United States, 136 S. Ct. 2249 (2016)-would be deemed
abandoned if the deadline were not met. Respondent was given until 30 September to file, but
did not do so until 3 October. See Respondent's Second Motion. Accordingly, all of the
arguments in Respondent's Second Motion that do not relate to his First Motion are hereby
deemed abandoned. Respondent's counsel also conceded that if both Respondent's motions to
terminate were denied, he would neither qualify for nor seek relief from removal.

There are two issues needful of resolution before these motions can be disposed of: (l) whether
Respondent is a United States citizen; and (2) whether Respondent's Iowa theft convictions will
sustain the aggravated felony charge against him (based on the record as developed by OHS,
which has the burden even though Respondent abandoned his right to challenge). For the
following reasons, the Court will deny Respondent's motion to terminate these proceedings and
order him removed.

II. STATEMENT OF LAW

Because Respondent is an admitted alien, OHS has the burden to demonstrate by clear and
convincing evidence that Respondent is an alien and is deportable as charged in the INA. See
INA 240(c)(3)(A).

2 The second charge listed above was withdrawn by OHS. See note I, supra.

21 A044-566-261 Order
 ( (

A. Derivative Citizenship

Evidence of foreign birth creates a presumption of alienage, which a respondent may rebut with a
preponderance of evidence demonstrating that he or she is a United States citizen. See Matter of
Rodriguez-Tejedor, 23 l&N Dec. 153 (BIA 2001); Matter of Baires, 24 l&N Dec. 467, 468 (BIA
2008). Section 320 of the Child Citizenship Act ("CCA"), also at INA 320(a), states that a

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child born outside the United States derives United States citizenship when: (1) at least one
parent becomes a citizen by birth or naturalization; (2) the child is under 18; and, (3) the child is
a lawful permanent resident ("LPR") and is residing in the United States in the legal and physical
custody of the citizen parent.

B. Aggravated Felony - Theft

The term "aggravated felony" means, inter a/ia, "a theft offense (including receipt of stolen
property) or burglary offense for which the term of imprisonment [is] at least one year." INA
l 0l(a)(43)(G). The Board of Immigration Appeals ("BIA" or "the Board") has held that a ''theft
offense," under section 1 0 l(a)(43)(G), "consists of the taking of, or exercise of control over,
property without consent whenever there is criminal intent to deprive the owner of the rights and
benefits of ownership, even if such deprivation is less than total or permanent." See Matter of
Garcia-Madruga, 24 I&N Dec. 436, 440 (BIA 2008); Matter of V-Z-S-, 22 l&N Dec. 1338, 1346
(BIA 2000).

When determining whether a respondent has been "convicted of' an aggravated felony, the Court
employs a "categorical approach" to determine whether the state offense is sufficiently
comparable to the corresponding offense in the INA. See Moncrieffe v. Holder, 133 S. Ct. 1678,
1684 (2013). Solely relevant to this determination is whether the statute under which the
respondent was convicted "categorically fits within the generic federal definition." Id. (quoting
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185-87 (2007)) (internal quotation marks omitted).
The state offense is thus "viewed in the abstract," in its elemental form, and the respondent's
actual conduct "is quite irrelevant." Moncreijfe, 133 S. Ct. at 1684 (quoting United States ex rel
Guarino v. Uhl, 107 F.2d 399, 400 (9th Cir. 1939)).

A categorical match between the elements of the state offense to those of the generic offense
ends the inquiry. See Moncreiffe , 133 S. Ct. at 1685. If the answer is neither a categorical match
nor a categorical mismatch between the generic crime and the statute(s) of conviction, the
analysis moves on to a modified categorical approach, but only if the statute at issue is
"divisible" because it contains "several different crimes, each described separately," at least one,
but not all, of which matches the generic definition of the ground of removability. See
Moncrieffe, 133 S. Ct. at 1684; see also Descamps v. United States, 133 S. Ct. 2276, 2281-83
(2013); United States v. Tucker, 740 F.3d 1177, 1182 (8th Cir. 2014) (after Descamps, courts
cannot examine the record of conviction for evidence related to "textually indivisible,"
"nonstatutory categories"). A statute is divisible when it contains crimes as defined by distinct
elements; but it is not divisible when it contains a single crime which can be completed by
different statutory means. See Mathis v. United States, 136 S. Ct. 2249 (2016), overruling
Mathis v. United States, 786 F.3d 1068 (8th Cir. 2015) (analyzing an overbroad Iowa burglary
statute) (emphasis added). Where that condition is met, a court "may determine which particular

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offense the noncitizen was convicted of by exammmg the charging document and jury
instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or 'some
comparable judicial record' of the factual basis for the plea." Moncrieffe, 133 S. Ct. at 1684-85
(internal citations omitted). However, no additional sources of evidence outside the record can
be consulted for this purpose. See id

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III. FINDINGS AND ANALYSIS

A. Respondent is not a United States citizen

The facts are these: Respondent was born out of wedlock in Mexico on 30 March 1989 to Raul
Pizana and Julia Landeros. See Respondent's Second Motion at Tab B, pg. 32. The Raul-Julia
union was solemnized by marriage in Lee County, Iowa on 3 January 1992. Raul naturalized to
United States citizenship on 18 October 1993. See Respondent's Evidence, Tab 1.3 Respondent
became an LPR on 5 May 1994. See Respondent's Second Motion at Tab A, pg. 25. Sometime
in 1995, Raul left Julia and moved to Texas. Id. at Tab B, if 10. An Iowa court order issued on 9
November 1998, naming Respondent's mother as "caretaker" and ordering his father to pay child
support. See Respondent's Evidence at 6. That order did not discuss custody or divorce. Id On
20 March 2002, Raul and Julia were divorced, with sole legal and physical custody of
Respondent granted to the latter. Id. at 29-30. Respondent never lived with nor visited his
father between the time his father left Iowa in 1995 and March of 2007, when Respondent turned
18. See Respondent's Second Motion at Tab B.

To rebut the presumption of alienage created by his foreign birth in asserting automatic
naturalization, Respondent must demonstrate by a preponderance of evidence that he is ( 1) the
child of a United States citizen, (2) who was under 18 years old after the enactment of the CCA,
and (3) and in the legal and physical custody of the citizen parent. See INA 320; Rodriguez
Tejedor, 23 l&N Dec. at 153.

1. Respondent is the child of a United States citizen

Children born out of wedlock derive citizenship from their mothers, but Respondent's mother
never naturalized. See Matter of Cross, 26 l&N Dec. 485 (BIA 2015); INA IOI(c)(l). To
derive citizenship from their fathers, children born out of wedlock must be "legitimated" by the
laws of the State in which they reside, or there must have been no difference in recognition
between legitimate and illegitimate births in the country where the child was born. See id. The
record does not indicate the legitimation laws or statuses of Mexico, but in Iowa, "[c]hildren
born outside of a marriage become legitimate by the subsequent marriage of their parents." See
lowA CODE 595.18. Because Respondent's acknowledged parents were married prior to his
16th birthday in Iowa, the Court finds that he was legitimated so as to be a "child" of a United
States citizen under Section lOl (c)(l ) and he is therefore eligible for consideration under Section
320(a). See Cross, 26 l&N Dec. at 487. That is to say, he meets the first prong for automatic
naturalization under the CCA. See INA 320(a)( l ).

3 The evidence of Respondent's father's naturalization is a largely illegible photocopy. But, the date is readable and
neither OHS nor USCIS challenged Raul's citizenship, so the Court accepts this document as evidence of Raul's
citizenship.

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2. Respondent was under the age of 18 at the enactment of the CCA

Respondent also meets the second prong-that he be under the age of 18 when the event occurs.
See id. at (a)(2). The CCA went into effect on 27 February 2001, and affected the rights of all
persons who were then not citizens and not 18 years of age. See id. at 320 note 1. Respondent
did not tum 18 until 2007, and he was therefore under 18 at the relevant period. See

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Respondent's Evidence.

3. Respondent was not in the legal and physical custody of his citizen father

Respondent was "residing" in the United States, but the fighting issue here is whether
Respondent was residing in the "legal and physical" custody of his citizen father before he
turned 18 and after the enactment of the CCA. See INA 320(c), 10 l (a)(33). The relevant
period is between 27 February 2001 (the effective date of the CCA) and 2 March 2002 (the date
on which Respondent's non-citizen mother was awarded his sole physical and legal custody).
DHS makes a common sense argument; Raul was hundreds of miles away from Respondent in
Texas, and thus, whatever the status of his legal custody, he cannot be said to have had physical
custody of Respondent at any time. See DHS First Opposition. Respondent's argument is that
Iowa does not define "physical custody," that married couples have co-equal custody rights until
a court says otherwise in Iowa, and that custody was not severed or addressed until Raul and
Julia were divorced in 2002, meaning that Respondent met all three prongs as soon as the CCA
was enacted. See Respondent's First Motion.

The Court notes at the outset that this area of law is far from straightforward. See, e.g., Padilla
v. Kentucky, 559 U.S. 356, 380 n. l (2010). To begin, the means of establishing "physical"
custody under the CCA has not been thoroughly explored, even though the concept of physical
custody is new to the statutory language (relative to the prior iteration before 2001). See former
4
INA 321(a) (requiring only legal custody by the naturalized parent); Moussa v. INS, 302 F.3d
823 (8th Cir. 2002). The Eighth Circuit has not addressed the issue, and the Board has only
issued limited guidance on the matter.

a. Legal Custody

Legal custody is defined in the regulations as "responsibility for and authority over a child." 8
C.F.R. 320.1. Iowa's definition is similar (both in form and vagueness): legal custody refers to
a parent's "custodial rights and responsibilities toward the child," including "decision making
affecting the child's legal status, medical care, education, extracurricular activities, and religious
instruction." See IOWA C ODE 598. I (5).

There is a presumption of legal custody in the United States citizen parent of a child in the
regulations, absent evidence to the contrary, so long as the child is legitimated and currently
living with the citizen parent. See 8 C.F.R. 320.1(1). That is not the case for Respondent, at

4 Although Respondent was lawfully residing in the United States and under 18 so as to be able to take advantage of
the law pre-CCA, he did not meet the requirements. To naturalize under former Section 321, either both of his
parents needed to be citizens (his mother was not) or he needed to be in the sole legal custody of his citizen father
(he was not). See Moussa, 302 F.3d at 826-27; Respondent's Evidence at Tab A.

s I A044-566-261 Order


least not in the period following the enactment of the CCA in which Respondent was under 18.
But, the Board has held that legal custody is a natural right, and that absent a State law to the
contrary, no decree establishing such in the parent is required. See Matter of Rivers, 17 I&N
Dec. 419 (BIA 1980). With respect to a legitimated father, such as Respondent's, custody is
presumed until there is some affirmative evidence showing otherwise. See id. As discussed
above, Respondent was legitimated under Iowa law by virtue of his parents' marriage in 1992.

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See Section Ill.A. I, supra. Prior to legitimation, the mother of an out-of-wedlock child in Iowa
has sole legal custody. See IOWA CODE 600B.40. Although there is no clear Iowa statute or
case law on point, there is a clear negative inference that legitimation creates coequal legal
custody rights in both parents, just as it would with children born in wedlock. Because legal
custody in a parent-including a legitimated parent-is a natural right, and because there is no
evidence that Iowa moved to counteract that right, the Court holds that Respondent was in the
legal custody of his father as of 3 January 1992-the date of his parents' marriage. See Rivers,
17 l&N Dec. at 420; Respondent's Evidence; IOWA CODE 6008.40, 598.1(5), & 595.18.

The question then becomes whether Respondent's father's subsequent actions divested him of
legal custody at some point before the enactment of the CCA. First, Respondent's father moved
from Iowa to Texas in 1995. See Respondent's Evidence, Tab A. Three years later, an Iowa
court issued a child support order listing Respondent's mother as his "caretaker" and ordering his
father to pay her a certain amount per month. See id. at Tab B, pg. 7 ii 6. A "caretaker" in Iowa
child support proceedings is a parent who is responsible for the costs of a dependent child's care.
See IOWA CODE 252C.1(2). A caretaker is distinct from a "custodian," which is a parent "who
has been awarded legal custody or physical care" of a dependent child. See id. at 598.41(7).
The child support order in the record supports this distinction as well, ordering the child support
to begin on "the date the custodial parent or caretaker or party to the proceeding requests that
withholding begin." See Respondent's Evidence at Tab B, pg. 9 4.b (emphasis added).
Further, Iowa courts acknowledge that whether a parent has been a child's caretaker is a factor in
the ultimate determination of the child's custody. See, e.g., In re Marriage of Hansen, 733
N.W.2d 683 (Iowa 2007); In re Marriage of Fennell, 485 N.W.2d 863, 864-65 (Iowa Ct. App.
1992); IOWA CODE 598.41(3)(a) and (d). In other words, a parent who is a caretaker has a
good argument for an award of legal custody in a proceeding on that issue, but the argument
must be made. Accordingly, the Court holds that Respondent's father was not divested of his
legal custody by virtue of the child support order.

The separation and child support arrangement continued until 20 March 2002, when
Respondent's parents were divorced and his legal (and physical) custody was explicitly awarded
to his mother. See Respondent's Evidence at 30. By then, the CCA was in effect. Another
negative inference operates here: why would the Iowa court feel the need to award custody to
Respondent's mother if it had already done so by the child support order four years earlier?

The Court finds that Respondent was still in the legal custody of his father following the
enactment of the CCA. The analysis moves on to the status of Respondent's physical custody.
See INA 320(a)(3).

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b. Physical custody

Unlike legal custody, physical custody is not defined in the regulations. Black's Law Dictionary
gives two relevant definitions of "physical custody:" "[t]he right to have the child live with the
person awarded custody by the court;" and "[p]ossession of a child during visitation." See
BLACK 's LA w DICTIONARY 1263 (9th ed. 2009). Iowa follows the former definition to an extent,

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defining physical custody as "the right and responsibility to maintain a home for the minor child
5
and provide for the routine care of the child." IOWA CODE 598.1(7). Contrasted with Black's,
there is no mention of a court award there. See id. With respect to the latter definition, Iowa
refers to that concept as a visitation right in the non-custodial parent. See Jn re Marriage of
Hynick, 727 N.W.2d 575, 579 (Iowa 2007). Although Iowa statutes do not provide for it, Iowa
courts treat physical custody determinations in the exact same manner as legal custody
determinations, by making a best-interests-of-the-child finding. See Hansen, 733 N.W.2d at 696
(citing In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974)).

Neither Eighth Circuit nor Board precedent is dispositive here. See, e.g., Moussa, 302 F.3d 823.
The Board acknowledges the requirement of physical custody as distinct from legal custody in
the CCA, but has variously indicated that physical custody can be satisfied by a decree, or an
analysis of the child's "primary residence," or actual physical cohabitation between parent and
child, or by a formal adoption. See Matter of Pina, 2007 WL 2299597 (BIA Jul. 23, 2007),
overruled by Pina v. Mukasey, 542 F.3d 5 (1st Cir. 2008); Matter of Salem, 2007 WL 1430369
(BIA Apr. 24, 2007); Matter ofPerez-Gonzalez, 2008 WL 2079383 (BIA Apr. 23, 2008); Matter
of Delcid, 2005 WL 1766776 (BIA May 3, 2005); Matter of Kurtbuchner, 2007 WL 4711450
(BIA Dec. 26, 2007); Matter of Correa-Cortes, 2008 WL 486824 (BIA Jan. 18, 2008); Matter of
Phomphakdy, 2005 WL 3709252 (BIA Dec. 30, 2005); Matter of Guy, 2004 WL 848510 (BIA
Feb. 27, 2004); Matter of Choi, 2007 WL 3301582 (BIA Sep. 28, 2007). Based on that, it is
possible that "physical custody" can be satisfied either by a showing of actual physical
cohabitation to a significant or "primary residence" extent, or by a showing of an actual legal
right to exercise physical custody over the child. See Cross, 26 I&N Dec. at 487; INA
320(a)(3). For example, in Iowa, adoptive parents assume the same rights as natural or
legitimated parents. See Watt v. Dunn, 17 N.W.2d 811, 816 (Iowa 1945); In re Adoption of
Perkins, 49 N.W.2d 248, 256 (Iowa 1951) (citing 2 C.J.S., Adoption of Children 56). If an
adoption is enough to establish physical custody under the CCA, perhaps an operation of law that
provides an identical package of rights is enough, too.

But, such a conclusion is too contrary to common sense for the Court to reach it. Accordingly,
the Court agrees with OHS and holds that Respondent was in not the physical custody of his
father during the relevant period. In a close call, Respondent has failed to meet his burden to
overcome the presumption of alienage arising out of his foreign birth. See Matter of Tijerina
Villareal, 13 l&N Dec. 327 (BIA 1969). His motion to terminate on this basis will be denied.

s Iowa actually uses the phrase "physical care" to denote the concept of physical custody as commonly understood.
See Hansen, 733 N.W.2d at 690-91. Iowa does have a ''physical custody" definition in its laws, but that is not for
detenninations of custody-it is for enforcement and jurisdictional purposes enacted wholesale by the Uniform
Child Custody Jurisdiction and Enforcement Act. See IOWA CODE 598B. I 02(14). Moreover, Iowa courts are
aware of the confusion caused by generically referring to physical care as physical custody, and have taken pains to
emphasize the fonner as correct. See, e.g., In re Marriage o/Troen, 801N.W.2d378 at *I n.2 (Iowa Ct. App. May
11, 2011) (table). "Custody" used by itselfrefers to "legal custody" in Iowa. See Hansen, 733 N. W.2d at 696.

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B. Respondent is removable

Because Respondent is removable and has conceded he has no path to relief, he will be ordered
removed.

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The following orders will be entered:

ORDERS OF THE IMMIGRATION JUDGE

IT IS ORDERED that Respondent's motion to terminate is DENIED;

IT IS FURTHER ORDERED that Respondent shall be REMOVED TO

MEXICO.

81 A044-566-261 Order