Miller v. Gonzales , 166 F. App'x 769 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
February 15, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60875
Summary Calendar
ALEXANDER KERRICK MILLER,
Petitioner,
v.
ALBERTO R. GONZALES,
U.S. Attorney General,
Respondent.
On Petition for Review from an Order of
the Board of Immigration Appeals
No. A41360842
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM*
Alexander Miller, a native of Jamaica, petitions this Court
for review of the Board of Immigration Appeals’s (“BIA”) order of
removal. Concluding that 8 U.S.C. § 1252(a)(2)(C) strips this
Court of jurisdiction, we DISMISS the petition for review.
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
I. PROCEDURAL HISTORY
Miller was born on September 2, 1969, in Jamaica to alien
parents who were unmarried. According to Miller’s documentary
evidence, his father, Donald Miller, later established paternity
and gained legal custody of him through the Jamaican courts in
1978. Donald Miller subsequently became a naturalized United
States citizen. Miller’s parents married in 1979 and divorced in
1984. However, Miller states that he did not have knowledge of
these events as they occurred. Miller was residing with paternal
aunts and grandparents in Jamaica at the time of the divorce. In
1986, on Miller’s behalf, an application for an Immigrant Visa was
filed with the Immigration and Naturalization Service (“INS”). The
application was approved, and Miller entered the United States on
September 8, 1987, six days after his eighteenth birthday.
On December 18, 1990, Miller was convicted in federal district
court in the Southern District of Florida for unauthorized use of
credit cards and sentenced to twenty-four months imprisonment.
Based on that offense, Miller was deported from the United States
to Jamaica on November 10, 1992, but thereafter he returned without
permission. On October 18, 2001, Miller was convicted in the
federal district court in the Southern District of Florida for the
offense of illegal reentry after deportation for an aggravated
felony in violation of 8 U.S.C. section 1326(a), (b)(2) and
sentenced to forty-one months imprisonment.
In December of 2003, Miller was notified of the institution of
2
the instant removal proceedings. After a hearing, the Immigration
Judge (“IJ”) ordered Miller removed from the United States to
Jamaica. Miller appealed, and the BIA affirmed without opinion,
rendering the removal order final. Miller now petitions this Court
for review of the BIA’s order of removal.
II. ANALYSIS
As a threshold question, we must determine whether we have
jurisdiction. “[N]o court shall have jurisdiction to review any
final order of removal against an alien who is removable by reason
of having committed” certain crimes set forth in 8 U.S.C. section
1252(a)(2)(C); see Lee v. Gonzales, 410 F.3d 778, 780-81 (5th Cir.
2005). Nevertheless, this Court retains jurisdiction “to consider
whether the specific conditions exist that bar our jurisdiction
over the merits, namely, whether the petitioner is (1) an alien,
(2) who is deportable, (3) for committing the type of crime that
bars our review.” Nehme v. INS, 252 F.3d 415, 420 (5th Cir. 2001).
Miller concedes that he was convicted of a crime that would
render an alien deportable. Miller argues, however, that he is not
an alien because he derived citizenship from his father pursuant to
12 U.S.C. section 1432,1 which provides that:
(a) A child born outside of the United States of alien
1
Former 8 U.S.C. § 1432 was repealed February 27, 2001, see
Pub.L. 106-395, § 104. The applicable law is the law in effect at
the time of Miller’s birth. See United States v. Cervantes-Nava,
281 F.3d 501, 503 n.2 (5th Cir. 2002).
3
parents, or of an alien parent and a citizen parent who
has subsequently lost citizenship of the United States,
becomes a citizen of the United States upon fulfillment
of the following conditions:
. . .
(3) The naturalization of the parent having legal
custody of the child when there has been a legal
separation of the parents or 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; and if
(4) Such naturalization takes place while such
child is under the age of eighteen years; and
(5) . . . thereafter begins to reside permanently
in the United States while under the age of
eighteen years.
(emphasis added).
It is undisputed that, after his father’s naturalization,
Miller entered the United States shortly after his eighteenth
birthday.2 Thus, Miller has failed to meet the statutory
requirements for derivative citizenship under section 1432.
Nevertheless, Miller argues that the delay was not his fault
but the fault of the INS. Miller’s application for an Immigrant
Visa was approved a little more than three months prior to his
eighteenth birthday. However, according to Miller, a consular
2
In making her determination regarding whether Miller had
met the above statutory requirements for derivative citizenship,
the IJ expressed doubt regarding whether Miller had proven that
Donald Miller was his father. For purposes of this appeal, we will
assume without deciding that Miller did so prove.
4
officer in the United States Embassy in Jamaica rescheduled an
interview from June 16, 1987, to September 8, six days after his
eighteenth birthday. Shortly thereafter, Miller received his Visa
packet from the embassy and entered the United States. Based on
these events, Miller argues that “the Government delayed the
processing of his Immigrant Visa after his 18th birthday although
Said visa was in fact ‘issued,’ without any notification . . . .”
It appears Miller is attempting to argue that the government
is estopped from denying him derivative citizenship. To make a
successful estoppel claim, Miller must at least show affirmative
misconduct on the part of the government. Moosa v. I.N.S., 171
F.3d 994, 1004 (5th Cir. 1999).3 This Miller has failed to do.
Without more, Miller’s allegation that the consular officer
rescheduled an interview to occur after his eighteenth birthday is
not sufficient to show affirmative misconduct. See INS v. Miranda,
459 U.S. 14, 18-19 (1982) (INS's 18-month delay in processing
alien's application for permanent residency did not constitute
affirmative misconduct); cf. Montana v. Kennedy, 366 U.S. 308, 314-
15 (1961) (failure of American Consular Officer in Italy to issue
passport to alien’s mother, which allegedly resulted in alien’s
birth in Italy, did not constitute affirmative misconduct).
3
We assume without deciding that the “INS can ever be
estopped from enforcing immigration laws because of its
misconduct.” Id. at 1003 (citation omitted) (emphasis in
original).
5
Because Miller has failed to show affirmative misconduct, his claim
of estoppel fails.4 He failed to show derivative citizenship and
is therefore an alien. As previously set forth, we do not have
jurisdiction to review any final order of removal against an alien
who is removable by reason of having committed a crime involving
moral turpitude. 8 U.S.C. § 1252(a)(2)(C).
III. CONCLUSION
For the above reasons, we DISMISS the appeal for lack of
jurisdiction.
4
Miller also cites precedent from other circuits in an
attempt to show that he should be excused from meeting the
statutory requirement because of circumstances beyond his control.
See, e.g., Ramos-Hernandez v. INS, 566 F.2d 638 (9th Cir. 1977).
These cases are inapposite because they rely on the “principle of
law that no conduct results in expatriation unless it is engaged in
voluntarily.” Id. at 643. Miller is not being expatriated, having
never met the statutory requirements for derivative citizenship.
6