Falek v. Gonzales ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 15, 2005
Charles R. Fulbruge III
Clerk
No. 04-60087
Summary Calendar
JOHN FALEK,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A34 027 652
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Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
John Falek appeals the Board of Immigration Appeals’ (“BIA”)
final order of removal. Falek was ordered to be removed from the
United States after a determination that he was convicted of a
crime involving moral turpitude and that he was not entitled to a
waiver of removal. Under the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA), “no court shall 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). This
*
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this opinion should not be published and is not precedent except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.
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court, however, does retain 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). This
court reviews its jurisdiction de novo. Id.Although Falek does not challenge the determination that his
conviction involved a crime of moral turpitude, he does assert
that he is a United States citizen, not an alien. As a result,
for jurisdictional purposes, the threshold issue is whether Falek
is an alien. See Nehme, 252 F.3d at 420. If there is no genuine
issue of material fact as to whether Falek is an alien, this
court will not have jurisdiction to review the final order of
removal. 8 U.S.C. § 1252(a)(7)(B); see Nguyen v. INS, 208 F.3d
528, 531 (5th Cir. 2000). If, however, there is a genuine issue
of material fact as to whether Falek is an alien, the matter
should be remanded for a hearing. 8 U.S.C. § 1252(a)(7)(B).
Falek contends that he derivatively acquired United States
citizenship through his mother. Specifically, Falek asserts that
his mother acquired retroactive United States citizenship at
birth as a result of 8 U.S.C. § 1401(h) and that, because his
mother was a United States citizen when he was born, he is a
United States citizen pursuant to 1401(a)(7).
Under the law in effect at the time of Falek’s birth, for
Falek to acquire derivative citizenship from his mother, Falek’s
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mother would have to be a citizen who, prior to Falek’s birth,
“was physically present in the United States for a period or
periods totaling not less than ten years, at least five of which
were after attaining the age of fourteen years.” 8 U.S.C.
§ 1401(a)(7) (1952). Falek has failed to show that his mother
satisfied the physical presence requirements of 8 U.S.C.
§ 1401(a)(7). Therefore, there is not a genuine issue of
material fact as to whether Falek is an alien.
Falek’s motions to supplement the record and his brief are
GRANTED.
The petition for review is DENIED for want of jurisdiction.