                                                        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.

                        --------------------
               Petition for Review of an Order of the
                    Board of Immigration Appeals
                         BIA No. A34 027 652
                        --------------------

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this opinion should not be published and is not precedent except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.
                            No. 04-60087
                                 -2-

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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                                -3-

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.
