                                                          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this opinion should not be published and is not precedent except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
