                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 12-1937
                                  _____________

                          JOSE A. CHAVARRIA-CALIX,
                                   Petitioner

                                         v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                              Respondent
                            _____________

                        Petition for Review of an Order of the
                         United States Department of Justice
                            Board of Immigration Appeals
                               (BIA No. A042-785-878)
                      Immigration Judge: Honorable Rosalind Malloy
                                    _____________

                              Argued January 8, 2013

             Before: RENDELL, FISHER and JORDAN, Circuit Judges

                          (Opinion Filed: January 18, 2013)
                                  _____________

Ayodele Gansallo, Esq.
HIAS & Council Migration Service of Philadelphia
2100 Arch Street, 3rd Floor
Philadelphia, PA 19103

Adam Pessin, Esq. [ARGUED]
Fine, Kaplan & Black
One South Broad, Suite 2300
Philadelphia, PA 19107
  Counsel for Petitioner
Jeffrey Bernstein, Esq.
Ada. E. Bosque, Esq.
Puneet Cheema, Esq. [ARGUED]
Matthew A. Spurlock, Esq.
United States Department of Justice
Office of Immigration Litigation,
Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
   Counsel for Respondent
                                      _____________

                               OPINION OF THE COURT
                                   _____________

RENDELL, Circuit Judge.

       Petitioner, Jose Chavarria-Calix, comes before us for a second time seeking relief

from an order of removal. He requests that we exercise our equitable powers to recognize

an effective naturalization date for his mother, Reina Calix, of not later than November

16, 1999, which would, in effect, confer derivative citizenship on Chavarria-Calix and

prevent his removal to his native Honduras. Under INS v. Pangilinan, 486 U.S. 875

(1988), we lack the authority to exercise our equitable powers to confer citizenship upon

an alien where the statutory requirements for naturalization have not been met and,

accordingly, we must deny his petition.

                                            I.

       Chavarria-Calix entered this country legally as a permanent resident at the age of

eight on July 11, 1990. On July 30, 1997, when Chavarria-Calix was fifteen years old, his

mother applied for United States citizenship. (App. 3.) Under the relevant statutory


                                            2
regime at the time, had Reina Calix naturalized before his eighteenth birthday, Chavarria-

Calix would have automatically obtained derivative citizenship. 1 When Reina Calix

applied, the average application processing time was twelve to fifteen months. (Id. 4.)

However, in Reina Calix’s case, the government took nearly 32 months to process and

complete her application, and she became a United States Citizen on March 10, 2000,

almost four months after Chavarria-Calix turned eighteen. (Id.) Thirteen months of this

delay is attributable to the clean-up of an asbestos contamination in the Newark, New

Jersey INS office that housed Reina Calix’s application, following a water leak in the

building. (Id.)



1
  Former section 321(a) of the Immigration and Nationality Act provided in relevant part
that:
         A child born outside of the United States of alien parents … becomes
         a citizen of the United States upon fulfillment of the following
         conditions:
         (1) The naturalization of both parents; or
         (2) The naturalization of the surviving parent if one of the parents is
         deceased; or
         (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) such child is residing in the United States pursuant to a lawful
         admission for permanent residence at the time of the naturalization of
         the parent last naturalized under clause (1) of this subsection, or the
         parent naturalized under clause (2) or (3) of this subsection, or
         thereafter begins to reside permanently in the United States while
         under the age of eighteen years.

8 U.S.C. § 1432(a) (repealed).
                                             3
       On October 16, 2002, Chavarria-Calix was convicted in Pennsylvania state court

of possession of a controlled substance, one gram of cocaine, with intent to deliver in

violation of 35 Pa. Cons. Stat. Ann. § 780-113(a)(30). As a consequence, the government

charged his as removable under the Immigration and Nationality Act (“INA”)

§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated

felony and under INA § 237(a)(2)(B), 8 U.S.C. § 1227 (a)(2)(B), as an alien convicted of

a controlled substance violation. The Immigration Judge (“IJ”) found him removable as

charged, and the Board of Immigration Appeals (“BIA”) affirmed.

       On his first petition to this Court, Chavarria-Calix argued that he was a United

States citizen by virtue of his mother’s naturalization under former INA § 321(a)(4),

8 U.S.C. § 1432(a)(4). We recognized that his age (eighteen) at the time of his mother’s

naturalization “appears to defeat Chavarria[-Calix’s] claim for derivative citizenship,”

and determined that the Child Status Protection Act of 2002 (“CSPA”), did not by its

terms apply to his claim. Calix-Chavarria v. Att’y Gen., 182 F. App’x 72, 75 (3d Cir.

2006). Nevertheless, we questioned whether the reasoning of the CSPA should apply to

his claim. Id. at 76. Noting that “Congress has exclusive constitutional authority over

naturalization,” and that under Pangilinan, 486 U.S. at 884-85, “[f]ederal courts do not

have the power to confer citizenship in violation of the limitations established by statutes

enacted by Congress,” we remanded to the BIA, enlisting its view as to whether the

CSPA could somehow impact the congressional command in Chavarria-Calix’s situation.

Calix-Chavarria, 182 F. App’x at 76.



                                             4
       The BIA, in turn, remanded to the IJ who concluded that the reasoning of the

CSPA did not apply to Chavarria-Calix’s case and ordered him removed. In the

alternative, Chavarria-Calix urged that theories of equitable estoppel or nunc pro tunc

relief should be applied to afford him remedy. The IJ declined to apply these precepts and

the BIA affirmed, issuing its own reasoned decision. Chavarria-Calix has filed a petition

for review in this Court.

                                            II.

       As a preliminary matter, the government has challenged our jurisdiction. We lack

jurisdiction to review a final order of removal against an alien such as Chavarria-Calix

who is removable on account of his conviction for an aggravated felony, see 8 U.S.C.

§ 1252(a)(2)(C), unless the petition presents a colorable question of law or constitutional

claim, see id. at § 1252(a)(2)(D). The government contends that Chavarria-Calix raises

no such colorable issues. We disagree. “The issue of derivative citizenship is a purely

legal issue of statutory interpretation.” Morgan v. Att’y Gen., 432 F.3d 226, 229 (3d Cir.

2005). Had we not considered Chavarria-Calix’s arguments to be colorable, we would not

have remanded the matter to the BIA in the first place.

       Because the BIA conducted a de novo review in this case, we review its opinion as

the final agency decision. Abdulai v. Ashcroft, 239 F.3d 542, 549 & n.2 (3d Cir. 2001).

“We . . . . take the BIA’s findings of fact as conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary. . . . [And] we review the BIA’s legal

conclusions de novo, including both pure questions of law and applications of law to



                                             5
undisputed facts.” Rranci v. Att’y Gen., 540 F.3d 165, 171 (3d Cir. 2008) (internal

quotations marks and citations omitted).

                                              III.

       Chavarria-Calix seeks equitable relief recognizing an effective naturalization date

for his mother of not later than November 16, 1999, notwithstanding the fact that it did

not actually occur until March 10, 2000. He argues that we should grant nunc pro tunc

relief to remedy the inequities in this case. Alternatively, Chavarria-Calix maintains that

the government should be equitably estopped from denying his derivative citizenship due

to the lengthy delay in its processing of his mother’s application. While we are not blind

to the hardship that removal to Honduras will cause Chavarria-Calix and his family, we

are bound by Pangilinan, 486 U.S. at 882-85, and cannot grant the relief he seeks.

       It is fundamental that “the power to make someone a citizen of the United States

has not been conferred upon the federal courts . . . as one of their generally applicable

equitable powers.” Id. at 883-84. Rather, the Constitution confers on Congress exclusive

authority to establish rules of naturalization. Id. at 882. The federal courts have the power

to make someone a citizen of the United States only in “strict compliance” with the terms

established by Congress. Id. at 884. “‘Once it has been determined that a person does not

qualify for citizenship, . . . the [federal] court has no discretion to ignore the defect and

grant citizenship.’” Id. (quoting Fedorenko v. United States, 449 U.S. 490, 517 (1981)

(citation omitted)). “Neither by application of the doctrine of estoppel, nor by invocation

of equitable powers, nor by any other means does a court have the power to confer

citizenship in violation of the[] limitations [established by Congress].” Id. at 885.

                                               6
       Former section 321(a)(4) plainly requires that a child born outside of the United

States to alien parents must be under eighteen years of age at the time his or her parent or

parents naturalize in order to derive citizenship based on his or her parent or parents’

naturalization. See 8 U.S.C. § 1432(a) (repealed). Chavarria-Calix does not meet that

requirement. As both estoppel and nunc pro tunc relief are equitable remedies, see

Cheruku v. Att’y Gen., 662 F.3d 198, 207 (3d Cir. 2011), exercising either in this

circumstance would constitute an impermissible equity-based departure from the strict

requirements set forth by Congress.

       Chavarria-Calix argues that Pangilinan is no bar to the relief he seeks because he

is not asking the Court to confer citizenship on him, but rather is asking the Court to

recognize an appropriate effective date for his mother’s naturalization. We see a

distinction without any difference. As Chavarria-Calix acknowledges, derivative

citizenship under former section 321 occurs automatically upon fulfillment of the

statutory conditions. (Br. in Supp. of Pet’r’s Appeal of the BIA’s Order of Removal 14).

Chavarria-Calix has fulfilled every one of these conditions save for the age requirement.

Recognizing Reina Calix’s effective naturalization date as November 16, 1999, or

estopping the government from denying as much, would resolve Chavarria-Calix’s only

remaining hurdle to citizenship. He would obtain citizenship automatically by operation

of law as a consequence of the equitable relief he seeks. The rule and the spirit of

Pangilinan cannot be so easily avoided.

       Even if Pangilinan were not sufficient to stay our hands, Chavarria-Calix’s failure

to satisfy the traditional requirements for either nunc pro tunc relief or equitable estoppel

                                              7
would be. In Cheruku, 662 F.3d at 208, we identified three limited categories in which

nunc pro tunc relief has been granted in immigration proceedings. Chavarria-Calix argues

that his case falls within one such traditional category because retroactive relief is

necessary “to correct an error in immigration proceedings.” Id. (citing Edwards v. INS,

393 F.3d 299, 309 (2d Cir. 2004)). We cannot agree that the delay in processing his

mother’s application is a “significant error” warranting a remedy nunc pro tunc.

Edwards, 393 F.3d at 309. Additionally, Chavarria-Calix fails to satisfy the requirements

for invoking equitable estoppel against the government because mere delay does not rise

to the level of “affirmative misconduct.” Mudric v. Att’y Gen., 469 F.3d 94, 99 (3d Cir.

2006). 2, 3

        Finally, we agree with the BIA and the IJ that the reasoning of the CSPA cannot

be extended to Chavarria-Calix’s case. The CSPA amended the INA to provide age-out

protection for some aliens and not for others. The provision that Chavarria-Calix claims

citizenship under, former section 321(a), falls in the latter category. “Where Congress

explicitly enumerates certain exceptions to a general prohibition, additional exceptions

are not to be implied, in the absence of evidence of a contrary legislative intent.” Andrus

v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980). We see no indicia of such a contrary

intent here. Thus, we agree that the reasoning of the CSPA does not apply to this case.

2
 Chavarria-Calix also requests that we fashion an equitable remedy to avoid what he
urges is a Constitutional deprivation in this case. And yet, this contention is so vague that
we need not address it.
3
 We note that the delay here was long, but involved no egregious behavior or affirmative
misconduct by the government. We do not address whether some relief or remedy might
be available notwithstanding Pangilinan in an extreme fact pattern not presented here.
                                              8
                                    IV.

For the foregoing reasons, we will deny Chavarria-Calix’s petition.




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