UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41239
Summary Calendar
ARMANDO CURIEL-SANCHEZ,
Petitioner-Appellant,
versus
E.M. TROMINSKI, District Director, INS;
JOHN ASHCROFT, U.S. Attorney General;
UNITED STATES OF AMERICA,
Respondents-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(B-99-CV-3)
July 24, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
In appealing the dismissal of his § 2241 habeas application,
Armando Curiel-Sanchez contends: the district court erred in
applying § 440(d) of the Antiterrorism and Effective Death Penalty
Act to his conviction; and that application violates his rights
under the Equal Protection Clause. Section 440(d) prohibits the
Attorney General from exercising discretion to waive deportation
for aliens who are deportable for having committed certain criminal
offenses.
*
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that this opinion should not be published and is not precedent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.
Pursuant to a 26 January 1996 guilty plea, Appellant was
convicted of delivery of cocaine. When a show cause order was
issued in July 1996, Appellant sought relief from deportation under
former Immigration and Naturalization Act (INA) § 212(c), which
gave the Attorney General discretion to waive deportation for
certain deportable aliens. But, because of the recently-enacted §
440(d), Appellant was denied relief.
This is Appellant’s second appeal. In his first, Curiel-
Sanchez v. Trominski, No. 99-40700 (5th Cir. 17 Mar. 2000)
(unpublished), our court, pursuant to Requena-Rodriguez v.
Pasquarell, 190 F.3d 299 (5th Cir. 1999), vacated the district
court’s determination that § 440(d) does not apply to convictions
that predate its enactment, and remanded the case for further
proceedings consistent with Requena. The district court dismissed
Curiel-Sanchez’s habeas petition.
In INS v. St. Cyr, 121 S. Ct. 2271, 2001 WL 703922, at *16
(U.S. 25 June 2001), the Supreme Court concluded that the
possibility of a discretionary waiver of deportation under former
INA § 212(c) was a significant factor in a defendant’s decision to
plead guilty that could not be revoked retroactively. The Court
held that § 212(c) relief is still available to aliens, such as
Appellant, who would have been eligible for § 212(c) relief at the
time of their plea. Id.
Accordingly, the judgment of 19 September 2000, on remand from
this court, is VACATED, and the case is REMANDED to the district
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court with instructions to reinstate its original judgment of 6
April 1999.
VACATED and REMANDED WITH INSTRUCTIONS
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