United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 16, 2005
Charles R. Fulbruge III
No. 04-50590 Clerk
Summary Calendar
ANDRES ALEJANDRO-GONZALEZ,
Petitioner-Appellant,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL; RUDY FRANCO, Warden
of Reeves County Detention Center; DISTRICT DIRECTOR OF
IMMIGRATION & NATURALIZATION SERVICE, Immigration and
Naturalization Service of Houston, Texas; BUREAU OF IMMIGRATION
AND CUSTOMS ENFORCEMENT,
Respondents-Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CV-29-FM
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Andres Alejandro-Gonzalez (“Alejandro”), federal prisoner
#14330-179, appeals from the district court’s order construing his
28 U.S.C. § 2241 petition as a motion for relief pursuant to 28
U.S.C. § 2255 and dismissing the constructive 28 U.S.C. § 2255
motion without prejudice for lack of jurisdiction. Alejandro moves
for a stay of deportation pending resolution of his appeal; his
motion is DENIED as moot.
*
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opinion should not be published and is not precedent except under the limited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.
Alejandro contends solely that the current version of
section 241(a)(5) of the Immigration and Naturalization Act should
not have been applied retroactively to the reinstatement of the
original order of removal against him. According to Alejandro,
that provision became effective on April 1, 1997, after he
reentered the United States in April 1996. He argues that the
retroactive application of § 241(a)(5) and its accompanying
administrative regulations deprives him of due process rights he
might otherwise enjoy.
We do not address the merits of Alejandro’s contentions
at this time. The district court should not have sua sponte
recharacterized Alejandro’s 28 U.S.C. § 2241 petition as a 28
U.S.C. § 2255 motion (Alejandro’s first 28 U.S.C. § 2255 motion)
without first notifying Alejandro and warning him “that this
recharacterization means that any subsequent § 2255 motion will be
subject to the restrictions on ‘second or successive’ motions, and
provid[ing him] an opportunity to withdraw the motion or to amend
it so that it contains all the § 2255 claims he believes he has.”
Castro v. United States, 124 S. Ct. 786, 792 (2003). We express no
opinion regarding whether or not a recharacterization would be
proper following the notice and opportunity required by Castro.
VACATED AND REMANDED.
2