Martinez v. Ashcroft

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 2, 2003
• Docket: 03-30027
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 2, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-30027 Summary Calendar

EDWARD ALBERTO MARTINEZ,

Plaintiff-Appellant,

versus

JOHN ASHCROFT; JAMES W. ZIGLER; CHRISTINE DAVIS; EDWARD J. MCELROY; IMMIGRATION AND NATURALIZATION SERVICE,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 02-CV-1191 --------------------

Before JONES, DUHÉ, and CLEMENT, Circuit Judges.

PER CURIAM:1

Edward Alberto Martinez appeals the district court’s denial

of his 28 U.S.C. § 2241 petition challenging his deportation

order. Martinez also requests an immediate stay of deportation

and release from detention by the Immigration and Naturalization

Service (INS).

Because Martinez has been deported, his requests for a stay

of deportation and release from detention have been rendered

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. moot, as this court can no longer grant him the relief requested.

See Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir. 1987).

Martinez’s deportation, however, did not render his challenge to

his deportation order moot. Because Martinez cannot be

readmitted into the United States as a collateral consequence of

his deportation, see 8 U.S.C. § 1182(a)(9)(A), he has standing to

seek 28 U.S.C. § 2241 relief. See Max-George v. Reno, 205 F.3d

194, 196 (5th Cir. 2000), vacated on other grounds, 533 U.S. 945

(2001).

Contrary to Martinez’s contentions, the provisions of the

Antiterrorism and Effective Death Penalty Act (AEDPA) and the

Illegal Immigration Reform and Immigrant Responsibility Act

(IIRIRA) repealing § 212(c) discretionary relief from deportation

were not applied retroactively to him in violation of INS v. St.

Cyr, 533 U.S. 289 (2001). The immigration judge specifically

noted that § 212(c) relief was not precluded by Martinez’s

robbery conviction, noting the date of the conviction. The

immigration judge then determined that Martinez was ineligible

for discretionary relief from removal based on a more recent

conviction. Therefore, Martinez’s argument that he is entitled

to relief under St. Cyr is without merit.

Although Martinez asserts that he was eligible for § 212(c)

relief because his 1998 conviction for possession of heroin was

only a misdemeanor, the immigration judge determined that

2 Martinez was ineligible for § 212(c) relief based on his 2000

conviction for the sale of methadone. Importantly, Martinez does

not reassert his argument that he was not convicted of the sale

of methadone; therefore, that argument has been waived. See

Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993)(issues not

briefed are deemed abandoned). Martinez has failed to show any

error in the immigration judge’s decision regarding his

ineligibility for relief from removal.

Based on the foregoing, Martinez’s appeal is DISMISSED as

MOOT with respect to his requests for stay of deportation and

release from INS detention. The district court’s judgment

denying his 28 U.S.C. § 2241 petition is

AFFIRMED.