Martinez, et al v. Ashcroft, et al

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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
May 2, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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 of 3 --

2
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 of 3 --

3
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.

-- 3 of 3 --