                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          MAY 22 2001
                          FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ANTONIO RUIZ MARISCAL,

              Petitioner-Appellant,

    v.                                                  No. 99-2336
                                              (D.C. No. CIV-98-992-BB/WWD)
    JOHN ASHCROFT, Attorney                              (D. N.M.)
    General; * USA; KEVIN D. ROONEY,
    Acting Commissioner, INS; ** LUIS
    GARCIA, District Director, INS,

              Respondents-Appellees.


    NATIONAL IMMIGRATION
    PROJECT OF THE NATIONAL
    LAWYERS GUILD; AMERICAN
    IMMIGRATION LAWYERS
    ASSOCIATION,

              Amici Curiae.


                          ORDER AND JUDGMENT            ***




*
      Pursuant to Fed. R. App. P. 43(c)(2), John Ashcroft is substituted for Janet
Reno, United States Attorney General, as an appellee in this action.
**
      On March 26, 2001, Kevin D. Rooney became the Acting Commissioner
of INS. Pursuant to Fed. R. App. P. 43(c)(2), Mr. Rooney is substituted for
Doris Meissner as an appellee in this action.
***
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
                                                                       (continued...)
Before BRORBY , PORFILIO , and MURPHY , Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Petitioner was in deportation proceedings when the Antiterrorism and

Effective Death Penalty Act (AEDPA) took effect on April 24, 1996. The

AEDPA amended the Immigration and Nationality Act (INA) to eliminate

discretionary relief for aliens convicted of certain offenses, including the offense

for which petitioner was convicted. Petitioner filed a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2241, arguing that the AEDPA should not be

applied retroactively to deny him the opportunity to be considered for

discretionary witholding of deportation pursuant to former § 212(c) of the INA,

8 U.S.C. § 1182(c) (1995). The district court denied relief and dismissed the

petition. On appeal, petitioner makes the same argument and asks this court to

remand his case to the Board of Immigration Appeals (BIA) for consideration of

the merits of his request for discretionary relief under § 212(c).


  (...continued)
***

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

                                         -2-
      On September 6, 2000, we abated this appeal pending action on a proposed

regulation that would have allowed aliens, like petitioner, who were in

deportation proceedings when the AEDPA took effect, to seek discretionary

witholding of deportation. The regulation was adopted, and the BIA granted

petitioner’s motion to reopen his deportation proceedings and remanded the

matter to the immigration judge for consideration of petitioner’s application for

discretionary relief under § 212(c). Because this is precisely the relief that

petitioner seeks on appeal, the appeal is now moot.   McAlpine v. Thompson ,

187 F.3d 1213, 1216 (10th Cir. 1999) (“Article III’s requirement that federal

courts adjudicate only cases and controversies necessitates that courts decline

to exercise jurisdiction where the award of any requested relief would be

moot--i.e., where the controversy is no longer live and ongoing.”). Consequently,

we DISMISS the appeal as moot.



                                                      Entered for the Court



                                                      John C. Porfilio
                                                      Circuit Judge




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