                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                               No. 03-6370
JOSE PICHARDO, a/k/a Jose, a/k/a
Eddy Hernandez,
               Defendant-Appellant.
                                       
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
                 James R. Spencer, District Judge.
                           (CR-97-362)

                      Submitted: May 20, 2003

                      Decided: June 11, 2003

  Before WIDENER, WILKINSON, and MOTZ, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

Jose Pichardo, Appellant Pro Se. Gurney Wingate Grant, II, OFFICE
OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                     UNITED STATES v. PICHARDO
                              OPINION

PER CURIAM:

   Jose Pichardo seeks to appeal the district court’s order denying
relief on his 28 U.S.C. § 2241 (2000) petition, which it construed as
a 28 U.S.C. § 2255 (2000) motion. Pichardo’s petition sought a
declaratory judgment permanently enjoining the United States from
seeking his deportation, or, at the least, his deportation to the Domini-
can Republic. Because Pichardo does not challenge the validity of his
conviction or sentence, the district court improperly construed Pichar-
do’s petition as a § 2255 motion. See In re Vial, 115 F.3d 1192, 1194
(4th Cir. 1997). Thus, no certificate of appealability is required to
appeal the district court’s order and the standards therefor are inappli-
cable to this case. See Miller-El v. Cockrell, 123 S. Ct. 1029, 1040
(2003). Furthermore, Pichardo sought relief under § 2241 because the
sentencing order for his conviction under 21 U.S.C. § 846 (2000) did
not memorialize any agreement by the Government not to deport him.
Indeed, the district court would have had no jurisdiction in Pichardo’s
criminal proceeding to enjoin his deportation in the future. Because
neither the Attorney General nor the INS has ordered Pichardo’s
departure, his petition must be and is denied without prejudice as pre-
mature. We express no opinion as to whether the Government has
failed to fulfill any agreement not to have Pichardo deported. Accord-
ingly, we affirm the district court’s denying relief on that alternate
ground. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.

                                                            AFFIRMED
