                                                             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opinion should not be published and is not precedent except under the limited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.




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