           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2       Garcia-Echaverria v. United States                 No. 03-3285
        ELECTRONIC CITATION: 2004 FED App. 0204P (6th Cir.)
                    File Name: 04a0204p.06                                                       _________________
                                                                                                      COUNSEL
UNITED STATES COURT OF APPEALS
                                                                         ON BRIEF: Lawrence J. Kiroff, ASSISTANT UNITED
                  FOR THE SIXTH CIRCUIT                                  STATES ATTORNEY, Toledo, Ohio, for Appellee. Marco
                    _________________                                    A. Garcia-Echaverria, El Paso, Texas, pro se.

 MARCO GARCIA -                   X                                                              _________________
 ECHA VERRIA ,                     -
                                                                                                     OPINION
         Petitioner-Appellant, -                                                                 _________________
                                   -  No. 03-3285
                                   -                                       KAREN NELSON MOORE, Circuit Judge. Marco Garcia-
            v.                      >
                                   ,                                     Echaverria (“Garcia-Echaverria”), pro se Petitioner-
                                   -                                     Appellant, appeals the district court’s denial of his petition for
 UNITED STATES OF AMERICA , -                                            habeas corpus relief. Garcia-Echaverria was sentenced for a
         Respondent-Appellee. -                                          conviction of unlawful reentry, in violation of 8 U.S.C.
                                   -                                     § 1326(b), and the Immigration and Naturalization Service
                                  N                                      (“INS,” now the Department of Homeland Security “DHS,”)
      Appeal from the United States District Court                       has reinstated the prior Final Order of Removal. On appeal,
       for the Northern District of Ohio at Toledo.                      Garcia-Echaverria argues that his initial removal was
     No. 02-07228—John W. Potter, District Judge.                        unlawful, and therefore that his current detention is
                                                                         unconstitutional. Garcia-Echaverria contends that his initial
                   Submitted: April 23, 2004                             removal was unlawful because the Immigration Judge (“IJ”)
                                                                         and the Board of Immigration Appeals (“BIA”) erred by
                Decided and Filed: July 1, 2004                          concluding that Garcia-Echaverria’s Kentucky drug
                                                                         conviction constitutes an “aggravated felony,” making him
        Before: MERRITT and MOORE, Circuit Judges;                       ineligible for relief from deportation/removal.1 Garcia-
                 DUGGAN, District Judge.*                                Echaverria also argues that his initial removal was unlawful

                                                                             1
                                                                               The Illegal Immigration Reform and Immigrant Responsibility Act
                                                                         of 1996 (“IIRIRA”) adopted “the term ‘removal,’ which essentially
                                                                         eliminated a distinction that formerly existed between ‘deportation’
                                                                         proceedings and ‘exclusion p roceed ings.’ Thus, a determination whether
                                                                         an alien is ‘inadmissible’ (i.e., cannot, or did not, enter the country
                                                                         lawfully), or ‘deportable’ (i.e., entered the country lawfully but is no
    *
                                                                         longer entitled to stay), would be determined through ‘remo val’
     The Honorable Patrick J. Duggan, United States District Judge for   proceed ings.” Balogun v. U. S. Att’y Gen., 304 F.3d 130 3, 13 06-0 7 (11th
the Eastern District of Michigan, sitting by designation.                Cir. 2002) (citations omitted).

                                  1
No. 03-3285             Garcia-Echaverria v. United States                  3    4    Garcia-Echaverria v. United States           No. 03-3285

because (1) the line that 8 U.S.C. § 1182(h) draws between                       December 16, 1996, to the charge of “Trafficking Marijuana
illegal aliens (“non-LPRs”) and lawful permanent residents                       over 8 ounces, less than 5 pounds,” in violation of K.R.S.
(“LPRs”) violates the Equal Protection Clause of the Fifth                       218A.1421(3). Joint Appendix (“J.A.”) at 141-42. On
Amendment; and (2) application of the provisions of the                          January 10, 1997, the Kentucky Circuit Court sentenced
Antiterrorism and Effective Death Penalty Act of 1996                            Garcia-Echaverria to five years of imprisonment for his
(“AEDPA”) and the Illegal Immigration Reform and                                 Kentucky drug conviction.
Immigrant Responsibility Act of 1996 (“IIRIRA”), which
make Garcia-Echaverria ineligible for relief from                                  On May 13, 1997, the INS issued Garcia-Echaverria a
deportation/removal, raises retroactivity concerns.2                             Notice to Appear, charging that he was removable due to his
                                                                                 Kentucky drug conviction under two sections of the
  For the following reasons, we AFFIRM the district court’s                      Immigration and Nationality Act (“INA”) —
decision denying Garcia-Echaverria’s petition for habeas                         § 237(a)(2)(A)(iii) (codified as 8 U.S.C. § 1227(a)(2)(A)(iii))
corpus relief.                                                                   for being convicted of an “aggravated felony” and
                                                                                 § 237(a)(2)(B)(i) (codified as 8 U.S.C. § 1227(a)(2)(B)(i)) for
                         I. BACKGROUND                                           being convicted of a controlled substance offense. On
                                                                                 September 7, 1999, an IJ ordered Garcia-Echaverria removed
  Garcia-Echaverria, a native and citizen of Mexico, entered                     from the United States. On July 20, 2000, the BIA dismissed
the United States on or about January 1, 1980, and became a                      Garcia-Echaverria’s appeal, finding that a waiver of
lawful permanent resident on or about January 26, 1990.3 On                      inadmissibility pursuant to § 212(c) of the INA (originally
January 6, 1997, Garcia-Echaverria was convicted by the                          codified as 8 U.S.C. § 1182(c), but repealed by the IIRIRA,
State of Kentucky pursuant to a guilty plea, entered on                          104 Pub. L. No. 104-208, § 304(b), 110 Stat. 3009 (1996)),
                                                                                 was not available to him, and that he was statutorily ineligible
                                                                                 for cancellation of removal pursuant to § 240A(a) of the INA
    2
      In his appe al of the district court’s denial of his habeas petition,      (codified at 8 U.S.C. § 1229b).
Garcia-Echaverria also argues that his initial removal was unlawful
because the INS removed him while his Kentucky drug conviction was on              Garcia-Echaverria was found in the United States on
direct appeal, while his app eal of the BIA ’s orde r of removal and his
motion for a stay of removal were pending before the United States Court
                                                                                 August 31, 2001, when he was stopped for speeding by
of Appeals for the Fifth Circuit, after the United States District Court for     officers of the Ohio Highway Patrol at Fremont, Ohio. On
the Southern District of N ew Y ork (“S .D.N .Y.”) had tra nsferred his          October 3, 2001, a grand jury returned a one-count
habeas petition to the United States District Court for the Western District     indictment, charging Garcia-Echaverria with being an alien
of Louisiana, and after the S.D.N.Y. had issued a stay of removal. These         found in the United States on or about August 31, 2001, after
issues are discussed fully in Un ited States v. G arcia -Echav erria, 03-3655,
Garcia-Echaverria’s direct appeal of his conviction for unlawful reentry.
                                                                                 having been deported for committing an “aggravated felony”
                                                                                 and without obtaining permission to reenter from the Attorney
    3
      In this opinion, we recount only the facts relevant to the issues we
                                                                                 General, in violation of 8 U.S.C. § 1326(b). After his motions
are addressing solely in G arcia-E chaverria’s appeal of the district co urt’s   to dismiss the indictment were denied, Garcia-Echaverria
denial of his habeas petition. Our opinion in United States v. Garcia-           pleaded guilty on September 10, 2002, to the charge of
Ech averria, 03-3 655, includes a more complete statement of facts,              unlawful reentry, and the district court sentenced him to
including those bearing on issues that Garcia-Echaverria raised in both his      thirty-seven months of imprisonment. Prior to pleading
direct appeal of his conviction for unlawful reentry and his appeal of the
denial of his habeas petition.
                                                                                 guilty, Garcia-Echaverria filed on May 3, 2002, in the
No. 03-3285        Garcia-Echaverria v. United States        5    6       Garcia-Echaverria v. United States                  No. 03-3285

Northern District of Ohio, a petition for a writ of habeas        filed his habeas petition challenging the constitutionality of
corpus challenging his current detention. On December 30,         his confinement, the district court had jurisdiction pursuant to
2002, the district court denied Garcia-Echaverria’s petition      28 U.S.C. § 2241.4
for habeas corpus. Garcia-Echaverria filed a timely notice of
appeal.                                                              This court has jurisdiction over the appeal pursuant to 28
                                                                  U.S.C. §§ 1291 and 2253. Subsequent to this case being
                   II. JURISDICTION                               submitted on the briefs, Garcia-Echaverria completed his
                                                                  sentence for his § 1326(b) conviction, and Garcia-Echaverria
   The district court had jurisdiction over Garcia-Echaverria’s   is currently being detained by the DHS pending his removal.
habeas petition pursuant to 28 U.S.C. § 2241. Garcia-             Garcia-Echaverria’s completion of his criminal sentence
Echaverria filed both a direct appeal of his conviction for       neither deprives us of jurisdiction over this appeal nor moots
unlawful reentry and a habeas petition challenging his current    the claims asserted in the habeas petition that we are
detention. Typically, a federal prisoner may file a § 2241        reviewing in this appeal. Rosales-Garcia v. Holland, 322
petition contesting the legality of his detention only if his     F.3d 386, 394-96, 395 n.6 (6th Cir.) (en banc), cert. denied,
claim is such that he cannot obtain effective relief on direct    539 U.S. 941 (2003). We review de novo questions of
appeal or through a § 2255 motion. Paulino v. United States,      statutory interpretation raised in a § 2241 petition. Mustata,
352 F.3d 1056, 1060-61 (6th Cir. 2003); Bannerman v.              179 F.3d at 1019.
Snyder, 325 F.3d 722, 723 (6th Cir. 2003). While an alien
may file a § 2241 petition challenging his removal                                          III. ANALYSIS
proceedings, an alien is not “in custody” for removal purposes
if he is detained pursuant to a sentence for a criminal              Garcia-Echaverria argues that the BIA erred by concluding
conviction, even if the INS has filed a detainer order with the   that his Kentucky drug conviction was an “aggravated
prison where the petitioner is incarcerated. Zolicoffer v. U.S.   felony,” making him both deportable and ineligible for relief
Dep’t of Justice, 315 F.3d 538, 540-41 (5th Cir. 2003)            from deportation/removal. Although Garcia-Echaverria
(collecting cases); Prieto v. Gluch, 913 F.2d 1159, 1163-64       concedes that his drug conviction is a felony under Kentucky
(6th Cir. 1990), cert. denied, 498 U.S. 1092 (1991). In this      law, he argues that it does not constitute an “aggravated
case, however, at the time Garcia-Echaverria filed his § 2241     felony” within the meaning of 8 U.S.C. § 1101(a)(43)(B)
petition, the INS had already reinstated Garcia-Echaverria’s      because the offense to which he pleaded guilty did not contain
prior Final Order of Removal. The IIRIRA requires the INS         a trading or dealing element nor would it have been
to take custody of and commence procedures to execute the         punishable as a felony under federal law.
removal of an alien who is subject to a final order of removal
based upon a conviction for an “aggravated felony.”                The BIA correctly determined that Garcia-Echaverria’s
Simmonds v. INS, 326 F.3d 351, 356 (2d Cir. 2003); see also       Kentucky drug conviction constitutes an “aggravated felony”
Mustata v. U.S. Dep’t of Justice, 179 F.3d 1017, 1022 n.4 (6th
Cir. 1999). This requirement was strong evidence of the
                                                                      4
DHS’s intention to take custody of Garcia-Echaverria                    Because Garcia-Echaverria was convicted of unlawful reentry, he
immediately following the conclusion of his sentence, and         had the opportunity in his direct appeal to attack collaterally the legality
thus satisfies the custody requirement for a § 2241 petition.     of his prior deportation. We co nclude, however, that the district court’s
                                                                  jurisdiction over a § 2241 petition should not turn upon the par ticular
Because Garcia-Echaverria was in INS custody at the time he       crime of which the petitioner has been convicted.
No. 03-3285         Garcia-Echaverria v. United States        7    8      Garcia-Echaverria v. United States          No. 03-3285

within the meaning of the INA. The term “aggravated                    ‘aggravated felony.’ In contrast, several Courts of
felony” is defined through a list of qualifying offenses, which        Appeals have interpreted the same language in
includes: “illicit trafficking in a controlled substance (as           § 924(c)(2), albeit in the Sentencing Guidelines context,
defined in section 802 of Title 21), including a drug                  to require that the state drug conviction need only be a
trafficking crime (as defined in section 924(c) of Title 18).”         felony under state law and that the state crime be
8 U.S.C. § 1101(a)(43)(B). In § 924(c), “the term ‘drug                punishable under the federal Controlled Substances Act,
trafficking crime’ means any felony punishable under the               either as a felony or a misdemeanor.
Controlled Substances Act (21 U.S.C. 801 et seq.),” or one of
two other federal acts not relevant here. 18 U.S.C.                Gerbier, 280 F.3d at 299 (emphases in original). The Third
§ 924(c)(2).                                                       Circuit has held that for deportation purposes, the BIA’s
                                                                   interpretation of § 924(c)(2) is correct. Id.
   There is some conflict regarding what elements must be
present in order for a state offense to constitute a drug-             Under the BIA’s approach, a state drug conviction
trafficking crime within the meaning of 8 U.S.C.                       constitutes an “aggravated felony” under either of two
§ 1101(a)(43)(B). United States Sentencing Guideline                   routes. Under the first route, a felony state drug
(“U.S.S.G.”) § 2L1.2 requires a sentencing enhancement to be           conviction is an “aggravated felony” under § 924(c)(2) if
imposed for the crime of unlawful reentry, if the alien was            it contains a trafficking element. Under the second route,
deported after having committed a drug-trafficking crime.              a state drug conviction, either a felony or a misdemeanor,
Several circuits have held that in the sentencing context, the         is an “aggravated felony” if it would be punishable as a
phrase “drug trafficking crime” includes offenses that would           felony under the Controlled Substances Act.
be punishable under the Controlled Substances Act (or two
other federal acts not relevant here), so long as the offense is   Id.
punishable as a felony under either state or federal law.
Gerbier v. Holmes, 280 F.3d 297, 299 (3d Cir. 2002). Under           We have not taken a position, in either the Sentencing
this interpretation, a drug offense that is punishable as a        Guidelines context or the removal context, regarding what
felony under state law could be considered an “aggravated          elements must be present in order for a state crime to
felony,” for purposes of applying the enhancement contained        constitute a drug-trafficking crime within the meaning of
in U.S.S.G. § 2L1.2, even if the conduct would have only           8 U.S.C. § 1101(a)(43)(B), although we have held that at a
been punishable as a misdemeanor under federal law. Id.            minimum, a state conviction resulting from the sale of drugs
                                                                   for money qualifies. Nakhleh v. INS, 38 F.3d 829, 831 (6th
  The Third Circuit has defined 8 U.S.C. § 1101(a)(43)(B)          Cir. 1994). It is clear, however, that the BIA’s approach is
differently for deportation purposes. Id. According to the         more favorable towards aliens. Because we do not think that
Third Circuit,                                                     Garcia-Echaverria can succeed under even the BIA’s more
                                                                   favorable approach, we will assume for the limited purpose of
  The BIA has interpreted § 924(c)(2) to require that, for         this appeal that the BIA’s approach applies.
  deportation purposes, a state drug conviction, whether it
  be a felony or a misdemeanor, must either contain a                Garcia-Echaverria’s conviction may not constitute an
  “trafficking” component or be punishable as a felony             “aggravated felony” under the “trafficking” route. Garcia-
  under federal law in order for it to constitute an
No. 03-3285         Garcia-Echaverria v. United States         9   10   Garcia-Echaverria v. United States           No. 03-3285

Echaverria pleaded guilty to K.R.S. 218A.1421(3), which            indicates that the proper analogue is actually 21 U.S.C.
provides:                                                          § 841(b). Section 844(a) provides:
  Trafficking in eight (8) or more ounces but less than five         It shall be unlawful for any person knowingly or
  (5) pounds of marijuana is:                                        intentionally to possess a controlled substance unless
  (a) For a first offense a Class D felony.                          such substance was obtained directly, or pursuant to a
  (b) For a second or subsequent a Class C felony.                   valid prescription or order, from a practitioner, while
                                                                     acting in the course of his professional practice. . . . Any
For purposes of K.R.S. 218A.1421, the term “traffic” “means          person who violates this subsection may be sentenced to
to manufacture, distribute, dispense, sell, transfer, or possess     a term of imprisonment of not more than 1 year, and
with intent to manufacture, distribute, dispense, or sell a          shall be fined a minimum of $1,000, or both . . . .
controlled substance.” K.R.S. 218A.010(28). It is undisputed
that Garcia-Echaverria’s conviction was a felony under             Section 841(a)(1) makes it unlawful to knowingly or
Kentucky law, but the parties disagree over whether the            intentionally, “manufacture, distribute, or dispense, or possess
offense contained a trafficking element. According to the          with intent to manufacture, distribute, or dispense, a
Third Circuit, trafficking requires “unlawful trading or           controlled substance.”       (emphasis added).           Section
dealing of a controlled substance.” Gerbier, 280 F.3d at 305.      841(b)(1)(D), the applicable penalty provision, further
Garcia-Echaverria could have been convicted of violating           provides:
K.R.S. 218A.1421(3) for possession with intent to sell.
Indeed, Garcia-Echaverria’s indictment charges him with              In the case of less than 50 kilograms of marihuana . . .
“knowingly and unlawfully traffick[ing] in marijuana by one          such person shall, except as provided in paragraphs
pound of marijuana in his possession for purpose of resale.”         (4) and (5) of this subsection, be sentenced to a term of
J.A. at 48. It is not clear whether possession with intent to        imprisonment of not more than 5 years, a fine not to
resell constitutes “unlawful trading or dealing,” and thus           exceed the greater of that authorized in accordance with
trafficking under this route. See Gerbier, 280 F.3d at 313           the provisions of Title 18, or $250,000 if the defendant is
(suggesting that “possession with intent to distribute” may          an individual . . . .
constitute trading or dealing ). But see Wilson v. Ashcroft,
350 F.3d 377, 382 (3d Cir. 2003) (remanding to the district        To be convicted pursuant to KRS 218A.1421(3), Garcia-
court for consideration in the first instance of the question      Echaverria must have, at a minimum, possessed with an intent
whether a conviction for possession with intent to distribute      to distribute, etc. between eight ounces and five pounds of
marijuana contains a trading and dealing element).                 marijuana. Therefore, Garcia-Echaverria was punishable
                                                                   pursuant to 21 U.S.C. § 841(b)(1)(D), which carries a
  Garcia-Echaverria’s conviction, however, constitutes an          maximum punishment of five years, and thus constitutes a
“aggravated felony” under the “hypothetical federal felony”        felony pursuant to 18 U.S.C. § 3559, which provides that a
route, making him both removable and ineligible for relief         federal offense is a felony if its maximum penalty is greater
from removal. Although Garcia-Echaverria asserts that the          than one year.
proper federal analogue for his Kentucky drug conviction is
21 U.S.C. § 844, an examination of the applicable statutes           It is true that § 841(b)(4) provides:
No. 03-3285            Garcia-Echaverria v. United States               11     12       Garcia-Echaverria v. United States               No. 03-3285

  Notwithstanding paragraph (1)(D) of this subsection, any                       It is true that 8 U.S.C. § 1182(h) treats differently LPRs and
  person who violates subsection (a) of this section by                        non-LPRs, in that it allows the Attorney General to grant an
  distributing a small amount of marihuana for no                              adjustment of status to some non-LPRs who have been
  remuneration shall be treated as provided in section 844                     convicted of an “aggravated felony,” but prohibits the
  of this title and section 3607 of Title 18.                                  Attorney General from granting relief to LPRs who have been
                                                                               convicted of an “aggravated felony.” While a district court in
(emphasis added). Garcia-Echaverria did not assert in his                      our circuit has held that this distinction violates equal
appellate brief that he falls within this escape-hatch provision.              protection, Roman v. Ashcroft, 181 F. Supp. 2d 808, 812-14
Moreover, we conclude that his Kentucky drug conviction,                       (N.D. Ohio 2002), vacated on other grounds, 340 F.3d 314
which involved at least eight ounces of marijuana, does not                    (6th Cir. 2003), several other circuits have held that this
fall within this provision,5 and thus the proper federal                       distinction survives the applicable rational-review standard.
analogue for Garcia-Echaverria’s Kentucky drug conviction                      Dipeppe v. Quarantillo, 337 F.3d 326, 331-32 (3d Cir. 2003);
is § 841(b)(1)(D). Therefore, Garcia-Echaverria’s Kentucky                     Lukowski v. INS, 279 F.3d 644, 647 (8th Cir. 2002); Lara-
drug conviction constitutes an “aggravated felony” under this                  Ruiz v. INS, 241 F.3d 934, 946-48 (7th Cir. 2001); Moore v.
route.6                                                                        Ashcroft, 251 F.3d 919, 924-26 (11th Cir. 2001).
   Next, Garcia-Echaverria argues that denying him relief                         We have not yet ruled on this issue, and we may not do so
from deportation/removal pursuant to 8 U.S.C. § 1182(h)                        in this case because Garcia-Echaverria does not have standing
violated his rights under the Equal Protection Clause of the                   raise this challenge. Section 1182(h) allows the Attorney
Fifth Amendment. Although Garcia-Echaverria concedes that                      General to grant an adjustment of status to some non-LPRs
statutes that draw distinctions between different classes of                   who have been convicted of certain crimes, including a
aliens are subjected only to rational review, he argues that the               violation of a law relating to a controlled substance, but only
distinction that 8 U.S.C. § 1182(h) draws between LPRs and                     “insofar as it relates to a single offense of simple possession
non-LPRs is not rationally related to any legitimate                           of 30 grams or less of marijuana.” See 8 U.S.C.
government interest.                                                           § 1182(a)(2)(A)(i)(II) and (h). In 1996, § 348 of the IIRIRA
                                                                               amended 8 U.S.C. § 1182(a) to prohibit the Attorney General
                                                                               from granting a similar waiver to LPRs.7 Garcia-Echaverria
    5
      W e have no binding precedent defining “small amount” within the
meaning of § 841(b)(4). Garcia-Echaverria, however, possessed at least              7
                                                                                     Section 348(a) of the IIRIRA provides: “No waiver shall be granted
eight ounces, which is not a “small amount.” The escape-hatch provision        under this subsection in the case of an alien who has previously been
is designed to address the casual sharing of marijuana; behavior that is       admitted to the United States as an alien lawfully admitted for permanent
akin to mere possession rather than distribution. Although distribution of     residence if either since the date of such admission the alien has been
eight ounces of marijuana may be a small-scale drug transaction,               convicted of an aggravated felony or the alien has not lawfully resided
distribution of eight ounces is more than casual sharing.                      continuously in the United States for a period of not less than 7 years
    6
                                                                               imme diately preceding the date of initiation of proceedings to remove the
      But see W ilson v. Ashcroft, 350 F.3d 377, 382 (3d Cir. 2003)            alien from the United States. No court shall have jurisdiction to review
(holding that pursuant to § 841(b)(4), the proper federal analogue for a       a decision of the Attorney General to grant or deny a waiver und er this
state conviction for possession with intent to distribute more than one        subsection.” IIRIRA, Pub. L. No. 104-208 , § 348(a), 110 Stat. 3009
ounce but less than five pounds of marijuana w as 21 U .S.C. § 84 4 beca use   (1996). This limitation became effective immediately upon the enactment
the state offense failed to include remuneration as an element).               of the IIR IRA in Sep tember 19 96. See id. at § 348(b).
No. 03-3285             Garcia-Echaverria v. United States               13     14       Garcia-Echaverria v. United States                No. 03-3285

was convicted of possession with intent to distribute at least                  of the AEDPA9 made him ineligible for a discretionary
eight ounces of marijuana; therefore, he would not have been                    waiver of deportation. AEDPA, Pub. L. No. 104-132,
eligible for an adjustment of status, even if he were a non-                    § 440(d), 110 Stat. 1214 (1996); 8 U.S.C. § 1227(a)(2)(A)(iii)
LPR, and regardless of the limitation imposed by § 348 of the                   and (B). St. Cyr aids only those aliens whose “convictions
IIRIRA. Because Garcia-Echaverria would not have been
eligible for an adjustment of status even if he were a non-
LPR, he lacks standing to raise this challenge.                                      9
                                                                                       Prior to the enactment of the AEDP A, § 212(c) of the INA (codified
                                                                                at 8 U.S.C. § 118 2(c)(1995)) allowed the Attorney Genera l to exercise his
  Garcia-Echaverria also argues that denying him the                            discretion and waive the deportation of a lawful permanent resident alien,
opportunity to apply for a waiver of deportation pursuant to                    meeting certain requirements, who was excludable by reason of having
§ 212(c) of the INA had an impermissible retroactive effect                     com mitted an “aggravated felony,” except the Attorney General had no
because he committed his Kentucky drug offense prior to the                     discretion to admit:
                                                                                      an alien who has been convicted of one or more aggravated
repeal of that provision by the IIRIRA.                                               felonies and has served for such felony or felonies a term of
                                                                                      imprisonm ent of at least 5 years.
  It is true that INS v. St. Cyr, 533 U.S. 289, 321-22 (2001),                  8 U.S.C. § 1 182 (c)(1995 ); St. Cyr, 533 U.S. at 294-95 (explaining that
held that denying some aliens the opportunity to apply for a                    although § 212(c) on its face only ap plies to exclusion proceedings, it had
waiver of deportation pursuant to § 212(c) of the INA has an                    been interpreted as allowing lawful permanent residents to seek a waiver
impermissible retroactive effect. St. Cyr held that denying the                 of deportation). At that time, the term “aggravated felony” included,
                                                                                “illicit trafficking in a controlled substance (as defined in section 102 of
opportunity to apply for § 212(c) relief to aliens who had                      the Controlled Substances Act [21 USC S § 802 ]), including a drug
pleaded guilty in reliance upon the opportunity to apply for                    trafficking crime (as defined in section 924(c) of title 18, United States
such relief would disrupt the quid pro quo of plea bargaining.                  Code).” 8 U.S.C. § 110 1(a)(43)(B)(19 95). An alien convicted of illicit
Id. at 321-24. By the time Garcia-Echaverria committed his                      trafficking of a co ntrolled substance, however, would have remained
Kentucky drug offense on May 31, 1996,8 and certainly by                        eligible for discretionary waiver of deportation if he had served less than
                                                                                five years of imprisonment. 8 U.S.C. § 1182(c)(199 5).
the time he pleaded guilty on December 16, 1996, § 440(d)                             Section 440(d) of the AEDP A narrowed the Attorney Genera l’s
                                                                                discretion, prohibiting the Attorney General from waiving the deportation
                                                                                of a lawful permanent resident, who was excludable by reasons of having
                                                                                committed “any criminal offense covered in section 241 (a)(2)(A)(iii)
                                                                                [“aggravated felony”], (B) [controlled substance conviction],” etc.,
     At the time Garcia-Echaverria committed his offense conduct on May         regardless of whether he had served five years of impriso nment. AEDPA,
31, 1996, and when he pleaded guilty of December 16, 1996, the Attorney         Pub. L. No. 104-132, § 440(d), 110 Stat. 1214 (1996); 8 U.S.C.
General was prohibited from granting a waive r to aliens who had been           § 1227 (a)(2)(A)(iii) and (B).
convicted of a controlled substance offense, except for simple possession             Section 304 of the IIRIRA repealed § 2 12(c) of the INA and replaced
of less than thirty grams of marijuana. 8 U.S.C. § 118 2(h)(1995).              it with 8 U.S.C. § 1229b, which prohibits the Attorney General from
     Although it does not appear that G arcia-Echaverria has raised a           cancelling the removal of an alien who has ever “been convicted of any
retroa ctivity argument regarding § 348 of the IIRIRA, any such argument        aggravated felony.” 8 U.S.C. § 1229b(a)(3); IIRIRA, Pub. L. No. 104-
would be without merit due to the fact that he was ineligible for such          208, § 304(a)-(b), 110 Stat. 3009 (1996). With some exceptions not
relief prior to the enactment of the IIRIRA.                                    relevant here, this provision did not become effective until April 1, 1997,
    8
                                                                                and by its terms applied to removal proceedings that commenced on or
      W e note that the Supreme Co urt’s retroactivity analysis in St. Cyr,     after that date. Id. at § 309(a). As discussed in St. Cyr, 533 U.S. at 321-
533 U.S. 289, 320-23 (2 001 ), turned upon the timing of the d efendant’s       26, this provision raised retroactivity concerns when applied to some
plea in relation to the repeal of § 212(c) relief, not upon the timing of the   aliens, but it does not raise retroactivity concerns when applied to Garcia-
defendant’s criminal conduct in relation to the repeal of § 212(c).             Echaverria.
No. 03-3285         Garcia-Echaverria v. United States       15

were obtained through plea agreements and who,
notwithstanding those convictions, would have been eligible
for [discretionary cancellation of removal] at the time of their
plea under the law then in effect.” 533 U.S. at 326 (emphasis
added). Because he pleaded guilty and became ineligible for
a waiver of deportation after the AEDPA was enacted on
April 24, 1996, denying Garcia-Echaverria relief from
deportation/removal does not raise any retroactivity concerns.
Although Garcia-Echaverria was convicted pursuant to a
guilty plea prior to the effective date of the IIRIRA, he could
not have pleaded guilty in reliance on his ability to obtain a
discretionary cancellation of removal because under the
AEDPA he was not eligible for relief at the time he pleaded
guilty.
                    IV. CONCLUSION
  For the forgoing reasons, we AFFIRM the district court’s
denial of Garcia-Echaverria’s petition for a writ of habeas
corpus.
