                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit

                   ___________________________

                        Case No. 98-41336
                   ___________________________


JUANA MARIA LERMA-DE GARCIA

              Petitioner - Appellee

                        v.

E M TROMINSKI, District Director, Immigration and
Naturalization Service; JOHN ASHCROFT, US Attorney General

              Respondents - Appellants


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                    ___________________________

                        Case No. 98-41346
                   ___________________________


JUAN RODRIGUEZ CERNA

              Petitioner - Appellee

                         v.

E M TROMINSKI, District Director, Immigration and
Naturalization Service; JOHN ASHCROFT, US
Attorney General

               Respondents - Appellants

               __________________________________

         Appeals from the United States District Court
               for the Southern District of Texas
                          (B-97-CV-183)
                  ____________________________
                         April 12, 2001

Before DAVIS, SMITH, and DENNIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*

     In this appeal the government challenged the district

court’s orders granting writs of habeas corpus in thirty

consolidated deportation cases.    In each case, the Board of

Immigration Appeals (“BIA”) found that § 440(d) of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) rendered

petitioners ineligible to apply for Immigration and Nationality

Act (“INA”) § 212(c) discretionary waivers of deportation.      Under

§ 440(d), persons who are deportable as a result of convictions

of certain offenses are ineligible to apply for § 212(c) relief.2

     After the BIA entered final orders of deportation against

them, appellees filed habeas petitions in the district court

raising various statutory and constitutional issues.    In each

case, the district court granted the habeas petitions, vacated

the BIA’s deportation orders, and remanded the cases to the BIA.

The district court held that § 440(d) did not apply to

petitioners whose convictions occurred before AEDPA’s April 24,



     *
      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this opinion should not be published and is not precedent except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.
     2
      AEDPA § 440(d) amended INA § 212(c) to provide that § 212(c)
“shall not apply to an alien who is deportable by reason of having
committed    any    criminal    offense    covered    in    section
241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by
section 241(a)(2)(A)(ii) for which both predicate offenses are
covered by section 241(a)(2)(A)(i).”      8 U.S.C. § 1182(c) (as
amended in 1996 by AEDPA § 440(d)).      Section 440(d) thus made
aliens who were deportable because of convictions for certain
offenses (including aggravated felonies, controlled substance
offenses, certain firearms offenses, espionage, and multiple crimes
of moral turpitude) ineligible for § 212(c) relief.

                                   2
1996 enactment date.   The government appealed these orders.

Petitioners argued that the orders should be affirmed on two

bases - that § 440(d) did not apply both because their

convictions predated the adoption of AEDPA and because

petitioners were placed in deportation proceedings before the

adoption of AEDPA.

     During the pendency of this appeal, the Attorney General

issued notice of a proposed regulation, under which § 440(d)

would no longer apply to aliens whose deportation proceedings

were pending at the time of AEDPA’s enactment.3   We granted the

government’s motion to hold this appeal in abeyance until the

government received and considered comments on the proposed

regulation.   That regulation was adopted and became final on

January 22, 2001.    See Section 212(c) Relief for Certain Aliens

in Deportation proceedings Before April 24, 1996, Fed. Reg. 6436

(2000).   The regulation includes the following crucial language:

     In the interest of the uniform and expeditious
     administration of the immigration laws, the Attorney
     General acquiesces on a nationwide basis in those
     appellate decisions holding that AEDPA section 440(d) is
     not to be applied in the cases of aliens whose
     deportation proceedings were commenced before AEDPA was
     enacted.

66 Fed. Reg. 6436, 6438.
     In light of this new regulation, the government filed a

motion to dismiss all its appeals except those concerning Lerma

de Garcia (Case No. 98-41336) and Rodriguez-Cerna (Case No. 98-


     3
      See Section 212(c) Relief for Certain Aliens in Deportation
Proceedings Before April 24, 1996, 65 Fed. Reg. 44476 (2000)
(proposed July 18, 2000).

                                  3
41346).   We grant that motion.4    We consider below the two

remaining cases.

                                   A.

     Lerma de Garcia moved to reopen her deportation proceedings

on two grounds: 1) § 440(d) did not apply to bar her § 212(c)

application; and 2) her attorney provided ineffective assistance

of counsel, which excused her failure to appear at her

deportation proceedings.

     The recently adopted regulation discussed above applies only

to Lerma de Garcia’s argument relating to the applicability of §

440(d) to pending proceedings.      66 Fed. Reg. at 6439.   Because

the district court did not reach Lerma de Garcia’s argument based

on ineffective assistance of counsel, both the government and

petitioner agree that we should remand Lerma de Garcia’s case.

We therefore remand this case to the district court for

consideration of this argument.

                                   B.

     Rodriguez-Cerna’s deportation proceedings were commenced

after AEDPA’s enactment date.      It is therefore clear that §

440(d) applies to bar him from seeking § 212(c) relief, even


     4
      There are a number of other motions pending before us with
regard to these cases. Our disposition here renders these motions
moot, and they are therefore DENIED.
     During the pendency of this appeal, we decided Requena-
Rodriguez v. Pasquarell, holding that § 440(d) applies to bar a
petitioner from seeking § 212(c) relief despite the fact that his
conviction predates AEDPA’s adoption. 190 F. 3d 299, 307-8 (5th
Cir. 1999). The district court’s contrary conclusion is therefore
inconsistent with this holding.

                                    4
though his conviction pre-dated AEDPA.    Requena-Rodriguez, 190

F.3d at 307-8; 66 Fed. Reg. at 6438-9.    Rodriguez-Cerna also

argues that this determination based on the date on which

deportation proceedings were instituted violates his equal

protection rights under the Constitution.    However, Rodriguez-

Cerna asked that his deportation proceedings be converted to

removal proceedings (“repapering”) and his deportation

proceedings were administratively closed on November 28, 2000,

when the BIA granted this request.    Thus, no deportation

proceedings are pending, and both sides agree that we should

dismiss this case.   The petitioner asks us to dismiss the suit

with prejudice.   The government, on the other hand, points out

that the BIA left the door open for the deportation proceedings

to be reopened and that the case should therefore be dismissed

without prejudice.   We therefore remand this case to the district

court to consider these arguments and decide whether to dismiss

the case with or without prejudice.

     For the reasons stated above, we GRANT the government’s

motion to dismiss all appeals except those of Lerma de Garcia

(Case No. 98-41336) and Rodriguez-Cerna (Case No. 98-41346).

     As to Lerma de Garcia, we REMAND this case to the district

court.   If Lerma de Garcia can show that she received ineffective

assistance of counsel so that her failure to appear at her

deportation proceedings was justified, the district court should

direct the BIA to permit her to file a § 212(c) petition to

reopen her deportation proceedings.

                                 5
     As to Rodriguez-Cerna, we REMAND this case to the district

court to consider whether its order of dismissal should be with

or without prejudice.




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