                                                         United States Court of Appeals
                                                                  Fifth Circuit
                            In the
                                                              FILED
         United States Court of Appeals                   September 7, 2006
                   for the Fifth Circuit                Charles R. Fulbruge III
                                                                Clerk
                       _______________

                          m 05-50102
                        ______________

              JOSE GUADALUPE MUNOZ-SIGALA,

                                         Petitioner-Appellant,

                           VERSUS

                      MARC J. MOORE,
      AS FIELD OFFICE DIRECTOR FOR DETENTION AND REMOVAL
   FOR THE BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT;
   BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,
AS AN AGENCY OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA;
           DEPARTMENT OF HOMELAND SECURITY,
AS AN AGENCY OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA;
                     MICHAEL CHERTOFF,
        SECRETARY, DEPARTMENT OF HOMELAND SECURITY;
                   ALBERTO R. GONZALES,
               UNITED STATES ATTORNEY GENERAL,

                                         Respondents-Appellees.




                   ***************
                                             _______________

                                                m 05-60522
                                              ______________

                                 JOSE GUADALUPE MUNOZ-SIGALA,

                                                                          Petitioner,

                                                  VERSUS

                                        ALBERTO R. GONZALES,
                                  UNITED STATES ATTORNEY GENERAL,

                                                                          Respondent.

                                      _________________________

                                     Petitions for Review of Orders of
                                    the Board of Immigration Appeals
                                              m A37 437 097
                                      _________________________



Before SMITH, WIENER, and OWEN,                            petition for writ of habeas corpus. The appeal
       Circuit Judges.                                     has been converted into a petition for review.
                                                           For the reasons stated, we deny both petitions
JERRY E. SMITH, Circuit Judge:*                            for review.

   In these consolidated cases, Jose Munoz-                                       I.
Sigala petitions for review of a decision of the               Munoz-Sigala, a citizen of Mexico, became
Board of Immigration Appeals (“BIA”) affirm-               a lawful permanent resident of the United
ing a removal order by an immigration judge                States in 1982. In 1992 he was indicted for
(“IJ”) and the subsequent denial by the BIA of             aggravated delivery of a controlled substance,
a motion to reopen his case, and he appeals an             namely over 400 grams of cocaine; on April
order of the district court dismissing his                 29, 1996, he pleaded guilty and was given a
                                                           suspended sentence. The former Immigration
                                                           and Naturalization Service (“INS”) placed him
   *
     Pursuant to 5TH CIR. R. 47.5, the court has           in removal proceedings in 1999, charging that
determined that this opinion should not be pub-            he was removable as an alien convicted of an
lished and is not precedent except under the limited       aggravated felony and as an alien having an il-
circumstances set forth in 5TH CIR. R. 47.5.4.             legal drug conviction. The IJ sustained the

                                                       2
charges and ordered him removed to Mexico.             BIA held that the motion to reopen was un-
                                                       timely. Further, it held that AEDPA took ef-
    Munoz-Sigala appealed to the BIA, which            fect on April 24, 1996, five days before Mun-
affirmed. A subsequent petition for writ of ha-        oz-Sigala pleaded guilty on April 29, 1996.
beas corpus, based on 28 U.S.C. § 2241, was            Thus, Munoz-Sigala’s reliance on St. Cyr was
denied by the district court in 2000 for lack of       misplaced because his expectations at the time
jurisdiction. The court based its decision on          of the guilty plea were not upset by a change
Max-George v. Reno, 205 F.3d 194 (5th Cir.             in the law that had occurred before he entered
2000), in which this court held that the Illegal       his plea.
Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”) had                 After the BIA denied his motion to reopen
deprived the district courts of jurisdiction to        Munoz filed a third § 2241 habeas petition on
issue writs of habeas corpus under § 2241 to           May 6, 2005. The district court transferred
certain criminal aliens. The Supreme Court,            the case to this court as required by the REAL
however, effectivelyoverruled Max-George in            ID Act, Pub. L. No. 109-13, 119 Stat. 231
INS v. St. Cyr, 533 U.S. 289, 314 (2001),              (May 11, 2005). We granted a motion to
holding, inter alia, that such jurisdiction had        consolidate these two matters. Munoz-Sigala
not been repealed by IIRIRA.                           challenges the BIA’s decision affirming the
                                                       IJ’s removal order and the BIA’s denial of the
    In light of St. Cyr, Munoz-Sigala filed an-        motion to reopen.
other § 2241 habeas petition, asserting that he
had been unlawfully denied the ability to seek                                 II.
a discretionary waiver of his removal order un-            Initially we deal with the effect of the
der INA § 212(c). Although acknowledging               REAL-ID Act on Munoz-Sigala’s appeal of
that the Antiterrorism and Effective Death             the district court’s dismissal of his habeas pe-
Penalty Act (“AEDPA”) had denied § 212(c)              tition for lack of jurisdiction because he was
relief to aliens convicted of aggravated felon-        not “in custody.”2 Section 106 of the Act di-
ies, he argued that the effective date of              vested district courts of jurisdiction over chal-
AEDPA was uncertain at the time of his con-            lenges to removal orders in § 2241 proceed-
viction and that, under St. Cyr, § 212(c) relief       ings and designated the courts of appeals as
remained available to aliens, such as him, who         the sole fora for such challenges via petitions
were eligible for relief before the enactment of       for review. Pub. L. No. 109-13, 119 Stat.
AEDPA and IIRIRA. The district court dis-              231, 310; Rosales v. Bureau of Immigration &
missed the petition for lack of jurisdiction           Customs Enforcement, 426 F.3d 733, 735-36
without reaching the merits, finding that the          (5th Cir. 2005), cert. denied, 126 S. Ct. 1055
“in custody” requirement of § 2241 had not             (2006). This section applies “to cases in which
been met. Munoz-Sigala appealed that deci-             the final administrative order of removal,
sion.

  Munoz-Sigala then filed a motion with the               2
                                                             The REAL-ID Act is one part of the Emer-
BIA seeking to reopen his case, making argu-           gency Supplemental Appropriations Act for De-
ments similar to those he had raised in his sec-       fense, the Global War on Terror, and Tsunami Re-
ond § 2241 petition in the district court. The         lief, 2005, Pub. L. No. 109-13, 119 Stat. 231
                                                       (May 11, 2005).

                                                   3
deportation, or exclusion was issued before,            notwithstanding those convictions, would have
on, or after the date of enactment of this              been eligible for § 212(c) relief at the time of
provision.” Pub. L. No. 109-13, 119 Stat.               their plea under the law then in effect.” Id. at
231, 311, § 106(b). Further, habeas petitions,          326.
such as Munoz-Sigala’s, that are challenging
removal orders on appeal as of May 11, 2005,                The BIA concluded that St. Cyr is inappli-
are converted into petitions for review. Rosal-         cable to Munoz-Sigala because he pleaded
es, 426 F.3d at 736. Thus, Munoz-Sigala’s               guilty five days after the passage of AEDPA
habeas petition challenging his removal is con-         and thus was ineligible for § 212(c) relief at
verted into a petition for review of the BIA’s          the time of his plea. In Alvarez-Hernandez v.
decision to affirm his removal order, and the           Acosta, 401 F.3d 327, 334 (5th Cir. 2005), we
district court’s conclusion that it lacked habeas       held that where there is a plea agreement, the
jurisdiction is moot and thus vacated.                  St. Cyr analysis is triggered by the date of the
                                                        guilty plea, not the date judgment is entered.
    We review the BIA’s rulings of law de               The defendant in Alvarez-Hernandez pleaded
novo, but we defer to the BIA’s interpretation          guilty approximately two years before the pas-
of immigration regulations if the interpretation        sage of AEDPA and IIRIRA, but the final
is reasonable. Lopez-Gomez v. Ashcroft, 263             judgment was not entered until after both laws
F.3d 442, 444 (5th Cir. 2001). A denial by the          had become effective. We held that because
BIA of a motion to reopen is reviewed for               § 212(c) was in effect at the time of the plea,
abuse of discretion. Panjawani v. Gonzales,             the defendant had acquired an “important reli-
401 F.3d 626, 632 (5th Cir. 2005). The “tenor           ance interest entitled to protection” and that
of the Attorney General’s regulations . . .             this interest came into being on “the date of
plainly disfavor[s] motions to reopen.” INS v.          the plea.” Id. at 334. Thus, if the plea was
Abudu, 485 U.S. 94, 110 (1988).                         made before the effective date of AEDPA, the
                                                        retroactivity analysis of St. Cyr was triggered.
    Under the former INA § 212(c), 8 U.S.C.
§ 1182(c), an alien was permitted to seek a                 Munoz-Sigala’s guiltyplea and judgment of
discretionary waiver of deportation if he had           conviction were entered on the same day, Ap-
been a lawful permanent resident with an un-            ril 29, 1996. Because this was five days after
relinquished domicile of seven years. Ashby v.          AEDPA became effective, under Alvarez-
INS, 961 F.2d 555, 557 (5th Cir. 1992). In              Hernandez the retroactivity concerns of St.
1996, in § 440(d) of AEDPA, Congress pre-               Cyr do not apply.
cluded such relief for aliens convicted of, inter
alia, an aggravated felony or drug offense.                Munoz further contends that the determina-
Pub. L. No. 104-132, 110 Stat. 1214, 1277;              tive date for the St. Cyr analysis should be the
St. Cyr, 533 U.S. at 297. Later that year Con-          date the plea agreement was reached, not the
gress enacted IIRIRA, which repealed                    date on which he actually pleaded guilty. He
§ 212(c). St. Cyr, 533 U.S. at 297. In St. Cyr,         does not state on what date his plea agreement
however, the Court held that the repeal of              was reached, but only that because of the four
§ 212(c) cannot be applied retroactively to de-         years that elapsed between the commission of
prive relief to aliens “whose convictions were          his crime and his guilty plea it is likely that the
obtained through plea agreements and who,               plea agreement was reached before April 24,


                                                    4
1996, the date AEDPA became effective.                  effect, so he relied to his detriment on the
                                                        availability of § 212(c) relief.
   We need not decide, in this case, whether
the St. Cyr analysis is triggered by the date the           This argument is unavailing. Soriano dealt
plea agreement was reached or the date the              with an alien who had applied for § 212(c) re-
agreement was accepted by the court. Even if            lief before the passage of § 440(d) of AEDPA.
we were to hold that the determinative date is          The BIA held that AEDPA became effective
the one on which the defendant and prosecutor           on the day it was passed, April 24, 1996, but
reached a plea agreement, Munoz-Sigala                  the bar did not retroactively apply to proceed-
would have the burden of establishing that              ings that were already pending. Soriano, 21
date.                                                   I.&N. Dec. at 519-21. Because Munoz-Sigala
                                                        did not seek § 212(c) relief before AEDPA
   “The alien has the burden of establishing el-        was enacted, the exception does not apply to
igibility for relief, including the date on which       him.
the alien and the prosecution agreed on the
plea of guilt or nolo contendere.” 8 C.F.R.                 Further, the BIA did not find that the effec-
§ 1003.44(b). The explanation of this rule ar-          tive date of AEDPA was ambiguous, but rath-
ticulates the rationale behind it: “The nature          er that the language of AEDPA, in accord with
of the comment . . . underscores the need to            general principles of statutoryconstruction, in-
make clear that the alien seeking section               dicates that the law became effective on the
212(c) relief has the burden of establishing the        date of its passage. Id. On that date AEDPA
plea agreement date, and the alien is in the best       precluded § 212(c) relief for aliens with aggra-
position to do so because the alien was present         vated felony convictions, and thus Munoz-
(not the DHS or the immigration judge) and is           Sigala’s contention that he detrimentally relied
most likelyto possess the documents reflecting          on the availability of such relief after that date
the plea agreement.” Section 212(c) Relief for          is unpersuasive.
Aliens with Certain Criminal Convictions
Before April 1, 1997, 69 Fed. Reg. 57,826,                 For the reasons explained, the petitions for
57,830 (Sept. 28, 2004).                                review are DENIED.

   Munoz-Sigala claims that, even given that
the date of his guilty plea was five days after
the effective date of AEDPA, he was eligible
for § 212(c) relief because at the time of his
plea the effective date of § 440(d) of AEDPA
was uncertain. He claims that the BIA clari-
fied the effective date in Matter of Soriano, 21
I.&N. Dec. 516 (BIA June 27, 1996), and that
before that decision it was not known for sure
when AEDPA had become effective. Munoz-
Sigala asserts that at the time of his plea,
which was entered before Soriano was decid-
ed, he was uncertain whether AEDPA was in


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