IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-50305 Summary Calendar

JUAN ALONSO MANCHA-CHAIREZ,

Petitioner-Appellant,

versus

LUIS GARCIA, District Director, Immigration and Naturalization Service

Respondent-Appellee.

Appeal from the United States District Court for the Western District of Texas (EP-00-CV-242-H)

November 14, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Juan Alonso Mancha-Chairez appeals the district court's

dismissal of his petition for a writ of habeas corpus under

. In light of the Supreme Court's decision in INS v.

St. Cyr,1 we vacate the district court's order and remand for

further proceedings.

I

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1

(2001). Mancha-Chairez is a citizen of Mexico. He was admitted into

the United States in 1975 as a lawful permanent resident. In 1988

he pled nolo contendere in Texas state court of unlawful possession

of marijuana, a third-degree felony, and received deferred

adjudication. In March, 1997, Mancha-Chairez pled guilty to one

count of possession of marijuana in violation of

(a)

in the United States District Court for the District of New Mexico.

He was sentenced to six months of home confinement and six months

probation.

Following the federal drug conviction, the INS issued a Notice

to Appear on May 25, 1998 charging Mancha-Chairez as removable from

the United States under

(a)(2)(A)(i)(II) for having

been convicted of a controlled substance violation. Mancha-Chairez

conceded that he was removable but sought Cancellation of Removal

under 8 U.S.C. § 1229b. The INS argued that the federal marijuana

conviction was an "aggravated felony" which rendered Mancha-Chairez

ineligible for Cancellation of Removal. The immigration judge

granted Mancha-Chairez's request for Cancellation of Removal. On

appeal, the Board of Immigration Appeals reversed, ruling that the

federal marijuana conviction was an "aggravated felony." The BIA's

decision rested, in part, on the fact that the federal drug

conviction was punishable by up to two years imprisonment if the

defendant had a prior state drug conviction.2

2 The BIA also determined that Mancha-Chairez's prior adjudication in Texas qualified as a prior state conviction for this purpose.

2 Mancha-Chairez appealed the decision of the BIA to this Court,

and we determined that we lacked jurisdiction to hear the appeal

because federal law prohibited judicial review of the BIA's

decision.3

On August 17, 2000, Mancha-Chairez filed a petition for a writ

of habeas corpus in district court. He argued that the BIA's

decision was constitutionally infirm under the Equal Protection

component of the Fifth Amendment because it created an irrational

distinction between those with prior state convictions for simple

possession of marijuana and those with prior federal convictions

for the same offense. The district court concluded that: (1) it

lacked statutory jurisdiction to hear Mancha-Chairez's habeas

petition, owing to 8 U.S.C. 1252(a)(2)(B)(i) and our decision in

Max-George v. Reno;4 and (2) that Mancha-Chairez's claims were not

protected by the Suspension Clause.

II

3 Mancha-Chairez v. Reno,

(5th Cir. 2000) (unpublished) (per curiam). See

(a), which provides:

(2) Matters not subject to judicial review ... (B) Denials of discretionary relief Notwithstanding any other provision of law, no court shall have jurisdiction to review-- (i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title ...

4

(5th Cir. 2000), vacated, Max-George v. Ashcroft,

(2001).

3 We review a district court's determination that it lacked

jurisdiction de novo.5 The Supreme Court, in St. Cyr, held that

the district courts maintain jurisdiction under

over habeas petitions in removal cases, even when the removal order

is not subject to direct judicial review under

(a).6

Thus the district court's dismissal, though proper under our case

law at the time it was issued, was erroneous under St. Cyr.

However, the INS now takes the position that: (1) Mancha-

Chairez's constitutional claim is being raised for the first time

in his habeas petition and (2) it could have been raised on direct

review with this Court. As a result, the INS claims, the district

court is still without jurisdiction over the habeas petition and we

should affirm. The district court, however, found only that

"Mancha's equal protection claim, based on allegations that his

classification as an aggravated felon was arbitrary and irrational,

does not fall within the scope of the writ protected by the

Suspension Clause." In following Max-George, the district court

did not reach the question of whether jurisdiction under § 2241 was

proper despite the fact that Mancha-Chairez's claim was being

5 Wadsworth v. Johnson,

(5th Cir. 2000). 6 St. Cyr,

.

4 raised for the first time on habeas review. This issue should be

considered first by the district court.7

Accordingly, the judgment of the district court is VACATED and

we REMAND for further proceedings.

7 See Cano-Miranda v. Ashcroft,

(5th Cir. 2001) (vacating, in light of St. Cyr, a district court's dismissal of habeas petition for lack of jurisdiction and remanding to district court for consideration of whether petitioner failed to exhaust his administrative remedies).

5