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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-20570

ALEJANDRO CANO-MIRANDA,
Petitioner-Appellant,
versus
JOHN ASHCROFT, U.S. Attorney General; RICHARD CRAVENER, Immigration
and Naturalization Service Director; IMMIGRATION AND NATURALIZATION
SERVICE,
Respondents-Appellees.

Appeal from the United States District Court
for the Southern District of Texas

August 17, 2001
Before HIGGINBOTHAM and BENAVIDES, Circuit Judges, and DUPLANTIER,*
District Judge.
PER CURIAM:
Alejandro Cano-Miranda appeals an order of the district court
dismissing his petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241. In light of the Supreme Court's recent decision in
INS v. St. Cyr,1 we VACATE the judgment of the district court and
REMAND for further proceedings.
* District Judge of the Eastern District of Louisiana, sitting
by designation.
1 121 S.Ct. 2271 (2001).

I
Cano-Miranda, a Mexican citizen who became a lawful permanent
resident of the United States in 1992, was convicted in 1993 of
possessing cocaine. On January 30, 1997, the INS served
Cano-Miranda with an Order to Show Cause. The OSC stated that
Cano-Miranda was deportable due to his controlled substances
conviction. The OSC claimed that Cano-Miranda was "in deportation
proceedings," that the OSC would be filed with an immigration
judge, and that Cano-Miranda would receive a hearing.
On September 8, 1998, the INS filed a Notice to Appear with
the Immigration Court. The Notice claimed that Cano-Miranda was
deportable due to his controlled substances conviction. The Notice
was also served on Cano-Miranda. His hearing was scheduled for
October 7, 1999, but Cano-Miranda did not attend, and the
Immigration Judge found him removable in absentia and ordered him
removed to Mexico.
On November 8, 1999, Cano-Miranda moved to reopen the removal
proceedings. The IJ denied that motion on November 15.
Cano-Miranda also appealed to the Board of Immigration Appeals, and
that appeal was still pending at the time this case was briefed.
On November 19, 1999, Cano-Miranda filed for a writ of habeas
corpus, claiming that he had been denied due process because the
Notice to Appear did not inform him of the consequence of not
appearing, nor of his eligibility to seek relief from removal. The
2

Government moved to dismiss on the grounds that the IIRIRA did not
permit judicial review of removal orders by means of the writ of
habeas corpus. On November 30, 2000, the district court agreed and
dismissed Cano-Miranda's habeas application. This appeal followed.
II
The primary issue raised by this appeal is whether Cano-
Miranda may seek relief through the writ of habeas corpus. When
this case was argued, under Fifth Circuit law the IIRIRA's
transitional rules permitted judicial review of deportation orders
via the writ of habeas corpus, while the permanent rules did not.2
Thus, the question appeared to be whether Cano-Miranda's
deportation proceedings fell under the temporary or the permanent
rules.
In INS v. St. Cyr,3 however, the Supreme Court held that the
permanent rules of the IIRIRA do not divest federal courts of
habeas jurisdiction.4 Moreover, the relevant Fifth Circuit case,
Max-George v. Reno,5 has been vacated by the Supreme Court and
remanded for further proceedings in light of St. Cyr.6
2 See Max-George v. Reno, 205 F.3d 194, 197 n.3, 198 (5th Cir.
2000), vacated by Max-George v. Ashcroft, 121 S. Ct. 2585 (2001).
3 121 S.Ct. 2271 (2001).
4 Id. at 2287 ("Accordingly, we conclude that habeas
jurisdiction under § 2241 was not repealed by AEDPA and IIRIRA.").
5 205 F.3d 194 (5th Cir. 2000).
6 See Max-George v. Ashcroft, 121 S. Ct. 2585 (2001).
3

Accordingly, following St. Cyr, we hold that the district
court erred in dismissing Cano-Miranda's appeal for want of habeas
jurisdiction. Cano-Miranda's argument that the IIRIRA is an
unconstitutional suspension of the writ of habeas corpus becomes
immaterial in light of St. Cyr.
III
The government argues that Cano-Miranda failed to exhaust his
administrative remedies because his appeal was still pending before
the BIA. Cano-Miranda replies that he cannot appeal to the BIA
from an in absentia removal order, so he need not exhaust an appeal
before the BIA in this case. What Cano-Miranda can do is file a
motion to reopen with the IJ and, if that motion is denied, appeal
the denial to the BIA. Cano-Miranda did file a motion to reopen
with the IJ, which the IJ denied. Cano-Miranda has filed an appeal
of that denial, which remains pending before the BIA. The issue of
Cano-Miranda's exhaustion of his administrative remedies is,
however, appropriate for the district court to decide in the first
instance.

The judgment of the district court is therefore VACATED. We
REMAND to the district court for further proceedings, including a
determination of whether Cano-Miranda has properly exhausted his
administrative remedies.
4