REVISED OCTOBER 16, 2000
               IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 99-20508



     JOSE SANTOS,

                                           Plaintiff-Appellee,

          versus


     JANET RENO, U.S. Attorney General;
     RICHARD V. CRAVENER, District Director of the
     Houston District of the Immigration and
     Naturalization Service,

                                           Defendants-Appellants.




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



                        September 26, 2000
Before GARWOOD, DeMOSS, and PARKER, Circuit Judges.

GARWOOD, Circuit Judge:

     The Immigration and Naturalization Service (INS) appeals the

district court’s grant of the petition for a writ of habeas corpus

filed by petitioner-appellee Jose Angel Santos (Santos). We vacate the

district court’s grant of habeas relief and remand with instructions to

dismiss the petition for lack of jurisdiction.

                    Facts and Proceedings Below

     Santos, a native and citizen of El Salvador, entered the United
States illegally in August 1980.       He, however, has been a lawful,

permanent resident of the United States since 1987 when he adjusted his

status to temporary residency under the amnesty program. On July 22,

1994, Santos pleaded guilty in Texas state court to the offense of

burglary of a vehicle committed on or about May 25, 1994, and was

sentenced to five years’ deferred adjudication of guilt and placed on

probation.1 In October 1995, Santos violated the terms of his probation

and was sentenced to two years’ imprisonment.

     On November 15, 1996, the INS charged Santos with deportability as

an alien who had been convicted of an aggravated felony, based on his

conviction   of   burglary   of   a    vehicle.     See   8   U.S.C.   §

1227(a)(2)(A)(iii).2 In response to the INS’s charge, Santos did not

contest his deportability for having committed an aggravated felony, but



     1
       Texas Penal Code § 30.04, as applicable at the time of Santos’s
conviction and at the time of his commission of the offense, proscribed
burglary of a vehicle as follows:
          “(a) A person commits an offense if, without the
     effective consent of the owner, he breaks into or enters a
     vehicle or any part of a vehicle with intent to commit any
     felony or theft.
          (b) For purposes of this section, ‘enter’ means to
     intrude:
                (1) any part of the body; or
                (2) any physical object connected with the body.
          (c) An offense under this section is a felony of the
     third degree.” TEX. PENAL CODE ANN. § 30.04 (1987).
In 1993, the statute was amended to treat the offense as a Class A
misdemeanor, effective September 1, 1994. See TEX. PENAL CODE ANN. §
30.04(c) (1994); see also TEX. PENAL CODE ANN § 30.04(d) (2000).
     2
        The charges against Santos, filed by the INS in 1996, alleged
that he was deportable under 8 U.S.C. § 1251(a)(2)(A)(iii), which has
since been transferred to 8 U.S.C. § 1227(a)(2)(A)(iii).

                                   2
rather sought discretionary relief from deportation under former section

212(c) of the Immigration and Nationality Act (INA), which, before being

repealed in 1996, gave the Attorney General discretion to waive

deportation for some long-time legal permanent residents. See INA §

212(c) (formerly codified at 8 U.S.C. § 1182(c) (1994)).          After

conducting a hearing on December 16, 1996, the immigration judge (IJ)

found Santos to be deportable as an aggravated felon and ineligible for

discretionary relief under the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA).3 Santos then appealed to the Board of Immigration

Appeals (BIA), arguing that he had suffered a constitutional deprivation

by AEDPA’s rendering him ineligible for discretionary relief from

deportation. On July 13, 1998, the BIA dismissed his appeal, and Santos

filed a petition for review of the BIA’s decision with this Court,

arguing for the first time that his conviction of burglary of a vehicle

does not render him deportable, because the Texas legislature had

reclassified burglary of a vehicle as a misdemeanor effective after his

conviction but before his deportation proceedings commenced. The INS

moved this Court to dismiss Santos’s petition for review, asserting that

section 309(c)(4)(G) of the Illegal Immigration Reform and Immigration

Responsibility Act (IIRIRA) precluded consideration of a petition for


     3
       As amended by AEDPA § 440(d), 8 U.S.C. § 1182(c) provides that
“[t]his subsection 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) [now codified at 8 U.S.C. § 1227(a)(2)(A)(iii)] . .
..” 8 U.S.C. § 1182(c) (1994). Because Santos was found to have
committed an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), he
was subject to this limitation on discretionary relief.

                                   3
review by an alien who had been found deportable for having committed

an aggravated felony. In response, Santos maintained that burglary of

a vehicle is not a felony and, therefore, cannot constitute an

aggravated felony. In an unpublished opinion, this Court granted the

INS’s motion, dismissing Santos’s petition for review for lack of

jurisdiction. Santos v. INS, No 98-60492 (5th Cir. Sept. 1, 1998) (per

curiam).

     Following the dismissal of his petition for review, Santos filed

in the court below a petition for habeas corpus under 28 U.S.C. § 2241

and a request for a stay of his deportation order.       In his habeas

petition, Santos made two arguments: (1) burglary of a vehicle was not

an aggravated felony; and (2) the BIA’s construction of AEDPA that

deportable aliens convicted of an aggravated felony were ineligible for

discretionary relief was irrational and violated equal protection. At

the hearing on his petition, Santos withdrew his second argument.

Before the district court, the INS contended that 8 U.S.C. § 1105a(c)

prevented the district court from considering Santos’s argument that his

offense was not an aggravated felony, because this Court’s dismissal of

his petition for review for lack of jurisdiction necessarily decided

that burglary of a vehicle was an aggravated felony. On May 23, 1999,

the district court rejected the INS’s argument that it was without

jurisdiction and granted Santos’s petition, finding he had a likelihood

of succeeding on the merits of his claim that burglary of a vehicle is

not an aggravated felony. Accordingly, the district court issued a stay


                                   4
of deportation and remanded to the BIA for consideration of Santos’s

claim.   The INS timely appealed to this Court.

                              Discussion

     The INS argues that the district court committed two errors in

granting Santos habeas relief: (1) deciding that it had jurisdiction to

consider Santos’s section 2241 habeas petition4; and (2) finding that

Santos had a likelihood of succeeding on the merits of his claim that

burglary of a vehicle is not an aggravated felony.     We review both

issues de novo. See Requena-Rodriguez v. Pasquarell, 

, 302

(5th Cir. 1999).   We first consider whether the district court had

jurisdiction to consider Santos’s section 2241 petition. As Santos was

the party seeking to invoke federal jurisdiction, he bears the burden



     4
        28 U.S.C. § 2241 provides in part:
          “(c) The writ of habeas corpus shall not extend to a
     prisoner unless–
               (1) He is in custody under or by color of the
          authority of the United States or is committed for
          trial before some court thereof; or
               (2) He is in custody for an act done or omitted in
          pursuance of an Act of Congress, or an order, process,
          judgment, or decree of a court or judge of the United
          States; or
               (3) He is in custody in violation of the
          Constitution or laws or treaties of the United States;
          or
               (4) He, being a citizen of a foreign state and
          domiciled therein is in custody for an act done or
          omitted under any alleged right, title, authority,
          privilege, protection, or exemption claimed under the
          commission, order, or sanction of any foreign state, or
          under color thereof, the validity and effect of which
          depend upon the law of nations; or
               (5) It is necessary to bring him into court to
          testify or for trial.”

                                   5
of demonstrating that jurisdiction was proper. See Stockman v. Federal

Election Comm’n, 

, 151 (5th Cir. 1998).

     Initially, we must determine the legal regime governing Santos’s

deportation.   “After IIRIRA, two sets of rules–transitional and

permanent–are available to govern immigration proceedings, depending on

their timing.” 

.            IIRIRA’s

transitional rules apply to removal proceedings that commence before

April 1, 1997 and conclude more than thirty days after September 30,

1996. See Lerma de Garcia v. INS, 

, 216 (5th Cir. 1996).

As Santos’s deportation proceeding commenced in 1996 and did not

conclude until July 1998, IIRIRA’s transitional rules govern.      See

; IIRIRA §§ 309(a) & (c)(1).

     In Requena-Rodriguez, we considered the extent of section 2241

habeas jurisdiction under IIRIRA’s transitional rules. Like Santos,

Requena-Rodriguez was charged with deportability for having committed

an aggravated felony. See 

. After

an immigration judge and the BIA found him to be deportable and

ineligible for discretionary relief, this Court denied Requena-

Rodriguez’s petition for review. See 

filed

a section 2241 petition in district court, arguing that AEDPA’s

withdrawal of discretionary relief to deportable aliens could not be

applied retroactively against him and violated equal protection. See

magistrate court’s recommendation, the district court

concluded that it had jurisdiction to consider Requena-Rodriguez’s

                                   6
challenges, but that they were meritless. See 

appealed to this Court.

     We affirmed the district court’s conclusion that it had

jurisdiction over Requena-Rodriguez’s section 2241 petition. First, we

determined that the limits on judicial review contained in 8 U.S.C. §

1252(g)5, which apply to transitional cases, did not govern Requena-

Rodriguez’s challenge to his final deportation order. See 

see also Zadvydas v. Underdown, 

, 285-86 (5th Cir. 1999),

petition for cert. filed, No. 99-7791 (Jan. 11, 2000) (determining that

section 1252(g) did not bar challenges to the validity of statutes

authorizing the detention of aliens). Second, we held that, where 8

U.S.C. 1252(g) does not limit judicial review, section 2241 habeas

jurisdiction remains “under IIRIRA’s transitional rules in cases

involving final orders of deportation against criminal aliens, and that

habeas jurisdiction is capacious enough to include constitutional and

statutory challenges if those challenges cannot be considered on direct




     5
         8 U.S.C. § 1252(g) reads:
            “Except as provided in this section and notwithstanding
      any other provision of law, no court shall have jurisdiction
      to hear any cause or claim by or on behalf of any alien
      arising from the decision or action by the Attorney General
      to commence proceedings, adjudicate cases, or execute removal
      orders against any alien under this chapter.”
In Reno v. American-Arab Anti-Discrimination Commission, 

(1999), the Supreme Court explained that § 1252(g) was not a general
bar, but rather limited judicial review only to a narrow class of
discretionary executive decrees, decisions or actions to commence
proceedings, adjudicate cases, or execute removal orders. See 

                                   7
review by the court of appeals.” 

;

see also Rivera-Sanchez v. Reno, 

, 547-48 (5th Cir. 1999)

(per curiam).

     In the present case, the INS relies on Requena-Rodriguez and 8

U.S.C. § 1105a(c), arguing that section 2241 jurisdiction is not

available for a claim, such as Santos’s, that can be considered on

direct review by this Court. The INS contends that Santos’s argument

that burglary of a vehicle is not an aggravated felony not only could

have been presented to this Court in his petition for review, but was

in fact considered and rejected by this Court.      Therefore, the INS

concludes that Santos cannot now seek collateral review of that

determination.   We agree.

     Although IIRIRA repealed 8 U.S.C. § 1105a(c), see IIRIRA § 306(b),

the transitional rules governing judicial review set forth in IIRIRA §

309(c)(4)7 incorporate Immigration and Nationality Act § 106(c),


     6
        We then considered, and rejected, Requena-Rodriguez’s claims
that AEDPA’s elimination of discretionary relief for deportable aliens
was impermissibly retroactive and violated equal protection. See 

see also Alfarache v. Cravener, 

, 383-85 (5th
Cir. 2000) (per curiam), petition for cert. filed, 

(May
10, 2000) (No. 99-1789) (holding that AEDPA’s limits on discretionary
relief were not impermissibly retroactive and did not violate equal
protection or due process, and that AEDPA’s expanded definition of
“aggravated felony” applied to pre-AEDPA convictions).
     7
       IIRIRA § 309(c), reprinted in the statutory notes to 8 U.S.C.
§ 1101, reads:
          “In the cases described in paragraph (1) in which a
     final order of exclusion or deportation is entered more than
     30 days after the date of the enactment of this Act,
     notwithstanding any provision of section 106 of the
     Immigration and Nationality Act (as in effect as of the date

                                   8
codified at 8 U.S.C. § 1105a(c). See Lara v. Trominski, ___ F.3d ____,

No. 99-41434 (5th Cir. July 10, 2000); Bernal-Vallejo v. INS, 

, 64 (1st Cir. 1999); Sofinet v. INS, 

, 708 (7th Cir.

1999); Hose v. INS, 

, 996 (9th Cir. 1999) (en banc).

Accordingly, Santos’s petition is subject to 8 U.S.C. § 1105a(c). Under



     of the enactment of this Act) to the contrary–
                (A) in the case of judicial review of a final
          order of exclusion, subsection (b) of such section
          shall not apply and the action for judicial review
          shall be governed by the provisions of subsections (a)
          and (c) of such in the same manner as they apply to
          judicial review of orders of deportation;
                (B) a court may not order the taking of additional
          evidence under section 2347(c) of title 28, United
          States Code;
                (C) the petition for judicial review must be filed
          not later than 30 days after the date of the final
          order of exclusion or deportation;
                (D) the petition for review shall be filed with
          the court of appeals for the judicial circuit in which
          the administrative proceedings before the special
          inquiry officer or immigration judge were completed;
                (E) there shall be no appeal of any discretionary
          decision under section 212(c), 212(h), 212(i), 244, or
          245 of the Immigration and Nationality Act (as in
          effect as of the date of the enactment of this Act);
                (F) service of the petition for review shall not
          stay the deportation of an alien pending the court’s
          decision on the petition, unless the court orders
          otherwise; and
                (G) there shall be no appeal permitted in the case
          of an alien who is inadmissible or deportable by reason
          of having committed a criminal offense covered in
          section 212(a)(2) or section 241(a)(2)(A)(iii), (B),
          (C), or (D) of the Immigration and Nationality Act (as
          in effect as of the date of the enactment of this Act),
          or any offense covered by section 241(a)(2)(A)(ii) of
          such Act (as in effect on such date) for which both
          predicate offenses are, without regard to their date of
          commission,      otherwise     covered    by     section
          241(a)(2)(A)(i) of such Act (as so in effect).”

                                   9
8 U.S.C. § 1105a(c)8, the district court could not entertain Santos’s

petition unless it raised new grounds which could not have been

presented to the BIA or to this Court on the prior appeal. See Garcia

v. Boldin, 

, 1180 (5th Cir. 1982).9 We now address whether

Santos’s claim could have been presented to this Court in his petition

for review.

     In response to Santos’s petition to this Court for review of the

BIA’s decision, the INS moved that the petition be dismissed for lack

of jurisdiction pursuant to IIRIRA § 309(c)(4)(G), which provides that

there “shall be no appeal permitted” in the case of an alien who is


     8
         8 U.S.C. § 1105a(c) provides in pertinent part:
     “No petition for review or for habeas corpus shall be
     entertained if the validity of the order has been previously
     determined in any civil or criminal proceeding, unless the
     petition presents ground which the court finds could not have
     been presented in such prior proceeding, or the court finds
     that the remedy provided by such prior proceeding was
     inadequate or ineffective to test the validity of the order.”

     9
        In Garcia, we addressed whether the § 2241 petition filed by
Garcia and his family raised any new grounds which could not have been
raised in a prior proceeding. The Garcias argued that three such
grounds did exist.      With regard to the first ground, alleged
untimeliness of the INS’s appeal to the BIA, we concluded that it could
have been raised in Garcia’s petition for review. See 

The
second ground, procedural errors committed by the INS during the
pendency of his deportation proceedings deprived him of a fair hearing,
“could have been considered by the [BIA] and by this Court on the prior
review.” 

And, as to third claim, the failure to include
Mrs. Garcia and Garcia’s children as parties in the deportation
proceedings meant that their interests were not adjudicated or
considered, we held that their interests were recognized and considered
before the IJ and the BIA and that they lacked standing to challenge
Garcia’s deportation order by a petition for habeas corpus. See 

Accordingly, we affirmed the district court’s denying the
petition and dismissing the cause.

                                  10
deportable by reason of having committed any of a series of designated

criminal offenses, including those covered in INA § 241(a)(2)(A)(iii),

now codified at 8 U.S.C. § 1227(a)(2)(A)(iii)–the provision under which

Santos was found to be subject to deportation.10 We granted the INS’s

motion and dismissed Santos’s petition for review. In doing so, we

necessarily considered the three prerequisites for review preclusion

under IIRIRA § 309(c)(4)(G): (i) Santos was an alien; (ii) he was

deportable;    (iii)   he   committed     a   crime   covered   in   INA   §

241(a)(2)(A)(iii). See Camacho-Marroquin, 

, 651 (5th Cir.

1999) (per curiam) (citing Yang v. INS, 

, 1192 (7th Cir.

1997)). Accordingly, in dismissing Santos’s petition for review, we

determined that burglary of a vehicle is an aggravated felony–the very

finding Santos challenges in his section 2241 petition.11 Santos has


     10
       Santos’s deportation order required that only three elements be
established: (1) he was an alien; (2) he was convicted of an aggravated
felony; and (3) the conviction occurred after he was admitted. See 8
U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an
aggravated felony at any time after admission is deportable.”).
     11
         Although not contested by Santos, we note that in ruling on the
INS’s motion to dismiss his petition, we had jurisdiction, and were
required, to decide whether burglary of a vehicle constitutes an
aggravated felony, as the resolution of that issue was a jurisdictional
fact. See 

(citing 

); Lopez-Elias v. Reno, 

at 791 & n.3 (5th Cir. 2000);
Ruiz-Romero v. Reno, 

(5th Cir. 2000); Okoro v. INS, 

, 925 & n.10 (5th Cir. 1997); Anwar v. INS, 

, 143-44
(5th Cir. 1997). See also Scherbatskoy v. Halliburton Co., 

,
290 (5th Cir. 1997) (“This court necessarily has the inherent
jurisdiction to consider its own jurisdiction.”) (footnote omitted); 13A
CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3536, at 535 (2d
ed. 1984) (“‘Jurisdiction to determine jurisdiction’ refers to the power
of a court to determine whether it has jurisdiction over the parties to
and the subject matter of a suit. If the jurisdiction of a federal

                                     11
therefore failed to establish that the ground raised in his petition for

habeas corpus could not have been raised earlier, and we find no basis

for holding that the remedy provided by the prior proceedings was

inadequate or ineffective to test the validity of his deportation order.

8 U.S.C. § 1105a(c) (1994).

     Our conclusion comports not only with the mandates of 8 U.S.C. §

1105a(c) and Garcia, but also with our recent decision in Requena-

Rodriguez, in which we held “only that under the transitional rules,

habeas jurisdiction lies to consider constitutional and statutory claims

that cannot be heard in this court on direct review.”          Requena-

.12 Because Santos’s claim that burglary

of a vehicle is not an aggravated felony could have been, and indeed had

to have been (and in fact was), considered by this Court in resolving

his petition for review, the district court did not have jurisdiction

to entertain it in Santos’s habeas petition.13


court is questioned, the court has the power and the duty, subject to
review, to determine the jurisdictional issue.”) (footnotes omitted).
     12
        Because Requena-Rodriguez conceded that his convictions were
aggravated felonies rendering him deportable, see 

, we did not have occasion to address whether 8 U.S.C. §
1105a(c) would preclude a § 2241 habeas petition challenging the BIA’s
conclusion that a criminal offense constitutes an aggravated felony.
     13
          Even were we to conclude that the district court had
jurisdiction to consider Santos’s § 2241 petition, we would reverse the
district court’s grant of habeas relief, because Santos does not have
a substantial likelihood of prevailing on the merits of his argument
that his Texas state offense of burglary of a vehicle is not an
aggravated felony qualifying him for deportation. After the district
court granted Santos habeas relief, we decided Lopez-Elias v. INS, 

(5th Cir. 2000), which forecloses Santos’s argument.

                                   12
      The INS had ordered Lopez-Elias deported as an alien who had
committed an aggravated felony, burglary of a vehicle in Texas. See 

Lopez-Elias then filed a petition for review in this Court, and
the INS moved for this Court to dismiss the petition on the basis that
we were without jurisdiction to consider a petition for review from an
alien who was ordered deportable for having committed an aggravated
felony, as required under IIRIRA’s permanent rules. See 

proceeded to consider whether Lopez-Elias’s conviction of burglary of
a vehicle was an aggravated felony under 8 U.S.C. § 1101(a)(43). See

Although we concluded that “burglary of a vehicle” did not
constitute a theft or burglary offense under 8 U.S.C. § 1101(a)(43)(G),
we did hold that “burglary of a vehicle” qualified as an aggravated
felony under 8 U.S.C. § 1101(a)(43)(F), which provides that the term
“aggravated felony” includes “a crime of violence (as defined in section
16 of Title 18, but not including a purely political offense) for which
the term of imprisonment [is] at least one year.” See 

. Because burglary of a vehicle involves “a substantial
risk” that physical force may be used against another’s property, it is
a “crime of violence” as defined in 18 U.S.C. § 16. See 

(“[B]urglary of a vehicle does constitute a ‘crime of violence.’”).
Moreover, a conviction for burglary of a vehicle carries a term of
imprisonment of at least one year and, therefore, constitutes an
”aggravated felony” under 8 U.S.C. § 1101(a)(43)(F), justifying
deportation under 8 U.S.C. § 1227(a)(2)(A)(iii). See 8 U.S.C. §
1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony
at any time after admission is deportable.”).
      We determined that burglary of a vehicle was an aggravated felony
despite the Texas legislature’s reclassification of burglary of a
vehicle as a misdemeanor effective September 1, 1994 (after Lopez-
Elias’s conviction but before his removal proceedings commenced),
because “[h]ow Texas characterizes the offense does not control federal
immigration law . . . for federal law looks only to the term of
imprisonment [which must be at least one year], and not state law, to
ascertain whether the offense is a ‘felony.’” 

n.6 (citations omitted).         Even looking to Texas law, the
reclassification does not aid Lopez-Elias, or Santos, who both committed
their crimes and were convicted before the effective date of the
amendment–September 1, 1994. The 1993 act amending Texas Penal Code §
30.04 provides that:
            “(a) The change in law made by this article applies
      only to an offense committed on or after the effective date
      of this article. For purposes of this section, an offense
      is committed before the effective date of this article if any
      element of the offense occurs before the effective date.
            (b) An offense committed before the effective date of
      this article is covered by the law in effect when the offense

                                   13
                              Conclusion

     Accordingly, we VACATE the district court’s grant of Santos’s

section 2241 petition and REMAND with instructions to dismiss the

petition for lack of jurisdiction.




      was committed, and the former law is continued in effect for
      that purpose.” Act effective Sept. 1, 1994, 73d Leg., R.S.,
      ch. 900, § 1.18, 1993 Tex. Gen. Laws 3586, 3705.
Texas courts have interpreted the amendment to mean that convictions
entered before the 1994 amendment remain felony convictions and did not
become Class A misdemeanors with the passage of the amendment. See Than
v. State, 

, 108 (Tex. App.—Fort Worth 1996, no pet.);
Delgado v. State, 

, 318-19 (Tex. App.—El Paso 1995, pet.
ref’d).
      In the present case, Santos was convicted of burglary of a vehicle
and sentenced to five years’ deferred adjudication. Therefore, his
offense constitutes a crime of violence under 8 U.S.C. § 1101(a)(43)(F).
See 

-93. Accordingly, Santos is deportable
under 8 U.S.C. § 1227(a)(2)(A)(iii) for having committed an aggravated
felony. See