
    Andres ALEJANDRO-GONZALEZ, Petitioner-Appellant, v. Alberto R. GONZALES, U.S. Attorney General; Rudy Franco, Warden of Reeves County Detention Center; District Director of Immigration & Naturalization Service, Immigration and Naturalization Service of Houston, Texas; Bureau of Immigration and Customs Enforcement, Respondents-Appellees.
    No. 04-50590.
    United States Court of Appeals, Fifth Circuit.
    Decided Feb. 16, 2005.
    Andres Alejandro-Gonzalez, Pecos, TX, for Petitioner-Appellant.
    Jose J. Tavarez, David Henry Burke, El Paso, TX, for Respondents-Appellees.
    Before JONES, BARKSDALE, and PRADO, Circuit Judges.
   PER CURIAM:

Andres Alejandro-Gonzalez (“Alejandro”), federal prisoner # 14330-179, appeals from the district court’s order construing his 28 U.S.C. § 2241 petition as a motion for relief pursuant to 28 U.S.C. § 2255 and dismissing the constructive 28 U.S.C. § 2255 motion without prejudice for lack of jurisdiction. Alejandro moves for a stay of deportation pending resolution of his appeal; his motion is DENIED as moot.

Alejandro contends solely that the current version of section 241(a)(5) of the Immigration and Naturalization Act should not have been applied retroactively to the reinstatement of the original order of removal against him. According to Alejandro, that provision became effective on April 1, 1997, after he reentered the United States in April 1996. He argues that the retroactive application of § 241(a)(5) and its accompanying administrative regulations deprives him of due process rights he might otherwise enjoy.

We do not address the merits of Alejandro’s contentions at this time. The district court should not have sua sponte re-characterized Alejandro’s 28 U.S.C. § 2241 petition as a 28 U.S.C. § 2255 motion (Alejandro’s first 28 U.S.C. § 2255 motion) without first notifying Alejandro and warning him “that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on ‘second or successive’ motions, and provid[ing him] an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has.” Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 792, 157 L.Ed.2d 778 (2003). We express no opinion regarding whether or not a recharacterization would be proper following the notice and opportunity required by Castro.

VACATED AND REMANDED. 
      
       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.
     