Sabrija Radoncic, United States Ex Rel v. CHARLES ZEMSKI Charles Zemski, Acting District Director Immigration

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 01-1074
SABRIJA RADONCIC, UNITED STATES EX REL.
v.
CHARLES ZEMSKI
Charles Zemski, Acting District Director
Immigration and Naturalization Service,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 00-cv-04394)
District Judge: Hon. Bruce W. Kauffman
Argued September 20, 2001
Decided January 4, 2002
On Remand from the United States
Supreme Court May 5, 2003
Submitted Under Third Circuit LAR 34.1(a)
July 28, 2003
Before: SLOVITER, NYGAARD and M cKEE, Circuit Judges
(Filed: August 25, 2003)
OPINION OF THE COURT

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SLOVITER, Circuit Judge.
This court filed a not precedential opinion in the above case on January 4, 2002
affirming the decision of the District Court granting Sabrija Radoncic’s petition for a writ
of habeas corpus and ordering that he be released from custody unless the Government
commenced an individualized examination within thirty days to determine if detention
was necessary. The Government filed a petition for a writ of certiorari to the United
States Supreme Court.
On May 5, 2003, the Supreme Court granted a writ of certiorari, vacated our
opinion and judgment and remanded the case to us for further consideration in light of
Demore v. Kim, 123 S. Ct. 1708 (2003). In Demore, the Court majority rejected the
criminal alien’s challenge to 8 U.S.C. § 1226(c) and concluded that “[d]etention during
removal proceedings is a constitutionally permissible part of the process.” We then asked
counsel to provide us with their suggested dispositions in light of the above.
Counsel for the Government argued that we should vacate our decision and
remand the case to the District Court with instructions to dismiss the case. Counsel for
Radoncic also suggested that we remand the case to the District Court for further
consideration “because some of the facts deemed critical in Demore v. Kim are absent
from this case and this case has facts and circumstances not considered by the Supreme
Court in Demore v. Kim.” We believe the arguments of the parties should be addressed
by the District Court in the first instance. We will therefore vacate our prior opinion and

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judgment and remand this case to the District Court for its reconsideration.
For the reasons set forth above, we will vacate our prior opinion and judgment and
remand this case to the District Court.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge

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