Vladimir Derevianko v. JOHN ASHCROFT, Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1307
VLADIMIR DEREVIANKO,
Appellant
v.
JOHN ASHCROFT, Attorney General of the United States; JAMES ZIGLAR,
Commissioner of the Immigration and Naturalization Service; ANDREA
QUARANTILLO, New Jersey District Director Immigration and Naturalization Service;
IMMIGRATION AND NATURALIZATION SERVICE; UNITED STATES
DEPARTMENT OF JUSTICE
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY
(Dist. Court No. 01-cv-04692)
District Court Judge: William H. Walls
Argued June 2, 2003
Before: ALITO, ROTH, and STAPLETON, Circuit Judges
(Opinion Filed: August 29, 2003)

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LAWRENCE SPIVAK (argued)
299 Broadway, Suite 803
New York, NY 10007
Counsel for Appellant
ROBERT D. McCALLUM
Assistant Attorney General
Civil Division
DOUGLAS E. GINSBURG
Senior Litigation Counsel
JOHN M. McADAMS, JR. (argued)
U.S. Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Counsel for Appellant
OPINION OF THE COURT
PER CURIAM:
Vladimir Derevianko, a Ukranian national who was taken into INS custody
on February 3, 1999, appeals the denial of his habeas petition. Derevianko contends that
the District Court erred in holding that his detention did not violate Zadvydas v. Davis,
533 U.S. 678, 699-701 (2001), and that his right to due process did not entitle him to a
bond hearing before an Immigration Judge (“IJ”). For the reasons given below, we
dismiss Derevianko’s appeal as moot.
On February 3, 1999, Derevianko was charged with removability for

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1 Derevianko’s detention was prompted by the receipt in the United States, via
INTERPOL, of an arrest warrant from the Ukrainian authorities. However, the criminal
charges underlying the warrant were not the ground for his removal. In his asylum claim,
Derevianko contested the validity of this warrant. Derevianko v. Reno, 55 Fed. Appx.
609, 610-12 (3d Cir. 2002).
2 Under Section 241(a) of the INA, 8 U.S.C. § 1231(a), detention is mandatory for
90 days following the final order of removal or “if the removal order is judicially
reviewed and if the court orders a stay of the removal of the alien, the date of the court’s
final order.” Id.
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overstaying his nonimmigrant business visa1, in violation of Section 237(a)(1)(B) of the
Immigration and Naturalization Act of 1952, as modified (the “INA”), 8 U.S.C. §
1227(a)(1)(B). On April 5, 2000, an IJ ordered Derevianko removed and denied his
request for asylum. On November 20, 2000, the Board of Immigration Appeals (“BIA”)
affirmed the decision of the IJ. Upon Derevianko’s appeal to this Court, we stayed his
order of removal, and he remained in INS detention.2 On September 29, 2001,
Derevianko filed a habeas petition in the United States District Court for the District of
New Jersey. On December 21, 2001, the District Court denied his petition. Derevianko
then filed the present appeal.
On January 31, 2003, while Derevianko’s appeal from the denial of his
habeas petition was pending before this Court, we vacated the November 20, 2000,
decision of the BIA and remanded for further consideration of his asylum claim.
Derevianko v. Reno, 55 Fed. Appx. 609, 617 (3d Cir. 2003). Accordingly, as of the date
on which we lifted Derevianko’s final order of removal, his detention was no longer
governed by Section 241(a) of the INA, 8 U.S.C. § 1231(a). Because Zadvydas addresses

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the constitutionality of INS detention beyond the period authorized by Section 241(a), the
standard for continued detention set forth in Zadvydas has no application to the present
appeal. 533 U.S. at 699-701. Furthermore, on April 14, 2003, Derevianko received a
bond hearing before an IJ and was ordered released on condition that he submit a $10,000
bond.
Because Derevianko is no longer being held pursuant to a final order of
removal, and because he was granted a bond hearing, his appeal from the denial of his
habeas petition by the District Court is dismissed as moot.

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