Jeremiah Andrewes v. United States, 1 F.3d 246, 250 4th Cir. 1993 . PER CURIAM: Jeremiah Andrewes, an…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6098
JEREMIAH ANDREWES,
Petitioner - Appellant,
versus
U.S. IMMIGRATION & NATURALIZATION SERVICE,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (CA-03-100-2)
Submitted: May 31, 2005 Decided: July 18, 2005
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Anthony C. Munter, Washington, D.C., for Appellant. Paul J.
McNulty, United States Attorney, Kent P. Porter, Assistant United
States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

-- 1 of 4 --

1Andrewes further challenges Immigration and Naturalization
Service custody review procedures as constitutionally insufficient.
However, we decline to address this issue because Andrewes did not
raise it in the district court. See Muth v. United States, 1 F.3d
246, 250 (4th Cir. 1993).
PER CURIAM:
Jeremiah Andrewes, an inadmissible alien detained by the
Government pursuant to 8 U.S.C. § 1231(a)(6) (2000), appeals the
district court’s order adopting the magistrate judge’s report and
recommendation to deny relief on his 28 U.S.C. § 2241 (2000)
petition requesting release pursuant to Zadvydas v. Davis, 533 U.S.
678 (2001). Andrewes, whose removal order became final on May 22,
2002, continues to be detained by the Government. The magistrate
judge found that Zadvydas did not apply to Andrewes. The district
court ruled that “until the [Immigration and Naturalization
Service] is satisfied that [Andrewes] poses no danger to citizens
of the United States, and in the face of his unlawful entry status,
[he] may continue to be detained, pending efforts to have him
removed to Liberia.” Andrewes claims the district court erred in
its application of Zadvydas to his case. 1 In light of the Supreme
Court’s decision in Clark v. Martinez, 125 S. Ct. 716 (2005), we
agree. Accordingly, we vacate the order denying Andrewes’s § 2241
petition and remand for reconsideration under Martinez.
Under § 1231(a)(6), certain aliens subject to removal
orders “may be detained beyond the [ninety-day] removal period.”
However, in Zadvydas, the Supreme Court construed this statute to
contain an implicit “reasonable time” limitation and presumptive

-- 2 of 4 --

2We note that the Government has suggested Andrewes’s alleged
non-cooperation is an alternative basis for Andrewes’s continued
detention under 8 U.S.C. § 1231(a)(1)(C) (2000). Although the
Government raised this issue in the district court, and Andrewes
contended the provision did not apply in his case, the district
court did not rule on the issue. Accordingly, the Government
remains free to again assert this contention on remand, should it
be inclined to do so. We indicate no view as to the appropriate
resolution of this issue.
- 3 -
limit to six months of post-removal-period detention. 533 U.S. at
682, 701. Moreover, the Court held that a habeas court “should
measure reasonableness [of the detention in question] primarily in
terms of the statute’s basic purpose, namely, assuring the alien’s
presence at the moment of removal,” and “if removal is not
reasonably foreseeable, the court should hold continued detention
unreasonable and no longer authorized by statute.” Id. at 699-700.
Following Zadvydas, a split in the circuit courts
developed as to whether the Supreme Court’s construction of the
statute applied to inadmissible aliens like Andrewes. In Martinez,
the Supreme Court held that it did, explicitly “reject[ing] the
Government’s argument that, under Zadvydas, § 1231(a)(6)
‘authorizes detention until it approaches constitutional limits.’”
125 S. Ct. at 726. Accordingly, upon remand the district court
should measure the reasonableness of Andrewes’s detention primarily
in terms of the statute’s basic purpose of assuring his presence at
the moment of removal, and if removal is not reasonably
foreseeable, should hold continued detention unreasonable and no
longer authorized by statute. 2

-- 3 of 4 --

- 4 -
We therefore deny as moot Andrewes’s pro se motion for a
decision on the case at hand, and we remand to the district court
for reconsideration of his § 2241 petition in light of Martinez.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
VACATED AND REMANDED

-- 4 of 4 --