UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

Andrewes 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
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.

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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
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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