GLD
- 069 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 4086

___________ JACOB AMENUVOR ,

Appellant

v. JOSEPH MAZURKIEWICL

____________________________________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C . Civil No. 2:11

- cv - 00651 ) Magistrate Judge: Honorable Robert C. Mitchell

____________________________________ Submitted for Possible Summary Action Pursuant to Third Circuit LAR 2 7.4 and I.O.P. 10.6 December 15 , 2011 Before: FUENTES, GREENAWAY, JR., and STAPLETON , Circuit Judges

(Opinion filed : January 11, 2012 )

_________ OPINION

_________
PER CURIAM Jacob Amenuvor , a Pennsylvania state prisoner subject to a final order of removal from the United States , a ppeals from the District Court ‟s dismissal of his habeas corpus petition and denial of his subsequent motion to alter or amend that judgment. For the2

reasons that follow, we will summarily vacate both orders and remand for further proceedings

. I. In January 2001, the Court of Common Pleas of Monroe County, Pennsylvania, sentenced Amenuvor to life imprisonment following his conviction for second degree murder, robbery, and other o ffenses. His efforts to challenge tha t judgment on direct appeal, in state court collateral proceedings, and via a federal habeas petition filed pursuant to 28 U.S.C. § 2254 were ultimately unsuccessful. At some point foll owing his conviction, Amenuvor , who hails from Ghana, was pla ced in remo val proceedings. On November 13, 2 003, an Immigration Judge (“IJ”) ordered Amenuvor‟s removal from the United States . Since Amenuvor did not appeal from that order, it became final upon expiration of the thirty

- day appeal period

. See 8 C.F.R. §§ 1003.3 8(b) & 1003.39; Popal v. Gonzales , 416 F.3d 249, 252 n.1 (3d Cir. 2005)

. More than six years later, he moved to reopen his removal proceedings. The IJ denied that motion, and the Board of Immigration Appeals (“BIA”) affirmed on appeal.
Amenuvor subseque ntly moved the BIA to reconsider its decision, but the BIA denied that request

. It appears that, at some point, U.S. Immigration and Customs Enforcement (“ICE”) , a bureau within the Department of Homeland Security (“DHS”), lodged a detainer with Amenuvor‟ s state correctional facility , requesting that it be notified if and when he is released from state custody. In May 2011, Amenuvor initiated the instant action by filing a habeas petition pursuant to 28 U.S.C. § 2241 in the District Court , challenging his “detention or fut ure3

d etention” by ICE/ DHS. The parties ultimately consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). On October 6, 2011, the Magistrate Judge dismiss ed the petition, concludin g that Amenuvor could not pursue it because he was not “in custody” for purposes of § 2241 . Amenuvor subsequently moved

to alter or amend that decision. On October 20, 2011, the Magistrate Judge denied that motion. Amenuvor now appeals from both of the Magistrate Judge ‟s orders.
II. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over the Magistrate Judge‟s dismissal of Amenuvor‟s petition , reviewing
any underlying factual findings for clear error

. See Cradle v. United S tates ex rel. Miner , 290 F.3d 536, 538 (3d Cir. 2002) (per curiam). As for the Magistrate Judge‟s decision denyi ng Amenuvor‟s motion to alter or amend, we review that decision for abuse of discretion , examining any matters of law under a plenary standard

. See Cureton v.
NCAA , 252 F.3d 267, 272 (3d Cir. 2001 ). We may take summary action in this appeal “if it clearly appears that no substantial question is presented.” 3d Cir. I.O.P. 10.6. “Under § 2241, an individual is required to be „in custody under o r by authority of the United States‟ in order to file a habeas petition.” Kolkevich v. Att‟y Gen. of the U.S. , 501 F.3 d 323, 334 n.6 (3d Cir. 2007) (quoting 28 U.S.C. § 2241(c)(1)). “The term „custody‟ extends beyond physical conf inement, and encompasses other „significant restraints on . . . liberty‟ that are „not shared by the public generally.‟” Leyva v. Williams , 504 F.3d 357, 363 (3d Cir. 2007) (quoting Jones v. Cunningham , 371 U.S. 236, 240, 242 (1963)). Indeed, we have noted that “[a]n individual subject to a final4

deportation order issued by the INS or its successor agency is in custody for § 2241
purposes, ” even if his present custody is pursuant to a state sentence. See Kolkevich , 501 F.3d at 334 n.6 (quotation marks and citation omitted).
In this case, the Magistrate Judge concluded that Amenuvor was not “in custody”
because “[t]he only connection the United States has with Amenuvor is the detainer which it has lodged at the prison seeking to have the petitioner surrendered to the United
Stat es if and when he is released from state custody.” (Mem. & Order entered Oct. 6, 2011, at 2

- 3.) This conclusion overlooks the fact that Amenuvor is subject to a final order of removal. Since that final order of removal satisfies § 2241‟s “in custody”

re quirement, both of the Magistrate Judge ‟s orders are in error

. Because this appeal does not present a substantial question, we will summarily vacate both of the orders before us and remand for further proceedings

. On remand, the Magistrate Judge should c onsider the Government‟s ripeness argument, se e Simmonds v.
INS , 326 F.3d 351, 356

- 61 (2d Cir. 2003) (concluding that state prisoner‟s § 2241 petition challenging his final order of removal was premature because it did not satisfy the doctrine of prudentia l ripeness), and, if necessary, the merits of Amenuvor‟s habeas petition. W e take no position on either of these issues at the present time

.