                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                             FEB 27 2004
                             FOR THE TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

    ALI NUR ROBLE,

                  Petitioner-Appellant,

    v.                                                    No. 03-1098
                                                   (D.C. No. 03-RB-17 (OES))
    STEPHEN F. PONTESSO, Warden,                           (D. Colo.)

                  Defendant-Appellee.


                              ORDER AND JUDGMENT           *




Before O’BRIEN and BALDOCK , Circuit Judges, and               BRORBY , Senior Circuit
Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Petitioner Ali Nur Roble filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241. Therein, Roble challenged a final administrative


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
order removing him to Somalia or alternatively to Kenya, and sought release

from his pre-removal incarceration by the Department of Homeland Security

(DHS). 1 The district court denied the petition in its entirety. Roble appeals.

We exercise jurisdiction under 28 U.S.C. § 2253(a). Because the district court

failed to make the findings required to support its determination that the DHS

may continue to detain Roble, we vacate and remand.


                                         I.

      Roble arrived in the United States from Germany in June 1999. He was

carrying a Kenyan passport. Based on this passport, immigration authorities

admitted Roble. In August 1999, Roble applied for asylum. In his application,

Roble asserted he was not Kenyan, but Somalian. Roble averred that his Kenyan

passport was fraudulent and that he had purchased it for $300 after traveling

from Somalia to Kenya. As grounds for his asylum claim, Roble claimed he

suffered severe persecution in Somalia because of his membership in the

Midgan tribe.

      An immigration judge (IJ) denied Roble’s application for asylum and

ordered him removed from the United States for failure to possess a valid


1
      Effective March 1, 2003, the custodial functions previously performed
by the Immigration and Naturalization Service (INS) were transferred to the
Department of Homeland Security (DHS).     See Yuk v. Ashcroft , 355 F.3d 1222,
1224 n.3 (10th Cir. 2004). We refer to the INS and DHS interchangeably.

                                         -2-
immigrant visa. The IJ determined Roble failed to establish he was in fact

from Somalia. Roble’s Kenyan passport appeared genuine. The IJ found

Roble’s testimony regarding his Somalian origins not credible. The IJ further

found no reliable documentation to corroborate Roble’s claim he was from

Somalia. Oddly, the IJ ordered Roble removed to Somalia, or in the alternative,

to Kenya. Roble appealed the IJ’s decision to the Board of Immigration Appeals

(BIA). The BIA summarily affirmed the IJ’s decision on August 9, 2002.

See 8 C.F.R. § 3.1(a)(7) (2002). Roble did not seek judicial review of the

BIA’s decision.

      Sometime during the first two weeks of April, 2002, the Immigration and

Naturalization Service (INS) placed Roble in civil detention, where he remains.

In December 2002, the United States District Court for the Western District

of Washington entered a temporary restraining order enjoining the INS from

removing Somali natives or nationals in the United States to Somalia.     See Ali

v. Ashcroft , 213 F.R.D. 390, 396 (W.D. Wash. 2003). In January 2003, the

court entered a permanent injunction because Somalia does not have a functional

government to accept aliens removed from this country.       See id. 400-05.




                                           -3-
In September 2003, the Ninth Circuit upheld the injunction.   Ali v. Ashcroft ,

346 F.3d 873 (9th Cir. 2003).   2



      Roble filed a § 2241 petition in February 2003 seeking review of his

final order of removal and release from INS custody. The INS filed a response

to the petition, in which it asserted (1) Roble’s request for relief from removal

to Somalia was not ripe because the INS was not currently deporting aliens to

Somalia; (2) INS was attempting to obtain a travel document that would allow

Roble to be removed to Kenya; and (3) INS was entitled to continue holding

Roble because the ninety-day statutory “removal period” described in 8 U.S.C.

§ 1231(a)(2), tolled by the injunction, had not run.

      The district court summarily denied Roble’s petition, relying generally

on the INS’ brief. The district court’s analysis, however, departed significantly

from that of the INS in one respect. The district court refused to consider the

INS’s argument that Roble should be returned to Kenya because Roble did

not seek removal to Kenya in his petition.




2
       The Supreme Court has agreed to determine, on a petition for writ of
certiorari to the Eighth Circuit, whether DHS may deport aliens to Somalia; but
the Court has not yet decided the issue.  Jama v. INS , 329 F.3d 630 (8th Cir.
2003), cert. granted , 2004 WL 323175 (U.S. Feb. 23, 2004) (No. 03-674).

                                           -4-
                                           II.

      A. Request for Release

      Roble seeks release pending removal, claiming his incarceration for an

indefinite period is unlawful. The law provides that the Attorney General shall

detain an alien during the “removal period.” 8 U.S.C. § 1231(a)(2). If the alien

is not removed during this period, he is entitled to release, subject to supervision

under regulations prescribed by the Attorney General.     Id. § 1231(a)(3). For

purposes of this case, the removal period is ninety days from the date the IJ’s

order of removal became administratively final, or August 9, 2000, the date on

which the BIA affirmed the IJ’s order.    See id. § 1231(a)(1)(B)(i).   3
                                                                            We therefore

conclude the ninety-day “removal period” began running for Roble on August 9,

2002, and expired November 7, 2002.

      Section 1231(a)(6) empowers the DHS to detain an alien beyond the end

of the removal period,   if he is a “risk to the community” or “unlikely to comply

with the order of removal.”    Id. § 1231(a)(6). The DHS admits the record does

not specify under which of these criteria it continues to hold Roble. The DHS

nevertheless contends subsection (a)(6) provides it with authority to continue




3
       Although Roble requested review of the IJ’s removal order in his § 2241
petition, the district court did not enter a stay of his removal; therefore
§ 1231(a)(1)(B)(ii) does not extend the date on which the removal period began.

                                           -5-
detaining Roble. Section 1231(a)(6), however, does not give the DHS carte

blanche to detain Roble indefinitely.

       In Zadvydas v. Davis , 533 U.S. 678 (2001), the Supreme Court discussed

the constitutional limitations on indefinite detention under subsection (a)(6).   4



The Supreme Court began by observing that the detention requirement of

§ 1231(a)(6) has two purposes: (1) assuring the appearance of aliens at

immigration proceedings, and (2) protecting the community from dangerous

aliens. Id. at 690. As the possibility of removal becomes remote, the first

justification drops out. The second justification–protecting the community–is

sustainable “only when limited to specially dangerous individuals and subject

to strong procedural protections.”     Id. at 691. The Court reasoned that


4
        The Supreme Court expressly extended the protections in        Zadvydas only to
aliens who have “effected an entry into the United States.” 533 U.S. at 693.
Circuit cases have reached differing results on what constitutes an “entry into the
“United States” sufficient to trigger the due process protections discussed in
Zadvydas. Compare, e.g., Borrero v. Aljets , 325 F.3d 1003, 1007-08 (8th Cir.
2003) (rejecting application of Zadvydas to inadmissible Mariel Cuban paroled
into the United States) with Rosales-Garcia v. Holland , 322 F.3d 386, 404-08 (6th
Cir.) (en banc) (permitting Mariel Cubans to assert      Zadvydas ), cert. denied,
123 S. Ct 2607 (2003). In view of the apparent circuit split, the Supreme Court
has agreed to decide a case raising this issue.     Benitez v. Wallis , 337 F.3d 1289
(11th Cir. 2003), cert. granted , 124 S. Ct. 1143 (2004).

       Here, however, we need not reach the issue. Although the DHS mentions
the fact that Roble was ordered removed “as an alien inadmissible at the time of
his entry into the United States,” Aplee Br. at 3, it does not argue that  Zadvydas is
thereby inapplicable to this case,    see id. at 26-29. We do not foreclose DHS from
making this argument on remand.

                                             -6-
§ 1231(a)(6) neither applies narrowly to such “specially dangerous individuals”

nor does it provide such “strong procedural protections.” Interpreting the

subsection “to avoid a serious constitutional threat,” the Court held that “once

removal is no longer reasonably foreseeable, continued detention is no longer

authorized by statute.”   Id. at 699. The Court created a rebuttable presumption

that an alien should be released if he has been detained for six months and

provides good reason to believe no significant likelihood exists he will be

removed in the foreseeable future.   Id. at 701. 5

       Here, Roble has been detained for more than six months and because

of the injunction barring removal to Somalia, his removal to Somalia does not

appear imminent. Whether Roble may be removed to Kenya in the foreseeable

future is another matter. The district court avoided this question, concluding

Roble’s removal to Kenya was not at issue. Because the IJ ordered Roble

removed to Kenya in the alternative, however, Roble’s possible removal to

that country is very much in issue. We therefore remand to the district court




5
       Roble has undoubtedly been detained for more than six months. We reject
the DHS’s argument that the permanent injunction in the Ninth Circuit tolls the
six-month period. DHS cites Akinwale v. Ashcroft , 287 F.3d 1050, 1052 n.4
(11th Cir. 2002) in support of its tolling argument.  Akinwale , however, reasoned
that an alien unjustifiably interferes with his own removal, within the meaning of
8 U.S.C. § 1231(a)(1)(C), by seeking a judicial stay.  Nothing suggests the
Ninth Circuit stay resulted from Roble’s efforts.

                                          -7-
to address the issue of whether Roble might be removed to either Somalia or

Kenya in the foreseeable future.

       On remand, the district court must first determine whether a significant

likelihood exists that Roble will be removed to Somalia or Kenya within the

reasonably foreseeable future. If the court so finds, then the DHS may be

entitled to further detain Roble for a reasonable period of time pending removal.

Roble’s continued detention would be authorized, however, only if the district

court determines that Roble is a flight risk or a risk to the community–factors

justifying confinement within that reasonable removal period.      See id. at 700.

The record presently contains neither a judicial finding concerning the likelihood

of Roble’s removal to Somalia or Kenya, nor a judicial finding concerning his

flight risk or the risk he may pose to the community if he is released pending

removal. The district court should make such findings, as necessary.     6



       B. Review of Final Order of Deportation

       The district court had subject matter jurisdiction under 28 U.S.C. § 2241

over Roble’s claim for release.    Zadvydas , 533 U.S. at 687-88. The court’s

subject matter jurisdiction under § 2241 also generally extends to review of final



6
       If the district court determines Roble is entitled to release, such
release would be upon conditions set by the Attorney General pursuant
to 8 U.S.C. § 1231(a)(3).    Upon violation of those conditions, Roble
would be subject to return to custody.   See Zadvydas , 533 U.S. at 700.

                                           -8-
orders of removal.     See id. The DHS contends, however, that the district court

lacked subject matter jurisdiction to review any of Roble’s claims, other than his

challenge to his continued detention, because Roble failed to seek direct review

of his final order of removal. The district court did not reach this issue. Instead,

it adopted the DHS’s argument that Roble’s challenges were not ripe, because he

could not be removed to Somalia. See R., doc. 10 at 3-4. The district court’s

conclusion regarding ripeness, however, is unsupportable, because a favorable

judicial determination on Roble’s asylum claim could affect the duration of his

continued incarceration.

      The district court has not evaluated the DHS’s argument that Roble waived

review of his final order of removal by failing to seek direct review. Because the

panel is remanding on another claim over which the district court plainly has

jurisdiction, see Zadvydas , 533 U.S. at 687, we also instruct the district court on

remand to consider its jurisdiction (and the merits, if necessary) over the other

issues Roble raises.

      The judgment of the district court is VACATED and this matter is

REMANDED for further proceedings in accordance with this opinion. Roble’s

motion for immediate release from custody, referred to the merits panel, is




                                           -9-
DENIED in light of the further proceedings necessitated by this opinion.

His motion to proceed in forma pauperis is GRANTED.


                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




                                       -10-
