                   IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT



                                    No. 00-30615


EDWIN MESADIEU,

                                                    Petitioner-Appellee,

                                       versus

IMMIGRATION AND NATURALIZATION SERVICE

                                                    Respondent-Appellant.



              Appeal from the United States District Court
                  For the Western District of Louisiana

                                   April 15, 2002



Before REYNALDO G. GARZA, HIGGINBOTHAM, and SMITH, Circuit Judges.

PER CURIAM:*

      The     Immigration    and     Naturalization     Service   appeals   the

district court’s grant of Edwin Mesadieu’s petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241.                 In light of the

Supreme Court’s decision in Zadvydas v. Davis,1 and this court’s




      *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
      1
          121 S.Ct. 2491 (2001).
decision on remand from the Supreme Court in that same case,2 we

affirm.

                                       I

     Edwin Mesadieu was born in the Bahamas in September 1973 to

Haitian parents.      He entered the United States most recently as a

resident alien in 1990.        In 1994 Mesadieu pled guilty to charges

brought by the state of Florida arising out of a domestic dispute

between Mesadieu and his then-girlfriend.           These charges included:

aggravated assault, throwing a deadly missile into an occupied

vehicle, and corruption by threat.            He received probation.        In

March 1995, while on probation, Mesadieu was convicted of assault

with a deadly weapon and shooting into a dwelling house and was

sentenced to 18 months’ imprisonment and revocation of his earlier

probation.

     As a result of these convictions, the INS issued an order to

show cause charging Mesadieu with two crimes of moral turpitude not

arising out of a single scheme of criminal conduct.               On September

15, 1996 Mesadieu was ordered deported to the Bahamas.              The Board

of Immigration Appeals remanded the case for consideration of a

waiver of deportation.        In the meantime, Mesadieu was transferred

to INS custody after the completion of his prison term in April

1996.       After    further    unsuccessful      proceedings,      Mesadieu’s

deportation order became final on March 14, 1997.



     2
         No. 97-31345, 2002 WL 385663 (5th Cir. Mar. 12, 2002).

                                       2
      Since then, the INS has unsuccessfully attempted to deport

Mesadieu to the Bahamas and to Haiti. Both countries have rejected

his   request     for   citizenship     or   travel   documents.      Mesadieu

requested release following these failures, but his request was

denied.      The INS continued to detain Mesadieu on the authority of

8 U.S.C. § 1231(a)(6), which allows detention of an alien who is

removable based on multiple criminal convictions or “who has been

determined to be a risk to the community or unlikely to comply with

the order of removal.”3            The INS conducted several reviews of

Mesadieu’s detention, at all relevant points concluding that he

posed a high risk of recidivism and was a threat to the community.

In January 1999 Mesadieu filed a petition under 28 U.S.C. § 2241

challenging his continued detention on the ground that, since it

was impossible to effectuate the deportation order, the detention

violated his due process rights.             The district court granted his

petition,4 and the INS now appeals.

                                        II

      We review the district court’s findings of fact for clear

error and its conclusions of law de novo.5                 In Zadvydas,6 the


      3
          8 U.S.C. § 1231(a)(6).
      4
        Mesadieu was released on April 13, 2000. The INS first sought to place
Mesadieu in a nine-month rehabilitation program, but the district court balked
at the length of the program and refused to approve Mesadieu’s participation.
      5
          Gochicoa v. Johnson, 238 F.3d 278, 284 (5th Cir. 2000).
      6
       The INS, in its briefs to this court before the Supreme Court had decided
Zadvydas, argued persuasively that this case was factually indistinguishable.
Appellant’s Brief at 19-20. We agree.

                                        3
Supreme Court, reading § 1231(a)(6) so as to avoid a “serious

constitutional threat”7 concluded that detention was not authorized

under     the    statute   when    removal   was   “no   longer    reasonably

foreseeable.”8       The Court also endorsed a presumption that the

reasonable period of detention was six months after the beginning

of the removal period.9        This presumption places the burden on the

Government to show that “there is no significant likelihood of

removal in the reasonably foreseeable future ....”10              Furthermore,

“as the period of prior post-removal confinement grows, what counts

as the ‘reasonably foreseeable future’ conversely would have to

shrink.”11

     On remand from the Supreme Court, this court determined in

Zadvydas that the district court’s grant of the petition should be

affirmed.       We based our decision on the fact that Zadvydas had been

detained by the INS for more than three years after the expiration

of the removal period,12 creating a presumption, which the INS

failed to rebut, that there was no significant likelihood of

removal in the reasonably foreseeable future.            Similarly here, the



     7
          Zadvydas, 121 S.Ct. at 2503.

     8
          Id.

     9
          Zadvydas, 2002 WL 385663 at *4.

     10
          Zadvydas, 121 S.Ct. at 2505.
     11
          Id.
     12
          Zadvydas, 2002 WL 385663 at *5.

                                         4
order of deportation became final in May 1997 (at which time the

90-day period began to run), and Mesadieu filed his § 2241 petition

in district court January 1999, which was granted on March 14,

2000.      At the time of his filing, Mesadieu had been in INS custody

for approximately 20 months, well in excess of the 6 required for

the operation of the presumption in his favor.                The INS vaguely

refers to continuing efforts to deport Mesadieu, but there is no

evidence in the record sufficient to rebut the presumption.13                 It

is clear that there is no significant likelihood that Mesadieu

could be deported in the reasonably foreseeable future, especially

given the Supreme Court’s admonition that the time frame we are to

consider grows shorter with the length of prior post-removal

confinement.

      In keeping with this court’s decision in Zadvydas, we affirm

the judgment of the district court with the following modification.

The district court’s judgment “shall not of itself preclude the INS

from seeking to return [Mesadieu] to INS custody (if that be

otherwise shown to be appropriate) upon a showing that ... there

has   then       become   a   substantial   likelihood   of   removal   in   the

reasonably foreseeable future ....”14


      13
         The INS offers evidence that Haiti recently began repatriating its
citizens after a period during which it was not doing so. This evidence is
offered for the first time on appeal, and we may not consider it. Theriot v.
Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). If Haiti at some
point in the future indicates its willingness to accept Mesadieu, then the INS
may seek to return him to custody. Zadvydas, 2002 WL 385663 at *5.
      14
           Id.

                                        5
JUDGMENT AFFIRMED AS MODIFIED.




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