                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 October 4, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-30890
                           Summary Calendar



ROBERTO BAEZ,

                                      Plaintiff-Appellant,

versus

BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT; DEAN A. HOLT,
Agent of IRS; JOHN ASHCROFT, U.S. ATTORNEY GENERAL;
MAXWELL WOOD, United States Attorney,

                                      Defendants-Appellees.

                           --------------------
              Appeal from the United States District Court
                  for the Eastern District of Louisiana
                            USDC No. 03-CV-1307
                           --------------------
         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JOLLY and WIENER, Circuit Judges.*

PER CURIAM:**

     The Supreme Court has vacated our opinion affirming the

denial of the 28 U.S.C. § 2241 petition filed by Plaintiff-

Appellant Roberto Baez, INS detainee # 90703, and remanded the case

for further consideration in light of Clark v. Martinez, 125 S. Ct.


     *
       Circuit Judge Charles W. Pickering, who was a member of the
panel of this court that filed the original opinion in this case,
has resigned from the court; so on remand from the Supreme Court,
this appeal is being handled by quorum pursuant to 28 U.S.C. § 46.
     **
        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this opinion should not be published and is not precedent except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.
716 (2005).     Baez filed this § 2241 petition, challenging his

indefinite detention pending removal to his native country of Cuba.

Baez argues that the district court erred in rejecting his claim

that his indefinite detention violates his constitutional rights.

     On May 11, 2005, Congress passed the REAL ID Act (the Act),

which “divested the district courts of jurisdiction of § 2241

petitions    attacking   removal   orders.”    Rosales   v.   Bureau   of

Immigration and Customs Enforcement, ___ F.3d ___, No. 04-10630,

2005 WL 1952867 at *2 (5th Cir. Aug. 16, 2005).      Section 106(a) of

the Act does not, however, preclude habeas review of challenges to

detention that are independent of challenges to removal orders.

See H.R. Rep. No. 109-72, at 300 (2005).        As Baez challenges his

detention rather than the removal order, we have jurisdiction to

review the district court’s denial of his petition.       See id.

     In Clark v. Martinez, the Supreme Court considered the § 2241

petitions of inadmissible aliens who had arrived in the United

States from Cuba during the Mariel boatlift.       125 S. Ct. at 720.

Their petitions challenged their indefinite detention beyond the

90-day removal period.       Id. at 720-21.   Applying the doctrine of

constitutional avoidance in statutory interpretation, the Court

determined that the statute at issue, 8 U.S.C. § 1231(a)(6), cannot

be interpreted differently when it is applied to various types of

aliens.     Id. at 724-25.    The Court rejected the argument that 8

U.S.C. § 1231(a)(6) authorizes detention under Zadvydas until it

approaches constitutional limits.        Id. at 726-27.       The Court

                                    2
determined that, because the government did not suggest a reason

why the period of time reasonably necessary to effect removal is

longer   for   an   inadmissible   alien,   the    six-month   presumptive

detention period applies.      Id. at 727.        As, in each case, the

district court had found that removal to Cuba was not reasonably

foreseeable, the Court determined that the aliens’ petitions for

habeas corpus should have been granted and remanded the cases for

proceedings consistent with its opinion.          Id.

     In this case, Baez is an inadmissible alien who arrived in the

United States from Cuba during the Mariel boatlift and who has been

detained beyond the six-month presumptive detention period.            As

Baez’s case is controlled by Clark, we vacate the district court’s

judgment and remand the case, directing the district court to enter

a judgment granting Baez’s § 2241 petition.

VACATED AND REMANDED.




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