                            UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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


     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).
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


      2
      We 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.

                                        - 3 -
           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




                                  - 4 -
