Radoncic v. Zemski

74 F. App'x 158

• Court: Court of Appeals for the Third Circuit
• Decided: August 25, 2003
• Docket: No. 01-1074
• Status: Published

Opinion

OPINION OF THE COURT

SLOVITER, Circuit Judge.

This court filed a not precedential opinion in the above case on January 4, 2002 affirming the decision of the District Court granting Sabrija Radoncic’s petition for a writ of habeas corpus and ordering that he be released from custody unless the Gov-eminent commenced an individualized examination -within thirty days to determine if detention was necessary. The Government filed a petition for a writ of certiorari to the United States Supreme Court.

On May 5, 2003, the Supreme Court granted a writ of certiorari, vacated our opinion and judgment and remanded the case to us for further consideration in light of Demore v. Kim, — U.S. —, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). In Demore, the Court majority rejected the criminal alien’s challenge to 8 U.S.C. § 1226(c) and concluded that “[djetention during removal proceedings is a constitutionally permissible part of the process.” We then asked counsel to provide us with their suggested dispositions in light of the above.

Counsel for the Government argued that we should vacate our decision and remand the case to the District Court with instructions to dismiss the case. Counsel for Radoncic also suggested that we remand the case to the District Court for further consideration “because some of the facts deemed critical in Demore v. Kim are absent from this case and this case has facts and circumstances not considered by the Supreme Court in Demore v. Kim.” We believe the arguments of the parties should be addressed by the District Court in the first instance. We will therefore vacate our prior opinion and judgment and remand this case to the District Court for its reconsideration.

For the reasons set forth above, we will vacate our prior opinion and judgment and remand this case to the District Court.