Kimbembe v. U.S. Immigration & Naturalization Service

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHRISTIAN KIMBEMBE, A72 000 411, 
Petitioner-Appellee,
v.
 No. 01-8015
U.S. IMMIGRATION & NATURALIZATION
SERVICE; JOHN ASHCROFT,
Respondents-Appellants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, Chief District Judge.
(CA-01-1881-S)
Submitted: May 13, 2002
Decided: September 27, 2002
Before WIDENER, KING, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Robert D. McCallum, Jr., Assistant Attorney General, Emily Anne
Radford, Brian G. Slocum, Office of Immigration Litigation, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Appellants. Walter S. Booth, LAW OFFICES OF
WALTER S. BOOTH, Bethesda, Maryland, for Appellee.
2 KIMBEMBE v. INS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
John Ashcroft, Attorney General of the United States, appeals the
decision of the district court granting habeas corpus relief to Christian
Kimbembe under 28 U.S.C. § 2241 (2000). The district court held
that 8 U.S.C. § 1226(c) (2000), requiring detention without bail of
certain categories of aliens during the pendency of removal proceed-
ings, is unconstitutional on its face. The court ordered that Kimbembe
receive a bond hearing before an immigration judge. The hearing was
held, bond was set, and Kimbembe posted bond and was released
from custody. In a recent decision we held that § 1226(c) is not
unconstitutional on its face, but that the statute violated due process
as applied in that case. Welch v. Ashcroft, 293 F.3d 213 (4th Cir.
2002).
Because our decision in Welch was based on the particular facts of
the case, we conclude that we must remand this case to the district
court for further proceedings. After allowing any necessary develop-
ment of the record, the district court should reconsider its decision
under Welch and determine whether § 1226(c) is unconstitutional as
applied to Kimbembe. We vacate the decision of the district court and
remand for further proceedings consistent with this opinion and with
our decision in Welch. 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