Welch v. Reno, Civil No. CCB-99-2801.

• Decision Date: 06 June 2000
• Docket Number: Civil No. CCB-99-2801.
• Citation: 101 F.Supp.2d 347
• Parties: Ricardo Antonio WELCH, Jr. v. Janet RENO, et al.
• Court: U.S. District Court — District of Maryland

101 F.Supp.2d 347

Ricardo Antonio WELCH, Jr. v. Janet RENO, et al.

Civil No. CCB-99-2801.

United States District Court, D. Maryland.

June 6, 2000.

Mary Ellen Fleck, Todd M. Stenerson, Akin, Gump, Strauss, Hauer & Feld, LLP, Washington, DC, for petitioner.

George W. Maugans, Special Asst. U.S. Atty., U.S. I.N.S., Baltimore, MD, for Respondents.

MEMORANDUM

BLAKE, District Judge.

Now pending before this Court is the Petition of Ricardo Antonio Welch, Jr., for writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Petitioner challenges his detention by the Immigration and Naturalization Service ("INS") at the Wicomico County Detention Center in Salisbury, Maryland. Petitioner maintains that his continued detention without bail hearing violates his Fifth Amendment Due Process rights. In addition, Petitioner challenges the failure of INS to apply the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-3546 (1996), to his proceedings. For the reasons that follow, this Court will order the INS to provide Welch with a bail hearing before an Immigration Judge. The Court will defer its decision on Petitioner's challenge to the failure of INS to apply the permanent IIRIRA rules pending supplemental briefing by the parties on that issue.

STANDARD OF REVIEW

In addressing an alien's habeas petition filed pursuant to 28 U.S.C. § 2241, district courts may consider both statutory and constitutional questions when presented. See Bowrin v. U.S. I.N.S., 194 F.3d 483, 490 (4th Cir.1999). But, "[o]nly questions of pure law will be considered on § 2241 habeas review. Review of factual or discretionary issues is prohibited." Id.

BACKGROUND

The facts in this case are undisputed. Ricardo Antonio Welch, Jr. is a native and citizen of Panama. (Amended Verified Petition for Writ of Habeas Corpus ["Petition"], ¶ 4) On or about December 18, 1978, at the age of ten, he entered the United States and has been a permanent resident of this country since that time. (Id. at ¶ 9) He served in the Navy and Naval Reserves from 1986 through 1994, when he was honorably discharged. (Id. at ¶ 10) His parents, two of his three siblings, and his son are citizens of the United States. (Id. at ¶ 9)

On August 6, 1993, criminal charges were filed against Welch in the Circuit Court for Montgomery County, Maryland. (Id. at ¶ 12) On March 7, 1994, Welch pled guilty to the following offenses: (1) use of a handgun in the commission of a crime of violence/felony; (2) reckless endangerment; (3) attempted voluntary manslaughter; and (4) assault and battery. (Resps.Opp'n, p. 3) On July 22, 1994, Welch was sentenced to: (1) five years incarceration for the reckless endangerment and attempted voluntary manslaughter counts; and (2) one year and eleven days for the use of a handgun and assault and battery counts. (Petition, ¶ 14) These two sentences were to be served concurrently. (Id.) In October 1996, after serving three years and four months in a Maryland state correctional facility, Welch was released. (Id. at ¶ 15)

On October 11, 1994, the INS issued an Order to Show Cause charging that Welch was deportable for an aggravated felony (deportable under former section 241(a)(2)(A)(iii) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1251(a)(2)(A)(iii)) and a firearms offense (deportable under former section 241(a)(2)(C) of the INA, 8 U.S.C. § 1251(a)(2)(C)).¹ (Resps.Opp'n, pp. 3-4) On or about August 26, 1997, the Immigration Judge issued a Memorandum of Decision and Order to deport Welch. (Petition, ¶ 19) In that Order, the Judge stated that the deportation was based upon Welch's "concession to the allegations contained in the [amended Order to Show Cause] and ... [his] records of conviction...." (Id.) The Judge stated that, because Welch's conviction for attempted voluntary manslaughter met the statutory definition of a crime of violence, the Judge did not need to analyze the other crimes for which Welch had been convicted. (Id.)

Welch then appealed the Immigration Judge's opinion. (Id. at ¶ 21) On July 8, 1998, the Board of Immigration Appeals ("BIA") dismissed that appeal. (Id.) On or about October 16, 1998, Welch was taken into custody. (Resps.Opp'n, p. 5) A Motion to Reopen was denied on December 11, 1998, and a subsequent Motion to Reconsider was similarly denied on March 31, 1999. (Petition, ¶¶ 22 & 24) As a result, Welch has been in INS custody since October 16, 1998.² (Id. at ¶ 23; Resps. Opp'n, p. 5) Welch has not been deported, however, because INS has not yet received from the Consulate of Panama a travel document that is necessary to effect Welch's deportation to Panama. (Resps.Opp'n, pp. 5-6)

On April 22, 1999, Welch prevailed in the Circuit Court of Maryland for Montgomery County on a Petition for a Writ of Audita Querela. (Petition, ¶ 27) As a result, his plea to the 1994 felonies was stricken. (Id.) On that same date, the State of Maryland reduced the charges against Welch in exchange for a new plea. (Id.) As a result of this new plea, Welch stands convicted of six counts of misdemeanor simple assault and one count of misdemeanor illegal wearing or carrying of a handgun. (Id.) The 1994 convictions, relied on by INS in its Order to Show Cause, have been vacated. (Id. at ¶ 29)

Welch has remained in INS custody since October 16, 1998. (Id. at ¶ 23; Resps. Opp'n, p. 5) INS has not commenced any removal proceedings against Welch based on the 1999 convictions, and claims that it will not deport him under the presently outstanding order of deportation as that order was based on the vacated 1994 convictions. (Resps. Opp'n, p. 7 n. 7) But, INS moved to reopen Welch's case and, on October 28, 1999, the BIA granted that motion. (Resps.Supp.Opp'n, p. 2) On February 29, 2000 the Immigration Judge terminated the proceedings, without prejudice, for the sole purpose of permitting Welch to proceed with his application for naturalization. (In the Matter of Welch Quarless, # A35 727 220, p. 5 (Immigration Ct. Feb. 29, 2000) (attached to Pet'r March 9, 2000 fax to chambers)) Because INS has appealed this decision, it refuses to release Welch. (Pet'r March 9, 2000 fax to chambers)

On September 14, 1999, Welch filed with this Court a Petition for Habeas Corpus. Welch presents two separate and independent grounds for his petition. First, Welch contends that INS continues to detain him based on a vacated felony conviction and, therefore, no evidentiary foundation exists for Welch's deportation proceedings and order. Second, Welch argues that the indefinite detention by INS violates his Fifth Amendment liberty and procedural Due Process rights.

ANALYSIS

I. The Applicable Law

Welch was convicted in 1994. Since that time, Congress has made numerous statutory changes to the INA. First, Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-32, 110 Stat. 1214 (1996). Prior to April 24, 1996, the Attorney General had discretion to release an alien who was convicted of a felony but did not serve at least five years for that offense. See former section 212(c), 8 U.S.C. § 1182(c). Section 440(d) of the AEDPA eliminated this discretion for aliens convicted of certain criminal offenses, including the offense for which Welch was found deportable. See AEDPA § 440(d). The Attorney General held that section 440(d) of the AEDPA is applicable to all applications pending on the date of the AEDPA's enactment, but that an alien who had admitted the charge of deportability prior to the enactment of the AEDPA could move to reopen his proceedings to deny deportability. See In re Soriano, Int. Dec. 3289 (A.G. Feb. 21, 1997) (explained in Bowrin v. INS, 194 F.3d 483, 486-87 (4th Cir. 1999)); see also Resps. Opp'n, p. 5 n. 5. Pursuant to that decision, Welch had his proceedings reopened, but the BIA denied relief.

Several months after passage of the AEDPA, Congress passed the IIRIRA. The IIRIRA was passed on September 20, 1996, but had an effective date of April 1, 1997. See IIRIRA § 309(c); Bowrin, 194 F.3d at 487. Transitional rules were adopted for the interim period. See Bowrin, 194 F.3d at 487.

Finally, INA section 242(g), 8 U.S.C. § 1252(g) provides that:

Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

8 U.S.C. § 1252(g). Section 306(c)(1) of the IIRIRA states that INA section 1252(g) shall apply without limitation to all past, pending, and future cases. The Fourth Circuit, however, has held that section 1252(g) does not apply to agency interpretations of statutes. Bowrin, 194 F.3d at 488. Therefore, a District Court may review both statutory and constitutional questions under a habeas petition. See id. at 490. Review of factual or discretionary issues, however, is prohibited. See id.

II. Exhaustion of Administrative Remedies

According to the Defendants, the BIA, as the administrative agency charged with administering the INA, should have the primary responsibility for administering that statute. Under the immigration laws, exhaustion of remedies is statutorily required only for appeals to final orders of removal. See 8 U.S.C. § 1252(d)(1); Galvez v. Lewis, 56 F.Supp.2d 637, 644 (E.D.Va.1999); Aguilar v. Lewis, 50 F.Supp.2d 539, 541 (E.D.Va.1999). Here, Welch is not challenging the order of removal but, instead, challenges his continued detention. Therefore, the statute does not mandate administrative review. See Phan v. Reno, 56 F.Supp.2d 1149, 1153 (W.D.Wash.1999)

Defendants maintain, however, that "[n]otwithstanding the fact that exhaustion of administrative remedies is not statutorily required, it is well established that such a...