Welch v. Ashcroft, Attorney General, 061902 FED4, 00-7665

Docket Nº:061902 FED4, 00-7665
Party Name:Welch v. Ashcroft
Case Date:June 05, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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RICARDO ANTONIO WELCH, JR., PETITIONER-APPELLEE,

v.

JOHN ASHCROFT, AS ATTORNEY GENERAL, DEPARTMENT OF JUSTICE; JAMES W. ZIGLAR, AS COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE; LOUIS D. CROCETTI, JR., AS DIRECTOR, BALTIMORE DISTRICT, IMMIGRATION AND NATURALIZATION SERVICE; DOUGLAS C. DEVENYNS, AS WARDEN, WICOMICO COUNTY DETENTION CENTER, RESPONDENTS-APPELLANTS. CITIZENS AND IMMIGRANTS FOR EQUAL JUSTICE; AMERICAN IMMIGRATION LAWYERS ASSOCIATION; AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS' RIGHTS PROJECT, AMICI CURIAE.

No. 00-7665

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: June 5, 2001

June 19, 2002

Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (CA-99-2801-CCB)

Argued: Earle Bronson Wilson, Office of Immigration Litigation, Civil Division, United States Department OF Justice, Washington, D.C., for Appellants.

Mary Ellen Fleck, Akin, Gump, Strauss, Hauer & Feld, L.L.P., Washington, D.C., for Appellee.

ON Brief: Stuart E. Schiffer, Acting Assistant Attorney General, Emily Anne Radford, Assistant Director, Office of Immigration Litigation, Civil Division, United States Department OF Justice, Washington, D.C., for Appellants.

Todd M. Stenerson, Akin, Gump, Strauss, Hauer & Feld, L.L.P., Washington, D.C., for Appellee. Michael Maggio, Maggio & Kattar, P.C., Washington, D.C.; Marvin E. Frankel, Jennifer L. Rochon, Kramer, Levin, Naftalis & Frankel, L.L.P., New York, New York; Nancy Morawetz, Washington Square Legal Services, Inc., New York University School OF Law, New York, New York, for Amici Curiae Citizens & Immigrants and Immigration Lawyers.

Judy Rabinowitz, Immigrants' Rights Project, American Civil Liberties Union Foundation, New York, New York; Liliana M. Garces, Immigrants' Rights Project, American Civil Liberties Union Foundation, Oakland, California, for Amicus Curiae Foundation.

Before Widener and Williams, Circuit Judges, and Robert R. Beezer, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

Beezer, Senior Circuit Judge

Affirmed by published opinion. Senior Judge Beezer wrote the opinion. Judge Widener wrote an opinion concurring in Judge Beezer's opinion except for the first paragraph of Part III A. 1. and Part VI. and concurring in the judgment. Judge Williams wrote an opinion concurring in the judgment.

OPINION

Attorney General John Ashcroft, Commissioner of the Immigration and Naturalization Service James W. Ziglar, Director of the Immigration and Naturalization Service's Baltimore District Louis D. Crocetti, Jr., and Director of the Wicomico County Detention Center Douglas C. Devenyns (collectively "DOJ") appeal the district court's grant of a petition by Ricardo Antonio Welch, Jr. ("Welch") for a writ of habeas corpus. 101 F.Supp.2d 347 (D. Md. 2000). We have jurisdiction pursuant to 28 U.S.C. §§ 1292(a)(1) & 2253. See INS v. St. Cyr, 533 U.S. 289, ___, 121 S.Ct. 2271, 2287 (2001). We affirm.

I.

Welch is a citizen of Panama who has been a permanent legal resident in the United States since he was ten years of age. Welch's parents, siblings and son are United States citizens. Welch served in the United States Navy and Naval Reserve for six years and was honorably discharged in 1994.

In the same year, Welch pleaded guilty to four State felony counts in Maryland. While Welch was in State custody, the DOJ instituted deportation(FN1) proceedings against him and served him with an Order to Show Cause. The DOJ asserted that Welch was deportable pursuant to two subsections of former section 241 of the Immigration and Naturalization Act based on his State felony convictions. See 8 U.S.C. § 1251(a)(2)(A)(iii) (1994) (authorizing deportation for conviction for "aggravated felony"); id. § 1251 (a)(2)(C) (authorizing deportation for conviction for unlawfully possessing or carrying firearm).(FN2)

Soon after Welch was released from State custody, an immigration judge ordered Welch removed to Panama pursuant to former section 241(a)(2)(A)(iii) of the Immigration and Naturalization Act. Welch appealed the removal order to the Board of Immigration Appeals. The Board rejected Welch's appeal. The DOJ placed Welch in detention pending removal. Welch's removal was delayed pending receipt of necessary documents from the government of Panama.

A Maryland court vacated Welch's felony convictions on the ground of ineffective assistance of counsel. Maryland entered into a new plea bargain with Welch and dropped the felony charges against him. Welch pleaded guilty to six misdemeanor charges of simple assault and one misdemeanor charge of illegally wearing or carrying a handgun. The State court imposed a combined sentence of less than one year and credited Welch with time served for the entire sentence.

The DOJ ceased attempts to enforce the prior removal order that had relied upon the vacated felony convictions. The DOJ moved to reopen Welch's removal proceedings on the ground that Welch's new firearm misdemeanor conviction rendered him deportable under former section 241(a)(2)(C) (now 237(a)(2)(C)) of the Immigration and Naturalization Act, 8 U.S.C. § 1227(a)(2)(C) (2001). The DOJ continued to detain Welch on the ground that § 236(c) of the Immigration and Naturalization Act, 8 U.S.C. § 1226(c) (2001), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, mandated Welch's detention pending a final removal determination. The Board of Immigration Appeals granted the DOJ's motion to reopen. The DOJ served Welch with an amended Order to Show Cause relying on § 237(a)(2)(C) of the Immigration and Naturalization Act and his misdemeanor firearm conviction.

Welch filed a petition for a writ of habeas corpus with the United States District Court for the District of Maryland. He also applied for naturalization as a United States citizen.

An immigration judge terminated Welch's reopened removal proceedings without prejudice based on the likely success of Welch's naturalization application and the presence of "exceptionally appealing humanitarian factors." The DOJ appealed. The Board of Immigration Appeals reversed and remanded.

The district court granted Welch's habeas petition. 101 F.Supp.2d at 356. Relying on United States v. Salerno, 481 U.S. 739 (1987), the district court held that § 236(c) of the Immigration and Naturalization Act "violated Welch's substantive due process right, while detained pending judicial proceedings, to receive a bail hearing in which a judge would determine his flight risk and threat to the community." Id. The court ordered the DOJ to "provide Welch with a bail hearing before an immigration judge." Id.

An immigration judge conducted a bail hearing pursuant to the district court's order. The immigration judge concluded that Welch did not pose a flight risk or community danger so as to preclude his release pendente lite. The immigration judge ordered Welch enlarged on $1,500 bond. So far as the record reveals, Welch remains free from incarceration.

An immigration judge sua sponte ordered Welch removed based on the amended Order to Show Cause. Welch and the DOJ jointly moved in the district court to set aside this second removal order on the ground that Welch had become eligible for discretionary cancellation of removal. Immigration and Naturalization Act § 240A, 8 U.S.C. § 1229b. The district court granted the unopposed motion. Welch's removal proceedings remain open.

The DOJ appeals the district court's order directing it to provide Welch with a bail hearing with respect to his detention pendente lite.

II.

The DOJ claims that Welch, as a removable alien, must be detained without possibility of release pending a final removal determination, pursuant to § 236(c) of the Immigration and Naturalization Act, 8 U.S.C. § 1226(c). Aliens in removal proceedings are generally eligible for discretionary release pendente lite unless restricted by § 236(c). See Immigration and Naturalization Act § 236(a). Subsection 236(c) says:

(1) Custody. The Attorney General shall take into custody any alien who-

(B) is deportable by reason of having committed any offense covered in section 1227(a)(2) (A)(ii), (A)(iii), (B), (C), or (D) of this title,

when the alien is released [upon serving his sentence], (FN3) without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

(2) Release. The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides . . . that release of the alien from custody is necessary [under the federal witness protection program statute, 18 U.S.C. § 3521], and the alien satisfies the Attorney General that the alien will not pose a danger . . . and is likely to appear for any scheduled proceeding. Immigration and Naturalization Act § 236(c), 8 U.S.C. § 1226(c) (emphasis added).

The offenses enumerated in § 236(c)(1)(B) include misdemeanors for carrying a firearm. See 8 U.S.C. § 1227(A)(2)(C). Subsection 236(c) categorically bars the Attorney General from "releas[ing] from custody" any alien convicted of an aggravated felony or firearm offense who is not in the federal witness protection program.

Although the DOJ maintains that Welch is deportable, his removal is not certain. The DOJ does not challenge the district court's ruling that the permanent rules under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 apply to Welch's agency proceedings. The permanent rules, unlike the transitional rules that initially applied to removal proceedings following passage of the Illegal Immigration Reform and Immigrant Responsibility Act, permit Welch to apply for cancellation of removal so long as he has no felony convictions for purposes of the...

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