Christian KIMBEMBE, [ AXX XXX XXX ], Petitioner-Appellee, v. U.S. IMMIGRATION & NATURALIZATION SERVICE; John Ashcroft, Respondents-Appellants, 46 F. App'x 711

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 proceedings, 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 development 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.