Gayle v. Johnson

• Decision Date: 28 January 2015
• Docket Number: Civil Action No. 12–2806 FLW.
• Citation: 81 F.Supp.3d 371
• Parties: Garfield O. GAYLE, et al., Plaintiffs, v. Jeh JOHNSON, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

81 F.Supp.3d 371

Garfield O. GAYLE, et al., Plaintiffs

v.Jeh JOHNSON, et al., Defendants.

Civil Action No. 12–2806 FLW.

United States District Court, D. New Jersey.

Signed Jan. 28, 2015.

Benjamin Yaster, Lawrence S. Lustberg, Gibbons, PC, Newark, NJ, for Plaintiffs.

David Vincent Bober, Office of the U.S. Attorney, Trenton, NJ, Gisela A. Westwater, Stefanie Notarino Hennes, Elizabeth J. Stevens, Craig William Kuhn, U.S. Department of Justice, Washington, DC, for Defendants.

OPINION

WOLFSON, District Judge:

This putative class action challenges the constitutionality of detention procedures related to mandatory detention of aliens under 8 U.S.C. § 1226(c), codified as the Immigration and Nationality Act (“INA”). Putative class representatives Garfield O. Gayle (“Gayle”) and Neville Sukhu (“Sukhu”) (collectively, “Plaintiffs” or “Named Plaintiffs”) aver that they and other similarly situated individuals in New Jersey have been subjected to unconstitutional mandatory immigration detention under § 1226(c) by the United States Department of Homeland Security, Immigration and Customs Enforcement (“DHS”/“ICE”). In that connection, Plaintiffs challenge (1) the standards to determine whether an alien is improperly designated as subject to mandatory detention (also known as Joseph hearings,¹ which was first established in Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999) ); (2) the adequacy of notice given to those mandatorily detained aliens regarding their right to a Joseph hearing, and (3) the lack of a contemporaneous verbatim record of Joseph hearings. Plaintiffs seek declaratory and injunctive relief to enjoin the Government² from carrying out the current mandatory detention procedures and to require the Government to implement constitutionally adequate procedures.

The Government moves to dismiss all of Plaintiffs' claims or, in the alternative, moves for summary judgment.³ The Government contends that (1) Named Plaintiffs lack standing to bring their claims on behalf of the putative class; (2) Plaintiffs' adequacy of notice claim is either meritless or moot; (3) Plaintiff's' proposed new standard regarding the burden of proof at a Joseph hearing is not mandated by the Constitution. In response, Named Plaintiffs oppose the Government's motion and cross-move for summary judgment. Named Plaintiffs also seek to certify a class consisting of “all individuals detained within the State of New Jersey” pursuant to 8 U.S.C. § 1226(c) “who have a substantial challenge to ‘threshold deportability’ or ‘inadmissibility’ on one of the statutory grounds that trigger mandatory detention.”

For the following reasons, the Court decides the parties' summary judgment motions as follows: summary judgment is (1) GRANTED in favor of Plaintiffs as to their adequacy of notice claim; (2) both parties' motions are GRANTED in part and DENIED in part as to Plaintiff's claim related to the constitutionality of the Joseph hearing; and (3) GRANTED in favor of the Government as to Plaintiffs' contemporaneous verbatim records claim. Finally, the Court DENIES Plaintiffs' motion to certify a class as necessary.

BACKGROUND

The following facts are undisputed. Gayle is a Jamaican national and legal permanent resident of the United States. Defs.' Resp. to Pls.' Stmt. of Mat'l Facts at ¶ 22. He has lived in the United States for approximately 30 years. Id. ¶ 23. According to documents filed by ICE, in May 1995, Gayle was convicted after a bench trial of criminal possession of a controlled substance with the intent to sell in the third degree under New York State Penal Law § 220.16. Id. ¶ 24. In March 2007, Gayle pleaded guilty to a misdemeanor marijuana possession charge for which he was sentenced to ten days in jail. Id. ¶ 25. On March 24, 2012, ICE officers arrested Gayle. Pls.' Resp. to Defs.' Stmt. of Mat'l Facts at ¶ 3. ICE issued a Notice to Appear (“NTA”), charging Gayle with removal on the ground that his 1995 conviction rendered him deportable, and also found him subject to mandatory immigration detention based on his 2007 conviction.⁴ Defs.' Resp. to Pls.' Stmt. of Mat'l Facts at ¶¶ 27–28.

On March 24, 2012, Gayle received a Form I–286 Notice of Initial Custody Determination. Id. ¶ 29. At the time of receipt, as its policy, ICE provided every detainee under § 1226(c) mandatory detention with a Form I–286 notifying him that he “shall be: detained in the custody of the Department of Homeland Security” and checked the second box regarding IJ review, which stated that he “may not request review of this determination by an immigration judge [“IJ”] because the Immigration and Nationality Act prohibits your release from custody” (“Second Box”). Id. ¶ 30. However, the second box was not checked on the Form 1–286 served on Gayle; instead, ICE checked the first box on Gayle's Form I–286, indicating that he “may request” that an IJ re-determine ICE's custody decision (“First Box”).⁵ Id. ¶ 31. Gayle checked the box located on the bottom of the form indicating that he requested a custody redetermination hearing by an IJ. See Gayle I–286 Form. On April 10, 2012 and June 13, 2012, proceedings were held in front of IJ Alan L. Page. Pls.' Resp. to Defs.' Stmt. of Mat'l Facts at ¶ 9. At the June 13th hearing, IJ Page advised Gayle that ICE had documents establishing that Gayle had been convicted of a controlled substance offense in 2007, and that Gayle needed to present disposition documents showing the substance of the 2007 conviction. Id. ¶¶ 10–11. Neither of the two hearings, however, constituted a custody redetermination hearing under Joseph —in fact, Gayle never received a Joseph hearing.⁶ Defs.' Resp. to Pls.' Stmt. of Mat'l Facts at ¶ 61. Further, according to Gayle's Notice to Appear, Gayle's 2007 drug conviction was not a basis for his removal. See Gayle Notice to Appear.

On September 20, 2012, Gayle filed a Motion to Terminate removal proceedings based on the Government's failure to prove the existence of the alleged 1995 conviction, i.e., attempted drug sale. Defs.' Resp. to Pls.' Stmt. of Mat'l Facts at ¶ 35. The IJ denied the Motion to Terminate on October 23, 2012. Id. ¶ 36. Subsequently, Gayle was mandatorily detained for approximately twelve months at the Monmouth County Correctional Facility in Freehold, New Jersey. Defs.' Resp. to Pls.' Stmt. of Mat'l Facts at ¶ 33.

Sukhu is a Guyanese national and LPR of the United States, who has lived in this country for approximately 20 years, almost entirely in New York City. Id. ¶ 40. In June 1997, Sukhu pleaded guilty to assault in the second degree in violation of N.Y. Penal Law § 120.05(6) and was sentenced to 90 days imprisonment. Id. ¶ 41. In May 2011, Sukhu pleaded guilty to a misdemeanor offense of theft of services in violation of N.Y. Penal Law § 165.15 and was sentenced to time served. Id. ¶ 42; Pls.' Resp. to Defs.' Stmt. of Mat'l Facts at ¶ 20. On August 15, 2011, ICE officers arrested Sukhu, Id. ¶ 21, and on the same day, ICE issued a Notice to Appear, charging Sukhu with removal under 8 U.S.C. § 1227(a)(2)(A)(i) —which governs crimes of moral turpitude—based on his 1997 conviction. Defs.' Resp. to Pls.' Stmt. of Mat'l Facts at ¶ 44.

On August 15, 2011, Sukhu received a Form I–286 Notice of Initial Custody Determination. See Sukhu I–286 Form. ICE determined that Sukhu was subject to mandatory detention under § 1226(c) based on two different convictions, i.e., 1997 and 2011 convictions, for crimes of moral turpitude. Pls.' Resp. to Defs.' Stmt. of Mat'l Facts at ¶ 23. Similar to Gayle, Sukhu received a Form I–286 from ICE notifying him that he “shall be: detained in the custody of the Department of Homeland Security.” Along with that notification, ICE checked the First Box on the Form, which like Gayle's Form, indicated that he “may request” that an IJ re-determine ICE's custody decision⁷ Id. ¶ 49. Sukhu also checked the box located on bottom portion of the form which indicated that Sukhu requested a custody redetermination hearing by an IJ. See Sukhu I–286 Form.

Sukhu was subject to mandatory detention under § 1226(c) for nearly 21 months at the Monmouth County Correctional Facility in Freehold, New Jersey. Defs.' Resp. to Pls.' Stmt. of Mat'l Facts at ¶ 51. At no point during his detention did the IJ inform Sukhu of his right to a Joseph hearing to challenge his mandatory detention. Id. ¶ 52. As to a bond hearing, ICE did not take the position that Sukhu was a flight risk nor did Sukhu receive a bond hearing or any other individualized determination that he posed a danger to the community. Id. ¶ 53.

On November 11, 2012, Sukhu, represented by counsel, attended a removal hearing before an IJ. On December 27, 2011, Sukhu sought to terminate his deportation proceeding on the basis that his assault conviction was not a crime of moral turpitude (“CIMT”), and thus, he was not deportable. Id. ¶ 54. Sukhu reasoned that the BIA decision, Matter of Silva–Trevino, 24 I. & N. Dec. 687 (AG 2008), which would categorize Sukhu's prior assault conviction as a CIMT should not be followed.⁸ Id. ¶ 55. On March 7, 2012, the IJ rejected Sukhu's argument and found that Silva–Trevino mandated Sukhu's deportation based upon his assault conviction being a CIMT. Id. ¶ 57. On March 8, 2012, ICE filed an additional charge against Sukhu, charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(ii) —two crimes of moral turpitude—based on the combination of his 1997 and 2011 convictions. Id. ¶ 45. On April 30, 2013, however, the IJ granted Sukhu's application for adjustment of status based on a relative petition filed by his U.S. citizen daughter, and thus, terminated his removal proceedings. Id. ¶ 58. On May 8, 2013, Sukhu was released from ICE custody. Id. ¶ 59. The Government did not appeal the IJ's ruling. Id. ¶ 60. Importantly, at no point during his detention did Sukhu receive a Joseph hearing. Id. ¶ 61.

On August 5, 2013, Named Plaintiffs filed their third-amended class-action complaint (“TAC”) against the Government,...