Gayle v. Johnson

• Decision Date: 14 March 2014
• Docket Number: Civil Action No. 12–2806 (FLW).
• Citation: 4 F.Supp.3d 692
• Court: U.S. District Court — District of New Jersey
• Parties: Garfield O. GAYLE, et al., Plaintiffs v. Jeh JOHNSON, et al., Defendants.

4 F.Supp.3d 692

Garfield O. GAYLE, et al., Plaintiffs

v.Jeh JOHNSON,¹ et al., Defendants.

Civil Action No. 12–2806 (FLW).

United States District Court,

D. New Jersey.

Signed March 14, 2014.

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, Elizabeth J. Stevens, U.S. Department of Justice, Washington, DC, for Defendants.

WOLFSON, District Judge:

On August 5, 2013, putative class representatives Garfield O. Gayle (“Gayle”), Neville Sukhu (“Sukhu”), and Sheldon Francois (“Francois”) (collectively, “Plaintiffs” or “Named Plaintiffs”) filed their third amended class-action complaint (“TAC”) against various federal and state government defendants ² (collectively, the “Government”), alleging violations of the Immigration and Naturalization Act (“INA”) and the due process clause of the United States Constitution. Specifically, Plaintiffs claim that they and other similarly situated individuals in the District of New Jersey have been subjected to unauthorized and/or unconstitutional mandatory immigration detention— i.e., detention without any bond hearing to determine their dangerousness or risk of flight—under 8 U.S.C. § 1226(c), by the Department of Homeland Security, Immigration and Customs Enforcement (“DHS”/“ICE”). ³

Plaintiffs' challenge to the Government's application of § 1226(c) is two-fold. First, Plaintiffs contend that serious constitutional issues arise from the Government's decisionto provide an opportunity to challenge mandatory detention status to only those aliens who argue that they are not “properly included” under § 1226(c). In that connection, Plaintiffs argue that the Court should interpret the statutory language “is deportable” in § 1226(c) to cover all aliens who have a “substantial challenge” to deportability, either because they are attacking their specified § 1226(c) detention charges, as is already contemplated by In re Joseph, 22 I. & N. Dec. 799 (BIA 1999), or because they are requesting discretionary relief from removal. Second, Plaintiffs contend that the standards and burdens applied in the Joseph hearing—the hearing provided to aliens challenging whether they are “properly included” in the mandatory detention statute—are constitutionally inadequate and violate their due process rights. Plaintiffs claim that the Joseph hearing standard unconstitutionally places a near-insurmountable burden on the alien to show why he or she is not properly included under § 1226(c), whereas the other burdens in removal proceedings—including the ultimate burden to demonstrate that removal is appropriate-rest with the Government. Similarly, Plaintiffs argue that certain other procedures used by the Government in enforcing § 1226(c) raise due process concerns, particularly, the adequacy of the notice of a Joseph hearing and the lack of a contemporaneous record of the hearing. To be sure, Plaintiffs do not challenge the constitutionality of mandatory detention in removal proceedings under § 1226(c)per se, which the Supreme Court found constitutional in Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003); rather, Plaintiffs dispute their access to, and the adequacy of, the procedural safeguards associated with mandatory detention, a question not yet addressed by the Supreme Court or the Third Circuit. Based on these alleged statutory and constitutional violations, Plaintiffs seek declaratory and injunctive relief against the Government (i) permitting all aliens with substantial challenges to removal, whether based upon the merits of the Government's charges or discretionary relief, to seek a hearing to determine the appropriateness of their mandatory detention status, and (ii) requiring the Government to implement adequate procedures in carrying out mandatory detention proceedings.

Plaintiffs have filed several amended pleadings raising both individual habeas claims on behalf of Named Plaintiffs, and claims for declaratory and injunctive relief on behalf of a putative class of aliens similarly situated to Plaintiffs. As explained infra, Named Plaintiffs' individual claims for a bond hearing are moot. The only claims in the TAC currently pending and subject to the Government's most recent motion to dismiss are the class-claims in the first cause of action for violation of the due process clause of the Fifth Amendment and the second cause of action for violation of the INA. For the reasons that follow, the Court grants in part and denies in part the Government's motion to dismiss. Specifically, the Government's motion to dismiss Plaintiffs' claims for declaratory and injunctive relief in Counts One and Two of the TAC is granted to the extent that Plaintiffs are seeking to mandate a Joseph hearing for any mandatorily detained alien under § 1226(c) who has a “substantial challenge” to his or her removal based upon discretionary relief only. For that reason, Plaintiff Francois is dismissed for lack of standing. The Government's motion to dismiss is denied with respect to Gayle's and Sukhu's challenges to the constitutional and statutory adequacy of the Joseph hearing and its related procedures.

I. BACKGROUND

Named Plaintiffs are each aliens with lawful permanent resident (“LPR”) status. TAC, ¶¶ 8–10.⁴ Based on previous criminal convictions, Plaintiffs were charged by ICE as removable ⁵ under the INA. Id. Due to the nature of the convictions upon which ICE based Plaintiffs' removal, Plaintiffs were also arrested by ICE and mandatorily detained pending the completion of their removal proceedings pursuant to § 1226(c). Id.

Plaintiff Garfield Gayle is a Jamaican national and LPR of the United States, who has lived in the United States for approximately 30 years, most of the time in New York City. Id. at ¶ 24. In 1995, Gayle was convicted of criminal possession of a controlled substance with the intent to sell in the third degree under New York State Penal Law § 220.16. He served approximately two years of jail time and was released on parole in June 1997. Id. at ¶ 26. On March 24, 2012, a team of ICE officers took Gayle from his home in Brooklyn and placed him in their custody. Id. at ¶¶ 27, 30. ICE charged Gayle with removal on the grounds that his 1995 conviction rendered him deportable, and also found him subject to mandatory detention based on a March 2007 misdemeanor controlled substance offense. Id. at ¶ 28.

While Gayle was detained and his removal proceedings were ongoing, he filed a habeas petition in this Court asserting that DHS lacked the statutory authority to detain him under 8 U.S.C. § 1226(c), because the statute requires DHS to take an alien into custody immediately upon release from his conviction. See Dkt. Nos. 1; 12. In that regard, Gayle argued that because DHS failed to take him into custody immediately upon his release in 2007, he could not be subject to mandatory detention, and was instead entitled to a bond hearing before an Immigration Judge. This Court agreed with Gayle and ordered the Immigration Judge to provide Gayle with a bond hearing. See Dkt. No. 34 (Order granting Gayle's habeas petition); see also Gayle v. Napolitano, Civ. No. 12–2806(FLW)(DEA), 2013 WL 1090993 (D.N.J. Mar. 15, 2013). Gayle was released on bond on March 25, 2013, and the Government has not appealed this Court's March 15, 2013 order.⁶

Plaintiff Neville Sukhu is a Guyanese national and LPR of the United States, who has lived in the United States for approximately 20 years, almost entirely in New York City. TAC, ¶ 45. In 1997, Sukhu pleaded guilty to assault in the second degree under New York State Penal Law § 120.05(6). He served approximately 90 days of jail time and was discharged from parole in September 2002. Id. at ¶ 46. In or around May 2011, Sukhu pleaded guilty to a charge of disorderly conduct. Id. at ¶ 47. On August 15, 2012, a team of ICE officers took Sukhu into custody upon Sukhu's release from the disorderly conduct conviction. Id. ICE charged Sukhu with removal on the grounds that his 1997 assault conviction was a crime involving moral turpitude that rendered him deportable, and also that the combination of his 1997 conviction and a 2011 conviction for turnstile jumping, under New York State Penal Law § 165.15, rendered him deportable. Id. ICE also found Sukhu subject to mandatory detention under § 1226(c) based on his 1997 assault conviction. Id.

During his removal proceedings, Sukhu filed an individual habeas claim in this Court premised on the Third Circuit's holding in Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir.2011), which requires the Government to provide a mandatorily detained alien with a bond hearing when the alien's detention exceeds a reasonable period of time. See Dkt. No. 12, ¶¶ 77–83. Also, as part of his removal proceedings, Sukhu filed a motion to terminate removal on the basis that his 1997 conviction did not constitute a crime involving moral turpitude, which motion was denied by the Immigration Judge. Id. at ¶ 48. Sukhu additionally filed an application with the Immigration Judge for discretionary relief in the form of adjustment of status. Id. at ¶ 49. On April 30, 2013, the Immigration Judge granted Sukhu's application for adjustment of status and terminated his removal proceedings, see Dkt. No. 47–1, Ex. A, and on May 8, 2013, Sukhu was released from DHS custody. See Dkt. No. 48, 1. The Government has not appealed the Immigration Judge's decision.

Plaintiff Sheldon Francois is a citizen of Trinidad and Tobago and a LPR of the United States, who has lived in the United States for approximately 20 years, most of the time in New York City. TAC, ¶ 33. In 2011, Francois was convicted of petit larceny under New York State Penal Law § 155.25. He was sentenced to time served of approximately one day, and discharged from parole in May 2011. Id. at ¶ 35. Also in 2011, Francois was convicted of criminal possession of a controlled...