Gayle v. Warden Monmouth Cnty. Corr. Inst.
| Decision Date | 15 November 2017 |
| Docket Number | Civ. Action No.:12-cv-02806(FLW) |
| Parties | GARFIELD GAYLE, et al., Plaintiffs/Petitioners, v. WARDEN MONMOUTH COUNTY CORRECTIONAL INSTITUTION, et al., Defendants/Respondents |
| Court | U.S. District Court — District of New Jersey |
*NOT FOR PUBLICATION*
:
In this case, remanded from the Third Circuit Court of Appeals, the Court must determine, under Rule 23 of the Federal Rules of Civil Procedure, whether to certify a class of individuals in New Jersey who are or will be detained pursuant to the mandatory detention provision of § 236(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(c). More particularly, Plaintiffs Garfield Gayle ("Gayle"), Neville Sukhu ("Sukhu"), and Sheldon Francois ("Francois) (collectively, "Plaintiffs" or "Named Plaintiffs") move under Rule 23(b)(2) for class certification on behalf of a putative class of aliens in New Jersey seeking declaratory and injunctive relief from alleged violations of the INA and the Due Process Clause arising out of the mandatory detention scheme set forth in 8 U.S.C. § 1226(c), and procedural safeguards associated with mandatory detention. Defendants, a number of state and federal government agents,1 (collectively, the "Government" or "Defendants") oppose class certification.
For the reasons set forth below, Plaintiffs' motion for class certification is GRANTED. The Court certifies the following class: the right of all persons within the District of New Jersey, now and in the future, who are mandatorily detained pursuant to 8 U.S.C. § 1226(c) to obtain a bond hearing on the basis of a substantial claim to relief that would prevent the entry of a removal order, which includes challenging the constitutionality of the Joseph hearing process, namely, the allocation of the burden of proof and the contemporaneous recording of the hearing. The representatives for this class are plaintiffs Gayle and Sukhu. However, because Francois, Gayle and Sukhu are not adequate to represent the class as to the due process claims involving the current version of Form I-286 and its addendum, they lack standing to pursue such claims. Francois is dismissed from this case.
Before describing the facts that underlie this dispute, it is necessary to review the immigration procedures used by U.S. Immigration and Customs Enforcement ("ICE") to effectuate mandatory detention of aliens. As discussed more fully below, when ICE arrests an alien determined to be subject to mandatory detention, ICE issues a Notice of Custody Determination through a Form I-286. Then, after an alien is detained, he or she may request an Immigration Judge to hold a Joseph hearing to determine whether the alien is properly included in the mandatory detention category defined by 8 U.S.C. § 1226(c)(1)(A)-(D). I will first describe the Form I-286 and the Joseph hearing process, and then recount the facts respecting the Named Plaintiffs, as well as this case's lengthy procedural history.
In 2011 and 2012, the three Named Plaintiffs in this matter, Gayle, Sukhu, and Francois, were issued notices to appear ("NTAs") by ICE. Third Am. Compl., ECF No. 72. At that time, ICE determined that each of the Named Plaintiffs, who were lawful permanent residents of the United States, had at least one conviction rendering him subject to mandatory detention under the INA, 8 U.S.C. § 1226(c), which authorizes detention without the possibility of release on bond for any alien described in § 1226(c)(1)(A)-(D).2See Gayle v. Warden Monmouth Cnty. Corr. Inst. (Gayle III), 838 F.3d 297 (3d Cir. 2016) (). ICE issued each Named Plaintiff a Form I-286, reflecting the determination of mandatory detention.
Below this statement, the 2007 version of Form I-286 provided boxes that were or were not checked off, indicating whether the detained alien could or could not seek redetermination by an Immigration Judge of ICE's custody status determination for that alien.4 ECF No. 102-5 (Gayle I-286); ECF No. 102-14 (Sukhu I-286); ECF No. 31-27 (Francois Decl.). Specifically, the first box on Form I-286, if checked, indicates that the alien "may request" an Immigration Judge to re-determine ICE's custody decision ("First Box"). In contrast, the second box on Form I-286, if checked, states that the alien "maynot request review of this determination by an Immigration Judge because the Immigration and Nationality Act prohibits your release from custody" ("Second Box").5
As will be discussed more fully below, Plaintiffs Gayle and Sukhu each received Form I-286s with the First Box checked off, indicating that they could seek redetermination of their custody status by an Immigration Judge. Plaintiff Francois received a Form I-286 with the Second Box checked off, perhaps erroneously, indicating that he could not seek redetermination by an Immigration Judge. All three Plaintiffs checked a box at the bottom of their respective Forms I-286 requesting a custody redetermination hearing. ECF No. 102-5 (Gayle I-286); ECF No. 102-14 (Sukhu I-286); ECF No. 31-27 (Francois Decl.). However, none of the three Named Plaintiffs received a custody redetermination hearing, also known as a "Joseph hearing."
After an alien is arrested, receives a Form I-286, and is detained, the process to determine whether an immigrant may be detained without a bond hearing is known as a "Joseph hearing," based on the Board of Immigration Appeals ("BIA") decision in Matter of Joseph, 22 I. & N. Dec. 799, 1999 WL 339053 (BIA 1999). During a Joseph hearing, an Immigration Judge determines whether an alien, who is mandatorily detained, isproperly included in the mandatory detention category, and if not, then he or she is eligible for a bond hearing and potential release under 8 U.S.C. § 1226(a).6 See 8 C.F.R. § 1003.19(h)(2)(ii) (). Specifically, while the mandatorily-detained alien's removal proceedings are pending, the Joseph hearing provides the alien "with the opportunity to offer evidence and legal authority on the question whether the Service has properly included him within a category that is subject to mandatory detention." In re Joseph, 22 I. & N. Dec. at 805. However, these proceedings are not recorded by transcript, audiotape, or otherwise; there is no contemporaneous record of the Immigration Judge's hearing on whether an alien is properly included in the mandatory detention category.
Under Joseph, if the Government asserts a "reason to believe"7 that the individual is subject to § 1226(c), the Government then claims the authority to mandatorily detain thealien without a bond hearing. 63 Fed. Reg. 27444; 8 C.F.R. § 236.1. An individual so detained may secure a bond hearing only if he or she is able to persuade the Immigration Judge that the Government is "substantially unlikely" to prevail on the charges that trigger mandatory detention, i.e., by affirmatively demonstrating that the Government's charges are meritless, and therefore, he or she is not "properly included" under § 1226(c). In re Joseph, 22 I. & N. Dec. at 806 (); id. at 807 (). As a result of the inherently high burden placed on the alien, Plaintiffs argue that some detainees are detained for months or even years without ever having a bond hearing.
Gayle, a Jamaican national, is a lawful permanent resident of the United States, who has lived in the United States for over 34 years. In May of 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. Subsequently, Gayle served approximately two years of jail time and was released on parole in June 1997. After satisfying all conditions of parole, Gayle was discharged in May 2001....
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