Gayle v. Warden Monmouth Cnty. Corr. Inst.

• Decision Date: 03 September 2021
• Docket Number: No. 19-3241,19-3241
• Citation: 12 F.4th 321
• Parties: Garfield O. GAYLE; Neville Sukhu, Appellants v. WARDEN MONMOUTH COUNTY CORRECTIONAL INSTITUTION; Secretary United States Department of Homeland Security; Attorney General of the United States of America; Director of Immigration and Customs Enforcement; Director of the Executive Office of Immigration Review; John Tsoukaris, in his official capacity as Field Office Director for Enforcement and Removal Operations, Newark Field Office of U.S. Immigration and Customs Enforcement; Thomas Decker, in his official capacity as the Field Office Director for Enforcement and Removal Operations, New York City Field Office of U.S. Immigration and Customs Enforcement; Warden Bergen County Jail; Warden Elizabeth County Detention Center; Warden Essex County Correctional Facility; Director Delaney Hall Detention Facility; Director Hudson County Correctional Facility
• Court: U.S. Court of Appeals — Third Circuit

12 F.4th 321

Garfield O. GAYLE; Neville Sukhu, Appellants

v.WARDEN MONMOUTH COUNTY CORRECTIONAL INSTITUTION; Secretary United States Department of Homeland Security; Attorney General of the United States of America; Director of Immigration and Customs Enforcement; Director of the Executive Office of Immigration Review; John Tsoukaris, in his official capacity as Field Office Director for Enforcement and Removal Operations, Newark Field Office of U.S. Immigration and Customs Enforcement; Thomas Decker, in his official capacity as the Field Office Director for Enforcement and Removal Operations, New York City Field Office of U.S. Immigration and Customs Enforcement; Warden Bergen County Jail; Warden Elizabeth County Detention Center; Warden Essex County Correctional Facility; Director Delaney Hall Detention Facility; Director Hudson County Correctional Facility

No. 19-3241

United States Court of Appeals, Third Circuit.

Argued January 12, 2021

Opinion Filed: September 3, 2021

Lawrence S. Lustberg [ARGUED], Michael R. Noveck, Gibbons, One Gateway Center, Newark, NJ 07102, Counsel for Appellants

Stefanie N. Hennes, Craig W. Kuhn, Dhruman Y. Sampat [ARGUED], United States Department of Justice, Office of Immigration Litigation, P.O. Box 868, Ben Franklin Station, Washington, DC 20044, Counsel for Appellees

Before: AMBRO, KRAUSE, and PHIPPS, Circuit Judges

OPINION OF THE COURT

KRAUSE, Circuit Judge.

Under 8 U.S.C. § 1226(c), the Government must detain noncitizens who are removable because they committed certain specified offenses or have connections with terrorism, and it must hold them without bond pending their removal proceedings. This appeal asks us to decide what process is due when such detainees contend that they are not properly included within § 1226(c) and whether noncitizens who have substantial defenses to removal on the merits may be detained under § 1226(c). Because the District Court granted relief in the form of a class-wide injunction, we must also decide whether 8 U.S.C. § 1252(f)(1) permits class-wide injunctive relief.

For the reasons set forth below, we agree with the District Court that § 1226(c) is constitutional even as applied to noncitizens who have substantial defenses to removal. But for those detainees who contend that they are not properly included within § 1226(c) and are therefore entitled to a hearing pursuant to In re Joseph , 22 I. & N. Dec. 799 (BIA 1999), we hold that the Government has the burden to establish the applicability of § 1226(c) by a preponderance of the evidence and that the Government must make available a contemporaneous record of the hearing, consisting of an audio recording, a transcript, or their functional equivalent. Because we also conclude that § 1252(f)(1) does not authorize classwide injunctions, we will reverse the District Court's order in part, affirm in part, and remand for the entry of appropriate relief.

I. Factual & Procedural Background

This case returns to us following our 2016 remand to the District Court to consider class certification. See Gayle v. Warden Monmouth Cnty. Corr. Inst. , 838 F.3d 297 (3d Cir. 2016). Because our prior opinion related the history of the case to that point in detail, see id. at 300–02, we will recount it only briefly here.

In 2012, Garfield Gayle and Neville Sukhu filed a habeas petition on behalf of a putative class of noncitizens who are detained under § 1226(c) in the District of New Jersey.¹ Contending that it violates due process to mandatorily detain noncitizens who have substantial defenses to removal and that the procedure for conducting Joseph hearings is constitutionally inadequate, they sought declaratory and injunctive relief on behalf of the putative class.

In 2015, the District Court granted partial summary judgment in favor of Gayle and Sukhu individually and then denied their class certification motion as moot. Gayle v. Johnson , 81 F. Supp. 3d 371, 402–03 (D.N.J. 2015). On appeal, however, we determined that because Gayle and Sukhu themselves had been released from detention before the District Court granted relief, it was their individual claims that were moot. Gayle , 838 F.3d at 300. That meant the District Court lacked jurisdiction to rule on the merits of those individual claims but retained jurisdiction over the class certification motion that was filed while the named plaintiffs were still in custody. Id. at 303–04. We therefore remanded for the District Court to determine if the purported class should be certified and, if so, to address the class claims. Id. at 312–13.

On remand, the parties engaged in limited discovery regarding class certification, and the District Court certified a class consisting 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) [and who seek] 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.

Gayle v. Warden Monmouth Cnty. Corr. Inst. , No. 12-cv-02806, 2017 WL 5479701, at *1 (D.N.J. Nov. 15, 2017).

The parties subsequently filed cross-motions for summary judgment. The record developed in those proceedings highlights what is at stake for the plaintiff class (hereinafter "Plaintiffs"). As of 2017, there were nearly 1,200 detainees in New Jersey held under § 1226(c), at least 20% of whom were Lawful Permanent Residents (LPRs). JA 308, 318, 442. Among cases that concluded in 2017, the average time of detention was 300 days, with a median of 224 days, and some § 1226(c) detainees were held for more than a year. JA 308, 318, 442–43. In addition, of those cases in New Jersey that concluded in 2017, 41% of § 1226(c) detainees raised a defense to removal—either by challenging the Government's removal charge or by applying for discretionary relief—and 55% of those detainees ultimately prevailed. JA 308, 318.

After considering this record, the District Court granted summary judgment to the Government in part and to the Plaintiffs in part. Gayle v. Warden Monmouth Cnty. Corr. Inst. , No. 12-cv-2806, 2019 WL 4165310, at *2 (D.N.J. Sept. 3, 2019). It ruled that § 1226(c) may apply to noncitizens who have substantial defenses to removal on the merits without violating due process and that the Government need not make a contemporaneous record of Joseph hearings. Id. at *12, *24. But it agreed with the Plaintiffs that the standard of proof currently applied at Joseph hearings is "virtually undefined" and places too much risk of error on § 1226(c) detainees. Id. at *19. Thus, even though the Government took the position that Joseph requires it to make an initial showing of "probable cause" to believe a detainee committed a relevant offense under § 1226(c), id. at *19, the District Court "issue[d] a classwide injunction that directs the Government to establish [at the Joseph hearing] that there is probable cause to find that a detained alien under § 1226(c) falls under the statute's mandatory detention requirements," id. at *2. It thereby rejected the Plaintiffs’ contentions that probable cause is too low a standard and that noncitizens may not be subjected to § 1226(c) detention if they raise "substantial challenges to entry of a final removal order." Appellants’ Br. 5.

With the District Court having denied their due process claims concerning the standard of proof at Joseph hearings, the applicability of § 1226(c) to detainees with substantial defenses to removal, and the requirement for a contemporaneous record of Joseph hearings, the Plaintiffs appealed.²

II. Jurisdiction & Standard of Review

The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291. Although the named plaintiffs’ individual claims "were long ago moot," Gayle , 838 F.3d at 302–03, the certified class has standing to litigate its claims and the named plaintiffs may continue to represent the class so long as they meet the requirements of Rule 23, which the District Court found they did, see Gayle , 2017 WL 5479701, at *19 ; Holmes v. Pension Plan of Bethlehem Steel Corp. , 213 F.3d 124, 135–36 (3d Cir. 2000).

We review the District Court's summary judgment decision de novo.

Cranbury Brick Yard, LLC v. United States , 943 F.3d 701, 708 (3d Cir. 2019).

III. Discussion

In 1996, during a comprehensive revision of the immigration laws, Congress enacted § 1226(c), which requires the Government to detain noncitizens who are removable on the basis of certain crimes or connections with terrorism and to hold them without bond until their removal proceedings. See Nielsen v. Preap , ––– U.S. ––––, 139 S. Ct. 954, 959, 203 L.Ed.2d 333 (2019) ; Demore v. Kim , 538 U.S. 510, 517–18, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). Under Joseph , such detainees are entitled to a hearing before an Immigration Judge (IJ) to determine "whether the [Government] has properly included [them] within a category that is subject to mandatory detention" under § 1226(c). 22 I. & N. Dec. at 805 ; 8 C.F.R. § 1003.19(h)(2)(i)(D), (h)(2)(ii). If a detainee is found not to be "properly included" within § 1226(c), she may then seek release on bond under 8 U.S.C. § 1226(a).³ Joseph , 22 I. & N. Dec. at 806.

Plaintiffs challenge § 1226(c) detention and the Joseph hearing framework on three grounds: (A) that it violates due process to apply § 1226(c) to noncitizens who have substantial defenses to removal; (B) that the Government at Joseph hearings must establish the applicability of § 1226(c) by a standard greater than "probable cause"; and (C) that due process requires the Government to make a contemporaneous verbatim record of Joseph hearings. Defending the form of relief entered by the District Court, Plaintiffs also argue (D) that § 1252(f)(1) authorizes district courts to enter class-wide...