Gayle v. Warden Monmouth Cnty. Corr. Inst.

838 F.3d 297

Garfield Gayle; Neville Sukhu; Sheldon Francois, Appellants

v.Warden Monmouth County Correctional Institution; Scott A. Weber, in his official capacity as Newark Field Office Director for Detention and Removal; *Sarah R. Saldana, in her official capacity as Assistant Secretary of U.S. Immigration and Customs Enforcement; Secretary United States Department of Homeland Security; Attorney General of the United States of America; Juan Osuna, in his official capacity as Director of 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; Christopher Shanahan, in his official capacity as Field Office Director for Enforcement and Removal Operations, New York Field Office of U.S. Immigration and Customs Enforcement; Warden Bergen County Jail; Joseph Trabucco, in his official capacity as Director of the Delaney Hall Detention Facility; Warden Elizabeth County Detention Center; Warden Essex County Correctional Facility; Oscar Aviles, in his official capacity as Director of the Hudson County Correctional Facility

*Pursuant to Fed. R. App. P. 43(c)

No. 15–1785

United States Court of Appeals, Third Circuit.

Argued: February 10, 2016

Filed: September 22, 2016

Lawrence S. Lustberg, Joseph A. Pace, Gibbons, One Gateway Center, Newark, NJ 07102, Judy Rabinovitz [ARGUED], Michael K.T. Tan, American Civil Liberties Union, Immigrants' Rights Project, 125 Broad St., 18th Floor, New York, NY 10004, Counsel for Appellants

Craig W. Kuhn, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Elizabeth J. Stevens [ARGUED], United States Department of Justice, Office of Immigration Litigation, 450 5th Street, N.W., Washington, DC 20001, Counsel for Appellees

Andrew S. Amer, Simpson, Thacher & Bartlett, 425 Lexington Avenue, New York, NY 10017, Counsel for Amicus–Appellants

Before: FUENTES, KRAUSE, and ROTH, Circuit Judges

OPINION

KRAUSE, Circuit Judge.

Over the course of the last four years, Appellants Garfield Gayle, Neville Sukhu, and Sheldon Francois have been litigating, and the Government, defending, a purported class action to challenge the constitutionality of 8 U.S.C. § 1226(c), the section of the Immigration and Nationality Act that requires the mandatory detention of aliens who have committed specified crimes. The parties' significant investment of time and effort culminated in partial grants and partial denials of summary judgment and two thoughtful and thorough opinions of the District Court that are now the subject of able briefing by the parties and amici on appeal. It is especially unfortunate, then, that when it ruled on the merits, entered injunctive relief on Appellants' individual claims, and then denied class certification on the ground that it was not “necessary” in view of that injunction, the District Court put the cart before the horse as to both federal jurisdiction and our class action jurisprudence. That is, once Appellants were released from detention, their individual claims became moot so the District Court retained jurisdiction only to rule on Appellants' motion for class certification—not to decide the merits issues, much less to order individual relief. So too is our appellate jurisdiction limited to the denial of class certification.

Because the District Court exceeded its jurisdiction by adjudicating the merits issues and also adopted a doctrine of “necessity” to deny class certification instead of analyzing the criteria enumerated in Rule 23 of the Federal Rules of Civil Procedure, we will vacate the judgment and the relevant orders of the District Court and will remand for further proceedings.

I.

A.

Appellants are foreign nationals and Lawful Permanent Residents of the United States. As a result of various state-law criminal convictions, the United States Immigration and Customs Enforcement (“ICE”) sought to remove each Appellant from the United States. Pending their removal proceedings, each was detained pursuant to 8 U.S.C. § 1226(c), which provides that where ICE has “reason to believe” that an alien is “deportable” or “inadmissible” by virtue of having committed one of a number of specified crimes or being involved in activities threatening national security, that alien “shall” be taken into custody “when the alien is released [from detention for those crimes], without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.”¹ 8 U.S.C. § 1226(c) ; In re Joseph , 22 I. & N. Dec. 799, 803–05 (B.I.A. 1999) ; see also Sylvain v. Att'y Gen. , 714 F.3d 150, 152 (3d Cir. 2013). The mandatory detention provision of § 1226(c) stands in contrast to the general rule that when the Government seeks to detain an alien pending his removal proceedings, he may seek a bond hearing to show that he should not be detained. See 8 U.S.C. § 1226(a) ; In re Guerra , 24 I. & N. Dec. 37 (B.I.A. 2006) ; 8 C.F.R. § 1003.19(b). Each Appellant sought relief from his mandatory detention.

At issue on appeal are the District Court's rulings on Appellants' Third Amended Petition,² filed on August 5, 2013, and their third motion to certify a class, filed on May 12, 2014.³ The Third Amended Petition raised individual claims on behalf of Sukhu and two claims on behalf of a putative class of aliens who are being or will be mandatorily detained pursuant to § 1226(c). The first such claim alleged violations of substantive and procedural due process. Mandatory detention of aliens violates substantive due process, Appellants contended, when the alien has a “substantial challenge” to his removal—that is, when he challenges whether the crime for which he was convicted renders him removable or when he claims he is entitled to discretionary relief in the form of cancellation of removal or adjustment of status.

Appellants' procedural due process claim challenged the procedures surrounding so-called “Joseph hearings,” the mechanism by which an alien who is mandatorily detained pending his removal proceedings is provided “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. Specifically, Appellants asserted that an alien who is mandatorily detained pursuant to § 1226(c) is allowed to “seek[ ] a determination by an immigration judge that [he] is not properly included within” § 1226(c). 8 C.F.R. § 1003.19(h)(2)(ii) ; see also In re Joseph , 22 I. & N. Dec. at 800 (holding that an alien is entitled to a bond hearing if he can show at a Joseph hearing that the Government is “substantially unlikely to establish, at the merits hearing, the charge or charges that subject the alien to mandatory detention”). Appellants alleged (1) that aliens do not receive adequate notice of their right to a hearing, (2) that Joseph hearing procedures impermissibly place the initial burden of proof on the alien, and (3) that a contemporaneous verbatim record should be made of each Joseph hearing.

In connection with their request for relief, Appellants also sought to certify a class “consisting of all individuals in New Jersey who are or will be detained pursuant to 8 U.S.C. § 1226(c).” First Mot. to Certify (D.Ct. Dkt. No. 13). Appellants relied on Federal Rule of Civil Procedure 23(b)(2), which allows plaintiffs to bring a class action when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). The District Court ruled on the merits of the claims brought on behalf of the class in two stages. In an order and opinion dated March 14, 2014 (Gayle I ), the District Court partially granted the Government's motion to dismiss and held that § 1226(c) did not violate substantive due process with respect to aliens who assert a substantial challenge to their removability. The District Court thus dismissed Appellants' petition “to the extent that [Appellants] are requesting that a Joseph hearing be provided to any mandatorily detained alien who has a ‘substantial challenge’ to his or her removal on grounds other than whether the alien falls within the § 1226(c) categories requiring mandatory detention.” Gayle v. Johnson , 4 F.Supp.3d 692, 721 (D.N.J. 2014).⁴

In an order dated January 28, 2015 (Gayle II ), the District Court resolved the remaining claims—i.e., the adequacy of Joseph hearing procedures—on cross-motions for summary judgment, and also ruled on Appellants' motion to certify a class. As to the merits, the court held (1) that the form giving aliens notice of their right to seek a Joseph hearing (“Form I–286”) does not provide constitutionally adequate notice and that the Government was required to revise the form; (2) that Joseph hearing procedures violate due process by not placing the initial burden on the Government, but that once the Government shows probable cause to believe that the alien is subject to mandatory detention, the burden shifts to the alien to show that the Government is “substantially unlikely to prevail” in proving the alleged charges; and (3) that due process does not require a contemporaneous recording of a Joseph hearing. See Gayle v. Johnson , 81 F.Supp.3d 371 (D.N.J. 2015).

The District Court judge then addressed the third motion to certify a class, having denied the first motion in May 2013 “without prejudice pending an expanded record and/or discovery,” Gayle v. Warden , 3:12–cv–02806, ECF No. 50, at 2 (May 13, 2013), and having terminated the second motion in connection with her March 14, 2014 opinion by instructing Appellants to refile...