Gayle v. Warden Monmouth Cnty.

GARFIELD O. GAYLE, et al., Plaintiffs, v. WARDEN MONMOUTH COUNTY, CORRECTIONAL INSTITUTION, et al., Defendants.

Civil Action No. 12-2806 (FLW)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

September 3, 2019

*NOT FOR PUBLICATION*

OPINION

WOLFSON, Chief Judge:

This class action challenges the constitutionality of detention procedures related to mandatory detention of aliens under 8 U.S.C. § 1226(c), codified in the Immigration and Naturalization Act ("INA"). 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 is twofold: first, with regard to the mandatory detention scheme of § 1226(c), they argue that it is unconstitutional under the Due Process Clause that aliens, like themselves, with substantial challenges to deportability be detained; and relatedly, such aliens, Plaintiffs say, are not subject to mandatory detention in the first instance because doing so would run afoul of the canon of constitutional avoidance. Second, Plaintiffs mount a constitutional attack on the standards determining whether an alien is properly 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)), and the lack of a contemporaneous verbatim record in those Joseph hearings. In this suit, 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 ones.

Both Plaintiffs and the Government separately move for summary judgment on all of the constitutional claims in this case. For the following reasons, the Court decides the parties' summary judgment motions as follows: (1) 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 (2) GRANTED in favor of the Government as to all other claims, including those related to contemporaneous verbatim records in Joseph hearings. As a result, the Court issues a class-wide injunction that directs the Government to establish before an immigration judge ("IJ") that there is probable cause to find that a detained alien under § 1226(c) falls under the statute's mandatory detention requirements.

BACKGROUND

I. Named Plaintiffs

A. Gayle

The following facts are undisputed.³ Gayle is a Jamaican national and legal permanent resident ("LPR") of the United States. He has lived in the United States for approximately 35 years. 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. In March 2007, Gayle pleaded guilty to a misdemeanor marijuana possession charge for which he was sentenced to ten days in jail. Based on these prior convictions, on March 24, 2012, ICE officers arrested Gayle, and 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

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., the attempted drug sale. An IJ denied the motion on October 23, 2012. Subsequently, Gayle was mandatorily detained for approximately twelve months at the Monmouth County Correctional Facility in Freehold, New Jersey. On March 15, 2013, this Court granted Gayle's claim for individual habeas relief on a ground not at issue in this class action.⁵

B. Sukhu

Sukhu is a Guyanese national and LPR of the United States, who has lived in this country for approximately 24 years, almost entirely in New York City. 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. In May 2011, Sukhu pleaded guilty to a misdemeanor offense of theft of services (turnstile jumping) in violation of N.Y. Penal Law § 165.15 and was sentenced to time served. With these prior offenses, on August 15, 2011, ICE officers arrested Sukhu, 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.

Sukhu was subject to mandatory detention under § 1226(c) for nearly 21 months at the Monmouth County Correctional Facility in Freehold, New Jersey. On November 11, 2012, Sukhu, represented by counsel, attended a removal hearing before an Immigration Judge. 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. 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.⁶ Id. 55. On March 7, 2012, the Immigration Judge rejected Sukhu's argument and found that Silva-Trevino mandated Sukhu's deportation based upon his assault conviction being a CIMT. 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. 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. On May 8, 2013, Sukhu was released from ICE custody. The Government did not appeal that ruling. Importantly, at no point during his detention did Sukhu receive a Joseph hearing.

II. Procedural History

In May 2012, Gayle filed his individual habeas petition. In November 2012, the First Amended Petition was filed, adding individual habeas claims of Sukhu and Sheldon Francois,⁷ as well as claims brought on behalf of a putative class, seeking declaratory and injunctive relief. Also, on November 15, 2012, Plaintiffs moved to certify a class of all individuals who were or would be subject to § 1226(c) mandatory detention in the District of New Jersey. The Government moved to dismiss Plaintiffs' amended petition, and opposed Plaintiffs' motion for class certification.

On May 10, 2013, I heard oral argument on these motions; I dismissed Gayle's and Sukhu's individual habeas claims as moot, and denied the Government's motion to dismiss at that time. I further instructed Plaintiffs to file an amended habeas petition and class action complaint. Further, the parties proceeded to engage in class-related discovery.

Although Gayle and Sukhu were released from custody on March 22, 2013 and May 8, 2013, respectively, the Third Amended Petition was filed on August 5, 2013, which included individual claims, as well as claims on behalf of a putative class of aliens who are being or will be mandatorily detained pursuant to § 1226(c). The first claim asserted violations of substantive and procedural due process.

Plaintiffs' procedural due process claim challenged, and still challenges, the procedures surrounding the "Joseph hearing," 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 [of] whether [ICE] has properly included him within a category that is subject to mandatory detention." In re Joseph, 22 I. & N. Dec. at 805. Specifically, Plaintiffs allege (1) that Joseph hearing procedures impermissibly place the initial burden of proof on the alien, and (2) that a contemporaneous verbatim record should be made of each Joseph hearing.⁸

In August 2013, the Government moved to dismiss Plaintiffs' Third Amended Complaint. Thereafter, on March 14, 2014, I partially granted the Government's motion to dismiss, holding that § 1226(c) did not violate substantive due process with respect to aliens who assert a substantial challenge to their final, not threshold, removability. Gayle v. Johnson, 4 F. Supp. 3d 692, 706-12 (D.N.J. 2014)("Gayle I"). Thus, Plaintiffs' petition was dismissed "to the extent that Plaintiffs 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." Id. at 721. This Court held that Gayle and Sukhu had standing to challenge the Government's mandatory detention procedures, id. at 713-14, but found Francois lacked standing to proceed in that context, because he did not challenge whether he fell within a § 1226(c) category, id. at 716. The motion to dismiss was denied in all other respects; I found that Plaintiffs had "adequately stated a claim that the Joseph hearing fails to provide an alien, who has a challenge to whether he or she is included in § 1226(c), with a meaningful opportunity to challenge his or her detention status." Id. at 717.

Thereafter, the parties filed cross-motions for summary judgment, and Plaintiffs, again, moved for class certification. In January 2015, this Court issued an Opinion and Order addressing the summary judgment and class certification motions. Gayle v. Johnson, 81 F. Supp. 3d 371 (D.N.J. 2015)("Gayle II"). As to the merits of Plaintiffs' claims, I entered partial summary judgment for Plaintiffs. In that decision, I found that the Joseph hearing procedures violate due process Id....