United States District Court, D. New Jersey
GARFIELD O. GAYLE, et al., Plaintiffs
JEH JOHNSON,  et al., Defendants
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For GARFIELD O. GAYLE, NEVILLE SUKHU, SHELDON FRANCOIS, Petitioners: JONATHAN MATTHEW MANES, LEAD ATTORNEY, LAWRENCE S. LUSTBERG, GIBBONS PC, NEWARK, NJ.
For BRIAN ELWOOD, in his/her official capacity as Warden, MONMOUTH COUNTY CORRECTIONAL FACILITY, SCOTT A. WEBER, in his official capacity as Newark Field Office Director for Detention and Removal, JOHN T. MORTON, in his official capacity as Acting Assistant Secretary of U.S. Immigration and Customs Enforcement, JANET NAPOLITANO, in her official capacity as the Secretary of the U.S. Department of Homeland Security, ERIC HOLDER, in his official capacity as Attorney General of the U.S. Department of Justice, Respondents: JENNIFER A. BOWEN, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION, DISTRICT COURT SECTION, WASHINGTON, DC; PETER G. O'MALLEY, LEAD ATTORNEY, OFFICE OF THE U.S. ATTORNEY, NEWARK, NJ.
For JUAN OSUNA, in his official capacity as 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, 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, RAY SIMONSE, in his official capacity as Acting Field Office Director for Enforcement and Removal Operations, Newark Field Office of U.S. Immigration and Customs Enforcement, ROBERT BIGGOTT, in his official capacity as Warden of the Bergen County Jail, JOSEPH TRABUCCO, in his official capacity as Director of the Delaney Hall Detention Facility, ORLANDO RODRIGUEZ, in his official capacity as Warden of the Elizabeth Contract Detention Facility, Warden ROY L. HENDRICKS, in his official capacity as Warden of the Essex County Correctional Facility, OSCAR AVILES, in his official capacity as Director of the Hudson County Correctional Facility, Respondents: JENNIFER A. BOWEN, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION, DISTRICT COURT SECTION, WASHINGTON, DC.
Freda L. Wolfson, United States 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  (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" ).
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 decision
to 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.
Named Plaintiffs are each aliens with lawful permanent resident (" LPR" ) status.
TAC, ¶ ¶ 8-10. Based on previous criminal convictions, Plaintiffs were charged by ICE as removable  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.
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 substance in the seventh degree under New York State Penal Law § 220.03, and was sentenced to time served of approximately one day. Id. In March 2012, Francois was again convicted of petit larceny under the same statute as his 2011 conviction, and ultimately sentenced to 30 days of incarceration. Id. On August 6, 2012, ICE officers took Francois into their custody and charged him as removable and subject to mandatory detention under § 1226(c) based on his (i) 2011 drug possession conviction, and/or (ii) 2011 and 2012 petit larceny convictions. Id. at ¶ 36.
Francois filed an individual habeas action in this Court, claiming that he had a substantial challenge to his deportability and thus should be entitled to a hearing to challenge whether he was subject to the mandatory detention statute. See Dkt. No. 51, ¶ ¶ 79-81. Francois did not file any motion to terminate in his immigration proceedings; he did, however, file an application
for discretionary relief in the form of cancellation of removal pursuant to 8 U.S.C. § 1229b(a). Id. at ¶ 37. At a hearing on July 12, 2013, the Immigration Judge orally granted Francois' application, thereby cancelling his removal and terminating the removal proceedings pending a forthcoming written decision in four to six weeks. Id. at ¶ 41; see also Dkt. No. 63 at 1. Notwithstanding the Immigration Judge's pronouncement, Francois remained mandatorily detained, without any hearing to determine whether he should be released on bond, and would continue to be so detained through the duration of an appeal taken by either party. TAC, ¶ 42; see 8 U.S.C. § 1226. In a decision dated August 23, 2013, this Court granted Francois' individual habeas claim for relief under the reasoning of Diop v. ICE/Homeland Security, 656 F.3d 221, and ordered the Immigration Judge to provide Francois with a bond hearing. See Dkt. No. 81; see also Francois v. Napolitano, Civ. No. 12-2806(FLW)(DEA), 2013 WL 4510004 (D.N.J. Aug. 23, 2013). On August 30, 2013, Francois was released on bond, and, on September 26, 2013, the Immigration Judge issued his written decision granting Francois' application for cancellation of removal.
Accordingly, all that remains in the TAC are two claims for declaratory judgment and injunctive relief on behalf of Named Plaintiffs as putative class representatives based on violations of (1) the Due Process Clause of the Fifth Amendment, and (2) the INA. The Government's pending motion to dismiss under Fed.R.Civ.P. 12(b)(6) seeks the dismissal of both of these claims.
II. STANDARD OF REVIEW
When reviewing a motion to dismiss on the pleadings, courts " accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citation and quotations omitted). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court clarified the Rule 12(b)(6) standard, holding that the factual allegations set forth in a complaint " must be enough to raise a right to relief above the speculative level." Id. at 555. " [T]he tenet
that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Moreover, " only a complaint that states a plausible claim for relief survives a motion to dismiss." Id.
The Third Circuit has reiterated that " judging the sufficiency of a pleading is a context dependent exercise" and " [s]ome claims require more factual explication than others to state a plausible claim for relief." W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 98 (3d Cir. 2010). That said, the Rule 8 pleading standard is to be applied " with the same level of rigor in all civil actions." Id. (citations and quotations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (" [A] claimant does not have to set out in detail the facts upon which he bases his claim. . . . The pleading standard is not akin to a probability requirement . . . . [T]o survive a motion to dismiss, a complaint merely has to state a plausible claim for relief." (Citations and internal quotation marks omitted.)).
Plaintiffs' claims arise out of the Government's application of the mandatory detention scheme set forth in 8 U.S.C. § 1226(c). This is not the first judicial challenge to this statute or mandatory detention generally in the immigration context, and thus, before setting forth the particulars of Plaintiffs' claims, I begin with the legislative background surrounding the enactment of § 1226(c) and the relevant controlling precedent dealing with the constitutionality of mandatory detention of LPRs during immigration removal proceedings. I note further that although the Government has raised a standing challenge, thereby implicating this Court's subject matter jurisdiction, I delay my resolution of this issue until later in this Opinion because the question of whether Plaintiffs have standing is dependent on the initial determination of which aliens may properly challenge their mandatory detention status.
A. Section 1226(c)
Section 1226 governs the pre-removal detention of an alien, and directs that, for certain categories of aliens, the Attorney General " shall take into custody any alien . . . when the alien is released, 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."  8 U.S.C. § 1226(c)(1).
Section 1226(c) finds its origin in the comprehensive overhaul of the INA that occurred in the 1980s and 1990s, and represents one of the significant changes to the INA's detention provisions established by the Antiterrorism and Effective Death Penalty Act (" AEDPA" ) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (" IIRIRA" ). As the Supreme Court explained in Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), the importance of which will be discussed in more detail infra, Congress was dissatisfied with the Immigration and Naturalization Service's (" INS" ) apparent failure to remove deportable criminal aliens.Id. at 518-21; see also id. at 519 (citing Senate report finding that " more than 20% of deportable criminal aliens failed to appear for their removal hearings" ). As part of a wholesale reform to the immigration laws, Congress enacted § 1226, which " requir[es] the Attorney General to detain a subset of deportable criminal aliens pending a determination of their removability." Id. at 521. In particular, § 1226(c) provides for mandatory detention pending removal proceedings for any alien who has committed certain categories of crimes. Significantly, an alien mandatorily detained under § 1226(c) has no right to a bond hearing to seek release from detention by showing that the alien is not a ...