GAYLE v. ELWOOD et al

Filing 132

OPINION filed. Signed by Judge Freda L. Wolfson on 11/15/2017. (mmh)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
GARFIELD GAYLE, et al.,
:
:
Plaintiffs/Petitioners,
: Civ. Action No.:12-cv-02806(FLW)
:
v.
:
:
OPINION
WARDEN MONMOUTH COUNTY
:
CORRECTIONAL INSTITUTION, et al., :
:
Defendants/Respondents
:
:
___________________________________ :
WOLFSON, United States District Judge:
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

1

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.

1

The named Defendants include Barry Nadrowski, in his official capacity as Warden
of Monmouth County Correctional Institution; John F. Kelly, in his official capacity as
Secretary of Homeland Security; Jefferson B. Sessions III, in his official capacity as
Attorney General of the United States; Thomas Homan, in his official capacity as Acting
Director for Immigration and Customs Enforcement (“ICE”); James McHenry, in his
official capacity as Acting Director of the Executive Office for Immigration Review; John
Tsoukaris, in his official capacity as Field Office Director for Enforcement and Removal
Operations, Newark Field Office of ICE; Thomas Decker, in his official capacity as Field
Office Director for Enforcement and Removal Operations, New York City Field Office of
ICE; Steven Ahrendt, in his official capacity as Warden of the Bergen County Jail; Orlando
Rodriguez, in his official capacity as Warden of the Elizabeth Contract Detention Facility;
Roy L. Hendricks, in his official capacity as Warden of the Essex County Correctional
Facility; and Ron Edwards, in his official capacity as Director of the Hudson County
Correctional Facility.
2

BACKGROUND
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.
A. Form I-286 and Mandatory Detention
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). 2

2

Title 8 of the United States Code section 1226(c)(1) provides
The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any offense covered in
section 1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in
section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
3

See Gayle v. Warden Monmouth Cnty. Corr. Inst. (Gayle III), 838 F.3d 297 (3d Cir. 2016)
(explaining 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’” (alteration original)
(citations and footnote omitted)). ICE issued each Named Plaintiff a Form I-286, reflecting
the determination of mandatory detention.
The Form I-286 issued to Plaintiffs, the 2007 version, is different in format and in
substance, from the current version. 3 In 2011 and 2012, when Plaintiffs received their

(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of
an offense for which the alien has been sentence[d] to a term of
imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable
under section 1227(a)(4)(B) of this title,
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)(A)-(D).
3

In early 2014, ICE updated its Form I-286. The new form, which is still in
nationwide distribution, informs all detained aliens that they “may request a review of this
custody determination by an [I]mmigration [J]udge.” Second Decl. of Jose Simao in Supp.
of Def.’s Opp’n to Pl.’s Fourth Mot. for Class Certification (“Simao Decl.”) Ex. A. All
aliens currently detained in the District of New Jersey received the updated Form I-286
and an accompanying addendum. Simao Decl. at ¶ 4, Ex. B.
4

NTAs, ICE provided every detainee, including Plaintiffs, under § 1226(c) mandatory
detention, with a Form I–286 notifying the detainee that
[p]ursuant to the authority contained in Section 236 of the Immigration and
Nationality Act and part 236 of title 8, Code of Federal Regulations, [DHS]
determined that pending a final determination by the [I]mmigration [J]udge
in your case, and in the event you are ordered removed from the United
States, until you are taken into custody for removal you shall be: detained
in the custody of the Department of Homeland Security.
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 “may

4

As noted previously, under the current version of Form I-286, all detained aliens—
whether under § 1226(a) or § 1226(c)—are informed that they “may request a review of
this custody determination by an [I]mmigration [J]udge” and must check the boxes stating
that they acknowledge receipt of this notification and that they either request or do not
request “an [I]mmigration [J]udge review of this custody determination.” Importantly,
nothing on the current version of Form I-286 indicates to an alien that his or her detention
is mandatory under § 1226(c), as opposed to discretionary under § 1226(a); in this regard,
there is nothing differentiating an alien’s rights based on his or her status or what type of
hearing is permitted, i.e., a Joseph hearing or a bond hearing. These distinctions are
important because aliens detained under § 1226(c) are subject to mandatory detention and
not accorded a bond hearing; whereas, aliens detained under § 1226(a) are subject to
discretionary detention and are entitled to a bond hearing to determine whether they may
be released. 8 U.S.C. §§ 1226(a), 1226(c); Diop v. ICE/Homeland Sec., 656 F.3d 221, 230,
232 (3d Cir. 2011).
5

not 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.”
B. Joseph Hearings
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, is

5

Following this Court’s decision in Gayle v. Johnson (Gayle II), 81 F. Supp. 3d 371
(D.N.J. 2015), appeal dismissed (Oct. 19, 2015), vacated and remanded sub nom. Gayle v.
Warden Monmouth Cnty. Corr. Inst., 838 F.3d 297 (3d Cir. 2016), ICE began including an
addendum with Form I-286. See Simao Decl. at ¶ 4, Ex. B. The addendum delineates
whether an alien is being detained under § 1226(a) (discretionary detention) or § 1226(c)
(mandatory detention), and therefore, whether he or she may request an individualized
bond hearing or a Joseph hearing. The Court has not yet had an occasion to review the
accompanying addendum, but Plaintiffs also challenge the constitutionality of Form I-286
with its addendum.
6

properly 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) (“Nothing in this paragraph shall be construed as prohibiting an alien
from seeking redetermination of custody conditions . . . .”). 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 the

6

It is in this way that Joseph hearings differ from bond hearings: the operative
question in a Joseph hearing is whether the alien is properly included under § 1226(c)—
whereas the outcome of a bond hearing turns on whether the criminal defendant is a flight
risk or a danger to the community. 8 U.S.C. §§ 1226(a), 1226(c); Diop, 656 F.3d at 230,
232.
The two hearings are procedurally distinct and involve different evidentiary
burdens; indeed, only if an alien, who is initially mandatorily detained pursuant to §
1226(c), is successful at a Joseph hearing does he or she then proceed to receive an
individualized bond determination. See Demore v. Kim, 538 U.S. 510, 532 (2003)
(Kennedy, J., concurring).
7

The Government notes that the Third Circuit has equated the “‘reason to believe’
language to a probable cause standard,” at least in the context of the Fourth Amendment.
United States v. Vasquez-Algarin, 821 F.3d 467, 480 (3d Cir. 2016) (“[L]aw enforcement
armed with only an arrest warrant may not force entry into a home based on anything less
than probable cause to believe an arrestee resides at and is then present within the
7

alien 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 (“[A] lawful permanent resident will not be considered
‘properly included’ in a mandatory detention category when an Immigration Judge . . . is
convinced that the Service is substantially unlikely to establish at the merits hearing, or on
appeal, the charge or charges that would otherwise subject the alien to mandatory
detention”); id. at 807 (“In requiring that the Immigration Judge be convinced that the
Service is substantially unlikely to prevail on its charge, when making this determination
before the resolution of the underlying case, we provide both significant weight to the
Service’s ‘reason to believe’ that led to the charge and genuine life to the regulation that
allows for an Immigration Judge’s reexamination of this issue”). 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.
C. Factual Background 8

residence[;] . . . therefore[,] . . . reasonable belief . . . ‘embodies the same standard of
reasonableness inherent in probable cause.’” (citations omitted)).
8

The following facts, except where noted, are undisputed and taken from the
underlying cases Gayle v. Napolitano, No. 12-2806, 2013 WL 1090993 (D.N.J. Mar. 15,
2013); Francois v. Napolitano, No. 12-2806, 2013 WL 4510004 (D.N.J. Aug. 23, 2013);
Gayle v. Johnson (Gayle I), 4 F. Supp. 3d 692 (D.N.J. 2014), vacated and remanded sub
nom. Gayle v. Warden Monmouth Cnty. Corr. Inst., 838 F.3d 297 (3d Cir. 2016); Gayle II,
81 F. Supp. 3d 371; and Gayle III, 838 F.3d 297.
8

i. Garfield Gayle
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. Thereafter, in March 2007, Gayle
pleaded guilty to a misdemeanor marijuana possession charge for which he was sentenced
to ten days in jail.
Approximately five years later, on March 24, 2012, a team of ICE officers arrested
Gayle at his home in Brooklyn, New York. ICE charged Gayle with removal on the
grounds that his 1995 conviction rendered him deportable, and also found him subject to
mandatory detention, under § 1226(c), based on his March 2007 offense. 9
Also, on that date, Gayle received a Form I-286 Notice of Initial Custody
Determination with the First Box checked off, and not the Second Box. Because the form
indicated that he “may request” an Immigration Judge to re-determine ICE’s custody
decision, Gayle checked the box located on the bottom of the form requesting such a
custody redetermination. ECF No. 102-5 (Gayle I-286). However, Gayle never received
a Joseph hearing.
On September 20, 2012, Gayle sought to terminate his removal proceedings, and
on October 23, 2012, the Immigration Judge denied Gayle’s request. Gayle was then

9

Gayle’s 1995 conviction did not subject him to mandatory detention because he
was released from custody prior to the effective date of § 1226(c).
9

scheduled for a master calendar hearing on October 31, 2012, at which time the
Immigration Judge would have ruled on his eligibility for cancellation of removal.
However, due to Hurricane Sandy, this hearing was postponed and rescheduled for January
30, 2013.
On November 15, 2012, Gayle filed an Amended Petition for Writ of Habeas
Corpus asserting that ICE lacks the statutory authority to detain him under 8 U.S.C. §
1226(c), because it failed to take him into custody when he was released from criminal
incarceration in 2007, but instead waited five years from the date of his 2007 incarceration
to arrest him.

In that regard, Gayle argued that the phrase “when . . . released”

unambiguously requires immediacy, and that because ICE failed to take him into custody
immediately upon his release in 2007, he was not subject to mandatory detention; instead,
Gayle argued that he was entitled to a bond hearing before an Immigration Judge, as
required by § 1226(a). ECF No. 12 at ¶¶ 74-75. On March 15, 2013, this Court granted
Gayle’s individual habeas claim, finding him eligible for a bond hearing. An Immigration
Judge conducted a bond hearing on March 22, 2013, and Gayle was subsequently released
on bond, ECF No. 35, after having been mandatorily detained for approximately twelve
months at the Monmouth County Correctional Facility in Freehold, New Jersey, and never
having received a Joseph hearing, which he had requested.
ii. Neville Sukhu
Sukhu is a Guyanese national and a lawful permanent resident of the United States,
where he has lived for over 24 years. In 1997, Sukhu pleaded guilty to assault in the second
degree under New York State Penal Law § 120.05(6). He was sentenced and served
approximately 90 days of jail time, after which he was discharged from parole in September
10

2002. In or around 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. A few months later, on August 15, 2011, a team of 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.
Also, on that same date, Sukhu received a Form I-286 Notice of Initial Custody
Determination. ICE determined that Sukhu was subject to mandatory detention under §
1226(c) based on two different convictions: the 1997 and 2011 convictions, for crimes of
moral turpitude. Similar to Gayle, Sukhu received a Form I-286 from ICE notifying him
that he “shall be: detained in the custody of the Department of Homeland Security.” Along
with that notification, ICE checked the First Box on the Form, which like Gayle’s Form,
indicated that he “may request” that an Immigration Judge re-determine ICE’s custody
decision. Sukhu also checked the box located on the bottom portion of the form indicating
that he requested a custody redetermination hearing by an Immigration Judge. ECF No.
102-14 (Sukhu I-286).
Sukhu was subject to mandatory detention under § 1226(c) for nearly 21 months at
the Monmouth County Correctional Facility in Freehold, New Jersey. At no point during
his detention was Sukhu provided with a Joseph hearing to challenge his mandatory
detention.
On November 11, 2011, Sukhu, represented by counsel, attended a removal
proceeding before an Immigration Judge. On December 27, 2011, Sukhu sought to
terminate his deportation on the basis that his assault conviction was not a crime of moral
11

turpitude (“CIMT”), and thus, he was not deportable. Sukhu reasoned that the BIA
decision, Matter of Silva–Trevino, 24 I. & N. Dec. 687 (A.G. 2008), vacated, 26 I. & N.
Dec. 550 (A.G. 2015), which would categorize Sukhu’s prior assault conviction as a CIMT,
should not be followed. On March 7, 2012, the Immigration Judge rejected Sukhu’s
argument and found that Sukhu’s assault conviction was a CIMT, pursuant to Silva–
Trevino. 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 Immigration Judge 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, effectively returning
Sukhu to his lawful permanent resident status. The Government did not appeal the
Immigration Judge’s ruling.

Importantly, at no point during his twenty-one month

detention did Sukhu receive a Joseph hearing.
iii. Sheldon Francois
Francois is a citizen of Trinidad and Tobago and a lawful permanent resident of the
United States. Francois has lived in the United States for over 24 years, and has had several
misdemeanor convictions. 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. After satisfying all conditions of parole, Francois was discharged in May 2011. 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, was sentenced to time served
of approximately one day, and had his driver license suspended for six months. In March
12

2012, Francois was again convicted for petit larceny under the same statute as his 2011
conviction, and ultimately sentenced to 30 days of incarceration.
On August 6, 2012, ICE officers arrested Francois. ICE charged Francois with
removal on the grounds that his (1) 2011 drug possession conviction, and/or (2) 2011 and
2012 petit larceny convictions, each rendered him removable, and subject to mandatory
detention. The Form I-286 Francois received indicated that Francois was being detained
and the Second Box was checked off—he could not request review of his detention by an
Immigration Judge. Nevertheless, Francois checked the box on the bottom of the form
requesting a Joseph hearing. ECF No. 31-27 (Francois Decl.).
Following his arrest by ICE, Francois filed an application for cancellation of
removal pursuant to 8 U.S.C. § 1229b(a) (the “Application”), seeking a form of
discretionary relief from removal available to lawful permanent residents who meet certain
criteria. There is no dispute that Francois was eligible for such discretionary relief.
Additionally, 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.
The Immigration Judge held two hearings on Francois’ Application, on March 18,
2013, and July 12, 2013. At the July hearing, the Immigration Judge orally ruled on
Francois’ Application, granting the Application, cancelling Francois’ removal, and
terminating the removal proceedings. The Immigration Judge further indicated that a
written decision would be forthcoming, four to six weeks following the oral ruling, after
which time the Government would have 30 days to decide whether to appeal the
Immigration Judge’s ruling to the BIA.

Notwithstanding the Immigration Judge’s
13

announcement, Francois remained mandatorily detained. On August 23, 2013, this Court
granted Francois’ individual habeas claim for relief and ordered that he be given a bond
hearing pursuant to Diop, 656 F.3d 221. On August 30, 2013, a week after the issuance of
that Order and after twelve months of detention, Francois was released on bond. Francois’
removal was terminated on September 26, 2013, and the deadline for the Government to
appeal that determination expired on October 28, 2013. See 8 C.F.R. 1003.38(b).
D. Procedural History
The first petition for habeas corpus was filed by Gayle, individually, in May 2012,
urging that he be given a bond hearing because ICE violated the dictates of § 1226(c) by
not detaining him immediately after he was released from state custody. In November
2012, a First Amended Petition was filed. The First Amended Petition added Sukhu’s and
Francois’ individual claims for habeas relief to the petition previously filed by Gayle, ECF
No. 12 ¶¶ 73-83, as well as claims brought on behalf of a putative class, seeking declaratory
and injunctive relief, ECF No. 12 ¶¶ 65-72. 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. See ECF No. 13. Defendants moved to dismiss
Plaintiffs’ amended petition, see ECF No. 21, and opposed Plaintiffs’ motion for class
certification, see ECF No. 22.
On May 10, 2013, this Court heard oral argument on these motions; the Court
dismissed Gayle’s and Sukhu’s individual habeas claims as moot, 10 but otherwise denied

10

Francois’ individual claim for habeas relief, however, was not dismissed as moot.
Rather, Francois was directed to submit supplemental briefing regarding his individual
claim for habeas relief.
14

Defendants’ motion to dismiss and denied without prejudice Plaintiffs’ motion for class
certification. This Court instructed Plaintiffs to file an amended habeas petition and class
action complaint, along with a supplemental brief explaining why Francois was entitled to
individual relief on his Joseph claims, which Plaintiffs did on May 17, 2013. Further, the
Court ordered the parties to engage in class-related discovery, paying particular attention
to the numerosity of § 1226(c) detainees in the District of New Jersey and the commonality
of issues of law and fact relating to Defendants’ process for determining § 1226(c)
mandatory detention.
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, 11
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 so-called “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 aliens do not receive
adequate notice of their right to a Joseph hearing through Form I-286, (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.

11

Francois was released three weeks later, on August 30, 2013.
15

On February 21, 2014, after the conclusion of discovery, Plaintiffs sought, again,
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, ECF No. 13. In their second motion
to certify, Plaintiffs relied on Federal Rule of Civil Procedure 23(b)(2), which permits
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).
On August 15, 2013, the Government moved to dismiss Plaintiffs’ Third Amended
Complaint. Thereafter, on March 14, 2014, this Court 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 I, 4 F. Supp. 3d at 706–12. Thus, this Court dismissed Plaintiffs’
petition “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. The 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 Court denied the motion to dismiss in
all other respects, finding 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.
16

The Court also terminated Plaintiffs’ pending motion for class certification and directed
Plaintiffs to “re-file that motion with a proposed class limited to those individuals who are
entitled to a Joseph hearing consistent with this Opinion.” Id. at 722.
Based on the Court’s March 14, 2014 Opinion, Plaintiffs filed their third motion to
certify a class on May 12, 2014, redefining the class as “all individuals who are or will be
detained within the State of New Jersey pursuant to . . . 8 U.S.C. § 1226(c), and who have
a substantial challenge to ‘threshold deportability’ or ‘inadmissibility’ on one of the
statutory grounds that trigger mandatory detention.” Third Mot. to Certify, ECF No. 96.
Additionally, the parties also filed cross-motions for summary judgment.
On January 28, 2015, this Court issued an Opinion and Order addressing the
summary judgment and class certification motions. Gayle II, 81 F. Supp. 3d 371. The
Court held that the Named Plaintiffs had standing to sue as to each of their prospective
class claims because (1) they “did not receive notice of their right to a Joseph hearing,” id.
at 384; (2) they “had sufficiently alleged injury” as a result of being subjected to the Joseph
hearing standard, id. at 387; and (3) they did not receive a custody redetermination hearing
that was recorded, id. at 398. As to the merits of Plaintiffs’ claims, the Court entered partial
summary judgment for the Plaintiffs. The Court found that, as a matter of Due Process,
Form I-286 (both the 2007 version and the revised version) provided inadequate notice to
aliens detained under § 1226(c) of the right to a Joseph hearing and that the Government
was required to revise the form. Id. at 385–86. Next, this Court held that the Joseph
hearing procedures violate Due Process for two reasons: (a) the standard at a Joseph
hearing for determining the right to a bond determination was “virtually undefined” and,
coupled with “the individual’s burden under the ‘substantial[ly] unlikely’ standard[, there
17

is] a high risk of an erroneous deprivation of Plaintiffs’ liberty interests,” id. at 395, and
(b) the Government should bear the initial burden at a Joseph hearing to establish by
probable cause that an alien falls under § 1226(c), and, after the Government has made
such a showing, then the burden shifts to the alien to show that the Government is
“substantially unlikely to prevail” in proving the alleged charges. Id. at 395–98. The Court
also held that while it would be preferable to have a Joseph hearing recorded verbatim, it
is not, as a constitutional matter, required. Id. at 402. Lastly, I explained my reasoning for
denying class certification:
[I]f the statutes, regulations or policies at issue are held to be
unconstitutional, such decision would be binding on all of the governmental
agencies and would indeed inure to the benefit of all members of the
proposed class, thus obviating the need for a lawsuit to proceed as a class
action.
Id. at 403.
Thus, having denied the first motion to certify a class 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 my March 14, 2014 Opinion with instructions for Plaintiffs to re-file, see Gayle I, 4
F. Supp. 3d at 721–22, the Court denied Plaintiffs’ class certification motion as moot,
reasoning that certification was “unnecessary” because the rulings on the merits of the
claims meant that “all aliens who are subjected to mandatory detention would benefit from
the injunctive relief and remedies that this Court has imposed.” Gayle II, 81 F. Supp. 3d
at 404.
Both Parties appealed. On September 22, 2016, the Third Circuit vacated and
remanded this Court’s two prior Opinions and Orders of March 14, 2014 and January 28,
18

2015, finding that, absent a certified class, this Court lacked jurisdiction to reach the merits
of Plaintiffs’ Petition, since the individual Plaintiffs’ claims were moot. Gayle III, 838
F.3d at 303-05. In that regard, the Third Circuit reasoned that by the time this Court ruled
on the merits, all three Named Plaintiffs had been released from detention, and therefore,
their individual habeas claims were mooted. Id. However, as the Third Circuit explained,
under U.S. Parole Comm’n v. Geraghty, 445 U.S. 388 (1980), the mootness of Plaintiffs’
claims does not deprive them of standing to assert class claims because they sought class
certification prior to the resolution of their individual claims:
A plaintiff who files a motion to certify a class prior to the expiration of his
individual claims does not lose his “interest in accurate resolution of his
legitimate efforts to serve as class representative,” Lusardi [v. Xerox Corp.],
975 F.2d [964,] 976 [(3d Cir. 1992)], merely because the District Court, as
a technical matter, denies or terminates the motion without actually
deciding it. Rather, his stake “carrie[s] forward for the limited purpose of
arguing a reviewable motion through to completion,” id., and the
certification question remains concrete and fit for judicial resolution, see
Geraghty, 445 U.S. at 402-04.
...
To hold that a plaintiff’s certification claim is extinguished [in this case]
would enfeeble the “flexible character” of the mootness doctrine, [Id.] at
400, and unmoor it from the realities of litigation.
Gayle III, 838 F.3d at 307–08. Based on the Third Circuit’s reasoning, all three Named
Plaintiffs, here, would potentially have standing to pursue class claims should the Court
find certification appropriate. Indeed, all three Plaintiffs were named in the First Amended
Petition, filed in November 2012, and more importantly, at the same time, the Named
Plaintiffs sought to certify a class of all individuals in New Jersey subject to mandatory
detention under § 1226(c). Significantly, when that motion was filed, Gayle, Sukhu and
Francois were still detained, and thus, they had live individual claims. Hence, even after
the Named Plaintiffs’ release from detention, which resolved their habeas claims,
19

Geraghty’s “relation-back” doctrine allows Plaintiffs to continue “forward [as class
representatives] for the limited purpose of arguing a reviewable motion [for certification]
through to completion.” 12 Lusardi, 975 F.2d at 976; see Geraghty, 445 U.S. at 402-04.
In regard to this Court’s previous denial of class certification, the Third Circuit held
[N]ecessity is not a freestanding requirement justifying the denial of class
certification. 13 However, it may be considered to the extent it is relevant to
the enumerated Rule 23 criteria, including “that final injunctive relief or
corresponding declaratory relief [be] appropriate respecting the class as a
whole.” Fed. R. Civ. P. 23(b)(2). That is, there may be circumstances
where class certification is not appropriate because in view of the
12

The Court notes that Francois’ standing only exists as to challenging the
constitutionality of Form I-286, not the Joseph hearing or its associated procedures,
because the Court has already found that Francois failed to sufficiently allege an injury-infact related to the Joseph hearing—he neither challenged his detention by requesting a
Joseph hearing on the basis that he was not properly included under § 1226(c), nor
challenged his deportability. See Gayle I, 4 F. Supp. 3d at 714 n.28, 716 n.30. The parties
did not contest this finding, and therefore, it was ultimately not disturbed by the Third
Circuit in Gayle III.
13

Indeed, requiring “necessity” over and above Rule 23’s enumerated criteria
would create conflict with Shady Grove Orthopedic Assocs., P.A. v. Allstate
Ins. Co., 559 U.S. 393, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010)—in which
the Supreme Court emphasized the primacy of Rule 23’s enumerated
criteria, explaining that the Rule admonishes that “if [Rule 23’s] prescribed
preconditions are satisfied ‘[a] class action may be maintained’ (emphasis
added)—not ‘a class action may be permitted.’ . . . The discretion suggested
by Rule 23’s ‘may’ is discretion residing in the plaintiff,” id. at 399–40, 130
S.Ct. 1431—and Geraghty itself—in which the Court stated that “[Rule 23]
give[s] the proposed class representative the right to have a class certified
if the requirements of the Rule[ ] are met,” 445 U.S. at 403, 100 S.Ct. 1202.
In addition, to the extent necessity would require a showing that a class
action was “superior to other available methods for fairly and efficiently
adjudicating the controversy,” as required under Fed. R. Civ. P. 23(b)(3),
such a requirement would be in tension with the absence of a “superiority”
requirement in Rule 23(b)(2), see Wal–Mart Stores, Inc. v. Dukes, 564 U.S.
338, 362–63, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (observing that a
putative class representative need not show that a Rule 23(b)(2) “class
action is a superior method of adjudicating the dispute” because in 23(b)(2)
cases, “superiority [is] self-evident”).

Gayle III, 838 F.3d at 310 n.14 (citations, alterations, and emphasis original).
20

declaratory or injunctive relief ordered on an individual basis, there would
be no meaningful additional benefit to prospective class members in
ordering classwide relief.
Gayle III, 838 F.3d at 310 (footnote original) (citation omitted). Relevant here, the Third
Circuit noted that “if the prerequisites of Rule 23 are otherwise met, the impending
mootness of individual claims counsels in favor of certification regardless of whether
individual relief would theoretically render classwide relief unnecessary. For in that
situation, class certification may be the only way to provide relief.” Id. at 312 n.17.
On November 14, 2016, the Third Circuit issued its mandate, ECF No. 118, and the
case was reopened in this Court on December 15, 2016, ECF No. 119. Subsequently, the
parties engaged in limited discovery, resulting in the filing of a stipulation as to numerosity
in the context of Rule 23(b) class certification. ECF No. 125-1. The class certification
question is now ripe for determination, and Plaintiffs have renewed their motion to certify
a class of all persons in the District of New Jersey, now and in the future, who are
mandatorily detained pursuant to § 1226(c), “who have a substantial challenge to ‘threshold
deportability’ or ‘inadmissibility’ on one of the statutory grounds that trigger mandatory
detention,” pursuant to Federal Rule of Civil Procedure 23(b)(2). Third Mot. to Certify
(D.Ct. Dkt. No. 96). In order to answer the class certification question, this Court has been
instructed by the Third Circuit to “engage in the ‘rigorous analysis’ of Rule 23 criteria.”
Gayle III, 838 F.3d at 312.
DISCUSSION
I.

Rule 23
Certification of a putative class is proper only if “the trial court is satisfied, after a

rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Wal-Mart
21

Stores, Inc., 564 U.S. at 350–51 (citations omitted). More specifically, to satisfy the four
requirements of Federal Rule of Civil Procedure 23(a),
(1) the class must be “so numerous that joinder of all members is
impracticable” (numerosity); (2) there must be “questions of law or fact
common to the class” (commonality); (3) “the claims or defenses of the
representative parties” must be “typical of the claims or defenses of the
class” (typicality); and (4) the named plaintiffs must “fairly and adequately
protect the interests of the class” (adequacy of representation, or simply
adequacy).
Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 590–91 (3d Cir. 2012) (quoting Fed. R.
Civ. P. 23) (citing In re Cmty. Bank of N. Va., 622 F.3d 275, 291 (3d Cir. 2010)).
Additionally, “a class action must be maintainable under Rule 23(b)(1), (2), or (3).”
City Select Auto Sales Inc. v. BMW Bank of N. Am. Inc., 867 F.3d 434, 438 (3d Cir. 2017).
As the proposed class in this matter seeks injunctive and declaratory relief, the basis for
certification here is Rule 23(b)(2), which permits class actions where “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); accord Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 614 (1997); Sullivan v. DB Investments, Inc., 667 F.3d 273, 287 n.52 (3d Cir. 2011).
Important to the Rule 23(b)(2) analysis,
the relief sought . . . should benefit the entire class, and the putative class
must demonstrate that the interests of the class members are so like those of
the individual representatives that injustice will not result from their being
bound by such judgment in the subsequent application of principles of res
judicata.
Sullivan, 667 F.3d at 317–18 (alterations, quotations, and citations omitted).
“The party seeking certification bears the burden of establishing each element of
Rule 23 by a preponderance of the evidence.” Marcus, 687 F.3d at 591 (citing In re
22

Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 307 (3d Cir. 2008), as amended (Jan.
16, 2009)); Wharton v. Danberg, 854 F.3d 234, 241 (3d Cir. 2017) (citing Wal-Mart Stores,
Inc., 564 U.S. at 350). “In other words, to certify a class the district court must find that
the evidence more likely than not establishes each fact necessary to meet the requirements
of Rule 23.” Hydrogen Peroxide, 552 F.3d at 320 (citation omitted). To determine whether
the Rule 23 requirements are met, “the court must resolve all factual or legal disputes
relevant to class certification, even if they overlap with the merits—including disputes
touching on elements of the cause of action.” Id. at 307. Of course, the Court is mindful
that “denying or granting class certification is often the defining moment in class actions
(for it may sound the ‘death knell’ of the litigation on the part of plaintiffs, or create
unwarranted pressure to settle nonmeritorious claims on the part of defendants).” Newton
v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 162 (3d Cir. 2001), as
amended (Oct. 16, 2001).
Before addressing Rule 23(a) and Rule 23(b)(2), this Court must address the class
definition and class claims as required by Rule 23(c)(1)(B).
A. Rule 23(c)(1)(B) – Class Definition
“Clearly delineating the contours of the class along with the issues, claims, and
defenses to be given class treatment serves several important purposes, such as providing
the parties with clarity and assisting class members in understanding their rights and
making informed opt-out decisions.” Marcus, 687 F.3d at 591–92. Accordingly, because
Plaintiffs have filed more than one motion to certify a class, each with a slightly different
definition (in part, due to this Court’s direction), this Court notes that the class definition
proposed here is as follows: the right of all persons within the District of New Jersey, now
23

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 based on, for example, cancellation of removal or adjustment of status.”
Br. in Supp. of Pl.’s Third Renewed Mot. for Class Certification, at 4. To be clear, the
Named Plaintiffs move to certify a class that challenges the constitutionality of the Joseph
hearing process, namely (1) whether Form I-286 and its accompanying addendum provide
adequate notice to § 1226(c) detainees of their right to a Joseph hearing, (2) whether the
Government should bear the initial burden of making a prima facie showing of
removability or inadmissibility on grounds that trigger mandatory pre-removal detention,
under 8 U.S.C. § 1226(c), and (3) whether a contemporaneous recording of Joseph hearings
is constitutionally required. However, I do not find that the Named Plaintiffs would be
adequate to represent the class members as proposed. Thus, on this motion, I will narrow
the class definition.
To that end, while I find that a class can be certified to challenge the Joseph hearing
procedures under due process, including the burden of proof allocations and the propriety
of maintaining contemporaneous records, see infra, the Named Plaintiffs are not adequate
to represent class members who would oppose the constitutionality of Form I-286. My
conclusion in this regard is based on the substantial differences between the 2007 version
of Form I-286 and the current iteration with the inclusion of an addendum. Indeed, upon
a review of the current Form and the addendum, together, they appear to address the
concerns that Plaintiffs have raised in their Petition. In fact, the language included in the
addendum is extracted from this Court’s decision in Gayle II, albeit that decision has been
vacated. There is no indication on this record that the Government provides some other
24

form to § 1226(c) detainees in New Jersey. Thus, because the Named Plaintiffs received a
substantially different version than the Forms presently being used, Plaintiffs would not be
adequate to represent the interests of class members — who are current and future
detainees.
As the Third Circuit has made clear, the Named Plaintiffs do not have any
individual live claims remaining, and that they only have standing to pursue claims in this
case if this Court finds that a class can be certified under Rule 23. Because I find that the
Named Plaintiffs are not proper class representatives to bring claims regarding the current
Form I-286 and the addendum, I must conclude that the Named Plaintiffs lack standing to
pursue such claims. As a result, Francois shall be dismissed from suit, as he not only lacks
standing to pursue challenges involving Form I-286, as explained supra, he also lacks
standing to pursue the remaining class claims concerning the Joseph hearing and its
procedures. 14 See Gayle I, 4 F. Supp. 3d at 714 n.28, 716 n.30.
For the remainder of this Court’s certification analyses, the class definition will be
narrowed in the following respect: 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

14

Indeed, if Plaintiffs intend to continue to pursue claims involving the current Form
I-286 and the addendum, Plaintiffs may move to amend their Petition to add an additional
plaintiff who has been provided with the current version. However, the Court does not
comment on whether such a motion would be successful.
25

recording of the hearing. Importantly, having dismissed Francois for lack of standing, my
analyses will only focus on whether Gayle and Sukhu are adequate representatives for class
members opposing the Joseph hearings and its associated procedures. 15
B. Rule 23(a) Prerequisites
i. Numerosity
Rule 23(a)(1) requires that a “class [be] so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23. This requirement promotes three objectives. “First, it
ensures judicial economy . . . . by freeing federal courts from the [administratively
burdensome and] onerous rule of compulsory joinder . . . [and] by sparing courts the burden
of having to decide numerous, sufficiently similar individual actions seriatim.” Marcus,
687 F.3d at 594 (citations omitted). Second, it “creates greater access to judicial relief,
particularly for those persons with claims that would be uneconomical to litigate
individually.” Id. (citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985)).
Third, it “prevents putative class representatives and their counsel, when joinder can be
easily accomplished, from unnecessarily depriving members of a small class of their right
to a day in court to adjudicate their own claims.” Id. at 594–95 (citation omitted).
Here, the parties stipulated as to numerosity. ECF No. 125-1. The stipulation
provides, “[f]rom December 1, 2015, through December 1, 2016, there were a sufficient
number of individuals detained under 8 U.S.C. § 1226(c) in the District of New Jersey to
satisfy the numerosity requirement of Federal Rule of Civil Procedure 23(a)(1).” Id. at ¶

15

From this point forward in the Opinion, the Court’s references to the Named
Plaintiffs shall only include Gayle and Sukhu.
26

1. Accordingly, this stipulation serves to meet Plaintiffs’ burden with respect to Rule
23(a)(1).
ii. Commonality
Next, Rule 23(a)(2) requires “there [to be] questions of law or fact common to the
class.” Fed. R. Civ. P. 23. This requirement “provides the necessary glue among class
members to make adjudicating the case as a class worthwhile.” Newton, 259 F.3d at 182
(citation omitted). Of note, “Rule 23(a)(2)’s commonality requirement ‘does not require
identical claims or facts among class member[s].’” Marcus, 687 F.3d at 597 (alteration
original) (quoting Chiang v. Veneman, 385 F.3d 256, 265 (3d Cir. 2004), abrog. on other
grounds by Hydrogen Peroxide, 552 F.3d at 318 n.18). Rather, to meet the threshold for
establishing commonality, “even a single common question will do.” Wal-Mart Stores,
Inc., 564 U.S. at 359 (citation, quotation marks, and alterations omitted); In re Schering
Plough Corp. ERISA Litig., 589 F.3d 585, 597 (3d Cir. 2009) (“[t]he commonality
requirement will be satisfied if the named plaintiffs share at least one question of fact or
law with the grievances of the prospective class” (quoting Baby Neal v. Casey, 43 F.3d 48,
56 (3d Cir. 1994) (footnote omitted)). Thus, satisfying the commonality requirement is a
low threshold. Newton, 259 F.3d at 183; In re Sch. Asbestos Litig., 789 F.2d 996, 1010 (3d
Cir. 1986).
Simply put, class members must show only that they “are subject to the same
harm,” Baby Neal, 43 F.3d at 56 (emphasis original) (citation omitted), such that “class
relief is consistent with the need for case-by-case adjudication, especially where [i]t is
unlikely that differences in the factual background of each claim will affect the outcome of
the legal issue,” id at 57 (citation and internal quotations omitted, alteration original);
27

accord Wal-Mart Stores, Inc., 564 U.S. at 350 (“What matters to class certification . . . is .
. . the capacity of a classwide proceeding to generate common answers apt to drive the
resolution of the litigation” (emphasis original, citation and internal quotation marks
omitted)). Often, commonality is present in cases where Plaintiffs request declaratory and
injunctive relief, such as here. In that regard, where the class pursues claims “against a
defendant engag[ed] in a common course of conduct toward them, . . . there is . . . no need
for individualized determinations of the propriety of injunctive relief.” Baby Neal, 43 F.3d
at 57 (emphasis original).
Here, Plaintiffs argue that the proposed class members have “common
contentions,” that is, the current Joseph hearing process, i.e., the allocation of the burden
of proof and lack of a contemporaneous record, is unconstitutional pursuant to Mathews v.
Eldridge, 424 U.S. 319 (1976). 16 Plaintiffs further argue that the common contentions can
be resolved with one stroke from the Court. See Wal-Mart Stores, Inc., 564 U.S. at 350
(“[The proposed class members’] claims must depend upon a common contention—for
example, the assertion of discriminatory bias on the part of the same supervisor. That
common contention, moreover, must be of such a nature that it is capable of classwide

16

Under Mathews, the Court set forth a three-pronged balancing test for assessing
whether an administrative procedure comports with Due Process:
First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
Mathews, 424 U.S. at 335 (citation omitted).

28

resolution—which means that determination of its truth or falsity will resolve an issue that
is central to the validity of each one of the claims in one stroke).
More specifically, Plaintiffs aver that the burden (of proving that he or she is not
“properly included” in the mandatory detention category) is improperly placed upon aliens
under Joseph and therefore unconstitutional, subjecting the entire proposed class to the
same harm. To support this contention, Plaintiffs cite Assistant Chief Immigration Judge
Robert Weisel’s testimony: “‘Joseph indicates that the burden is on the [alien], and it’s a
high burden to show that they’re not included in the class of individuals subject to
mandatory detention.’” Br. in Supp. of Pl.’s Third Renewed Mot. for Class Certification,
at 14 (quoting Yaster Decl., ECF No. 93-2, Ex. F at 95:6–9). Thus, every § 1226(c)
detainee in the District of New Jersey, according to Plaintiffs, is subject to the same harm.
Second, Plaintiffs contend that without a contemporaneous record at a Joseph
hearing, any § 1226(c) detainee whose mandatory custody redetermination is reviewed by
an Immigration Judge is deprived of meaningful appellate review.

Plaintiffs argue,

although recording a Joseph hearing would not be difficult or particularly burdensome,
Immigration Judges typically provide no record of their determinations, and the only record
for review is often a simple check mark on Form I-286 or a written order. In this regard,
Plaintiffs reason that the absence of a recording is yet another common issue of fact for all
§ 1226(c) detainees in the District of New Jersey.
In sum, Plaintiffs argue that the commonality requirement is satisfied because all
proposed class members are denied the same Due Process protections by either the
Government’s application of the Joseph standard (i.e., the allegedly improper allocation of
the burden placed on § 1226(c) detainees) or the lack of a contemporaneous record at
29

Joseph hearings. To be clear, Plaintiffs contend that each proposed class member may
have different facts underlying his or her immigration case and some may not prevail in
arguing that they are not “properly included” in a mandatory detention category, but every
proposed class member is subject to the same allegedly unconstitutional Joseph standard
and procedural deficiencies. Therefore, Plaintiffs assert that declaratory and injunctive
relief will resolve the same Due Process issues prevailing across the class. Thus, for more
than one reason, Plaintiffs maintain that the proposed class meets the low threshold set by
the commonality requirement.
In response, the Government contends that Plaintiffs lack any common questions
of law or fact because (1) the Named “Plaintiffs’ circumstances are stale” and they lack
standing, and (2) the Third Circuit has joined other circuits in equating ‘reason to believe’
with ‘probable cause.’ However, the Government’s arguments are prematurely made
because they focus on the merits of Plaintiffs’ claims, rather than the commonality
requirement.
As to the Government’s first contention, the Third Circuit has already addressed
the standing issue raised by the Government. In November 2012, the Named Plaintiffs
moved to certify a class of all individuals who were or would be subject to § 1226(c),
seeking declaratory and injunctive relief. At that time, Gayle and Sukhu were in ICE’s
custody. Thus, as the Third Circuit explained, under Geraghty’s relation-back doctrine,
Plaintiffs’ “successive, substantially similar motions to certify” provide Plaintiffs with a
“stake [that] ‘carrie[s] forward for the limited purpose of arguing a reviewable motion
through to completion,’ and the certification question remains concrete and fit for judicial
resolution.” Gayle III, 838 F.3d at 307–08 (internal citations omitted) (first alteration
30

added, second alteration original). Thus, the mootness of the Named Plaintiffs’ individual
claims is no barrier to certification.
The Government’s argument that “Plaintiffs’ circumstances are stale” is similarly
not persuasive. According to the Government, “[t]ime has passed and the putative class
members are undergoing procedures significantly different from those encountered or
potentially encountered by Plaintiffs.” See Def.’s Opp. to Pl.’s Fourth Mot. for Class
Certification, at 12. To substantiate this assertion, the Government relies on the fact that
the Third Circuit, in a different context, has equated the “reason to believe” standard to a
standard of “probable cause” in Vasquez-Algarin. Id. at 13 (citing Vasquez-Algarin, 821
F.3d at 477). In that regard, the Government argues that pursuant to Vasquez-Algarin, “the
initial burden on the government at custody redetermination hearings may have changed.”
Id. at 13 (emphasis added). But, the Government reasons that without “a record as to how
[I]mmigration [J]udges in the District of New Jersey allocate[ ] the initial burden in Joseph
hearings, Plaintiffs cannot establish that their claims are common with [their proposed
class],” id. at 14. This argument lacks merit.
The Government has not produced any evidence that current detainees are subjected
to any different procedures or burden of proof than those of the Named Plaintiffs when
they were detained. In fact, the Government concedes as much in its briefing by explaining
that it has no way of knowing how New Jersey Immigration Judges have allocated the
initial burden in a Joseph hearing because there are no records from those hearings. See
Def.’s Opp. to Pl.’s Fourth Mot. for Class Certification, at 13-14.
Government’s reliance on Vasquez-Algarin persuasive.

I also do not find the

The Government maintains,

without any factual support, that Vasquez-Algarin altered the landscape of how Joseph
31

hearings are conducted. Without demonstrating the manner in which Joseph hearings have
changed and how the burden of proof is being allocated, Plaintiffs and their proposed class
still share a common question over whether the burden at a Joseph hearing is properly
allocated to the detainee or the Government, which the Named Plaintiffs challenge in their
procedural due process claim. Accordingly, the Court is satisfied that Plaintiffs and their
proposed class meet the commonality requirement under Rule 23(a).
iii. Typicality
The third requirement of Rule 23(a) mandates that “claims or defenses of the
representative parties [be] typical of the claims or defenses of the class.” Fed. R. Civ. P.
23.

Like the commonality requirement, the typicality requirement, “serve[s] as [a]

guidepost[ ] for determining whether . . . a class action is economical and whether the
named plaintiff’s claim and the class claims are so interrelated that the interests of the class
members will be fairly and adequately protected in their absence.” Gen. Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 157 n.13 (1982).

“Typicality, however, derives its independent

legal significance from its ability to ‘screen out class actions in which the legal or factual
position of the representatives is markedly different from that of other members of the class
even though common issues of law or fact are present.’” Marcus, 687 F.3d at 598 (citation
omitted). In this way, “typicality acts as a bar to class certification only when ‘the legal
theories of the named representatives potentially conflict with those of the absentees.’”
Grubb v. Green Tree Servicing, LLC, No. CV 13-07421, 2017 WL 3191521, at *20 (D.N.J.
July 27, 2017) (quoting Georgine v. Amchem Prods., 83 F.3d 610, 631 (3d Cir. 1996), aff’d
sub nom., Amchem Prods., v. Windsor, 521 U.S. 591 (1997)).

32

In order to determine whether the typicality requirement is met, the court must
“consider the attributes of the plaintiff, the class as a whole, and the similarity between the
plaintiff and the class.” Marcus, 687 F.3d at 598 (citation omitted). In so doing, the court
assesses three concerns:
(1) the claims of the class representative must be generally the same as those of
the class in terms of both (a) the legal theory advanced and (b) the factual
circumstances underlying that theory;
(2) the class representative must not be subject to a defense that is both
inapplicable to many members of the class and likely to become a major
focus of the litigation; and
(3) the interests and incentives of the representative must be sufficiently aligned
with those of the class
Schering Plough, 589 F.3d at 599 (footnote omitted). Accordingly, even if there are factual
differences, so long as “the claims of the named plaintiffs and putative class members . . .
arise[ ] from the same practice or course of conduct” by the defendant, and there is a “strong
similarity of legal theories,” typicality is established. Newton, 259 F.3d at 183–84 (internal
citations, quotations, and footnote omitted).
Here, Named Plaintiffs and their proposed class have the same legal theories, based
on Due Process, regarding the constitutionality of Joseph hearings, i.e., the burden of proof
and lack of a contemporaneous record. Indeed, it is of no moment that Named Plaintiffs
and their proposed class may have different challenges to removability or inadmissibility
due to their personal circumstances. So long as Plaintiffs and their class raise the same
course of Government conduct that they allege deprives them of Due Process, typicality is
present. And, in that respect, Named Plaintiffs oppose the immigration procedures used by
the Government to mandatorily detain aliens, including the application of Joseph, which
give rise to the claims of the class members. See Marcus, 687 F.3d at 598 (“If a plaintiff’s
claim arises from the same event, practice or course of conduct that gives rises to the claims
33

of the class members, factual differences will not render that claim atypical if it is based
on the same legal theory as the claims of the class” (citation omitted)); Baby Neal, 43 F.3d
at 58 (“[E]ven relatively pronounced factual differences will generally not preclude a
finding of typicality where there is a strong similarity of legal theories” (citation omitted));
id. at 63 (“[A] claim framed as a violative practice can support a class action embracing a
variety of injuries so long as those injuries can all be linked to the practice”). In this regard,
typicality is present because the Named Plaintiffs’ legal theory as class representatives is
the same as the class members because they challenge the same governmental practice.
See Newton, 259 F.3d at 184.
Furthermore, Plaintiffs and their proposed class seek only declaratory and
injunctive relief, and thus, there are no individual claims. As such, “[b]ecause there are no
individual claims . . . , the differences among the plaintiffs do not affect the central claim
that [the Government] violates a variety of the [alien]s’ (putative class members’)
constitutional and statutory rights by [the application of Joseph and its related
procedures].” Baby Neal, 43 F.3d at 63. “Indeed, because this suit seeks only declaratory
and injunctive relief, the named plaintiffs are simply not asserting any claims that are not
also applicable to the absentees.” Id. Hence, “[t]here is no danger here that the named
plaintiffs have unique interests that might motivate them to litigate against or settle with
the defendants in a way that prejudices the absentees. Id.; Weiss v. York Hosp., 745 F.2d
786, 808 (3d Cir. 1984) (“[I]ndividual interest in pursuing litigation where the relief sought
is primarily injunctive will be minimal” (citation omitted)).
Nevertheless, the Government argues that typicality is lacking.

First, the

Government contends that the Named Plaintiffs’ removal proceedings involved only
34

deportability, but that many class members’ removal proceedings involve inadmissibility.
And, second, the Government argues that Plaintiffs were lawful permanent residents, while
many of their proposed class members are illegally present or present based on some other
type of lawful admission. Neither argument is persuasive.
Indeed, detainees who seek to remain in the United States are required to proffer
different types of proof depending on whether he/she is charged with inadmissibility, see
8 U.S.C. § 1229a(c)(2), or removability, see 8 U.S.C. § 1229a(c)(3). But, regardless of the
types of evidence those detainees must present at the final removal proceedings, all class
members, similar to the Named Plaintiffs, are subject to the same Joseph standard being
challenged at the initial stage, because they are detained under § 1226(c). In fact, the
Government previously argued that it must initially decide that all detainees are deportable
(or inadmissible) in order to detain them under § 1226, even if it later concedes their
deportability. Thus, no matter the difference in an alien’s status, the legal theory against
the Government’s application of Joseph is still identical and typical, and the relief sought
by Plaintiffs and their proposed class would reach all persons detained under § 1226(c).
The Government’s second argument against typicality is similarly unconvincing.
Whether a class member is a lawful permanent resident or not, that fact does not change
his or her interest in the litigation or injury as a class member. Each member of the
prospective class is mandatorily detained under § 1226(c), and therefore labors under the
same disadvantage as did the Named Plaintiffs: all are detained under § 1226(c) and subject
to the standards set forth in Joseph. Thus, no matter the alien’s resident status, the Named
Plaintiffs and the proposed class members are still required to be afforded adequate
procedural safeguards against mandatory detention. In sum, this Court recognizes that
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Plaintiffs and the class they propose to represent have substantially similar claims, with
identical remedies, and therefore do not have conflicting legal theories. See Georgine, 83
F.3d at 631 (explaining that “[t]he typicality requirement . . . preclude[s] certification . . .
where the legal theories of the named plaintiffs potentially conflict with those of the
absentees” (citation omitted)). I find typicality is satisfied.
iv. Adequacy of Representation
Under the last requirement prescribed by Rule 23(a), “the representative parties
[must] fairly and adequately protect the interests of the class.” 17 Indeed, the adequacy
“inquiry has two purposes: ‘to determine [1] that the putative named plaintiff has the ability
and the incentive to represent the claims of the class vigorously, . . . and [2] that there is no
conflict between the individual’s claims and those asserted on behalf of the class.’” Larson
v. AT & T Mobility LLC, 687 F.3d 109, 132 (3d Cir. 2012) (alterations and ellipsis original)
(quoting In re Cmty. Bank of N. Va., 622 F.3d at 291). Generally, the adequacy of class
representation assessment “tend[s] to merge with the [analysis of commonality and
typicality].” Falcon, 457 U.S. at 157 n.13. Similar to the typicality requirement, adequacy
requires “class representative[s] [to] be part of the class and ‘possess the same interest and
suffer the same injury’ as the class members.” Amchem Prod., Inc., 521 U.S. at 625–26

17

“Although questions concerning the adequacy of class counsel were traditionally
analyzed under the aegis of the adequate representation requirement of Rule 23(a)(4) . . .
those questions have, since 2003, been governed by Rule 23(g).” Larson v. AT&T Mobility
LLC, 687 F.3d 109, 132 n.36 (3d Cir. 2012) (internal quotations and citations omitted); see
also Grubb, 2017 WL 3191521, at *21 (“Pursuant to Rule 23(g), adequacy of class counsel
is considered separately from the determination of the adequacy of the class
representatives”). Of note, here, “Defendants do not question that Plaintiffs’ proposed
class counsel can serve as adequate representatives for the class.” Def.’s Opp. to Pl.’s
Fourth Mot. for Class Certification, at 18. Indeed, it is beyond any doubt that counsel from
the ACLU and, similarly, Lawrence Lustberg, Esq. of Gibbons P.C.—an expert in civil
rights—are adequate counsel for the proposed class.
36

(citations omitted). Accordingly, “[t]here are clear similarities between the components of
the typicality inquiry relating to the absence of unique defenses and alignment of interests,
and . . . the adequacy inquiry that focuses on possible conflicts of interest.” Schering
Plough, 589 F.3d at 602. Thus, “[b]ecause of the similarity of [the typicality and adequacy]
inquiries, certain questions—like whether a unique defense should defeat class
certification—are relevant under both.” Id. (first alteration added, second alteration
original) (internal citation omitted).
Here, Plaintiffs argue they can adequately represent the class because their injury
is identical to the injuries sustained by the proposed class members and because they have
standing to assert the class members’ claims. Furthermore, Plaintiffs assert that this Court,
in its findings in Gayle I and Gayle II, has already determined that the Named Plaintiffs
were appropriate representatives for the claims brought on behalf of the proposed class.
Specifically, Plaintiffs argue that because they were detained without bond despite having
substantial challenges to their final deportability, they, therefore, are adequate class
representatives. To bolster their argument, Plaintiffs point to the holding in Gayle III,
where the Third Circuit held that the Named Plaintiffs had standing to pursue class
certification.
Conversely, the Government contends that the Named Plaintiffs are not adequate
representatives of the class for two reasons. First, the Government argues that Plaintiffs
lack the interest and incentive to challenge the Joseph hearing procedures applicable to
non-lawful permanent residents, since the Named Plaintiffs were all lawful permanent
residents. The Government reasons that deportable lawful permanent residents “have
interests that conflict with those who have shorter-term, lesser ties to the United States.”
37

Def.’s Opp. to Pl.’s Fourth Mot. for Class Certification, at 20. As such, according to the
Government, the Named Plaintiffs are entitled to greater Due Process protections than the
proposed class members that are not lawful permanent residents. And so, the Government
argues, the Named Plaintiffs are inadequate class representatives because their interests
conflict with those of the class members who are not lawful permanent residents due to the
higher level of Due Process to which Plaintiffs are entitled. In that connection, the
Government contends that the differing degrees of protection under Due Process alter the
way the Mathews balancing test is applied.
Next, the Government contends that Plaintiffs “have shown no real interest in the
protections offered by Joseph hearings” because “their own individual claims have become
moot” and the Named Plaintiffs failed “to pursue [Joseph] hearings in their own cases” and
therefore, according to the Government, Plaintiffs are inadequate class representatives.
Def.’s Opp. to Pl.’s Fourth Mot. for Class Certification, at 22. The Government argues
that since Plaintiffs’ claims are now moot, Plaintiffs’ injuries are the same as “the public
at large.” In addition, the Government argues that this Court incorrectly held that Plaintiffs
had standing because the Court erroneously relied on cases involving the denial of a
procedure. Def.’s Opp. to Pl.’s Fourth Mot. for Class Certification, at 22–23.
The Government’s arguments fail because, as Plaintiffs argue, the challenges that
the Named Plaintiffs and their proposed class raise do not depend upon an alien’s status.
The issue facing Plaintiffs and the class members—regardless of their status—is that all
individuals detained under § 1226(c) are allegedly deprived of Due Process and they
challenge the same deprivation in this case. The Government, therefore, erroneously
argues that due to differences in immigration status, the application of the Mathews
38

balancing test varies.

Specifically, the Mathews balancing test assesses whether an

administrative procedure comports with Due Process. See Mathews, 424 U.S. at 335.
Under Mathews, the Court must engage in a three-pronged balancing test for assessing
whether an administrative procedure comports with Due Process:
First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
Mathews, 424 U.S. at 335 (citation omitted). Here, Plaintiffs and the proposed class
members — as § 1226(c) detainees — all challenge the same procedure, i.e., the Joseph
hearing, claiming that the Government has infringed upon their private liberty interest of
remaining free from detention. In other words, the procedure under Joseph for the Named
Plaintiffs and the proposed class members is the same, regardless of an alien’s immigration
status. Thus, the Matthews test would be applied by balancing the alien’s liberty interest
and the Government’s interest in order to determine whether Joseph hearings comport with
Due Process. In weighing these interests, no part of the Mathews test turns on either an
alien’s status (as a lawful permanent resident or a non-lawful permanent resident) or the
Government’s grounds for removal (deportability or inadmissibility).
Finally, the Government contends that adequacy is lacking because Plaintiffs (1)
have moot claims, (2) lack standing, (3) lack an interest in the protections offered by Joseph
hearings, and (4) failed to establish a factual record in their own proceedings. I disagree.
First, the mootness of Plaintiffs’ claims has been addressed previously in this Opinion.
Like the commonality and typicality prongs, the lack of live individual habeas claims by
the Named Plaintiffs does not render them inadequate class representatives; rather, as this
39

Court has already determined, there is no conflict between the Named Plaintiffs and their
proposed class members, and, more importantly, the Named Plaintiffs, as explained above,
have vigorously prosecuted their claims throughout this litigation. Second, Plaintiffs’
standing in the class certification context has already been discussed by the Third Circuit.
See Gayle III, 83 F.3d at 305–08. Third, interestingly, the Government previously insisted
that Plaintiffs had obtained Joseph hearings, but later abandoned its position, Gayle II, 81
F. Supp. 3d at 386 n.18; so, Plaintiffs do have an interest in Joseph’s protections. Indeed,
the very fact that this litigation is ongoing and that Plaintiffs are still pursuing their claims
after more than four and a half years is evidence of Plaintiffs’ interest. Beyond asserting
that Plaintiffs lack an interest in pursuing their Joseph related claims, the Government does
not provide any evidence or indication that the Named Plaintiffs actually lack interest.
Based on this record, there is no indication that Plaintiffs chose to forgo their
redetermination hearings because they simply lacked interest. To the contrary, all three
named Plaintiffs requested Joseph hearings because they had substantial claims to relief,
but yet they were never provided with such a hearing. As such, I reject the Government’s
argument in this context and I find that adequacy of representation is satisfied.
In sum, this Court is satisfied for all of the above reasons that Plaintiffs have met
their burden of establishing by a preponderance of the evidence each of the prerequisites
of Rule 23(a). Next, because this matter seeks injunctive and declaratory relief, this Court
will consider whether it is maintainable under Rule 23(b)(2). See Amchem Prods., Inc.,
521 U.S. at 614.
C. Rule 23(b)(2)

40

Beyond meeting the Rule 23(a) requirements, Plaintiffs must also satisfy one of the
Rule 23(b) requirements. Baby Neal, 43 F.3d at 58; Fed. R. Civ. P. 23. Relevant to this
matter is Rule 23(b)(2), which requires “the party opposing the class [to have] 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. Accordingly, “[t]he key to the (b)(2) class is ‘the indivisible nature of the
injunctive or declaratory remedy warranted—the notion that the conduct is such that it can
be enjoined or declared unlawful only as to all of the class members or as to none of them.’”
Wal-Mart Stores, Inc., 564 U.S. at 360 (quoting Richard A. Nagareda, Class Certification
in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)); accord Sullivan, 667
F.3d at 317–18. To be clear, “Rule 23(b)(2) applies only when a single injunction or
declaratory judgment would provide relief to each member of the class.” Id. If each
member of the class were entitled to different injunctive or declaratory relief, Rule 23(b)(2)
would not apply. Id. Likewise, Rule 23(b)(2) is not a basis for class certification “when
each class member would be entitled to an individualized award of monetary damages.”
Id. at 361.
“The general applicability requirement of (b)(2) also aims to prevent prejudice to
absentees by mandating that the putative class ‘demonstrate that the interests of the class
members are so like those of the individual representatives that injustice will not result
from their being bound by such judgment.’” Baby Neal, 43 F.3d at 59 (quoting Hassine v.
Jeffes, 846 F.2d 169, 179 (3d Cir. 1988)). However, injunctive relief, “seeking to define
the relationship between the defendant and the ‘world at large,’ will usually satisfy this

41

requirement.” Id. Notably, “this requirement is almost automatically satisfied in actions
primarily seeking injunctive relief.” Id. at 58 (citing Weiss, 745 F.2d at 811).
Here, Plaintiffs argue that the Government policies and practices challenged by
Plaintiffs are generally applicable to all class members as detainees under § 1226(c). As
relief, Plaintiffs seek an Order from this Court declaring that the Government’s current
process for determining that a noncitizen is subject to § 1226(c) mandatory detention is
unlawful, and to enjoin the Government to provide due process to mandatorily detained
individuals in accordance with the governing statute and Constitution. In that regard,
Plaintiffs argue that the Government has acted or refused to act on grounds generally
applicable to all class members, and thus, the relief sought is injunctive and declaratory in
nature, which will inure to the class as a whole.
In contrast, the Government argues that the varying immigration statuses and types
of removal proceedings that § 1226(c) detainees may face, indicate the Government actions
are not generally applicable to the class as a whole. To make its point, the Government
contends that § 1226(c) detainees may make four different challenges before an
Immigration Judge at a Joseph hearing:
(1)
(2)
(3)

(4)

“whether the alien is actually the individual who was convicted of
the crime triggering mandatory detention;”
“whether a conviction occurred;”
“whether that conviction remains valid for immigration purposes,
following an expungement or adjustment to the term of
imprisonment sentenced; and”
“whether the criminal conviction is for a type of offense that triggers
a ground of deportability or inadmissibility.”

Def.’s Opp. to Pl.’s Fourth Mot. for Class Certification, at 25 (citing Demore, 538 U.S. 514
n.3 (internal citation omitted)). The Government argues that each different challenge is
important under the Mathews balancing test, because Mathews “calls for a fact-specific
42

inquiry rather than a one-sized-fits-all solution.” Id. Thus, according to the Government,
because of the differences in potential challenges at a Joseph hearing and without an
opportunity for class members to opt-out, Plaintiffs have different interests, which must be
addressed individually. The Government’s arguments are not persuasive.
Regardless of how Plaintiffs and the proposed class members could challenge their
deportation in a Joseph hearing, they are all subject to the same allegedly unconstitutional
governmental policies and practices which they challenge, i.e., the improper allocation of
the burden of proof and lack of contemporaneous record. And, because Plaintiffs seek
injunctive and declaratory relief to remedy those alleged violations, they would similarly
benefit all class members. Hence, Plaintiffs have satisfied the Rule 23(b)(2) requirement.
Indeed, civil rights actions, such as the instant matter, challenging a governmental policy
targeting a class of people, “are prime examples of what [Rule 23](b)(2) is meant to
capture.” Wal-Mart Stores, Inc., 564 U.S. at 361 (citation and quotation omitted); see also
Hernandez v. Lynch, No. 16-620, 2016 WL 7116611, at *19 (C.D. Cal. Nov. 10, 2016)
(granting class certification to a class of § 1226(a) aliens and holding they satisfy Rule
23(b)(2)), aff’d sub nom. Hernandez v. Sessions, No. 16-56829, 2017 WL 4341748 (9th
Cir. Oct. 2, 2017); R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 182 (D.D.C. 2015) (same);
Rivera v. Holder, 307 F.R.D. 539, 551 (W.D. Wash. 2015) (same); Reid v. Donelan, 297
F.R.D. 185, 192 (D. Mass.) (granting class certification to a class of § 1226(c) aliens and
holding they satisfy Rule 23(b)(2)), enforcement granted, 64 F. Supp. 3d 271 (D. Mass.
2014). Thus, Plaintiffs meet the Rule 23(b)(2) requirement.

43

D. 8 U.S.C. § 1252(f)(1) 18
As a “catch-all” argument, the Government contends that “this Court lacks
‘jurisdiction or authority to enjoin or restrain the operation of [8 U.S.C. § 1226]’ on a classwide basis. Def.’s Opp. to Pl.’s Fourth Mot. for Class Certification, at 27 (alterations
original) (citing 8 U.S.C. § 1252(f)(1); Gayle III, 838 F.3d at 305 n.9). Indeed, “Federal
courts, other than the Supreme Court, are deprived of jurisdiction ‘to enjoin or restrain the
operation of [§ 1226(c)] other than with respect to the application of such provisions to an
individual alien.’” Gayle III, 838 F.3d 297, 305 n.9 (alteration original) (quoting 8 U.S.C.
§ 1252(f)(1) (citing Alli v. Decker, 650 F.3d 1007, 1016 (3d Cir. 2011) (holding that §
1252(f)(1) permits classwide declaratory relief))). However, as this Court discussed in
Gayle I, whether “8 U.S.C. § 1252(f)(1) precludes class claims for injunctive relief relating
to federal immigration statutes . . . is an open question in this circuit.” Gayle I, 4 F. Supp.
at 721 (citing Alli, 650 F.3d at 1009, 1013). Thus, in Gayle I, this Court explained that
“Plaintiffs clearly may seek class-wide declaratory relief without running afoul of §
1252(f).” Id. (emphasis added). On this point, the Third Circuit agreed that this Court
could grant declaratory relief, but also held that “the scope of the injunction entered by

18

Section 1252(f)(1) of Title 8 of the U.S. Code provides
In general. Regardless of the nature of the action or claim or of the identity
of the party or parties bringing the action, no court (other than the Supreme
Court) shall have jurisdiction or authority to enjoin or restrain the operation
of the provisions of chapter 4 of title II [8 USCS §§ 1221 et seq.], as
amended by the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, other than with respect to the application of such provisions to
an individual alien against whom proceedings under such chapter have been
initiated.

8 U.S.C. § 1252(f)(1).

44

th[is] Court” is limited. Gayle III, 838 F.3d at 305 n.9. Therefore, the Government’s
argument with respect to 8 U.S.C. § 1252(f)(1) has merit when fashioning an appropriate
remedy in this case, but it does not preclude class certification here.
CONCLUSION
For the above reasons, 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. Finally, Francois is dismissed from this case.

DATED: November 15, 2017

/s/ Freda L. Wolfson
Freda L. Wolfson
U.S. District Judge

45