Lawrence S. Lustberg Jonathan M. Manes GIBBONS P.C. One Gateway Center Newark, NJ 07102 (973) 596-4500
Counsel of Record for the Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

GARFIELD GAYLE, SHELDON FRANCOIS, NEVILLE SUKHU, and all others similarly situated within the State of New Jersey,
Plaintiffs/Petitioners,

v.

No. 3:12-cv-02806-FLW

JANET NAPOLITANO, in her official capacity as Secretary of the Department of Homeland Security; ERIC HOLDER, in his official capacity as Attorney General of the United States; JOHN MORTON, in his official capacity as Director of Immigration and Customs Enforcement; JUAN OSUNA, in his official capacity as Director of the Executive Office of Immigration Review; JOHN TSOUKARIS, in his official capacity as Field Office Dir ector for Enforcement and Removal Operations, Newark Field Office of U.S. Immigration and Customs Enforcement; CHRISTOPHER SHANAHAN, in his official capacity as the Field Office Director for Enforcement and Removal Operations, New York City Field Office of U.S. Immigration and Customs Enforcement; RAY SIMONSE, in his official capacity as the Acting Field Office Director for Enforcement and Removal Operations, New York City Field Office of U.S. Immigration and Customs Enforcement; ROBERT BIGOTT, in his offic ial 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; ROY L. HENDR ICKS, 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; and BRIAN ELWOOD, in his official capacity as Warden of the Monmouth County Correctional Institution,

Defendants/Respondents.

AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF INTRODUCTION
1. This is a class action complaint for d eclaratory and injunctive relief or, in the alternative, a class action habeas, brought on behalf of individuals unlawfully subject to mandatory immigration detention in New Jersey under 8 U.S.C. § 1226(c). Plaintiffs bring suit to challenge the standard and procedures for determining whether an individual in removal proceedings is subject to mandatory detention — that is, detention without possibility of a bond hearing or any other determination of whether detention is justified based on danger or flight risk. Plaintiffs do not seek their release from custody, but rather an order prohibiting the government from mandatorily detaining them without the opportunity for a fair hearing at which an Immigration Judge ascertains whether they have a substantial cha llenge to removal and are therefore eligible for an individualized bond hearing. Further, this initial determination must be governed by appropriate standards of due process, including adequate notice of the availability of such a hearing; placement of th e initial burden of proof on the government to establish prima facie deportability or inadmissibility on a ground that triggers mandatory detention; an opportunity for the detainee to rebut this showing by demonstrating a substantial challenge to removal; and a requirement that a contemporaneous record of such proceedings be made and maintained so that the Immigration Judge’s determination is subject to meaningful review.
2. Named Plaintiffs Garfield Gayle, Sheldon Francois, and Neville Sukhu are currently subject to mandatory detention, even though they have strong claims for relief against deportation that would entitle them to retain their lawful permanent residence in the United States. Mr. Gayle and Mr. Sukhu also seek termination of their removal proceed ings due to the
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government’s failure to meet its burden of proving that they are deportable based on their alleged criminal convictions.
3. Mr. Gayle, Mr. Francois, and Mr. Sukhu are not alone. On any given day, the government detains more than a thousand in dividuals in facilities throughout the District of New Jersey. Hundreds of these individuals are subjected to mandatory detention under 8 U.S.C. § 1226(c), which applies to noncitizens who are “deportable” or “inadmissible” based on certain crimes, includ ing various misdemeanors and minor drug offenses. Even though many of these individuals may ultimately be found to be neither “deportable” nor “inadmissible,” pursuant to the decision of the Board of Immigration Appeals (BIA) in Matter of Joseph, 22 I&N Dec. 799 (BIA 1999), they are automatically subject to mandatory detention whenever the government charges them with a ground of removal designated in the statute, unless they can meet the nearly insurmountable burden of demonstrating to an Immigration Jud ge that the government is “substantially unlikely” to prevail on the charges against them. Moreover, such detention continues until removal proceedings conclude, even if the individual wins his case before an Immigration Judge and the government decides t o appeal to the BIA. As a result, hundreds of individuals — including many longtime, lawful permanent residents — suffer mandatory detention for months, or even years, even though they may have substantial challenges to removability (including claims to U .S. citizenship) or claims to discretionary relief that would ultimately entitle them to retain, or obtain, lawful permanent residence in the United States.
4. The government also subjects individuals to mandatory detention without providing certain basic pro cedural safeguards. In particular, the government provides no notice of the right to request a hearing to contest mandatory detention. Indeed, the form that the government uses to notify a detainee of its determination to subject him to mandatory detenti on
3

is affirmatively misleading, misstating that such detainees “may not request a review of this determination by an Immigration Judge.” Form I-286, Notice of Custody Determination (emphasis added). Still worse, even where a detainee does affirmatively r equest and obtain such a hearing, the government does not require that a contemporaneous record of proceedings be made and maintained, as is necessary to ensure a meaningful right of appeal.
5. Plaintiffs bring this action on their own behalf, and on behalf o f all individuals in New Jersey who are or will be detained pursuant to 8 U.S.C. § 1226(c), to end the government’s sweeping misapplication of the mandatory detention statute and its failure to provide these basic safeguards. As set forth below, the Immig ration and Nationality Act (INA) does not authorize mandatory detention under the Joseph standard, nor does it allow determinations regarding mandatory detention to be based upon a hearing with such inadequate procedures. If it did, the statute would rais e serious constitutional concerns, as due process requires that immigration detention be both reasonably related to its purpose and accompanied by appropriate procedural protections. Plaintiffs therefore bring this action seeking declaratory and injunctiv e relief from their unlawful and unconstitutional imprisonment.
JURISDICTION AND VENUE 6. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question); 28 U.S.C. §§ 2201 -02 (declaratory relief); 28 U.S.C. § 2241 (habeas corpus); and the Due Process Clause of the Fifth Amendment to the U.S. Constitution. 7. Venue is proper in the District of New Jersey pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to these claims occurred in this District. In the alternative, venue is proper in the District pursuant to 28 U.S.C. § 2241(d) because Plaintiffs and proposed class members are detained at facilities within this District.
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PARTIES Plaintiffs-Petitioners
8. Named Plaintiff Garfield Gayle is a 53 - year-old citizen of Jamaica, who has lived in the United States for approximately 30 years and has been a lawful permanent resident since 1989. On March 24, 2012, he was arrested by U.S. Immigration and Custom Enforcement (ICE) agents at his home in Brooklyn, New Yor k and mandatorily detained pursuant to 8 U.S.C. § 1226(c) based on a March 2007 misdemeanor drug conviction for which he was sentenced to ten days in jail. Since that time — a period of nearly eight months — he has been imprisoned at the Monmouth County C orrectional Institution in Freehold, New Jersey without having had a bond hearing, even though he poses no danger or flight risk and even though he has a substantial claim that he is not deportable. His current address is Monmouth County Correctional Institution, 1 Waterworks Road, Freehold, NJ 07728.
9. Named Plaintiff Sheldon Francois is a 31 -year-old citizen of Trinidad and Tobago who has lived in the United States for nearly 20 years as a lawful permanent resident. On August 6, 2012, he was arrested by I CE and mandatorily detained pursuant t o 8 U.S.C. § 1226(c) based on three minor misdemeanor convictions for which he served a total of approximately one month in jail. Since that time — a period now exceeding three months — he has been imprisoned at the H udson County Correctional Facility in Kearny, New Jersey without having had a bond hearing, even though he has a substantial claim that he is not deportable and poses no danger or flight risk. His current address is Hudson County Correctional Facility, 30 35 Hackensack Avenue, Kearny, NJ 07032.
10. Named Plaintiff Neville Sukhu is a 61-year-old citizen of Guyana who has lived in the United States for nearly 20 years as a lawful permanent resident. On August 15, 2011, he
5

was arrested by ICE and mandatorily det ained pursuant to 8 U.S.C. § 1226(c) based on a 1997 conviction for assault in the second degree, for which he served 90 -days imprisonment, and a 2011 misdemeanor for turnstile jumping, for which he was sentenced to time served, or approximately 24 hours i n custody. Since that time — more than 14 months — he has been imprisoned at the Monmouth County Correctional Institution in Freehold, New Jersey without having had a bond hearing, even though he poses no danger or flight risk and has a substantial claim that he is not deportable. His current address is Monmouth County Correctional Institution, 1 Waterworks Road, Freehold, NJ 07728. Defendants-Respondents
11. Defendant Janet Napolitano is the Secretary of Homeland Security and heads the Department of Homeland Security, the arm of the federal government responsible for enforcement of immigration laws. Ms. Napolitano is the ultimate legal custodian of Plaintiffs. Ms. Napolitano is sued in her official capacity. Her address is U.S. Department of Homeland Security, Washington, D.C. 20528.
12. Defendant Eric Holder is the Attorney General of the United States and the head of the Department of Justice, which includes within its purview the Board of Immigration Appeals and the immigration courts as a subunit known as t he Executive Office of Immigration Review. Mr. Holder shares responsibility for the implementation and enforcement of immigration laws along with Defendant Napolitano and Defendant Osuna. Mr. Holder is sued in his official capacity. His address is U.S. Department of Justice, 950 Pennsylvania Avenue, NW, Washington, D.C. 20530-0001.
13. Defendant John Morton is the Director of U.S. Immigration and Customs Enforcement. In this capacity, he has responsibility for the enforcement of the immigration laws.
6

As such, he is a legal custodian of Plaintiffs. Mr. Morton is sued in his official capacity. His

address is U.S. Immigration and Customs Enforcement, 500 12th St., SW, Washington, D.C.

20536.

14. Defendant Juan Osuna is the Director of the Executive Office of Imm igration

Review, and agency within the Department of Justice. Mr. Osuna shares responsibility for the

implementation and enforcement of immigration laws along with Defendant Holder and

Defendant Napolitano. Mr. Osuna is sued in his official capacity.

His address is Executive

Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041.

15. Defendant John Tsoukaris is the Field Office Director for Enforcement and

Removal Operations in the Newark Field Office of U.S. Immigration and Customs Enforcement.

In this capacity, he has responsibility for the following detention facilities in which Plaintiffs are

held: the Delaney Hall Detention Facility in Newark, New Jersey; the Elizabeth Contract

Detention Facility in Elizabeth, New Jersey; and the Essex County Correctional Facility in

Newark, New Jersey. He is authorized to release Plaintiffs and is a legal custodian of Plaintiffs.

Mr. Tsoukaris is sued in his official capacity. His address is ICE Newark Field Office, 614

Frelinghuysen Ave., 3rd Floor, Newark, NJ 07102.

16. Defendant Christopher Shanahan is the Field Office Director for Enforcement and

Removal Operations in the New York City Field Office of U.S. Immigration and Customs

Enforcement. In this capacity, he has responsibility for the following detention facilities in

which Plaintiffs are held: the Bergen County Jail in Hackensack, New Jersey; the Hudson

County Correctional Facility in Kearney, New Jersey; and the Monmouth County Correctional

Institution in Freehold, New Jersey. He is authorized to release Plaintiffs and is a legal custodian

7

of Plaintiffs. Mr. Shanahan is sued in his official capacity. His address is ICE New York Field

Office, 26 Federal Plaza, 9th Floor, Suite 9-110, New York, NY 10278.

17. Defendant Ray Simonse is t he Acting Field Office Director for Enforcement and

Removal Operations in the New York City Field Office of U.S. Immigration and Customs

Enforcement when Defendant Shanahan is out of the office. In this capacity, he has

responsibility for the following de tention facilities in which Plaintiffs are held: the Bergen

County Jail in Hackensack, New Jersey; the Hudson County Correctional Facility in Kearney,

New Jersey; and the Monmouth County Correctional Institution in Freehold, New Jersey. He is

authorized to release Plaintiffs and is a legal custodian of Plaintiffs. Mr. Simonse is sued in his

official capacity. His address is ICE New York Field Office, 26 Federal Plaza, 9th Floor, Suite

9-110, New York, NY 10278.

18. Defendant Robert Bigott is the Warden of th e Bergen County Jail in Hackensack,

New Jersey. He is the legal custodian of persons detained at the Bergen County Jail. Mr. Bigott

is sued in his official capacity. His address is Bergen County Jail, 160 South River Street,

Hackensack, NJ 07601.

19. Defendant Joseph Trabucco is the Director of the Delaney Hall Detention Facility

in Newark, New Jersey. He is the legal custodian of persons detained at the Delaney Hall

Detention Facility. Mr. Trabucco is sued in his official capacity. His address is Delaney Hall

Detention Facility, 451 Doremus Avenue, Newark, NJ 07105.

20. Defendant Orlando Rodriguez is the Warden of the Elizabeth Contract Detention

Facility in Elizabeth, New Jersey. He is the legal custodian of persons detained at the Elizabeth

Contract Detention Facility. Mr. Rodriguez is sued in his official capacity.

His address is

Elizabeth Contract Detention Facility, 625 Evans Street, Elizabeth, NJ 07201.

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21. Defendant Roy L. Hendricks is the Warden of the Essex County Correctional

Facility in Newark, New Jersey. He is the legal custodian of those detained at the Essex County

Correctional Facility. Mr. Hendricks is sued in his official capacity.

His address is Essex

County Correctional Facility, 354 Doremus Avenue, Newark, NJ 07105.

22. Defendant Oscar Aviles is the Director of the Hudson County Correctional

Facility in Kearny, New Jersey. He is the legal custodian of persons detained at the Hudson

County Correctional Facility. Mr. Aviles is sued in his official capacity. His address is Hudson

County Correctional Facility, 30-35 Hackensack Avenue, Kearny, NJ 07032.

23. Defendant Brian Elwood is the Warden of the Monmouth County Correctional

Institution in Freehold, New Jersey. He is the legal custodian of persons detained at the

Monmouth County Correctional Ins titution. Mr. Elwood is sued in his official capacity. His

address is Monmouth County Correctional Institution, 1 Waterworks Road, Freehold, NJ 07728.

FACTUAL ALLEGATIONS REGARDING NAMED PLAINTIFFS -PETITIONERS

Garfield Gayle

24. Plaintiff Garfield Gayle is a Jamaican national and a lawful permanent resident of

the United States. He has lived in the United States for approximately 30 years, most of this time

in New York City. He has a close extended family in the New York area, including two U.S.

citizen daughters, two U.S. citizen grandchildren, and his U.S. citizen ex -wife, with whom he

maintains a close and supportive relationship.

25. Mr. Gayle has a solid work history. In particular, for the past 12 years, he has

worked as a union carpenter with the Amer ican Brotherhood of Carpentry Local 157. He has

worked on various construction projects in the New York area, including the Fulton Street Mall

9

in downtown Brooklyn. He is highly respected for his skills and has a standing offer of

employment from P.P.E.E. Construction, Inc..

26. According to documents filed by ICE, in May 1995, Mr. Gayle was convicted

after a bench trial of criminal possession of a controlled substance with the intent to sell in the

third degree under New York State Penal Law § 220.16. Mr. G ayle served approximately two

years of jail time and was released on parole in June 1997. He satisfied all conditions of parole

and was discharged from parole in May 2001.

27. On March 24, 2012 — nearly 17 years after this conviction — a team of ICE

officers arrested Mr. Gayle at his home in Brooklyn.

28. Mr. Gayle subsequently learned that ICE was charging him with removal on the

grounds that his 1995 conviction rendered him deportable under 8 U.S.C. § 1227(a)(2)(B)(i)

(controlled substance offense) and 8 U. S.C. § 1227(a)(2)(A)(iii) (drug trafficking aggravated

felony). According to documents in his immigration court file, he is subject to mandatory

detention based on a March 2007 misdemeanor controlled substance offense for which he was

sentenced to ten days in jail, and a six- month suspension of his driver’s license.

29. Mr. Gayle has substantial challenges to removal. First, he is seeking termination

of his removal proceedings based upon the government’s failure to meet its burden of proving

the existence of the alleged 1995 conviction. In addition, even assuming that ICE ultimately

proves the conviction, Mr. Gayle disputes that his conviction constitutes an aggravated felony,

and maintains that he is therefore eligible to seek cancellation of removal

— a for m of

immigration relief that would entitle him to retain his lawful permanent resident status. See 8

U.S.C. § 1229b.

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30. Nonetheless, since his arrest by ICE in March 2012 — a period of nearly eight

months — Mr. Gayle has been subjected to mandatory detention under 8 U.S.C. § 1226(c) at the

Monmouth County Correctional Facility in Freehold, New Jersey. This means he has not

received a bond hearing or any individualized determination that he poses a danger or flight risk

that would justify his detention; nor will he receive any such determination until his removal

proceedings conclude.

31. On October 23, 2012, the Immigration Judge denied Mr. Gayle’s motion to

terminate his removal proceedings. Mr. Gayle was 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, the Varick Street Immigration Court was closed for the week

due to Hurricane Sandy. Mr. Gayle’s master calendar hearing has yet to be res cheduled. Should

the Immigration Judge find Mr. Gayle eligible for cancellation, the hearing on the merits of his

cancellation application will likely not be scheduled for an additional several months, during

which time Mr. Gayle will remain in mandatory detention. In addition, even if the Immigration

Judge grants Mr. Gayle cancellation of removal, should the government appeal that decision to

the BIA, Mr. Gayle will remain subject to mandatory detention for an additional period of at

least four to six mo nths. Finally, should the BIA find Mr. Gayle removable and ineligible for

discretionary relief, he will petition for review by the United States Court of Appeals for the

Second Circuit and will likely obtain a stay of removal, which could extend his manda

tory

detention by well over a year.

32. Mr. Gayle poses no flight risk or threat to the community. If released, he would

live with his ex-wife, Antoinette Vanderveer, and will readily comply with all immigration court

11

dates. He is also willing to submit to r easonable conditions of supervision to ensure his appearance. Sheldon Francois
33. Plaintiff Sheldon Francois is a national of Trinidad and Tobago and a lawful permanent resident of the United States. He came to the United States at the age of twelve and has lived here for nearly twenty years, almost entirely in the New York City area. Mr. Francois’s mother, seven younger siblings, and nine -year-old daughter are all U.S. citizens and live in New York, and he has a large extended family of aunts, uncles, and cousins in New York as well.
34. Mr. Francois has worked continuously since high school as a fashion model, fashion designer, actor, and promoter of concerts, nightclubs, and parties. Prior to his detention, he was living with his mother and siblings in Wash ington Heights, and provided significant help with childcare.
35. Mr. Francois has several minor misdemeanor convictions, including, (1) a June 2011 conviction for petit larceny under New York State Penal Law § 155.25, for which he was sentenced to time served of approximately 24 hours; (2) a September 2011 conviction for criminal possession of a controlled substance in the seventh degree under New York State Penal Law § 220.03, for which he was sentenced to time served of approximately 24 hours, and a six month suspension of his driver’s license; and (3) a March 2012 conviction for petit larceny under New York State Penal Law § 155.25, for which he was initially sentenced to a conditional discharge and five days community service, and later resentenced to 30 da ys imprisonment.
36. On August 6, 2012, ICE arrested Mr. Francois and placed him in removal proceedings on the grounds that his 2011 misdemeanor possession offense renders him deportable under 8 U.S.C. § 1227(a)(2)(B)(i) (controlled substance offense), and h is two petit
12

larceny convictions render him deportable under 8 U.S.C. § 1227(a)(2)(A)(ii) (crimes of moral

turpitude). Since that time, a period now exceeding three months, Mr. Francois has been held in

mandatory detention under 8 U.S.C. § 1226(c), at the Hudson County Correctional Facility in

Kearny, New Jersey.

37. Mr. Francois has a substantial challenge to removal. The Immigration Judge

presiding over his case has acknowledged that he is eligible for cancellation of removal — a

form of immigration relief that would entitle him to retain his lawful permanent residence status.

See 8 U.S.C. § 1229b. Mr. Francois also has a strong claim for asylum, withholding of removal,

and relief under the Convention Against Torture.

38. Mr. Francois will be submitting his applications for relief on December 10, 2012.

However, the immigration court likely will not schedule a hearing on his applications until

February at the earliest. Should the government or Mr. Francois appeal the Immigration Judge’s

decision to the BIA, it will likely take the BIA at least four to six months to render decision,

during which time the government will continue to subject Mr. Francois to mandatory detention.

Furthermore, should the BIA find Mr. Francois removable and ineligible for relief,

he will

petition for review by the United States Court of Appeals for the Second Circuit and will likely

obtain a stay of removal, which could extend his mandatory detention by well over a year.

39. Mr. Francois poses no flight risk or threat to the community. If released, he will

reside with his mother and siblings at their family home in Washington Heights, and will readily

comply with all immigration court dates. He is also willing to submit to reasonable conditions of

supervision.

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Neville Sukhu

40. Neville Sukhu is a Guyanese national and a lawful permanent resident of the

United States. He has lived in the United States for nearly twenty years, nearly all of that time in

New York City. His wife of 35 years is a U.S. citizen, and he has four children and te

n

grandchildren, all of whom are U.S. citizens or lawful permanent residents.

41. In June 1997, Mr. Sukhu pleaded guilty to assault in the second degree in

violation of New York State Penal Law § 120.05(6) and was sentenced to 90 -days imprisonment.

Mr. Sukhu satisfied all conditions of parole and was discharged from parole in September 2002.

42. In May, 2011, Mr. Sukhu was placed in criminal custody at Rikers’ Island

following an arrest that ultimately resulted in a guilty plea for disorderly conduct. On Augus t 15,

2011, as he was due to be released, ICE took him into immigration custody, at which point Mr.

Sukhu learned that ICE was charging him with removal on the grounds that his 1997 conviction

was allegedly a crime involving moral turpitude that rendered h im deportable. See 8 U.S.C. §

1227(a)(2)(A)(i). ICE subsequently charged Mr. Sukhu as also removable under 8 U.S.C. §

1227(a)(2)(A)(ii) based on the combination of the 1997 conviction and a 2011 misdemeanor

offense for turnstile jumping under New York St ate Penal Law § 165.15, for which he was

sentenced to time served of approximately 24 hours.

43. Mr. Sukhu has substantial challenges to removal. First, Mr. Sukhu has a

substantial argument for termination of his removal proceedings because his conviction und er

New York State Penal Law § 120.05(6) is not a crime involving moral turpitude. Although the

Immigration Judge denied Mr. Sukhu’s motion to terminate on March 17, 2012, Mr. Sukhu will

appeal that decision if he is ordered removed. Mr. Sukhu will likely ultimately prevail before the

14

Second Circuit, as the Immigration Judge’s denial of termination relied on an erroneous legal premise that has already been rejected by several other circuits.
44. Second, Mr. Sukhu is eligible to seek adjustment of status base d on a relative petition filed by his U.S. citizen daughter, Debra Persaud. U.S. Citizenship and Immigration Services granted the petition in May 2012, and the application for adjustment is pending before the Immigration Judge.
45. Nonetheless, since his arrest by ICE in August 2011 — a period of approximately 14 and a half months — Mr. Sukhu has been subject to mandatory detention under 8 U.S.C. § 1226(c) at the Monmouth County Correctional Institution in Freehold, New Jersey.
46. A hearing on Mr. Sukhu’s adjustm ent application is scheduled for December 19, 2012, more than one month from now. Should the Immigration Judge find that Mr. Sukhu is eligible for adjustment of status, an individual merits hearing on the application would likely be scheduled no earlier t han February 2013, or three months from now. If Mr. Sukhu prevails on his adjustment application, the government will likely appeal to the BIA. It would then take the BIA at least four to six months to render a decision, during which time the government would continue to subject Mr. Sukhu to mandatory detention. Moreover, should the BIA deny Mr. Sukhu relief, he will petition for review to the United States Court of Appeals for the Second Circuit and likely obtain a stay of removal, which could extend hi s mandatory detention well over another year.
47. Mr. Sukhu poses no flight risk or threat to the community. If released, Mr. Sukhu will live with his wife, his daughter, and his daughter’s family and will readily comply with all immigration court dates. He is also willing to submit to reasonable conditions of supervision.
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LEGAL BACKGROUND 48. Title 8 U.S.C. § 1226(a) authorizes the Attorney General to detain noncitizens “pending a decision on whether the alien is to be removed.” Individuals detained under 8 U .S.C. § 1226(a) are entitled to a bond hearing before an Immigration Judge on whether their detention is necessary to prevent flight or danger to the community, or whether they should be released on bail or their own recognizance. In contrast, individuals subject to mandatory detention under 8 U.S.C. § 1226(c) must be detained pending completion of removal proceedings, including appeals, and are not entitled to a bond hearing, even if they pose no danger or flight risk. By its terms, 8 U.S.C. § 1226(c) ap plies to individuals who are “deportable” or “inadmissible” on designated criminal grounds, and who were released from criminal custody for such offenses after October 1998. 49. Pursuant to regulation, individuals whom the government deems subject to mandatory detention can obtain only a limited form of review of their detention: a hearing before an Immigration Judge on whether they are “properly included” under the statute. 8 C.F.R. § 1003.19(h)(2)(ii). In Matter of Joseph, 22 I&N Dec. 799 (BIA 1999), the BIA established the standard for this determination, holding that an individual is “deportable” or “inadmissible” within the meaning of 8 U.S.C. § 1226(c) based solely upon the government having charged removability on a ground triggering the statute, unle ss the individual demonstrates to the Immigration Judge that the government is “substantially unlikely” to prevail on the charges. Id. at 800. Indeed, the government is not even required to produce a certified record of the triggering conviction in order to subject the individual to mandatory detention. See id. at 807. 50. The Joseph standard is nearly impossible to satisfy. As a practical matter, detainees who request and obtain a Joseph hearing can prevail only if they show that the
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government’s charges are frivolous — i.e., that their criminal offense clearly does not render

them “deportable” or “inadmissible.”

51. Moreover, because the custody determination notice that the government provides

to individuals subject to mandatory detention states that no re

view of their custody

determinations is available, many, and perhaps most, of these detainees are not even aware that

they may request a Joseph hearing and certainly do not know what they must prove at such a

hearing in order to prevail and obtain a bond hearing.

52. As a result, many detainees, including many longtime lawful permanent residents,

are subject to mandatory detention for months or even years, even though they have strong

challenges to removal on which they ultimately prevail. Such detainees may

either win

termination of their removal proceedings upon a finding that they are not actually deportable or

inadmissible in the first place, or win discretionary relief from removal that allows them to

retain, or obtain, lawful permanent resident status.

53. Notwithstanding the standard set out in Joseph, both 8 U.S.C. § 1226(c) and its

implementing regulations are silent as to the standard or burden of proof for determining whether

an individual is “deportable” or “inadmissible” within the meaning of the statu te. This silence

contrasts with other provisions in the INA that expressly set forth the standard and burden of

proof for determining when an individual is “deportable” or “inadmissible” for the purpose of

removal proceedings. Moreover, the terms “deport able” and “inadmissible,” and the related term

“removable,” are ambiguous and used in different ways throughout the INA.

54. Although in Demore v. Kim , 538 U.S. 510 (2003), the Supreme Court upheld the

constitutionality of mandatory detention, in that case the detainee had conceded both his

deportability and that he was properly subject to mandatory detention under 8 U.S.C. § 1226(c).

17

Moreover, the Court placed great weight on the availability of an individualized hearing to determine whether the mandatory detention statute was properly applied, while specifically declining to address the adequacy of the Joseph standard and hearing procedures. Demore, 538 U.S. at 514 n.3; see also id. at 531-32 (Kennedy, J., concurring).
55. In contrast to Demore, where the pe titioner had raised no challenge to deportability, subjecting an individual to mandatory detention who has substantial challenges to deportability (or inadmissibility) would raise serious constitutional concerns, in light of such an individual’s heightened due process interests against detention and reduced risk of flight.
56. Consequently, in light of the significant constitutional issues presented by such detention, 8 U.S.C. § 1226(c) should be read not to authorize the mandatory detention of individuals who have a substantial challenge to deportability or inadmissibility. It should also be read to require the opportunity for a constitutionally adequate hearing to determine whether an individual is properly subject to mandatory detention. This hearing should include adequate notice; require that the government bear the burden of establishing prima facie deportability or inadmissibility on a ground that triggers mandatory detention; provide the detainee the opportunity to demonstrate that he has a substantial challenge to deportability or inadmissibility on those grounds; and require that a contemporaneous record of proceedings be made and maintained so that the determination is amenable to meaningful review.
CLASSWIDE ALLEGATIONS 57. Plaintiffs are among hundreds of detainees in New Jersey held pursuant to the government’s sweeping misapplication of the mandatory immigration detention statute, 8 U.S.C. § 1226(c). Pursuant to Matter of Joseph, 22 I&N Dec. 799 (BIA 1999), the government subjects individuals to manda tory detention during removal proceedings unless these individuals can
18

show that the government is “substantially unlikely” to prevail on the charges against them. Moreover, the government imposes mandatory detention without providing basic procedural safeguards, including notice of the right to a custody hearing and a contemporaneous record of proceedings.
58. Plaintiffs bring this action on behalf of themselves and all other similarly-situated persons in New Jersey pursuant to Federal Rules of Civil Procedur e 23(a) and 23(b)(2) or, in the alternative, as a class action habeas for similarly -situated persons in New Jersey.
59. Plaintiffs propose to represent a class of all individuals in New Jersey who are or will be detained under the mandatory immigration detenti on statute, 8 U.S.C. § 1226(c), pending completion of their removal proceedings, under the unlawful Joseph standard and the agency’s inadequate procedures. These individuals are detained in detention facilities throughout New Jersey, including the Monmout h County Correctional Institution, the Hudson County Correctional Facility, the Bergen County Jail, the Delaney Hall Detention Facility, the Elizabeth Contract Detention Facility, and the Essex County Correctional Facility.
60. The proposed class meets the req uirements of Federal Rules of Civil Procedure 23(a)(1). On any given day, there are roughly 200 -400 proposed class members in New Jersey who, like Plaintiffs, are subject to mandatory detention under the Joseph standard and agency’s deficient procedures. In addition, other persons will be subject to the government’s mandatory detention policy in the future. Joinder of all members of this class is therefore impracticable.
61. The proposed class also meets the requirements of Federal Rule of Civil Procedure 23(a)(2). Specifically, there are several common questions of law and fact in this action, including (1) whether the government’s policy of subjecting non -citizens to mandatory
19

detention under the unlawful Joseph standard and deficient hearing procedures is authorized by statute and (2) whether this detention policy violates the Due Process Clause.
62. The proposed class additionally meets the requirements of Federal Rule of Civil Procedure 23(a)(3). The claims of the Named Plaintiffs are typical of the claims of the proposed class in that, like all the proposed class members, the Named Plaintiffs are individuals who, pursuant to the government’s policy, have been subjected to mandatory detention under the Joseph standard and deficient hearing procedures pending completion of removal proceedings.
63. Next, the proposed class meets the requirements of Federal Rule of Civil Procedure 23(a)(4), in that the Named Plaintiffs will fairly and adequately represent the interests of all members of the proposed class because th ey seek relief identical to the relief sought by all class members, and because they have no interests adverse to other class members. Moreover, the Named Plaintiffs are represented by pro bono counsel from the ACLU Immigrants’ Rights Project, the ACLU of New Jersey, and the law firm of Gibbons P.C.. Counsel has extensive experience litigating class actions, as well as matters on behalf of detainees, including immigration detainees.
64. Finally, the proposed class meets the requirements of Federal Rule of Civ il Procedure 23(b)(2) in that Defendants have acted on grounds generally applicable to the class through their policy of subjecting individuals to mandatory immigration detention under the Joseph standard and the inadequate hearing procedures described her ein, making classwide declaratory and injunctive relief appropriate.
20

CLAIMS FOR RELIEF CLASS CLAIMS

FIRST CAUSE OF ACTION VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT

65. The foregoing allegations are realleged and incorporated herein.

66. Immigration detention violates the Due Process Clause of the Fifth Amendment to

the Constitution unless it is reasonably related to the purpose of ensuring availability for removal

and protecting the community, and is accompanied by adequate procedural protections.

67. Named Plaintiffs and proposed class members are currently subject to mandatory

immigration detention without the substantive and procedural protections that such a significant

deprivation of liberty requires. By subjecting Named Plaintiffs and proposed c lass members to

mandatory detention under the BIA’s Joseph standard — rather than a standard that exempts

from mandatory detention those individuals who have a substantial challenge to removal — the

government’s policy results in the mandatory detention of individuals with substantial claims to

remain in the United States, even where they are neither a risk of flight nor a danger to the

community. Furthermore, the government’s procedures for making the mandatory detention

determination lack essential eleme nts of due process, such as adequate notice of the right to such

a hearing; the allocation of the initial burden on the government to establish

prima facie

deportability or inadmissibility on a ground that triggers mandatory detention; and a

contemporaneous record of proceedings so as to ensure meaningful review.

68. Because such mandatory detention is neither reasonably related to the purpose of

ensuring availability for removal and protecting the community, nor accompanied by adequate

procedural safeguards, it violates the Due Process Clause.

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SECOND CAUSE OF ACTION VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT

69. The foregoing allegations are realleged and incorporated herein.

70. Title 8 U.S.C. § 1226(c), the mandatory detention statute, is silent with regard to

the standard and procedures for determining whether an individual is “deportable” or

“inadmissible” on the statute’s enumerated grounds, and thus properly included under the statute.

71. The mandatory detention of individuals with a substantial challenge to removal

and without the procedural protections described herein presents serious constitutional problems.

Thus, in the absence of any evidence that Congress intended mandatory detention to apply in

these circumstances, this Court should construe the stat ute as applying only where a detainee

lacks a substantial challenge to removal on a ground that triggers mandatory detention,

and

where the detainee has a right to a constitutionally adequate hearing before an immigration judge

to make that determination — one that includes adequate notice; places the initial burden of

establishing deportability or inadmissibility on the government; provides the detainee an

opportunity to establish that he has a substantial challenge to removal; and requires a

contemporaneous record of proceedings.

72. Because Plaintiffs have been subject to mandatory detention under the BIA’s

unlawful Joseph standard and in the absence of such a hearing, their continued mandatory

detention violates the statute.

ADDITIONAL INDIVIDUAL CLAIMS OF PLAINTIFFS -PETITIONERS

THIRD CAUSE OF ACTION VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT
(GARFIELD GAYLE)

73. The foregoing allegations are realleged and incorporated herein.

22

74. Title 8 U.S.C. § 1226(c) provides that the Attorney General “shall take into

custody an alien who is deportable by reason of having committed any offense covered in

[section 1227(B)] of this title . . . when the alien is released . . . for the same offense” (emphasis

added).

75. Mr. Gayle is allegedly subject to mandatory detention based

on his 2007

misdemeanor possession offense. However, Mr. Gayle was not taken into immigration custody

until March 24, 2012, or more than five years after his release from criminal custody on March

22, 2007.

76. Because Mr. Gayle was not taken into custody “w hen released” for his offense,

his mandatory detention violates the plain language of 8 U.S.C. § 1226(c), which only authorizes

mandatory detention for those individuals who are take n into ICE custody “when . . . released.”

He is therefore entitled to an immediate bond hearing.

FOURTH CAUSE OF ACTION VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT
(NEVILLE SUKHU)

77. The foregoing allegations are realleged and incorporated herein.

78. The Due Process Clause of the Fifth Amendment to the U.S. Constitution permits

mandatory detention for only a reasonable period of ti me. When detention exceeds that

reasonable period, the detainee is entitled to an individualized hearing at which the government

must show that continued detention is necessary to prevent fl ight or danger to the community.

79. Moreover, the “constitutional case for continued detention without inquiry into its

necessity becomes more and more suspect as detention continues past [the one -and-a-half to

five- month] thresholds” for removal proceedings contemplated by the Supreme Court in Demore

v. Kim, supra. Diop v. ICE/Homeland Security, 656 F.3d 221, 234 (3d Cir. 2011).

23

80. Because his mandatory detention has exceeded, or certainly will exceed, a

“reasonable” period, Mr. Sukhu is entitled to an indivi dualized hearing where the government

must show that his continued detention is necessary to prevent flight or danger to the community.

FIFTH CAUSE OF ACTION VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT
(NEVILLE SUKHU)

81. The foregoing allegations are re alleged and incorporated herein.

82. Title 8 U.S.C. § 1226(c) permits mandatory detention for only a reasonable period

of time. When detention exceeds that reasonable period, the detainee is entitled to an

individualized hearing where the government must show that continued detention is necessary to

prevent flight or danger to the community.

83. Because Mr. Sukhu has been subjected to, or will be subjected to, mandatory

detention beyond the reasonable period permitted by statute, he is entitled to an individuali zed

hearing at which the government must justify his continued detention.

PRAYER FOR RELIEF

WHEREFORE, Petitioners pray that this Court grant the following relief:

(a) Certify this matter as a Class Action , appoint the Named Plaintiffs as Class

Representatives, and appoint the Named Plaintiffs’ Counsel as Class Counsel;

(b) Declare that Defendants’ policy and practice of subjecting Named Plaintiffs and

proposed class members to mandatory detention under the BIA’s

Joseph standard and the

agency’s inadequate hearing procedures violate the Due Process Clause of the Fifth Amendment

and/or the Immigration and Nationality Act, and that Defendants must provide constitutionally -

adequate hearings to Named Plaintiffs and proposed class members – i.e., hearings that use the

proper standard for when mandatory detention applies and include adequate notice; place the

24

initial burden on the government to establish prima facie deportability or inadmissibility on a ground that triggers mandatory detention; provide the opport unity for Named Plaintiffs and proposed class members to show that they have substantial challenges to removal and are thus not properly subject to mandatory detention; and provide a contemporaneous record of such proceedings.
(c) Order Defendants to provi de such constitutionally -adequate hearings to Named Plaintiffs and proposed class members.
(d) Declare that Mr. Gayle’s mandatory detention is not authorized by the INA because he was not taken into immigration custody “when released” from the criminal cu stody related to his detention and order that Defendants provide him a prompt bond hearing.
(e) Declare that Mr. Sukhu’s mandatory detention has already exceeded, or will by necessity exceed, a reasonable period of time, and order an individualized hearing where the government must show that his continued detention is necessary based on flight risk or danger.
(f) Grant Plaintiffs reasonable attorneys’ fees, costs, and other disbursements pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and
(g) Grant any other and further relief that this Court deems just and proper.
25

Judy Rabinovitz Dror Ladin AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2660 (tel) (212) 549-2654 (fax) jrabinovitz@aclu.org dladin@aclu.org
Michael Tan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 (415) 343-0779 (tel) (415) 395-0950 (fax) mtan@aclu.org *admitted to practice in New York
Ahilan Arulanantham AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 1313 West 8th Street Los Angeles, CA 90017 (213) 977-5211 (tel) (213) 977-5297 (fax) aarulanantham@aclu-sc.org
Dated: November 15, 2012

Respectfully submitted,
/s/Lawrence S. Lustberg Lawrence S. Lustberg Jonathan M. Manes GIBBONS P.C. One Gateway Center Newark, NJ 07102 (973) 596-4500 (tel) (973) 596-6285 (fax) LLustberg@gibbonslaw.com JManes@gibbonslaw.com
Edward Barocas Jeanne LoCicero Alexander Shalom AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY FOUNDATION P.O. Box 32159 Newark, NJ 07102 (973) 854-1714 (tel) (973) 642-6523 (fax) ebarocas@aclu- nj.org jlocicero@aclu- nj.org ashalom@aclu- nj.org
Attorneys for the Plaintiffs

26

 
 Case 3:12-cv-02806-FLW Document 13-1 Filed 11/15/12 Page 1 of 30 PageID: 89

Lawrence S. Lustberg Jonathan M. Manes GIBBONS P.C. One Gateway Center Newark, NJ 07102 (973) 596-4500
Counsel of Record for the Plaintiffs
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

GARFIELD GAYLE, et al., Plaintiffs,
v. JANET NAPOLITANO, et al.,
Defendants.

ORAL ARGUMENT REQUESTED No. 3:12-cv-02806-FLW

BRIEF IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:12-cv-02806-FLW Document 13-1 Filed 11/15/12 Page 2 of 30 PageID: 90

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..........................................................................................................ii PRELIMINARY STATEMEN T ....................................................................................................1
ARGUMENT..................................................................................................................................3 I. THE CLASS SHOULD BE CERTIFIED BECAUSE PLAINTIFFS MEET THE REQUIREMENTS OF RULE 23(a) AND RULE 23(b)(2). .............3 A. The Class Is So Numerous that Joinder of All Members Is Impracticable ..............................................................................................4
B. There Are Common Questions of Both Law and Fact ...............................6 C. The Claims of the Representative Plaintiffs Are Typical of the
Claims of the Class as a Whole ..................................................................9 D. The Representative Plaintiffs Will Fairly and Adequately Protect
the Interests of the Class ...........................................................................13
E. Class Certification is Appropriate under Rule 23(b)(2) ...........................14 II. THIS COURT SHOULD APPOINT UNDERSIGNED COUNSEL AS
CLASS COUNSEL ..............................................................................................16 CONCLUSION.............................................................................................................................22

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TABLE OF AUTHORITIES
PAGE(S)
CASES ACLU v. Dep’t of Homeland Security,
No. 1:11-cv-03786-RMB (S.D.N.Y. filed June 3, 2011) ..........................................................18
Ali v. Ashcroft, 346 F.3d 873 (9th Cir. 2003) .......................................................................................................4
Alli v. Decker, 650 F.3d 1007 (3d Cir. 2011) ..............................................................................................17, 21
Alli v. Decker, 644 F. Supp. 2d 535 (M.D. Pa 2009) .........................................................................................17
Alves v. Main, No. 01-cv-789 (D.N.J. filed Feb. 15, 2001)...............................................................................19
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997)...........................................................................................................3, 4, 15
Argueta v. U.S. Immigration and Customs Enforcement, 643 F.3d 60 (3d Cir. 2011) ..................................................................................................19, 20
Augustovsky, v. Holder, No. 09-cv-04251 (D.N.J. filed August 18, 2009) ......................................................................19
Baby Neal v. Casey, 43 F.3d 48 (3d Cir. 1994) ...................................................................................................passim
Baby Sparrow v. Waldman, No. 96-cv-4118 (D.N.J. filed Aug. 28, 1996) ............................................................................20
Barnes v. American Tobacco Co., 161 F.3d 127 (3d Cir. 1998) ......................................................................................................15
Bijeol v. Benson, 513 F.2d 965 (7th Cir. 1975) .......................................................................................................4
Bolmer v. Connelly Properties, 672 F.3d 241 (3d Cir. 2012), cert. denied, 2012 WL 1945620 (Oct. 1, 2012) ..........................19
Cannon v. Cherry Hill Toyota, Inc., 184 F.R.D. 540 (D.N.J. 1999)....................................................................................................12
Casas-Castrillon v. Dep’t of Homeland Security, 535 F.3d 942 (9th Cir. 2008) .....................................................................................................17
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Case 3:12-cv-02806-FLW Document 13-1 Filed 11/15/12 Page 4 of 30 PageID: 92
Castillo v. Reno, 178 F.3d 1278 (3d Cir. 1999) ....................................................................................................20
Clark v. Martinez, 543 U.S. 371 (2005).............................................................................................................17, 20
Colon v. Passaic County, No. 08-cv-4439 (D.N.J. filed Sept. 5 2008)...............................................................................18
Death Row Prisoners of Pennsylvania v. Ridge, 169 F.R.D. 618 (E.D. Pa. 1996)...................................................................................................4
Demore v. Kim, 538 U.S. 510 (2003)...................................................................................................................17
Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011) ................................................................................................17, 19
Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) ...................................................................................................17
Fernandez-Roque v. Smith, 539 F. Supp. 925 (N.D. Ga. 1982) ...............................................................................................4
Florence v. Bd. of Chosen Freeholders of County of Burlington, No. 05-cv-3619, 2008 WL 800970 (D.N.J. Mar. 20, 2008) ......................................................12
Franco-Gonzalez v. Holder, 828 F. Supp. 2d 1133 (C.D. Cal 2011) ......................................................................................17
General Tel. Co. v. Falcon, 457 U.S. 147 (1982)...................................................................................................................10
Georgine v. Amchem Prods., Inc., 83 F.3d 610 (3d Cir. 1996), aff’d sub nom., Amchem Prods, Inc. v. Windsor, 521 U.S. 591 (1997).............................................................................................................10, 11
Geraghty v. U.S. Parole Comm’n, 579 F.2d 238 (3d Cir. 1978) vacated on other grounds, 445 U.S. 388 (1980)..........................12
Gurmankin v. Costanzo, 626 F.2d 1132 (3d Cir. 1980) ......................................................................................................6
Hairston v. Fauver, No. 90-cv-1850 (D.N.J. filed May 11, 1990) ............................................................................20
Harris v. Nelson, 394 U.S. 286 (1969).....................................................................................................................4
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Case 3:12-cv-02806-FLW Document 13-1 Filed 11/15/12 Page 5 of 30 PageID: 93
Hawker v. Consovoy, 198 F.R.D. 619 (D.N.J. 2001)......................................................................................................5
Hoxworth v. Blinder, Robinson & Co., Inc., 980 F.2d 912 (3d Cir.1992) .......................................................................................................13
In re Chiang, 385 F.3d 256 (3d Cir. 2004) ........................................................................................................7
In re Cmty Bank of N. Va & Guar. Nat’l Bank of Tallahassee Second Mortg. Loan Litig., 418 F.3d 277 (3d Cir. 2005) ....................................................................................10, 12, 13, 14
In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2009) ........................................................................................................3
In Re Prudential Co. of Am. Sales Practices Litig., 148 F.3d 283 (3d Cir. 1998) ........................................................................................................7
In re Schering Plough Co. ERISA Litig., 589 F.3d 585 (3d Cir. 2009) ......................................................................................................10
Jama v. Chertoff, No. 06-cv-5185 (D.N.J. filed Oct. 27, 2006) .................................................................19, 20, 21
Jama v. U.S. Immigration & Naturalization Serv., 343 F. Supp. 2d 338 (2004) .......................................................................................................21
Johnston v. HBO Film Mgmt., 265 F.3d 178 (3d Cir. 2001) ........................................................................................................7
Jones v. Hayman, 418 N.J. Super. 291, A.3d 416 (App. Div. 2011) ......................................................................18
Jordan v. Commonwealth Fin. Sys., 237 F.R.D. 132 (E.D. Pa. 2006).................................................................................................12
Joseph v. Avila, No. 07-cv-2392 (D.N.J. filed May 22, 2007) ............................................................................19
Kalow & Springut, LLP v. Commence Corp., No. 07-cv-3442-FLW, 2011 WL 3625853 (D.N.J. Aug. 15, 2011) ..........................................12
Kitembo v. Ashcroft, No. 03-3108 (3d Cir. dismissed Apr. 15, 2011) ........................................................................20
Larson v. AT&T Mobility, 687 F.3d 109 (3d Cir. 2012) ................................................................................................13, 14
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Lerch v. Citizens First Bancorp., Inc., 144 F.R.D. 247 (D.N.J. 1992)......................................................................................................4
Leslie v. Attorney General of the United States, 678 F.3d 265 (3rd Cir. 2012) .....................................................................................................17
Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003) .....................................................................................................17
M.A. v. Newark Public Schools, 334 F.3d 335 (3d Cir. 2003) ......................................................................................................20
Marcus v. BMW of N. Am., 687 F.3d 583 (3d Cir. 2012) ........................................................................................4, 6, 10, 11
Matter of Chirinos, 16 I&N Dec. 276 (BIA 1977) ......................................................................................................2
Matter of Joseph, 22 I&N Dec. 799 (BIA 1999) .............................................................................................passim
McCoy v. Health Net, Inc., 569 F. Supp. 2d 448 (D.N.J. 2008) ..............................................................................................5
N. Jersey Media Group v. Ashcroft, 308 F.3d 198 (3d Cir. 2002) ......................................................................................................20
Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006) .............................................................................................17, 21
Osgood v. Harrah’s Entertainment, Inc., 202 F.R.D. 115 (D.N.J. 2001)......................................................................................................5
Pack v. Beyer, 1995 WL 775360 (D.N.J. Dec. 22, 1995)..................................................................................19
Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001) ......................................................................................................17
Qatanani v. Dep’t of Justice, No. 12-cv-4042 (D.N.J. filed June 29, 2012) ............................................................................20
Riverside Coalition of Business Partners and Landlords, v. Twp. of Riverside, No. BURL-L-2965-06 (L. Div. filed Oct. 18, 2006) .................................................................19
Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010) ...................................................................................................17
Rodriguez v. Hayes, No. 07-cv 3239 (C.D. Cal. filed May 16, 2007) ........................................................................17
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Case 3:12-cv-02806-FLW Document 13-1 Filed 11/15/12 Page 7 of 30 PageID: 95
Roe v. Fauver, No. 88-cv-1225, 1988 U.S. Dist. LEXIS 11328 (D.N.J. Oct. 11, 1988) ...................................20
Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999) ......................................................................................................19
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., __ U.S. __, 130 S. Ct. 1431 (2010)..............................................................................................3
Sheinberg v. Sorensen, 606 F.3d 130 (3d Cir. 2010) ......................................................................................................21
Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011) ...................................................................................................17
Sojourner A. v. N.J. Dep’t of Human Services, 177 N.J. 318, 828 A.2d 306 (2003) ...........................................................................................18
State v. Nunez-Valdez, 200 N.J. 129, 975 A.2d 418 (2009) ...........................................................................................19
Stewart v. Abraham, 275 F.3d 220 (3d Cir. 2001) ..............................................................................................5, 8, 15
Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005) ...................................................................................................17
United States ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974) ......................................................................................................4
United States v. Sielaff, 546 F.2d 218 (7th Cir. 1976) .......................................................................................................4
Wal-Mart, Inc. v. Dukes, 131 S. Ct. 2541 (2011)........................................................................................................passim
Weiss v. York Hosp., 745 F.2d 786 (3d. Cir. 1984) .................................................................................................5, 15
Williams v. Richardson, 481 F.2d 358 (8th Cir. 1973) .......................................................................................................4
Yang You Yi v. Reno , 852 F. Supp. 316 (M.D. Pa. 1994) ...............................................................................................4
Zadvydas v. Davis, 533 U.S. 678 (2001)...................................................................................................................17
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STATUTES 5 U.S.C. § 552................................................................................................................................22 8 U.S.C. § 1226(c) .............................................................................................................1, 2, 3, 28 OTHER AUTHORITIES 7A Wright & Miller,
Federal Practice & Procedure § 1764 ........................................................................................12 C. Wright and A. Miller, Federal Practice and Procedure, § 1763 at 219 .....................................10 U.S. Dep’t of Justice, Exec. Office for Immig. Rev., Immigration Court Practice
Manual, § 9.3(e)(iii) & (vii) (2008) .............................................................................................2 RULES Fed. R. Civ. P. 23(a)(4)..................................................................................................................16 Federal Rule of Civil Procedure 23(a) .............................................................................................3 Federal Rule of Civil Procedure 23(a)(2) ........................................................................................8 Federal Rule of Civil Procedure 81(a)(4) ........................................................................................5 Rule 23 .............................................................................................................................................5 Rule 23(a) ........................................................................................................................4, 6, 17, 19 Rule 23(a)(1)............................................................................................................................5, 7, 8 Rule 23(a)(2)..........................................................................................................................8, 9, 11 Rule 23(a)(3)..................................................................................................................................11 Rule 23(a)(4)..................................................................................................................................17 Rule 23(b) ..................................................................................................................................4, 18 Rule 23(b)(2) ..........................................................................................................................passim Rule 23(c)(4)..................................................................................................................................14 Rule 23(g) ..........................................................................................................................17, 20, 28 Rule 23(g)(1) .................................................................................................................................20 Rule 23(g)(1)(A)............................................................................................................................20 Rule 23(g)(1)(C)-(D) .....................................................................................................................28
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PRELIMINARY STATEMENT Plaintiffs Garfield Gayle, Sheldon Francois, and Neville Sukhu bring this action on behalf of the class of all individuals who, like them, are or will be detained within the State of New Jersey pursuant to the mandatory detention provision of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226(c). These individuals are held without even the possibility of bail or a bail hearing for the duration of their immigration removal cases, including during administrative appeals to the Board of Immigration Appeals (“BIA”) and judicial review by the United States Court of Appeals. This class action challenges the standard and procedures that the government uses to determine whether an immigrant may be detained without a bond hearing under this harsh provision of the immigration law, and to which every member of the proposed class is subject. Based upon the decision of the BIA in Matter of Joseph , 22 I&N Dec. 799 (BIA 1999), the government claims the authority to subject every putative class member to mandatory detention whenever it charges a ground for removal designated in the statute, unless an Immigration Judge determines that the government is “substantially unlikely” to prevail on the charges. That is, under Matter of Joseph , members of the proposed class bear the burden of affirmatively demonstrating that the government’s charges are meritless. Moreover, under current government policy, they must be detained even if they have a substantial challenge to the government’s charges of removability or a substantial claim for discretio nary relief that would entitle them to remain lawfully within the United States. This violates both the governing statute and the Due Process Clause of the Constitution. This class action also challenges the procedures by which the government has implemented so-called Joseph hearings. Specifically, the government has no policy to provide notice to individuals detained pursuant to 8 U.S.C. § 1226(c) of their right to request a Joseph
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hearing. To the contrary, the standard- form Notice of Custody Determination (Form I-286) used by the immigration authorities, which advises immigrant detainees of the government’s decision with respect to their detention and purports to notify detainees of their rights, is affirmatively misleading, stating that individuals subject to mandatory detention “may not request a review of this determination by an immigration judge.” See Declaration of Michael Tan, Ex. E (“Tan Decl.”) (Form I-286 provided to plaintiff Francois); id. Ex. F (Deposition of Wesley Lee, Assistant Field Office Director, Los Angeles Field Office of U.S. Immigration and Customs Enforcement, at 208:18-209:4 and 243:16-22, Rodriguez v. Robbins , No. 2:07-cv-03239-TJHRNB (C.D. Cal. deposition filed June 25, 2012) (confirming notice policy)). Moreover, even if an immigrant is informed of the available procedure and is able to demand a bond hearing, the Immigration Court generally does not make or maintain a contemporaneous record of the proceedings, either by transcript, audiotape, or otherwise, thereby frustrating the ability of potential class members to meaningfully appeal adverse determinations. See U.S. Dep’t of Justice, Exec. Office for Immig. Rev., Immigration Court Practice Manual, § 9.3(e)(iii) & (vii) (2008), http://www.justice.gov/eoir/vll/OCIJPracManual/Chap%209.pdf (providing that “[b]ond hearings are generally not recorded;” that the Immigration Judge’s bond determinations, which are rendered orally, are not transcribed; and that a written memorandum decision is prepared only if a detainee appeals ); see also Matter of Chirinos , 16 I&N Dec. 276, 277 (BIA 1977) (holding that “[t]here is no right to a transcript of a bond redetermination hearing”). These deficiencies likewise violate the statute and the Constitution.
Accordingly, plaintiffs seek certification of a class under Rule 23(b)(2) of individuals in New Jersey who are or will be detained pursuant to 8 U.S.C. § 1226(c) in order to obtain classwide declaratory and injunctive relief, requiring (1) that the mandatory detention statute,
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§ 1226(c), not be applied to individuals who have a substantial challenge to the government’s charge of removability, including a substantial claim for discretionary relief; (2) that adequate notice be provided of the right to a hearing before an Immigration Judge to challenge whether the class member is properly detained under § 1226(c); (3) that at such a hearing the government bears the burden of making a prima facie showing of deportability or inadmissibility on grounds that trigger mandatory detention under the statute, and the class member has the opportunity to demonstrate that he or she has a substantial challenge to the government’s charges of removability, or a substantial claim for discretionary relief that would render the individual non removable on the government’s charges; and (4) that a contemporaneous record of any such hearings be made and maintained.
ARGUMENT I. THE CLASS SHOULD BE CERTIFIED BECAUSE PL AINTIFFS MEET
THE REQUIREMENTS OF RULE 23(A) AND RULE 23(B)(2 ). Class certification is appropriate where plaintiffs establish that they meet all four requirements of Federal Rule of Civil Procedure 23(a) — numerosity, commonality, typicality, and adequacy — and at least one subpart of Rule 23(b). Amchem Prods., Inc. v. Windsor , 521 U.S. 591, 613–14 (1997); In re Hydrogen Peroxide Antitrust Litig. , 552 F.3d 305, 320 (3d Cir. 2009) (“Class certification requires a finding that each of the requirements of Rule 23 has been met.”). As the Supreme Court recently stated, Rule 23 “creates a categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., __ U.S. __, 130 S. Ct. 1431, 1437 (2010). In this case, the Class satisfies both Rule 23(a) and Rule 23(b)(2), the latter of which “permits class actions for declaratory or injunctive relief where ‘the party opposing the class has acted or
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refused to act on grounds generally applicable to the class.’” Amchem Prods., 521 U.S. at 614
(internal citations omitted); accord Wal-Mart, Inc. v. Dukes, 131 S. Ct. 2541, 2557 (2011).1
A. The Class Is So Numerous that Joinder of All Members Is Impracticable
Rule 23(a)(1) requires that a class be “so numerous that joinder of all members is
impracticable.” Impracticability is not synonymous with impossibility, but rather means “that
the difficulty or inconvenience of joining all members of the class calls for class certification.”
Lerch v. Citizens First Bancorp. , Inc., 144 F.R. D. 247, 250 (D.N.J. 1992) (internal citation
omitted); see also Marcus v. BMW of N. Am., 687 F.3d 583, 594-95 (3d Cir. 2012). “There is no
minimum number of members needed for a suit to proceed as a class action.” Id. at 595. The
United States Court of Appeals for the Third Circuit, however, has stated that “generally if the
named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of
1 In the alternative, Plaintiff-Petitioners seek certification of a habeas corpus class of detainees in the District of New Jersey. A habeas corpus petition typically involves a claim for only individual relief. However, it is well-established that, in appropriate circumstances, a habeas corpus petition may proceed on a representative or class-wide basis. See U.S. Parole Comm’n v. Geraghty , 445 U.S. 388, 393, 404 (1980) (holding that class representative could appeal denial of nationwide class certification of habeas and declaratory judgment claims); Ali v. Ashcroft, 346 F.3d 873, 886-91 (9th Cir. 2003) (affirming certification of nationwide habeas and declaratory class), overruled on other grounds by Jama v. ICE, 543 U.S. 335 (2005); Williams v. Richardson, 481 F.2d 358, 361 (8th Cir. 1973) (holding that “under certain circumstances a class action provides an appropriate procedure to resolve the claims of a group of petitioners and avoid unnecessary duplication of judicial efforts in considering multiple petitions, holding multiple hearings, and writing multiple opinions”); Death Row Prisoners of Pennsylvania v. Ridge, 169 F.R.D. 618, 620 (E.D. Pa. 1996) (certifying habeas class action challenging state’s status under Antiterrorism and Effective Death Penalty Act). See also Yang You Yi v. Reno, 852 F. Supp. 316, 326 (M.D. Pa. 1994) (noting that “class-wide habeas relief may be appropriate in some circumstances.”). The authority for such a proceeding is found by the Courts in Federal Rule of Civil Procedure 81(a)(4), which provides that the Federal Rules of Civil Procedure are applicable to proceedings for habeas corpus to the extent that the practice in such proceedings “is not specified in a federal statute, the Rules Governing Section 2254 Cases, or the Rules Governing Section 2255 Proceedings, and has previously conformed to the practice in civil actions.” Accordingly, the courts have held that even if Rule 23 is technically inapplicable to habeas corpus proceedings, courts should look to Rule 23 and apply an analogous procedure. See, e.g., Ali, 346 F.3d at 891 (rejecting argument that Rule 23 requirements could not be used for guidance in determining whether a habeas representative action was appropriate); United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125-27 (2d Cir. 1974) (citing Harris v. Nelson, 394 U.S. 286, 294 (1969)) (finding in habeas action “compelling justification for allowing a multi-party proceeding similar to the class action authorized by the Rules of Civil Procedure”); United States v. Sielaff , 546 F.2d 218, 221-22 (7th Cir. 1976); Bijeol v. Benson, 513 F.2d 965, 967-68 (7th Cir. 1975); Fernandez-Roque v. Smith , 539 F. Supp. 925, 929 n.5 (N.D. Ga. 1982) (noting that “a number of circuit courts have upheld the notion of class certification in habeas cases, whether certification is accomplished under Fed. R. Civ. P. 23, or by analogy to Rule 23.”); accord William B. Rubenstein, Newberg on Class Actions § 25.28 (4th ed. 2012).
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Rule 23(a) has been met.” Id. (quoting Stewart v. Abraham , 275 F.3d 220, 226–27 (3d Cir. 2001)); see also McCoy v. Health Net, Inc. , 569 F. Supp. 2d 448, 455 (D.N.J. 2008) (“When dealing with a class that numbers in the hundreds, joinder will most often be impracticable.”) (citation omitted). Moreover, “[t]he requirements of Rule 23(a), and particularly, the numerosity requirement, may be more liberally construed in civil rights cases in which injunctive relief is sought.” Osgood v. Harrah’s Entertainment, Inc. , 202 F.R.D. 115, 122 (D.N.J. 2001). See also Weiss v. York Hosp. , 745 F.2d 786, 808 (3d. Cir. 1984); Hawker v. Consovoy, 198 F.R.D. 619, 625 (D.N.J. 2001).
Plaintiffs easily satisfy these requirements because the population of individuals being mandatorily detained in New Jersey pursuant to § 1226(c) numbers in the hundreds. Indeed, data from U.S. Immigration and Customs Enforcement (ICE), gathered through a request under the Freedom of Information Act (FOIA), Tan Dec. ¶¶ 3-5, Exs. A-C, and summarized in a chart appended to the Declaration of Michael Tan, id. ¶ 6, Ex. D, disclose the number of individuals subject to mandatory detention in both ICE’s Newark Area of Responsibility (which includes three detention facilities in New Jersey) and ICE’s New York City Area of Responsibility (which includes four detention facilities, three of which are in New Jersey and one of which is in Goshen, New York), id. ¶¶ 7-10. More specifically, the data show that on any given day anywhere from 149 to 266 individuals were subject to mandatory immigration detention in the Newark Area of Responsibility — i.e., were held in New Jersey detention facilities. Id. ¶ 9, Ex. D. An additional 191 to 259 individuals were subject to mandatory detention in the New York City Area of Responsibility. Id. ¶ 10, Ex. D. Together, this means that there were anywhere between 342 and 519 class members in both Areas of Responsibility. Id. ¶ 11. Some of these individuals are held in Goshen, New York; the data do not specify precisely how many. But a
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very conservative calculation of the number of mandatory detainees in New Jersey suggests that there are well over 200 mandatory detainees in New Jersey at any given time, and therefore well over 200 class members, even without counting individuals who will enter the class in the future. Id. ¶¶ 12-13; see Gurmankin v. Costanzo , 626 F.2d 1132, 1135 (3d Cir. 1980) (in assessing numerosity, district court may consider “number of persons [in proposed class] who have been affected in the past or may be affected in the future”). This easily satisfies the numerosity requirement of Rule 23(a)(1). See Marcus, 687 F.3d at 594-95.
Moreover, each and every class member is, by definition, imprisoned in a detention facility, and the class members are spread among no fewer than six separate facilities throughout New Jersey. It would be enormously “administratively burdensome [to conduct an] action with all interested parties compelled to join and be present,” precisely the problem that class certification — and the “numerosity” requirement of Rule 23(a)(1) in particular — is intended to address. Marcus, 687 F.3d at 595. Certification of this class would also serve another objective of the “numerosity” requirement by “creat[ing] greater access to judicial relief . . . for those persons with claims that would be uneconomical to litigate individually” because of the significant obstacles inherent in the representation of detainees, especially where, as here, the detainees have no right to appointed counsel. Id.
Plaintiffs easily satisfy the requirement of Rule 23(a)(1). The motion for class certification should therefore be granted.
B. There Are Common Questions of Both Law and Fact Plaintiffs also satisfy the requirement of Federal Rule of Civil Procedure 23(a)(2) that they share “questions of law or fact common to the class.” This requirement of commonality is “not a high bar,” as it is satisfied upon showing that the “named plaintiffs share at least one question of fact or law with the grievances of the prospective class.” In re Chiang, 385 F.3d 256,
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265 (3d Cir. 2004) (quoting Johnston v. HBO Film Mgmt., 265 F.3d 178, 184 (3d Cir. 2001)); see also Wal-Mart, 131 S. Ct. at 2556 (“For purposes of Rule 23(a)(2), even a single common question will do.”) (internal quotations and alterations omitted). “A finding of commonality does not require that all class members share identical claims, and indeed ‘factual differences among the claims of the putative class members do not defeat certification.’” In Re Prudential Co. of Am. Sales Practices Litig., 148 F.3d 283, 310 (3d Cir. 1998) (quoting Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994)). Rather, class members must show only that they “are subject to the same harm,” or that the “defendant [is] engaging in a common course of conduct toward them.” Baby Neal, 43 F.3d at 56–57. Most recently, the Supreme Court summarized Rule 23(a)(2) as requiring that “[proposed class members’] claims must depend upon a common contention” and that the “common contention must be of such a nature that it is capable of classwide 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.” Wal-Mart, 131 S. Ct at 2551.
Here, the “common contentions” of all individuals detained under § 1226(c) are plain: all putative class members are all subject to detention without bail pursuant to the standard set forth in Matter of Joseph, which plaintiffs contend is unlawful. In addition, pursuant to the government’s policy of providing misleading information in the Notice of Custody Determination, which states that there is no right to review of mandatory detention, members of the proposed class are denied adequate notice of their entitlement to a hearing, see Tan Decl. Exs. E-F; all have been detained without the government having been required to bear its burden of making out a prime facie showing of removability or inadmissibility on one of the grounds designated under the mandatory detention statute; and none have been provided with an
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opportunity, in the context of a detention hearing, to establish that they have substantial challenges to the government’s charges of removability or claims for discretionary relief that would allow them to remain in the United States, see Matter of Joseph , 22 I&N Dec. 799. Moreover, they are all subject to Joseph hearings that are procedurally deficient for lack of a contemporaneous record of proceedings. In other words, all individuals detained under § 1226(c) suffer the same harm: mandatory detention under an improper standard which does not require a determination as to whether they have a substantial challenge to removal, and without having been afforded lawful process for determining whether detention under § 1226(c) is appropriate.
Plaintiffs understand, of course, that the facts in the underlying immigration case of each member of the proposed class vary. But these disparate facts are irrelevant to the common contention asserted here: that the government holds all of them under the unlawful and unconstitutional Joseph standard and deficient hearing procedures. And the challenged conduct depends not at all on the underlying facts of their immigration cases, other than that the government has determined that each member of the class will be detained without bail under § 1226(c). Certification of a class in these circumstances is entirely appropriate — classes have been certified in the Third Circuit “in a legion of civil rights cases where commonality findings were based primarily on the fact that defendant’s conduct is central to the claims of all class members irrespective of their individual circumstances and the disparate effects of the conduct.” Baby Neal, 43 F.3d at 57 (citing C. Wright and A. Miller, Federal Practice and Procedure, § 1763 at 219); see also Stewart, 275 F.3d at 227 (finding commonality where at least one question of fact or law is common to each member of the prospective class, “despite the differences that undoubtedly exist from case to case”).
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Moreover, this is not a case in which the disparate facts of individual cases render illusory the class-wide resolution of “an issue that is central to the validity of each one of the claims.” Wal-Mart, 131 S. Ct. 2550-57 (finding that proposed class of all current and former female employees of Wal-Mart alleging sex-discrimination in employment lacked commonality because there was no “glue holding the alleged reasons for the [employment] decisions [at issue] together.”). Plaintiffs seek an order requiring the defendants to afford class members a process that would meaningfully assess whether the class members in fact, have a substantial challenge to removal and that allows them to challenge their mandatory detention consistent with the applicable statutes and constitutional protections. They are entitled to this relief irrespective of the facts underlying their particular immigration cases. To be sure, the facts of each class member’s case may affect whether, under the lawful process sought, a particular individual is or is not properly detained under § 1226(c). But those facts are not before this Court, and need not be considered in judging the adequacy of the current standards, and process under Joseph. That is, it is for an appropriate tribunal to judge the facts of individual cases; plaintiffs request this Court only to correct the unlawful standards and process that the defendants currently employ.
In sum, the proposed plaintiff class satisfies the commonality requirements of Rule 23(a)(2). Their motion for class certification should be granted.
C. The Claims of the Representative Plaintiffs Are Typical of the Claims of the Class as a Whole
Named plaintiffs Gayle, Francois and Sukhu satisfy Rule 23(a)(3)’s requirement that their claims be typical of the class as a whole. The requirement of typicality, like that of commonality, “serve [s] as [a] guidepost for determining whether under the particular circumstances maintenance of 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
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and adequately protected in their absence.” General Tel. Co. v. Falcon, 457 U.S. 147, 158 n. 13 (1982). The “independent legal significance” of the typicality inquiry “derives . . . 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 (quoting 7A Wright & Miller, Federal Practice & Procedure § 1764). See also Georgine v. Amchem Prods., Inc. , 83 F.3d 610, 631–32 (3d Cir. 1996), aff’d sub nom., Amchem Prods, Inc. v. Windsor, 521 U.S. 591 (1997); Baby Neal, 43 F.3d at 57. The typicality inquiry thus “ensure[s] that the interests of the absentees will be adequately represented by the named plaintiffs.” In re Cmty Bank of N. Va & Guar. Nat’l Bank of Tallahassee Second Mortg. Loan Litig. , 418 F.3d 277, 393 (3d Cir. 2005) (citing Falcon, 457 U.S. at 157 n.13).
“To determine whether a plaintiff is markedly different from the class as a whole” 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. In particular, “(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.” Id. (quoting In re Schering Plough Co. ERISA Litig., 589 F.3d 585, 599 (3d Cir. 2009)).
Here, the claims of the named plaintiffs regarding the unlawfulness of the hearings at issue are identical to the claims of the class as a whole. In this regard, and as discussed above, it is immaterial that the factual circumstances underlying their immigration claims may be
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substantively different from those of other class members because “[lead] plaintiff[s’] claim[s] arise from the same . . . practice or course of conduct” — i.e., the unlawful Joseph hearing process utilized by the government — “that give[] rise to the claims of the class members.” Marcus, 687 F.3d at 598. See In re Prudential Ins. , 148 F.3d at 311 (“Eve n relatively pronounced factual differences will generally not preclude a finding of typicality where there is a strong similarity of legal theories or where the claim arises from the same practice or course of conduct.”); Baby Neal, 43 F.3d 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.”); accord 1 William B. Rubenstein, Newberg on Class Actions § 3.34 at 278 (5th ed. 2011).
Moreover, that plaintiffs Gayle and Sukhu have additional challenges to the lawfulness of their detention, as set forth in the Third, Fourth and Fifth Causes of Action alleged in the Complaint, does not defeat a finding of typicality. The typicality requirement acts as a bar to class certification only when “the legal theories of the named representatives potentially conflict with those of the absentees.” Georgine, 83 F.3d at 631 (emphasis added). Here, there is no conflict between the statutory and constitutional claims that all class members share and the other claims that individual class members, including the named plaintiffs, may assert. To the contrary many class members will, like certain of the named plaintiffs, have claims beyond the core allegations of the Complaint, set forth in the First and Second Causes of Action, which allege that the process underlying their detention is unlawful and that they are being improperly held without their challenges to removability having been determined. Those class members who have such alternative claims for relief from detention will not be precluded by this action from asserting those claims in their own cases; and “the [t]he mere fact that some members of
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the class may have [such] additional . . . . claims, not asserted by the named plaintiffs, does not preclude a finding of typicality.” In re Cmty. Bank of N. Va. , 418 F.3d at 303; see also Rule 23(c)(4) (“When appropriate, an action may be brought or maintained as a class action [only] with respect to particular issues.”). That is, the fact that certain of the named plaintiffs have additional claims, beyond the class-wide challenge to the Joseph standard and hearings, does not create a conflict with the rest of the class, who may or may not have such claims in addition to the Joseph claims, but who, in any event, are identically situated with regard to the class-wide claims. See, e.g., Geraghty v. U.S. Parole Comm’n, 579 F.2d 238, 252-53 (3d Cir. 1978) (stating that district court’s observation that “not all of the grounds of action alleged in the complaint are applicable to the class” was an improper basis for denying certification), vacated on other grounds, 445 U.S. 388 (1980); Cannon v. Cherry Hill Toyota, Inc ., 184 F.R.D. 540, 544 (D.N.J. 1999) (“[T]he fact that Cannon has an additional individual claim against [the defendant] does not detract from her ability to fairly represent the interests of absent class members.”); Kalow & Springut, LLP v. Commence Corp ., No. 07-cv-3442-FLW, 2011 WL 3625853 (D.N.J. Aug. 15, 2011) (Wolfson, J.) (“[I]t is well settled that a district court can partially certify a class as to a single cause of action within a suit.”); Florence v. Bd. of Chosen Free holders of County of Burlington, No. 05-cv-3619, 2008 WL 800970 (D.N.J. Mar. 20, 2008) (“[T]he mere fact that Plaintiff brings additional claims on his own behalf does not render his unlawful strip search claim atypical of the unnamed putative class members' claims.”); Jordan v. Commonwealth Fin. Sys., 237 F.R.D. 132, 138 (E.D. Pa. 2006) (“Additional claims by the class representative do not render his claims atypical of the class; instead, the claim need only arise from the same ‘practice or course of conduct that gives rise to the claims of the class members’ and be “‘based on the
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same legal theory.’” (quoting Hoxworth v. Blinder, Robinson & Co., Inc., 980 F.2d 912, 923 (3d Cir.1992)).
The named plaintiffs satisfy the requirements of Rule 23(a)(3). For this reason too, their motion to certify this matter as a class action should be granted.
D. The Representative Plaintiffs Will Fairly and Adequately Protect the Interests of the Class
Class certification is also appropriate where, as here, the named representative plaintiffs will “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The adequacy requirement of 23(a)(4) is meant to “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, 687 F.3d 109, 132 (3d Cir. 2012) (quoting In re Cmty Bank of N. Va., 418 F.3d at 291 (alterations in original)). cew
In this case, the named, representative plaintiffs here have both the ability and the incentive to present the claims of the class vigorously. They are, like all class members, detained without bond, and are anxious to return to their lives and to their families. And their chances of winning release on bond — exactly like those of all class members — will markedly increase if their claims on behalf of the class are successful. Having already spent months in detention during the pendency of their immigration cases, they have a strong incentive to vigorously represent the interests of the class, and the ability to do so. Nor are there conflicts between the lead plaintiffs and the other class members. Rather, as discussed above, supra § I.C, the named plaintiffs seek precisely the same relief as the class as a whole — an opportunity to challenge their eligibility for mandatory detention pursuant to standards and procedures that comply with the applicable statutes and with the Constitution.
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Finally, the proposed class will be represented by adequate counsel. Counsel are expert in immigration law, detainee rights, and class action litigation. They have the motivation and resources to vigorously litigate this case. More to the point, and as explained in greater detail in Section II below, counsel satisfy all of the requirements enumerated in Rule 23(g) for appointment as class counsel. See Larson, 687 F.3d at 132 n.36 (“‘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).’” (quoting In re Cmty. Bank of N. Va. , 622 F.3d at 292) (alterations in original)). Accordingly, the adequacy requirements of Rule 23(a)(4) are satisfied.
E. Class Certification is Appropriate under Rule 23(b)(2) In addition to satisfying the requirements of Rule 23(a), the proposed Class here satisfies Rule 23(b)(2), which requires a showing that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Importantly, the Class satisfies both of Rule 23(b)(2)’s two enumerated prongs. First, Defendants have acted or refused to act on grounds generally applicable to all members of the Class. Second, the relief sought is injunctive and declaratory in nature. As mentioned, the government policies that plaintiffs challenge — the unlawful legal standard and inadequate procedures that are utilized in detention hearings under Matter of Joseph — apply to all class members simply by virtue of their designation as mandatory detainees under § 1226(c), without regard to the individual circumstances of their cases or any other differences among them. It is plain, therefore, that the government has “acted . . . on grounds generally applicable to the class.” Rule 23(b)(2). Indeed, civil rights actions such as this one, which challenge government policies that target a particular class of people are prototypical (b)(2) class
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actions. See Wal-Mart, 131 S. Ct. at 2557 (“As we observed in Amchem, ‘[c]ivil rights cases against parties charged with unlawful, class-based discrimination are prime examples’ of what (b)(2) is meant to capture.”) (quoting Amchem, 521 U.S. at 614)
Moreover, with regard to the class claims, plaintiffs do not seek any “individualized” relief, such as damages, whatsoever. See Wal-Mart, 131 S. Ct. at 2558 (holding that “[p]ermitting the combination of individualized and classwide relief in a (b)(2) class is . . . inconsistent with the structure of Rule 23(b)”). As explained above, plaintiffs seek only an order declaring that the defendants’ current standard and procedures governing mandatory detention are unlawful. Ultimately, individualized determinations will have to be made as to whether any given class member is in fact properly detained under § 1226(c), but those determinations are not — with the exception of the additional non-class claims raised by the named plaintiffs in the Third, Fourth and Fifth claims for relief — the subject of this lawsuit, and will not be made by this Court.
The second requirement of Rule 23(b)(2) — that the relief sought be injunctive or declaratory in nature — attempts to ensure that determining the legality of a defendant’s behavior with respect to an entire class is appropriate. See Advisory Committee’s Note to the 1966 Amend ment to Rule 23. Class certification under Rule 23(b)(2) does not require that the party opposing the class has acted in a manner that is directed or damaging to each and every class member. “What is important is that the relief sought by the named plaintiffs should benefit the entire class.” Baby Neal, 43 F.3d at 59. As the Third Circuit has explained, Rule 23(b)(2)’s requirements are “almost automatically satisfied in actions primarily seeking injunctive relief.” Baby Neal, 43 F.3d at 58; see also Stewart , 275 F.3d at 228; Barnes v. American Tobacco Co. , 161 F.3d 127, 142 (3d Cir. 1998); Weiss, 745 F.2d at 811. Most recently, the Supreme Court
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reiterated this rationale for (b)(2) class actions, stating in Wal-Mart v. Dukes that “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” 131 S. Ct. at 2557.
In this case, the proposed class seeks only declaratory and injunctive relief. This relief would resolve the claims of each and every class member with respect to the illegality or unconstitutionality of the standard and procedures that have resulted in their detention, and would provide them with an appropriate remedy. Because the proposed class accordingly satisfies all necessary requirements for certification under Rule 23(a) and Rule 23(b)(2), plaintiffs respectfully request that this Court certify the class, designate plaintiffs as class representatives, and appoint plaintiffs’ counsel as class counsel pursuant to Rule 23(g). II. THIS COURT SHOULD APPOINT UNDERSIGNED COUNSEL AS
CLASS COUNSEL Under Rule 23(g)(1), “a court that certifies a class must appoint class counsel.” In appointing class counsel, the court must consider four factors set out in Rule 23(g)(1)(A):
(i) the work counsel has done in identifying or investigating potential claims in the action;
(ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action;
(iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class. Here, the plaintiffs seek appointment of the American Civil Liberties Union’s Immigrants’ Rights Project (ACLU-IRP), the American Civil Liberties Union of New Jersey (ACLU-NJ), and
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the John J. Gibbons Fellowship in Public Interest and Constitutional Law at Gibbons P.C. as counsel for the class. These counsel amply satisfy the requirements set out above.
The ACLU Immigrants’ Rights Project has long worked to enforce the constitutional and statutory constraints on the federal government’s power to subject noncitizens to administrative immigration detention. The ACLU-IRP has litigated all of the key cases in this area as either counsel of record or amicus curiae. See, e.g., Demore v. Kim, 538 U.S. 510 (2003) (counsel of record); Zadvydas v. Davis , 533 U.S. 678 (2001) (amicus); Clark v. Martinez , 543 U.S. 371 (2005) (amicus); Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011) (amicus); Leslie v. Attorney General of the United States, 678 F.3d 265 (3rd Cir. 2012) (amicus); Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001) (counsel of record); Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (counsel of record); Nadarajah v. Gonzales , 443 F.3d 1069 (9th Cir. 2006) (counsel of record); Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005) (counsel of record); Casas-Castrillon v. Dep’t of Homeland Se curity, 535 F.3d 942 (9th Cir. 2008) (amicus); Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011) (amicus); Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003) (counsel of record). Several of these cases have been class actions brought on behalf of immigration detainees. See, e.g., Rodriguez v. Hayes, No. 07-cv-3239 (C.D. Cal. filed May 16, 2007) (counsel of record) (challenging the prolonged detention without bond hearings of noncitizens in the Central District of California); Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010) (granting class certification); Franco-Gonzalez v. Holder, 828 F. Supp. 2d 1133 (C.D. Cal 2011) (counsel of record) (seeking right to appointed counsel in removal proceedings for mentally disabled immigration detainees); Alli v. Decker, 644 F. Supp. 2d 535 (M.D. Pa 2009) (counsel of record) (challenging prolonged mandatory detention of lawful permanent residents in Pennsylvania); Alli v. Decker, 650 F.3d 1007 (3d Cir. 2011) (holding that the INA did not preclude classwide declaratory relief).
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Moreover, as part of its research and advocacy, ACLU-IRP routinely seeks government records under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, regarding the size and characteristics of the immigration detention population, and litigates FOIA enforcement actions. See Tan Decl. ¶ 2; ACLU v. Dep’t of Homeland Security , No. 1:11-cv-03786-RMB (S.D.N.Y. filed June 3, 2011) (counsel of record) (FOIA suit for records related to long-term ICE detention population and ICE administrative custody review process).
The American Civil Liberties Union of New Jersey Foundation has extensive experience litigating class-wide actions in civil rights matters. Most recently, the ACLU-NJ served as classaction counsel in Jones v. Hayman, 418 N.J. Super. 291, 13 A.3d 416 (App. Div. 2011), and Colon v. Passaic County, No. 08-cv-4439 (D.N.J. filed Sept. 5 2008). In Jones, the ACLU-NJ represented a class of female prisoners who were improperly transferred and kept in harsh conditions in a small section of a men’s prison. The ACLU-NJ successfully obtained a preliminary injunction against further transfers of women to the men’s prison and, after extensive litigation, the State resolved the case by transferring the remaining women back to the women’s prison. In Colon, the ACLU-NJ served as co-counsel to a class of detainees subjected to unjust conditions of confinement, including significant overcrowding. That action resulted in a comprehension court-approved settlement consisting of five memoranda of understanding, covering medical heath care, mental health care, environmental health, fire safety, and correctional management. See also, e.g., Sojourner A. v. N.J. Dep’t of Human Services, 177 N.J. 318, 828 A.2d 306 (2003) (ACLU-NJ serving as counsel in a class-action challenge to New Jersey’s welfare cap).
The ACLU-NJ Foundation also has extensive experience in cases involving the civil rights of immigrants. Notably, the ACLU-NJ represented both immigrants and landlords in a
18

Case 3:12-cv-02806-FLW Document 13-1 Filed 11/15/12 Page 27 of 30 PageID: 115
successful challenge to the Township of Riverside ordinance that would have imposed sanctions on landlords and tenants who rented to or hired undocumented immigrants. Riverside Coalition of Business Partners and Landlords, v. Twp. of Riverside, No. BURL-L-2965-06 (L. Div. filed Oct. 18, 2006). It has also directly represented immigrants in habeas petitions. See, e.g., Augustovsky, v. Holder, No. 09-cv-04251 (D.N.J. filed August 18, 2009); Joseph v. Avila , No. 07-cv-2392 (D.N.J. filed May 22, 2007); Jama v. Chertoff, No. 06-cv-5185 (D.N.J. filed Oct. 27, 2006). Further, the ACLU-NJ has submitted numerous briefs to the United States Court of Appeals for the Third Circuit as amicus in notable immigrants’ rights cases. See, e.g., Bolmer v. Connelly Properties, 672 F.3d 241 (3d Cir. 2012), cert. denied, No. 11-1435, __ S.Ct. __ , 2012 WL 1945620 (Oct. 1, 2012); Diop v. ICE/Homeland Security , 656 F.3d 221 (3d Cir. 2011); Argueta v. U.S. Immigration and Customs Enforcement , 643 F.3d 60 (3d Cir. 2011). See also State v. Nunez-Valdez, 200 N.J. 129, 975 A.2d 418 (2009).
Gibbons P.C., which is one of New Jersey’s largest and most prestigious law firms, also has substantial experience in prosecuting class actions concerning a wide range of public interest and constitutional issues. Particularly relevant here, Gibbons, through its John J. Gibbons Fellowship in Public Interest and Constitutional Law, has extensive experience litigating class actions brought on behalf of incarcerated populations. See, e.g., Alves v. Main, No. 01-cv-789 (D.N.J. filed Feb. 15, 2001) (class action, currently pending approval of settlement, regarding the adequacy of mental health treatment afforded to civilly- committed individuals held under New Jersey’s Sexually Violent Predator Act); Rouse v. Plantier , 182 F.3d 192 (3d Cir. 1999) (remanding to district court in class action alleging failure to provide constitutionally adequate treatment to diabetic inmates at the Adult Diagnostic and Treatment Center in Avenel, New Jersey); Pack v. Beyer, 1995 WL 775360 (D.N.J. Dec. 22, 1995) (approving settlement of class
19

Case 3:12-cv-02806-FLW Document 13-1 Filed 11/15/12 Page 28 of 30 PageID: 116
action regarding treatment of African-American inmates at the New Jersey State Prison held in solitary confinement); Hairston v. Fauver , No. 90-cv-1850 (D.N.J. filed May 11, 1990) (settlement approved Dec. 6, 1995 in class action regarding prison conditions and medical treatment at Northern State Prison); Roe v. Fauver , No. 88-cv-1225, 1988 U.S. Dist. LEXIS 11328 (D.N.J. Oct. 11, 1988) (denying State’s motion for summary judgment in class action on behalf of New Jersey inmates diagnosed with HIV/AIDS). The Gibbons Fellowship has also acted as class counsel in many other civil rights actions. See, e.g., M.A. v. Newark Public Schools, 334 F.3d 335 (3d Cir. 2003) (class action challenging inadequate special education programs); Baby Sparrow v. Waldman , No. 96-cv-4118 (D.N.J. filed Aug. 28, 1996) (class action successfully settled on December 23, 1996, on behalf of “boarder babies” who were born to addicted mothers, removed at birth, and warehoused in hospitals rather than being placed in foster care). Likewise, the Gibbons Fellowship program has previously litigated a wide range of immigration-related matters. See, e.g., Clark v. Martinez, 543 U.S. 371 (2005) (amicus); Jama v. ICE, 543 U.S. 335 (2005) (amicus) (contesting deportation of immigrant without consent of the receiving country) ; Argueta v. U.S. Immigration and Customs Enforcement, 643 F.3d 60 (3d Cir. 2011) (amicus) (Fourth Amendment challenge to ICE raids of immigrant homes); N. Jersey Media Group v. Ashcroft , 308 F.3d 198 (3d Cir. 2002) (challenging the secrecy of so-called “special interest” deportation proceedings that were widely deployed following the attacks of September 11, 2001); Castillo v. Reno , 178 F.3d 1278 (3d Cir. 1999) (habeas corpus action on behalf of detained immigrant); Kitembo v. Ashcroft , No. 03-3108 (3d Cir. dismissed Apr. 15, 2011) (appeal from BIA decision challenging procedural deficiencies and other errors in asylum proceeding) ; Qatanani v. Dep’t of Justice , No. 12-cv-4042 (D.N.J. filed June 29, 2012) (lawsuit enforcing FOIA request in support of ongoing immigration removal proceedings); Jama v.
20

Case 3:12-cv-02806-FLW Document 13-1 Filed 11/15/12 Page 29 of 30 PageID: 117
Chertoff, No. 06-cv-5185 (D.N.J. filed Oct. 27, 2006) (habeas petition on behalf of immigrant detained for more than four years); Jama v. U.S. Immigration & Naturalizat ion Serv., 343 F. Supp. 2d 338 (2004) (amicus) (challenging conditions of confinement at immigration detention facility in Elizabeth).
Plaintiffs’ counsel have the resources to maintain this litigation, as evidenced by the numerous class actions they have successfully prosecuted in the past. They are also willing to devote significant resources to the prosecution of the case including lead attorneys — Ms. Rabinovitz and Mr. Arulanantham of ACLU-IRP,2 Mr. Barocas of ACLU-NJ, and Mr. Lustberg of Gibbons P.C. — who each have decades of experience litigating civil rights cases — as well as several other attorneys whose legal practices focus exclusively on public interest litigation or immigration law. 3 Moreover, ACLU-IRP, ACLU-NJ and the law firm of Gibbons P.C. have ample support staff and other resources. Finally, plaintiffs’ counsel are undertaking this representation entirely pro bono, and will not collect any fees unless they awarded against the defendants by the Court. See Sheinberg v. Sorensen , 606 F.3d 130, 133 (3d Cir. 2010) (stating that court, in determining whether to appoint counsel under Rule 23(g), may consider attorney’s fee arrangement and may “order the proffered counsel ‘to propose terms for attorney's fees and nontaxable costs’ and to include provisions for such fees and costs ‘in the appointing order.’” (quoting Rule 23(g)(1)(C)-(D)).
Because plaintiffs’ counsel have the interest, ability, and resources to represent the Class and will fairly and adequately represent the interests of the class, the Court should appoint them as counsel for the class under Rule 23(g).
2 See Nadarajah v. Holder , 569 F.3d 906, 912 (9th Cir. 2009) (noting that Ms. Rabinovitz and Mr. Arulanantham have “distinctive knowledge and specialized skill in immigration law and, in particular, constitutional immigration law and litigation involving the rights of detained immigrants”).
3 For instance, Mr. Tan of ACLU -IRP has litigated several key cases — including class actions — on behalf of immigration detainees, and argued Alli v. Decker, 650 F.3d 1007 (3d Cir. 2011), before the Third Circuit.
21

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CONCLUSION For the foregoing reasons, plaintiffs respectfully request that the Court certify a cla ss of

all individuals in New Jersey who are or will be detained pursuant to 8 U.S.C. § 1226(c), appoint

the named plaintiffs as class representatives, and appoint ACLU-IRP, ACLU-NJ and Gibbons

P.C. as class counsel.

Respectfully submitted,

Judy Rabinovitz Dror Ladin AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2660 (tel) (212) 549-2654 (fax) jrabinovitz@aclu.org dladin@aclu.org
Michael Tan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 (415) 343-0779 (tel) (415) 395-0950 (fax) mtan@aclu.org *admitted to practice in New York

/s/Lawrence S. Lustberg Lawrence S. Lustberg Jonathan M. Manes GIBBONS P.C. One Gateway Center Newark, NJ 07102 (973) 596-4500 (tel) (973) 596-6285 (fax) LLustberg@gibbonslaw.com JManes@gibbonslaw.com
Edward Barocas Jeanne LoCicero Alexander Shalom AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY FOUNDATION P.O. Box 32159 Newark, NJ 07102 (973) 854-1714 (tel) (973) 642-6523 (fax) ebarocas@aclu- nj.org jlocicero@aclu- nj.org ashalom@aclu- nj.org

Ahilan Arulanantham AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 1313 West 8th Street Los Angeles, CA 90017 (213) 977-5211 (tel) (213) 977-5297 (fax) aarulanantham@aclu-sc.org
Dated: November 15, 2012

Attorneys for the Plaintiffs

22

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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

GARFIELD GAYLE, et al.,

Plaintiffs,

v.

No. 3:12-cv-02806-FLW

JANET NAPOLITANO, et al., Defendants.

DECLARATION OF MICHAEL TAN I, Michael Tan, hereby declare:

1. I am a Staff Attorney at the ACLU Immigrants’ Rights Project (“ACLU”) and

counsel for the plaintiffs in this case. I submit this declaration in support of the plaintiffs’

Motion for Class Certification.

2. Attached hereto as exhibits are true and correct copies of the following:

Exhibit A B
C
D
E F

Document
Letter from Catrina M. Pavlik Keenan to Michael Tan Re: ICE FOIA Case Number 2012FOIA5180 (Feb. 21, 2012).
Immigration and Customs Enforcement, ERO LES Statistical Tracking Unit, FOIA #12-05180 FY11 Mandatory and Non-Mandatory Detention (produced by ICE to the ACLU in response to FOIA request).
Email from Andrew Lorenzen-Strait, Senior Advisor, Office of Enforcement and Removal Operations, Immigration and Customs Enforcement to Michael Tan (Jan. 10, 2012).
FY2011: Individuals Subject to Detention Under INA 236(c) in Newark and New York ICE Areas of Responsibility (summary of data provided by ICE to the ACLU in response to FOIA request).
U.S. Dep’t of Homeland Security, Notice of Custody Determination (Form I-286) of Plaintiff-Petitioner Sheldon Francois (Aug. 6, 2012).
Excerpts from Official Transcript of Deposition of Wesley Lee, Assistant Field Office Director, Los Angeles Field Office of Immigration and Customs Enforcement, Rodriguez v. Robbins, No. 2:07-cv-03239 (C.D. Cal. deposition filed June 25, 2012) (ECF No. 232-2).

Case 3:12-cv-02806-FLW Document 13-2 Filed 11/15/12 Page 2 of 4 PageID: 120
3. The ACLU has a longstanding commitment to enforcing the constitutional and statutory constraints on the federal government’s power to subject noncitizens to immigration detention. As part of our research and advocacy, we routinely request government records under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, regarding the size and characteristics of the immigration detention population.
4. On February 21, 2012, U.S. Immigration and Customs Enforcement (“ICE”) disclosed a set of spreadsheets in response to a FOIA request seeking population “snapshots” of the ICE detention population for one day of every month of FY2011. See Ex. A. The spreadsheets show the number of individuals in ICE custody on each day the snapshot was taken, organized geographically according to ICE Area of Responsibility and whether the individuals were subject to “mandatory” and “non- mandatory detention.” See Ex. B..
5. For each month, the spreadsheets also include the number of individuals in each ICE Area of Responsibility subject to mandatory detention based on a charge of removability enumerated at 8 U.S.C. § 1226(c), sometimes cited as § 236(c) of the Immigration and Nationality Act (“INA”). In previous correspondence, ICE confirmed that it identifies who is subject to detention under § 1226(c) in its databases according to charge of removability. See Ex. C.
6. Attached to this declaration is summary of the data showing the number of individuals subject to mandatory detention in the Newark and New York City Areas of Responsibility based on these predicate charges. I prepared this summary on the basis of the data provided by ICE, described above. See Ex. D.
7. The Newark and New York City ICE field offices jointly oversee immigration detention in New Jersey. The Newark Area of Responsibility includes the following facilities:
2

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the Elizabeth Contract Detention Facility in Elizabeth; the Delaney Hall Detention Facility in Newark; and the Essex County Jail in Newark. See ICE Facility Locator, http://www.ice.gov/detention-facilities/ (last visited November 15, 2012).
8. The New York City Area of Responsibility includes the following New Jersey facilities: the Bergen County Jail in Hackensack; the Hudson County Correctional Facility in Kearny; and the Monmouth County Correctional Institution in Freehold. The only other facility supervised by the New York City field office is the Orange County Correctional Facility in Goshen, New York. See ICE Facility Locator, http://www.ice.gov/detention-facilities/ (last visited November 15, 2012).
9. The ICE data show that, on one day in each month of Fiscal Year 2011, anywhere from 149 to 266 individuals were subject to mandatory immigration detention under § 1226(c) in the Newark Area of Responsibility. See Ex. D, at 1.
10. The ICE data also show that, on one day in each month of Fiscal Year 2011, anywhere from 191 to 259 individuals were subject to mandatory detention under § 1226(c) in the New York City Area of Responsibility. See Ex. D, at 1.
11. The ICE data further show that, taken together, there were anywhere from 342 to 519 individuals subject to mandatory detention under § 1226(c) in the Newark and New York City Areas of Responsibility on one day in each month of Fiscal Year 2011. See Ex. D, at 1.
12. In FY 2011, approximately 110 ICE detainees were held at the Orange County Correctional Facility in Goshen, New York on any given day, according to information provided to me by immigration attorneys who routinely represent immigrants detained at that facility. Thus, even if one were over- inclusive and counted all 110 of those detainees as subject to
3

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Case 3:12-cv-02806-FLW Document 13-3 Filed 11/15/12 Page 1 of 2 PageID: 123
EXHIBIT A

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Case 3:12-cv-02806-FLW Document 13-4 Filed 11/15/12 Page 1 of 13 PageID: 125
EXHIBIT B

Case 3:12-cv-02806-FLW Document 13-4 Filed 11/15/12 Page 2 of 13 PageID: 126

ERO LES Statistical Tracking Unit

FOIA #12-05180 FY11 Mandatory and Non-Mandatory Detention
Fiscal Year Month
Atlanta Area of Responsibility Baltimore Area of Responsibility Boston Area of Responsibility Buffalo Area of Responsibility Chicago Area of Responsibility Dallas Area of Responsibility Denver Area of Responsibility Detroit Area of Responsibility El Paso Area of Responsibility HQ Area of Responsibility Houston Area of Responsibility Los Angeles Area of Responsibility Miami Area of Responsibility New Orleans Area of Responsibility New York City Area of Responsibility Newark Area of Responsibility Philadelphia Area of Responsibility Phoenix Area of Responsibility Salt Lake City Area of Responsibility San Antonio Area of Responsibility San Diego Area of Responsibility San Francisco Area of Responsibility Seattle Area of Responsibility St. Paul Area of Responsibility Washington Area of Responsibility TOTAL
FY11 data is historical and remains static
Detention data excludes ORR, MIRP and USM facilities
Queries run on the following dates were used for each of the FY months listed: 1. October 10/5/2010, 2. November 10/25/2010, 3. December 11/29/2010, 4. January 1/03/2011, 5. February 1/31/2011, 6. March 2/28/2011, 7. April 4/4/2011, 8. May 5/2/2011, 9. June 5/30/2011, 10. July 7/4/2011, 11. August 8/1/2011, 12. September 8/29/2011 Mandatory Detention filters were made based on Mandatory_Det

October

Mandatory

Non-Mandatory

1,022

1,818

153

169

505

325

213

307

665

695

431

330

236

267

340

442

727

1,087

1

0

957

866

719

1,129

930

969

874

1,072

424

362

504

415

528

553

1,385

1,315

220

238

1,899

2,166

552

611

460

404

416

603

351

492

472

248

14,984

16,883

1 of 12

Case 3:12-cv-02806-FLW Document 13-4 Filed 11/15/12 Page 3 of 13 PageID: 127

ERO LES Statistical Tracking Unit

FOIA #12-05180 FY11 Mandatory and Non-Mandatory Detention

Fiscal Year Month
Atlanta Area of Responsibility Baltimore Area of Responsibility Boston Area of Responsibility Buffalo Area of Responsibility Chicago Area of Responsibility Dallas Area of Responsibility Denver Area of Responsibility Detroit Area of Responsibility El Paso Area of Responsibility HQ Area of Responsibility Houston Area of Responsibility Los Angeles Area of Responsibility Miami Area of Responsibility New Orleans Area of Responsibility New York City Area of Responsibility Newark Area of Responsibility Philadelphia Area of Responsibility Phoenix Area of Responsibility Salt Lake City Area of Responsibility San Antonio Area of Responsibility San Diego Area of Responsibility San Francisco Area of Responsibility Seattle Area of Responsibility St. Paul Area of Responsibility Washington Area of Responsibility TOTAL

November

Mandatory

Non-Mandatory

1,074

1,889

133

172

517

318

241

309

636

704

425

366

264

279

353

418

748

1,093

0

0

1,008

945

522

847

1,049

979

813

1,079

444

346

466

441

549

584

1,336

1,316

204

262

1,647

2,217

537

621

401

352

460

698

352

459

464

274

14,643

16,968

FY11 data is historical and remains static
Detention data excludes ORR, MIRP and USM facilities
Queries run on the following dates were used for each of the FY months listed: 1. October 10/5/2010, 2. November 10/25/2010, 3. December 11/29/2010, 4. January 1/03/2011, 5. February 1/31/2011, 6. March 2/28/2011, 7. April 4/4/2011, 8. May 5/2/2011, 9. June 5/30/2011, 10. July 7/4/2011, 11. August 8/1/2011, 12. September 8/29/2011 Mandatory Detention filters were made based on Mandatory_Det

2 of 12

Case 3:12-cv-02806-FLW Document 13-4 Filed 11/15/12 Page 4 of 13 PageID: 128

ERO LES Statistical Tracking Unit

FOIA #12-05180 FY11 Mandatory and Non-Mandatory Detention
Fiscal Year Month
Atlanta Area of Responsibility Baltimore Area of Responsibility Boston Area of Responsibility Buffalo Area of Responsibility Chicago Area of Responsibility Dallas Area of Responsibility Denver Area of Responsibility Detroit Area of Responsibility El Paso Area of Responsibility HQ Area of Responsibility Houston Area of Responsibility Los Angeles Area of Responsibility Miami Area of Responsibility New Orleans Area of Responsibility New York City Area of Responsibility Newark Area of Responsibility Philadelphia Area of Responsibility Phoenix Area of Responsibility Salt Lake City Area of Responsibility San Antonio Area of Responsibility San Diego Area of Responsibility San Francisco Area of Responsibility Seattle Area of Responsibility St. Paul Area of Responsibility Washington Area of Responsibility TOTAL
FY11 data is historical and remains static
Detention data excludes ORR, MIRP and USM facilities
Queries run on the following dates were used for each of the FY months listed: 1. October 10/5/2010, 2. November 10/25/2010, 3. December 11/29/2010, 4. January 1/03/2011, 5. February 1/31/2011, 6. March 2/28/2011, 7. April 4/4/2011, 8. May 5/2/2011, 9. June 5/30/2011, 10. July 7/4/2011, 11. August 8/1/2011, 12. September 8/29/2011 Mandatory Detention filters were made based on Mandatory_Det

December

Mandatory

Non-Mandatory

1,162

1,745

141

143

457

355

267

352

606

681

377

358

281

283

301

408

616

1,085

1

0

1,016

1,083

757

1,424

1,094

1,070

868

1,189

437

363

456

403

527

623

1,354

1,508

221

275

1,815

2,280

498

633

382

312

435

798

312

460

374

397

14,755

18,228

3 of 12

Case 3:12-cv-02806-FLW Document 13-4 Filed 11/15/12 Page 5 of 13 PageID: 129

ERO LES Statistical Tracking Unit

FOIA #12-05180 FY11 Mandatory and Non-Mandatory Detention
Fiscal Year Month
Atlanta Area of Responsibility Baltimore Area of Responsibility Boston Area of Responsibility Buffalo Area of Responsibility Chicago Area of Responsibility Dallas Area of Responsibility Denver Area of Responsibility Detroit Area of Responsibility El Paso Area of Responsibility HQ Area of Responsibility Houston Area of Responsibility Los Angeles Area of Responsibility Miami Area of Responsibility New Orleans Area of Responsibility New York City Area of Responsibility Newark Area of Responsibility Philadelphia Area of Responsibility Phoenix Area of Responsibility Salt Lake City Area of Responsibility San Antonio Area of Responsibility San Diego Area of Responsibility San Francisco Area of Responsibility Seattle Area of Responsibility St. Paul Area of Responsibility Washington Area of Responsibility TOTAL
FY11 data is historical and remains static
Detention data excludes ORR, MIRP and USM facilities
Queries run on the following dates were used for each of the FY months listed: 1. October 10/5/2010, 2. November 10/25/2010, 3. December 11/29/2010, 4. January 1/03/2011, 5. February 1/31/2011, 6. March 2/28/2011, 7. April 4/4/2011, 8. May 5/2/2011, 9. June 5/30/2011, 10. July 7/4/2011, 11. August 8/1/2011, 12. September 8/29/2011 Mandatory Detention filters were made based on Mandatory_Det

January

Mandatory

Non-Mandatory

1,186

1,601

153

171

466

383

245

345

579

664

443

329

269

226

329

385

673

1,238

1

0

999

1,001

873

1,416

1,027

974

861

1,215

414

386

487

484

467

618

1,218

1,429

202

241

1,787

2,204

539

586

444

373

433

845

322

392

383

455

14,800

17,961

4 of 12

Case 3:12-cv-02806-FLW Document 13-4 Filed 11/15/12 Page 6 of 13 PageID: 130

ERO LES Statistical Tracking Unit

FOIA #12-05180 FY11 Mandatory and Non-Mandatory Detention
Fiscal Year Month
Atlanta Area of Responsibility Baltimore Area of Responsibility Boston Area of Responsibility Buffalo Area of Responsibility Chicago Area of Responsibility Dallas Area of Responsibility Denver Area of Responsibility Detroit Area of Responsibility El Paso Area of Responsibility HQ Area of Responsibility Houston Area of Responsibility Los Angeles Area of Responsibility Miami Area of Responsibility New Orleans Area of Responsibility New York City Area of Responsibility Newark Area of Responsibility Philadelphia Area of Responsibility Phoenix Area of Responsibility Salt Lake City Area of Responsibility San Antonio Area of Responsibility San Diego Area of Responsibility San Francisco Area of Responsibility Seattle Area of Responsibility St. Paul Area of Responsibility Washington Area of Responsibility TOTAL
FY11 data is historical and remains static
Detention data excludes ORR, MIRP and USM facilities
Queries run on the following dates were used for each of the FY months listed: 1. October 10/5/2010, 2. November 10/25/2010, 3. December 11/29/2010, 4. January 1/03/2011, 5. February 1/31/2011, 6. March 2/28/2011, 7. April 4/4/2011, 8. May 5/2/2011, 9. June 5/30/2011, 10. July 7/4/2011, 11. August 8/1/2011, 12. September 8/29/2011 Mandatory Detention filters were made based on Mandatory_Det

February

Mandatory

Non-Mandatory

1,343

1,452

177

174

482

389

290

303

607

769

450

357

265

235

365

401

551

1,248

3

0

956

847

866

1,277

1,056

1,087

810

1,090

419

422

502

466

443

565

1,348

1,433

193

273

1,745

1,895

508

577

422

360

452

619

334

417

496

498

15,083

17,154

5 of 12

Case 3:12-cv-02806-FLW Document 13-4 Filed 11/15/12 Page 7 of 13 PageID: 131

ERO LES Statistical Tracking Unit

FOIA #12-05180 FY11 Mandatory and Non-Mandatory Detention
Fiscal Year Month
Atlanta Area of Responsibility Baltimore Area of Responsibility Boston Area of Responsibility Buffalo Area of Responsibility Chicago Area of Responsibility Dallas Area of Responsibility Denver Area of Responsibility Detroit Area of Responsibility El Paso Area of Responsibility HQ Area of Responsibility Houston Area of Responsibility Los Angeles Area of Responsibility Miami Area of Responsibility New Orleans Area of Responsibility New York City Area of Responsibility Newark Area of Responsibility Philadelphia Area of Responsibility Phoenix Area of Responsibility Salt Lake City Area of Responsibility San Antonio Area of Responsibility San Diego Area of Responsibility San Francisco Area of Responsibility Seattle Area of Responsibility St. Paul Area of Responsibility Washington Area of Responsibility TOTAL
FY11 data is historical and remains static
Detention data excludes ORR, MIRP and USM facilities
Queries run on the following dates were used for each of the FY months listed: 1. October 10/5/2010, 2. November 10/25/2010, 3. December 11/29/2010, 4. January 1/03/2011, 5. February 1/31/2011, 6. March 2/28/2011, 7. April 4/4/2011, 8. May 5/2/2011, 9. June 5/30/2011, 10. July 7/4/2011, 11. August 8/1/2011, 12. September 8/29/2011 Mandatory Detention filters were made based on Mandatory_Det

March

Mandatory

Non-Mandatory

1,189

1,628

160

171

475

359

286

343

634

715

429

405

295

242

395

389

548

1,130

4

0

872

697

868

1,190

1,110

1,095

882

1,016

433

425

470

456

425

588

1,283

1,408

257

302

1,908

2,027

472

560

357

357

405

542

356

436

562

536

15,075

17,017

6 of 12

Case 3:12-cv-02806-FLW Document 13-4 Filed 11/15/12 Page 8 of 13 PageID: 132

ERO LES Statistical Tracking Unit

FOIA #12-05180 FY11 Mandatory and Non-Mandatory Detention
Fiscal Year Month
Atlanta Area of Responsibility Baltimore Area of Responsibility Boston Area of Responsibility Buffalo Area of Responsibility Chicago Area of Responsibility Dallas Area of Responsibility Denver Area of Responsibility Detroit Area of Responsibility El Paso Area of Responsibility HQ Area of Responsibility Houston Area of Responsibility Los Angeles Area of Responsibility Miami Area of Responsibility New Orleans Area of Responsibility New York City Area of Responsibility Newark Area of Responsibility Philadelphia Area of Responsibility Phoenix Area of Responsibility Salt Lake City Area of Responsibility San Antonio Area of Responsibility San Diego Area of Responsibility San Francisco Area of Responsibility Seattle Area of Responsibility St. Paul Area of Responsibility Washington Area of Responsibility TOTAL
FY11 data is historical and remains static
Detention data excludes ORR, MIRP and USM facilities
Queries run on the following dates were used for each of the FY months listed: 1. October 10/5/2010, 2. November 10/25/2010, 3. December 11/29/2010, 4. January 1/03/2011, 5. February 1/31/2011, 6. March 2/28/2011, 7. April 4/4/2011, 8. May 5/2/2011, 9. June 5/30/2011, 10. July 7/4/2011, 11. August 8/1/2011, 12. September 8/29/2011 Mandatory Detention filters were made based on Mandatory_Det

Mandatory 1,313 167 514 286 647 500 251 326 560 1 991 938 1,144 868 458 475 523 1,258 207 2,234 463 342 397 303 510 15,676

April Non-Mandatory 1,579 162 351 309 707 411 249 408 1,136 0 753 1,187 1,071 1,076 370 450 635 1,365 261 2,107 553 314 578 371 491 16,894

7 of 12

Case 3:12-cv-02806-FLW Document 13-4 Filed 11/15/12 Page 9 of 13 PageID: 133

ERO LES Statistical Tracking Unit

FOIA #12-05180 FY11 Mandatory and Non-Mandatory Detention
Fiscal Year Month
Atlanta Area of Responsibility Baltimore Area of Responsibility Boston Area of Responsibility Buffalo Area of Responsibility Chicago Area of Responsibility Dallas Area of Responsibility Denver Area of Responsibility Detroit Area of Responsibility El Paso Area of Responsibility HQ Area of Responsibility Houston Area of Responsibility Los Angeles Area of Responsibility Miami Area of Responsibility New Orleans Area of Responsibility New York City Area of Responsibility Newark Area of Responsibility Philadelphia Area of Responsibility Phoenix Area of Responsibility Salt Lake City Area of Responsibility San Antonio Area of Responsibility San Diego Area of Responsibility San Francisco Area of Responsibility Seattle Area of Responsibility St. Paul Area of Responsibility Washington Area of Responsibility TOTAL
FY11 data is historical and remains static
Detention data excludes ORR, MIRP and USM facilities
Queries run on the following dates were used for each of the FY months listed: 1. October 10/5/2010, 2. November 10/25/2010, 3. December 11/29/2010, 4. January 1/03/2011, 5. February 1/31/2011, 6. March 2/28/2011, 7. April 4/4/2011, 8. May 5/2/2011, 9. June 5/30/2011, 10. July 7/4/2011, 11. August 8/1/2011, 12. September 8/29/2011 Mandatory Detention filters were made based on Mandatory_Det

Mandatory 1,272 191 466 308 599 411 258 328 684 0 1,013 904 1,103 808 458 453 481 1,201 233 2,935 473 325 348 343 443 16,038

May Non-Mandatory 1,487 168 333 294 789 363 267 358 1,021 0 732 1,092 1,060 1,110 389 457 599 1,491 231 2,025 529 296 567 362 538 16,558

8 of 12

Case 3:12-cv-02806-FLW Document 13-4 Filed 11/15/12 Page 10 of 13 PageID: 134

ERO LES Statistical Tracking Unit

FOIA #12-05180 FY11 Mandatory and Non-Mandatory Detention
Fiscal Year Month
Atlanta Area of Responsibility Baltimore Area of Responsibility Boston Area of Responsibility Buffalo Area of Responsibility Chicago Area of Responsibility Dallas Area of Responsibility Denver Area of Responsibility Detroit Area of Responsibility El Paso Area of Responsibility HQ Area of Responsibility Houston Area of Responsibility Los Angeles Area of Responsibility Miami Area of Responsibility New Orleans Area of Responsibility New York City Area of Responsibility Newark Area of Responsibility Philadelphia Area of Responsibility Phoenix Area of Responsibility Salt Lake City Area of Responsibility San Antonio Area of Responsibility San Diego Area of Responsibility San Francisco Area of Responsibility Seattle Area of Responsibility St. Paul Area of Responsibility Washington Area of Responsibility TOTAL
FY11 data is historical and remains static
Detention data excludes ORR, MIRP and USM facilities
Queries run on the following dates were used for each of the FY months listed: 1. October 10/5/2010, 2. November 10/25/2010, 3. December 11/29/2010, 4. January 1/03/2011, 5. February 1/31/2011, 6. March 2/28/2011, 7. April 4/4/2011, 8. May 5/2/2011, 9. June 5/30/2011, 10. July 7/4/2011, 11. August 8/1/2011, 12. September 8/29/2011 Mandatory Detention filters were made based on Mandatory_Det

Mandatory 1,596 212 629 414 728 611 294 440 712 1 1,287 1,061 1,448 1,041 548 597 606 1,741 279 3,395 800 327 490 444 570 20,271

June Non-Mandatory 1,262 133 212 148 640 296 226 227 725 0 699 766 753 981 286 374 416 939 186 808 222 209 524 268 477 11,777

9 of 12

Case 3:12-cv-02806-FLW Document 13-4 Filed 11/15/12 Page 11 of 13 PageID: 135

ERO LES Statistical Tracking Unit

FOIA #12-05180 FY11 Mandatory and Non-Mandatory Detention
Fiscal Year Month
Atlanta Area of Responsibility Baltimore Area of Responsibility Boston Area of Responsibility Buffalo Area of Responsibility Chicago Area of Responsibility Dallas Area of Responsibility Denver Area of Responsibility Detroit Area of Responsibility El Paso Area of Responsibility HQ Area of Responsibility Houston Area of Responsibility Los Angeles Area of Responsibility Miami Area of Responsibility New Orleans Area of Responsibility New York City Area of Responsibility Newark Area of Responsibility Philadelphia Area of Responsibility Phoenix Area of Responsibility Salt Lake City Area of Responsibility San Antonio Area of Responsibility San Diego Area of Responsibility San Francisco Area of Responsibility Seattle Area of Responsibility St. Paul Area of Responsibility Washington Area of Responsibility TOTAL
FY11 data is historical and remains static
Detention data excludes ORR, MIRP and USM facilities
Queries run on the following dates were used for each of the FY months listed: 1. October 10/5/2010, 2. November 10/25/2010, 3. December 11/29/2010, 4. January 1/03/2011, 5. February 1/31/2011, 6. March 2/28/2011, 7. April 4/4/2011, 8. May 5/2/2011, 9. June 5/30/2011, 10. July 7/4/2011, 11. August 8/1/2011, 12. September 8/29/2011 Mandatory Detention filters were made based on Mandatory_Det

Mandatory 1,534 183 613 438 719 522 296 393 969 2 1,425 1,072 1,359 1,413 486 584 606 1,756 253 3,394 760 336 494 425 469 20,501

July Non-Mandatory 1,157 118 220 119 625 267 220 199 684 0 543 942 697 1,154 301 338 430 888 188 701 265 211 619 305 517 11,708

10 of 12

Case 3:12-cv-02806-FLW Document 13-4 Filed 11/15/12 Page 12 of 13 PageID: 136

ERO LES Statistical Tracking Unit

FOIA #12-05180 FY11 Mandatory and Non-Mandatory Detention
Fiscal Year Month
Atlanta Area of Responsibility Baltimore Area of Responsibility Boston Area of Responsibility Buffalo Area of Responsibility Chicago Area of Responsibility Dallas Area of Responsibility Denver Area of Responsibility Detroit Area of Responsibility El Paso Area of Responsibility HQ Area of Responsibility Houston Area of Responsibility Los Angeles Area of Responsibility Miami Area of Responsibility New Orleans Area of Responsibility New York City Area of Responsibility Newark Area of Responsibility Philadelphia Area of Responsibility Phoenix Area of Responsibility Salt Lake City Area of Responsibility San Antonio Area of Responsibility San Diego Area of Responsibility San Francisco Area of Responsibility Seattle Area of Responsibility St. Paul Area of Responsibility Washington Area of Responsibility TOTAL
FY11 data is historical and remains static
Detention data excludes ORR, MIRP and USM facilities
Queries run on the following dates were used for each of the FY months listed: 1. October 10/5/2010, 2. November 10/25/2010, 3. December 11/29/2010, 4. January 1/03/2011, 5. February 1/31/2011, 6. March 2/28/2011, 7. April 4/4/2011, 8. May 5/2/2011, 9. June 5/30/2011, 10. July 7/4/2011, 11. August 8/1/2011, 12. September 8/29/2011 Mandatory Detention filters were made based on Mandatory_Det

August

Mandatory

Non-Mandatory

1,322

1,233

166

98

589

203

462

131

738

678

607

261

267

206

357

246

739

757

3

0

1,342

711

995

1,231

1,442

792

1,319

1,036

406

339

666

385

587

465

1,556

1,110

250

196

3,588

706

774

264

321

301

535

736

399

372

404

462

19,834

12,919

11 of 12

Case 3:12-cv-02806-FLW Document 13-4 Filed 11/15/12 Page 13 of 13 PageID: 137

ERO LES Statistical Tracking Unit

FOIA #12-05180 FY11 Mandatory and Non-Mandatory Detention
Fiscal Year Month
Atlanta Area of Responsibility Baltimore Area of Responsibility Boston Area of Responsibility Buffalo Area of Responsibility Chicago Area of Responsibility Dallas Area of Responsibility Denver Area of Responsibility Detroit Area of Responsibility El Paso Area of Responsibility HQ Area of Responsibility Houston Area of Responsibility Los Angeles Area of Responsibility Miami Area of Responsibility New Orleans Area of Responsibility New York City Area of Responsibility Newark Area of Responsibility Philadelphia Area of Responsibility Phoenix Area of Responsibility Salt Lake City Area of Responsibility San Antonio Area of Responsibility San Diego Area of Responsibility San Francisco Area of Responsibility Seattle Area of Responsibility St. Paul Area of Responsibility Washington Area of Responsibility TOTAL
FY11 data is historical and remains static
Detention data excludes ORR, MIRP and USM facilities
Queries run on the following dates were used for each of the FY months listed: 1. October 10/5/2010, 2. November 10/25/2010, 3. December 11/29/2010, 4. January 1/03/2011, 5. February 1/31/2011, 6. March 2/28/2011, 7. April 4/4/2011, 8. May 5/2/2011, 9. June 5/30/2011, 10. July 7/4/2011, 11. August 8/1/2011, 12. September 8/29/2011 Mandatory Detention filters were made based on Mandatory_Det

September

Mandatory Non-Mandatory

1,267

1,200

202

133

602

180

399

129

670

612

587

286

291

200

409

212

690

680

0

0

1,361

761

913

1,281

1,380

784

1,244

932

515

376

576

313

600

455

1,460

1,053

278

174

3,571

593

742

264

325

215

461

653

367

378

389

421

19,299

12,285

12 of 12

Case 3:12-cv-02806-FLW Document 13-5 Filed 11/15/12 Page 1 of 5 PageID: 138
EXHIBIT C

Case 3:12-cv-02806-FLW Document 13-5 Filed 11/15/12 Page 2 of 5 PageID: 139 Page 1 of 3

Attachments can contain viruses that may harm your computer. Attachments may not display correctly.
Lorena Fernandez

From:

Michael Tan

Sent: Wed 11/14/2012 2:39 PM

To:

Lorena Fernandez

Cc:

Subject:

FW: question regarding "mandatory" detention

Attachments: Mandatory Detention Reporting Methodology DRAFT 2011 -05-10.xlsx(13KB)

From: Strait, Andrew R [mailto:arstrait@ice.dhs.gov] Sent: Tue 1/10/2012 2:59 PM To: Michael Tan Subject: FW: question regarding "mandatory" detention Michael,
The methodology for being counted as ?wAYEAlŽ?? EGlGYlsŽY? within the reporting data includes all aliens that meet any of the belowmandatory detention criteria.
1. Final Order ? Aliens with final orders of removal 2. INA 236 (c) ? Aliens charged with INA 212 or 237 3. Expedited Removal ? Aliens processed under Expedited Removal case category. Aligns to INA section 235. 4. Mandatory Case Category ? Aliens with a current Case Category that is subject to Mandatory Detention
The specific INA charges and case categories connected with each criteria are detailed in the attached excel spreadsheet. This should provide the level of detailyou are looking for.
Thanks
Andrew

___________________________ Andrew Lorenzen Strait
https://owa.aclu.org/exchange/lfernandez/Inbox/FW:%20question%20regarding%20%22... 11/14/2012

Case 3:12-cv-02806-FLW Document 13-5 Filed 11/15/12 Page 3 of 5 PageID: 140 Page 2 of 3
Senior Advisor Office of Enforcement and Removal Operations U.S. Immigration and Customs Enforcement
202.732.4262 Direct 202.465.0217 BlackBerry 202.431.4761 Cell Andrew.Strait@dhs.gov
From : Michael Tan [mailto:mtan@aclu.org] Sent: Monday, January 09, 2012 05:34 PM To: Andrew.Strait@dhs.gov <Andrew.Strait@dhs.gov> Subject: question regarding "mandatory" detention
Dear Andrew,
I hope all is well. My name is Michael Tan, and I’m an attorney here at the ACLU Immigrants’ Rights Project. I have a quick follow-up question regarding a response to a FOIA request we recently received from ICE regarding the mandatory detention population. I’m reaching out to you because the ICE FOIA office referred us to the Office of Public Affairs, and Gillian Christensen let me know in turn that you would be the best person to talk to.
As you’ll see from the attached materials, we requested a range of information regarding the number of individuals ICE holds in mandatory detention under INA 236 (c). In response, ICE sent us a “snapshot” of the dete ntion population on October 1, 2011, organized by area of responsibility and whether the individual was subject to “non-mandatory” or “mandatory detention.” My question is this: does “mandatory” refer exclusively to individuals held under INA 236(c), or does it include other statutory provisions? If so, what are those additional provisions --- INA 235 and INA 241? Relatedly, does “non-mandatory” then refer to individuals detained pursuant to INA 236(a)?
https://owa.aclu.org/exchange/lfernandez/Inbox/FW:%20question%20regarding%20%22... 11/14/2012

Case 3:12-cv-02806-FLW Document 13-5 Filed 11/15/12 Page 4 of 5 PageID: 141 Page 3 of 3
Thanks in advance for the clarification. All the best, Michael ---Michael Tan Skadden Fellow / Attorney ACLU Immigrants' Rights Project 125 Broad St., 18th floor New York, NY 10004-2400 ph: (212) 284-7303 fax: (212) 549-2654 This message may contain information that is confidential or legally privileged. If you are not the intended recipient, please immediately advise the sender by reply E-mail that this message has been inadvertently transmitted to you and delete this E-mail from your system.
https://owa.aclu.org/exchange/lfernandez/Inbox/FW:%20question%20regarding%20%22... 11/14/2012

Case 3:12-cv-02806-FLW Document 13-5 Filed 11/15/12 Page 5 of 5 PageID: 142

ICE Enforcement and Removal Operations
Mandatory Detention Reporting Methodology
DRAFT 5/10/2011

Themandatory detention reporting methodology includes all aliens thatmeet any of the below mandatory detentioncriteria.
1. Final Order ? Aliens with final orders of removal 2 .INA 236 (c) ? Aliens charged with INA 212 or 237 3.Expedited Removal ? Aliens processed under Expedited Removal case category. Aligns to INA section 235. 4. Mandatory Case Category ? Aliens with a current Case Category that is subject to Mandatory Detention

1. Final Order ? Aliens with final orders of removal
Final order is based on whether the detainee has a final order in the most recent Removal Case information.

2 .INA 236(c) ?usGY? charged with INA 212or 237

INA Charge

INA Description

237a2Ai

CONVICTION OF ONE CRIME INVOLVING MORAL TURPITUDE

237a2Aii

CONVICTION OF TWO CRIMES INVOLVING MORAL TURPITUDE

237a2Aiii

AGGRAVATED FELONY

237a2Bi

CONTROLLED SUBSTANCE CONVICTION

237a2C

FIREARMS CONVICTION

237a2Bii

DRUG ABUSERS AND ADDICTS

237a2Di

ESPIONAGE, SABOTAGE, OR TREASON CONVICTION

237a2Dii

THREATS AGAINST PRESIDENT

237a2Diii

VIOLATION OF MILITARY SELECTIVE SERVICE ACT OR TRADING WITH THE ENEMY ACT

237a2Div

VIOLATION OF 215 OR 278 OF ACT

237a4B 212A2C 212a2B 212a2Di

TERRORIST ACTIVITY CONTROLLED SUBSTANCE TRAFFICKERS MULTIPLE CONVICTIONS WITH AGGREGATE SENTENCE OF FIVE YEARS PROSTITUTION WITHIN 10 YEARS OF APPLICATION FOR ADMISSION

212a2AiI

CONVICTION OR COMMISSION OF A CRIME INVOLVING MORAL TURPITUDE

212a2AiII

CONTROLLED SUBSTANCE CONVICTION

212a2Dii

PROCURED OR IMPORTED PROSTITUTION

212a2Diii

UNLAWFUL COMMERCIALIZED VICE

212a2E

EXERCISE OF CRIMINAL IMMUNITY

212a2G

FOREIGN GOVERNMENT OFFICIALS WHO HAVE COMMITTED PARTICULARLY SEVERE VIOLATIONS OF RELIGIOUS FREEDOM

212a2H

SIGNIFICANT TRAFFICKERS IN PERSONS

212a2I

MONEY LAUNDERING

212a3BiI

ENGAGED IN TERRORIST ACTIVITY

212a3BiII 212a3BiIII 212a3BiIV 212a3BiV 212a3BiVI

LIKELY TO ENGAGE IN TERRORIST ACTIVITY INCITED TERRORIST ACTIVITY REPRESENTATIVE OF FOREIGN TERRORIST ORGANIZATION MEMBER OF FOREIGN TERRORIST ORGANIZATION MEMBER OF A TERRORIST ORGANIZATION

212a3BiVII

ENDORSE OR ESPOUSE TERRORIST ACTIVITIES

212a3BiVIII

RECEIVED MILITARY-TYPE TRAINING FROM A TERRORIST ORGANIZATION

212a3BiIX

SPOUSE OR CHILD OF AN ALIEN DEEMED INADMISSIBLE UNDER (212)(a)(3)(B)

3.Expedited Removal ? Aliens processed under Expedited Removal case category. Aligns to INA section 235.

Case Category Case Category Description

8F

Expedited Removal

8G

Expedited Removal Credible Fear Referral

8H

Expedited Removal Status Claim Referral

8I

Expedited Removal Absconder

4. Mandatory Case Category ? Aliens with a current Case Category thatis subject to Mandatory Detention

Case Category Case Category Description

3

Administratively Final Order

10

Visa Waiver Deportation/Removal

11

Administrative Deportation/Removal

12

Judicial Deportation/Removal

16

Reinstated Final Order

8C

Excludable/Inadmissible AdministrativeFinal Order Issued

8E

Excludable/Inadmissible Absconder

Case 3:12-cv-02806-FLW Document 13-6 Filed 11/15/12 Page 1 of 9 PageID: 143
EXHIBIT D

Case 3:12-cv-02806-FLW Document 13-6 Filed 11/15/12 Page 2 of 9 PageID: 144

FY2011 -- Total Number of Detainees Under INA 236(c) in Newark and New York ICE Areas of Responsibility

FY11 Month Newark AOR - Number of Detainees Under INA 236(c) New York City AOR - Number of Detainees Under INA 236(c) Combined Total

Oct 202 237 439

Nov 191 259 450

Dec 180 235 415

Jan 172 213 385

Feb 164 212 376

Mar 155 191 346

Apr 149 193 342

May 153 196 349

June 266 253 519

July 228 206 434

Aug 261 202 463

Sept 244 222 466

1 of 8

Case 3:12-cv-02806-FLW Document 13-6 Filed 11/15/12 Page 3 of 9 PageID: 145

FY2011 -- Total Number of Detainees Under INA 236(c) in New York ICE Areas of Responsibility

FY11 Month Number of Detainees Under INA 236(c) Number of Detainees with No Charge Information

Oct

Nov

237

259

51

42

Dec 235 44

Jan 213 45

Feb 212 48

Mar 191 58

Apr 193 58

May 196 52

June 253 69

July 206 53

Aug 202 41

Sept 222 56

FY11 OCTOBER
New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility
Total:

INA Charge Section
212a2AiI 212a2AiII 237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2C

# Detainees
33 31 11 48 43 60 11 237

FY11 November New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility
Total:

INA Charge Section
212a2AiI 212a2AiII 237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2C

# Detainees
39 30 11 51 45 72 11 259

FY11 December New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility
Total:
FY11 JANUARY
New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility
Total:

INA Charge Section
212a2AiI 212a2AiII 237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2C
INA Charge Section
212a2AiI 212a2AiII 237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2C

# Detainees
33 23 12 47 39 72
9 235
# Detainees
28 17 12 38 45 65
8 213

2 of 8

Case 3:12-cv-02806-FLW Document 13-6 Filed 11/15/12 Page 4 of 9 PageID: 146
FY2011 -- Total Number of Detainees Under INA 236(c) in New York ICE Areas of Responsibility

FY11 FEBRUARY
New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility
Total:
FY11 MARCH
New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility
Total:
FY11 APRIL
New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility
Total:
FY11 MAY
New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility
Total:

INA Charge Section
212a2AiI 212a2AiII 237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2Bii 237a2C
INA Charge Section
212a2AiI 212a2AiII 237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2Bii 237a2C
INA Charge Section
212a2AiI 212a2AiII 237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2Bii 237a2C
INA Charge Section
212a2AiI 212a2AiII 237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2Bii 237a2C

# Detainees
25 17 19 40 43 59
1 8 212
# Detainees
20 16 15 37 40 55
1 7 191
# Detainees
22 14 13 36 38 59
1 10 193
# Detainees
22 17
9 39 37 59
1 12 196

3 of 8

Case 3:12-cv-02806-FLW Document 13-6 Filed 11/15/12 Page 5 of 9 PageID: 147

FY2011 -- Total Number of Detainees Under INA 236(c) in New York ICE Areas of Responsibility

FY11 JUNE
New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility
Total:

INA Charge Section
212a2AiI 212a2AiII 237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2Bii 237a2C

# Detainees
28 24 13 43 63 67
1 14 253

FY11 JULY
New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility
Total:
FY11 AUGUST
New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility
Total:
FY11 SEPTEMBER
New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility New York City Area of Responsibility
Total:

INA Charge Section
212a2AiI 212a2AiII 237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2Bii 237a2C
INA Charge Section
212a2AiI 212a2AiII 237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2Bii 237a2C
INA Charge Section
212a2AiI 212a2AiII 237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2Bii 237a2C

# Detainees
20 17 10 42 48 58
1 10 206
# Detainees
20 18 13 42 47 50
1 11 202
# Detainees
24 19 12 40 57 57
1 12 222

4 of 8

Case 3:12-cv-02806-FLW Document 13-6 Filed 11/15/12 Page 6 of 9 PageID: 148
FY2011 -- Total Number of Detainees Under INA 236(c) in Newark ICE Areas of Responsibility

FY11 Month Number of Detainees Under INA 236(c) Number of Detainees with No Charge Information

Oct 202 68

Nov 191 45

Dec 180 56

Jan 172 61

Feb 164 75

Mar 155 84

Apr 149 73

May 153 72

June 266 70

July 228 83

Aug 261 86

Sept 244 66

FY11 OCTOBER
Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility
Total:

INA Charge Section
237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2C 212a2C 212a2AiI 212a2AiII

# Detainees
12 24 74 43
7 2 26 14 202

FY11 November Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility
Total:

INA Charge Section
237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2C 212a2C 212a2AiI 212a2AiII

# Detainees
11 24 66 43
5 1 26 15 191

FY11 DECEMBER
Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility
Total:

INA Charge Section
237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2C 212a2C 212a2AiI 212a2AiII

# Detainees
13 21 61 41
6 2 26 10 180

5 of 8

Case 3:12-cv-02806-FLW Document 13-6 Filed 11/15/12 Page 7 of 9 PageID: 149

FY2011 -- Total Number of Detainees Under INA 236(c) in Newark ICE Areas of Responsibility

FY11 JANUARY
Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility
Total:

INA Charge Section
237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2C 212a2C 212a2AiI 212a2AiII

# Detainees
11 17 66 41
5 2 22 8 172

FY11 FEBRUARY
Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility
Total

INA Charge Section
237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2C 212a2C 212a2AiI 212a2AiII

# Detainees
8 19 64 36
6 2 22 7 164

FY11 MARCH
Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility
Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility
Total:

INA Charge Section
237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2C
212a2C 212a2AiI 212a2AiII

# Detainees
10 16 55 34
5
3 25
7 155

6 of 8

Case 3:12-cv-02806-FLW Document 13-6 Filed 11/15/12 Page 8 of 9 PageID: 150

FY2011 -- Total Number of Detainees Under INA 236(c) in Newark ICE Areas of Responsibility

FY11 APRIL
Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility
Total:

INA Charge Section
237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2C 212a2C 212a2B 212a2AiI 212a2AiII

# Detainees
11 15 53 35
3 1 1 25 5 149

FY11 MAY
Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility
Total:

INA Charge Section
237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2C 212a2C 212a2AiI 212a2AiII

# Detainees
13 14 60 36
3 1 21 5 153

FY11 JUNE
Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility
Total:

INA Charge Section
237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2C 212a2AiI 212a2AiII 212a2B 212a2C

# Detainees
26 26 90 64
7 40 10
1 2 266

7 of 8

Case 3:12-cv-02806-FLW Document 13-6 Filed 11/15/12 Page 9 of 9 PageID: 151

FY2011 -- Total Number of Detainees Under INA 236(c) in Newark ICE Areas of Responsibility

FY11 JULY
Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility
Total:

INA Charge Section
237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2C 212a2AiI 212a2AiII 212a2B 212a2C

# Detainees
20 25 77 56
5 31
9 1 4 228

FY11 AUGUST
Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility
Total:

INA Charge Section
237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2C 212a2AiI 212a2AiII 212a2C

# Detainees
16 29 94 64
5 34 13
6 261

FY11 SEPTEMBER
Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility Newark Area of Responsibility
Total:

INA Charge Section
237a2Ai 237a2Aii 237a2Aiii 237a2Bi 237a2C 212a2AiI 212a2AiII 212a2C

# Detainees
16 33 83 63
3 30
8 8 244

8 of 8

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EXHIBIT E

Case 3:12-cv-02806-FLW Document 13-7 Filed 11/15/12 Page 2 of 2 PageID: 153

Case 3:12-cv-02806-FLW Document 13-8 Filed 11/15/12 Page 1 of 6 PageID: 154
EXHIBIT F

Case 3:12-cv-02806-FLW Document 13-8 Filed 11/15/12 Page 2 of 6 PageID: 155

Case 3:12-cv-02806-FLW Document 13-8 Filed 11/15/12 Page 3 of 6 PageID: 156

Case 3:12-cv-02806-FLW Document 13-8 Filed 11/15/12 Page 4 of 6 PageID: 157

Case 3:12-cv-02806-FLW Document 13-8 Filed 11/15/12 Page 5 of 6 PageID: 158

Case 3:12-cv-02806-FLW Document 13-8 Filed 11/15/12 Page 6 of 6 PageID: 159

 
 NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

___________________________________

:

GARFIELD GAYLE

:

:

Petitioner

:

Civil Action No. 12-2806 (FLW)

:

v.

:

:

OPINION

:

JANET NAPOLITANO, et al.,

:

:

Respondent :

:

________________________________ ___ :

WOLFSON, United States District Judge: Garfield Gayle ("Petitioner" or “Gayle”) is currently being detained by the
Department of Homeland Security, Immigration and Customs Enforcement ("DHS/ICE") at the Monmouth County Correctional Facility in Freehold, New Jersey, pending his removal from the United States. On or about May 10, 2012, Petitioner filed a petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, in which he challenges his pre-removal mandatory detention. According to Respondents1 (hereinafter, “the Government” or

1 Janet Napolitano, Secretary of the DHS; Eric Holder, United States Attorney General; John Morton, Director of ICE; Juan Osuna, Director of the Office of Immigration Review; John Tsoukaris, Field Office Director for Enforcement and Removal Operations, Newark Field Office of ICE; Christopher Shanahan, Field Office Director for Enforcement and Removal Operations, New York City Field Office of ICE; Ray Simonse, Acting Field Office Director for Enforcement and Removal Operations, New York City Field Office of ICE; Robert Bigott, Warden of the Bergen County Jail; Joseph Trabucco, Director of the Delaney Hall Detention Facility; Orlando Rodriguez, Warden of the Elizabeth Contract Detention Facility; Roy L. Hendricks, Warden of the Essex County Correctional Facility; Oscar Aviles, Director of the Hudson County
1

“Respondents”), this detention is authorized by 8 U.S.C § 1226(c), which states that “[t]he Attorney General shall take into custody any alien [specified in this section], when the alien is released.” On or about November 15, 2012, Petitioner filed an Amended Petition for Writ of Habeas Corpus on his own behalf and on behalf of a class consisting of individuals claiming to be subjected to unauthorized mandatory immigration detention under 8 U.S.C. § 1226(c).2 This Opinion deals solely with Petitioner’s individual request for habeas relief.3
For the reasons stated below, the Court grants Gayle’s request for habeas relief, and directs an Immigration Judge to conduct a bond hearing pursuant to 8 U.S.C. § 1226(a)(2), to determine if Petitioner is a flight risk or danger to the community.
BACKGROUND Petitioner states that he is a Jamaican national and a lawful permanent resident of the United States. Petition at ¶ 24. He has lived in the United States for approximately 30 years, most of the time in New York City. In 1995, Petitioner 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. After satisfying all conditions of parole, Petitioner was discharged in May 2001. Id. at ¶ 26. Thereafter, in March 2007, Petitioner was sentenced to ten days in jail for a misdemeanor controlled substance offense. Id. at 28.
Correctional Facility; and Brian Elwood, Warden of the Monmouth County Correctional Institution. 2 Two other individuals, Sheldon Francois and Neville Sukhu, joined in the suit on their own behalves and as class representatives. 3 Petitioner requested by letter dated February 13, 2013 that the Court consider his request for a hearing immediately.
2

Approximately five years later, on March 24, 2012, a team of ICE officers arrested Petitioner at his home in Brooklyn. ICE charged Petitioner with removal on the grounds that his 1995 conviction rendered him deportable, and also found him subject to mandatory detention based on his March 2007 offense.4 Id. at 27.
Petitioner sought to terminate his removal proceedings, and on October 23, 2012, the Immigration Judge denied Petitioner’s request. Petitioner was then 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. This hearing was postponed due to Hurricane Sandy and rescheduled for January 30. See Declaration of Lawanda Charles ¶ 15.
On November 15, 2012, Petitioner filed am Amended Petition for Writ of Habeas Corpus asserting that DHS 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, Petitioner argues that the phrase “when … released” unambiguously requires immediacy, and that because DHS failed to take him into custody immediately upon his release in 2007, he is not subject to mandatory detention, and is instead entitled to a bond hearing before an Immigration Judge, as required by § 1226(a).
Respondents filed a response on December 4, 2012, arguing that § 1226(c) authorizes Petitioner’s pre-removal mandatory detention. (Dkt. 20). The response relies, in large part, on what Respondents perceive as an ambiguity in the phrase “when …
4 Petitioner’s 1995 conviction does not subject him to mandatory detention because he was released from custody prior to the effective date of § 1226(c).
3

released” found in § 1226(c). This ambiguity, Respondents claim, requires this Court to defer, under Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), to a ruling by the Board of Immigration Appeals (“BIA”) finding an alien subject to mandatory detention despite the fact that he was not taken into custody immediately upon his release. Petitioner then filed a reply brief pointing out that Respondents have raised no new arguments that have not already been considered and rejected by me in previous opinions. 5 I. Jurisdiction
Under 28 U.S.C § 2241(c), habeas jurisdiction “shall not extend to a prisoner unless … [h]e is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). A federal court has subject matter jurisdiction under § 2241(c)(3) if two requirements are satisfied: (1) the petitioner is “in custody,” and (2) the custody is “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). This Court has subject matter jurisdiction over the Petition under § 2241 because Petitioner was detained within its jurisdiction in the custody of DHS/ICE at the time he filed his petition, see Spencer v. Kenna, 523 U.S. 1, 7 (1998), and because Petitioner asserts that his mandatory detention is not statutorily authorized by 8 U.S.C § 1226(c). See Zadvydas v. Davis, 533 U.S. 678, 699 (2001); Diop v. ICE/Homeland Security, 656 F.3d 221, 226 (3d Cir. 2011).
5 This issue is currently pending before the Third Circuit in two competing cases. Sylvain v. Holder, C.A. No. 11–3357 (3d Cir. docketed Aug. 31, 2011) (DHS appealed an order granting habeas relief and ordering a bond hearing); Desrosiers v. Hendricks, C.A. No. 12–1053 (3d Cir. docketed Jan. 11, 2012) (petitioner's appeal of order denying habeas relief).
4

II. Statutory Framework for Detention During Removal Proceedings Section 1226 governs the pre-removal detention of an alien. Section 1226(a)
authorizes the Attorney General to arrest and detain an alien pending a decision on whether the alien is to be removed from the United States, except as provided in subsection (c). See 8 U.S.C. § 1226(a). Detention under section 1226(a) is discretionary – the Attorney General may release the alien on bond or parole. An alien also has the right to a hearing before an immigration judge to determine whether the alien should be released on bond, pending any challenge to removal and a decision as to whether that alien is to be removed. Id. However, the exception in § 1226(c) commands that 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). An alien detained under § 1226(c) must be detained until his removal is final, regardless of whether he is a flight risk or danger to the community, unless the Attorney General determines that the alien should be part of the federal witness protection program, and provided that detention has not become unreasonably prolonged. See Diop v. ICE/Homeland Sec., 656 F.3d at 232 (“At a certain point, continued detention becomes unreasonable and the Executive Branch's implementation of § 1226(c) becomes unconstitutional unless the Government has justified its actions at a hearing inquiring into whether continued detention is consistent with the law's purposes of preventing flight and dangers to the community”). Section 1226 provides in full:
(a) Arrest, detention, and release On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from
5

the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General—
(1) may continue to detain the arrested alien; and (2) may release the alien on—
(A) bond of at least $1,500.; or (B) conditional parole; but (3) may not provide the alien with work authorization ... unless the alien is lawfully admitted for permanent residence or otherwise would ... be provided such authorization. (b) Revocation of bond or parole The Attorney General at any time may revoke a bond or parole authorized under subsection (a) of this section, rearrest the alien under the original warrant, and detain the alien. (c) Detention of criminal aliens (1) Custody 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, (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. (2) Release The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of Title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.
8 U.S.C. § 1226.
6

Petitioner was charged as removable on September 27, 2011, on the basis of his 1995 conviction. He was subsequently detained in March 2012, and remains in custody. According to the Government, Petitioner is subject to mandatory detention because of his 2007 misdemeanor drug conviction and release from the related incarceration. Petitioner argues that because the Government failed to take him into custody “when… released” from his 2007 incarceration, his detention is not authorized under § 1226(c). However, the Government reasons that the phrase “when the alien is released” is ambiguous and does not require that an alien is to be taken into custody immediately upon his release, but means that an alien may be taken into custody any time after the alien is released. Thus, the outcome of this case depends on the clarity and meaning of the following words in § 1226(c)(1): “The Attorney General shall take into custody any alien [specified in this section], when the alien is released…[.]” 8 U.S.C. § 1226(c)(1) (emphasis and ellipses added).
Respondents contend that because “when… released” in § 1226(c) is ambiguous, this Court should defer, under Chevron, to the BIA’s interpretation of § 1226(c) in Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001). In that regard, Respondents also ask this Court to reconsider and depart from its prior rulings regarding the interpretation of § 1226(c) in Christie v. Elwood, Civil No. 11-7070(FLW), 2012 WL 266454, at *7-9 (D.N.J. Jan. 30, 2012); Kot v. Elwood, Civil No. 12-1720(FLW), 2012 WL 1565438, at *5-9 (D.N.J. May 2, 2012); Nimako v. Shanahan, No. 12-4909 (FLW), 2012 WL 4121102, at *7-8 (D.N.J. Sept. 18, 2012); Baguidy v. Elwood, No. 12-4635(FLW), 2012 WL 5406193, at *8-10 (D.N.J. Nov. 5, 2012); Kerr v. Elwood, No. 12-6330(FLW), 2012 WL 5465492 (D.N.J. Nov. 8, 2012). Instead, Respondents urge this Court to follow a recent decision issued by
7

the United States Court of Appeals for the Fourth Circuit in Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012), in which the Fourth Circuit found the word “when” in § 1226(c) to be ambiguous, and thus, deferred to Rojas.
A. The BIA’s Holding in Matter of Rojas Matter of Rojas involved an alien's appeal to the BIA of the Immigration Judge's rejection of the argument that Rojas was not subject to mandatory detention under § 1226(c)(1) because the government failed to apprehend him at the time of his release from incarceration for an offense covered by § 1226(c), and instead waited two days before taking him into custody. See Matter of Rojas, 23 I. & N. Dec. 117. The BIA determined that the language in § 1226(c)(1) is not clear, but is susceptible to different readings. Id. at 120. The BIA construe[d] the phrasing “an alien described in paragraph (1),” as including only those aliens described in subparagraphs (A) through (D) of section [1226(c)(1) ], and as not including the “when released” clause. [BIA’s] interpretation is derived from the natural meaning of the statutory language, from the object and design of the statute as a whole, and from the history of the mandatory detention provisions. It is reinforced by practical concerns that would otherwise arise. Id. at 125. However, earlier in its opinion, the BIA also stated that “[t]he statute does direct the Attorney General to take custody of aliens immediately upon their release from criminal confinement.” 6 Id. at 122 (emphasis added). Nonetheless, the BIA ultimately held that Rojas “is subject to mandatory detention pursuant to section [1226(c) ], despite the fact that he was not taken into
6 It is unclear why the BIA, once it ascertained the meaning of the “when… released” language, continued its analysis and ultimately issued an opinion inconsistent with its finding.
8

Service custody immediately upon his release from state custody.” Matter of Rojas, 23 I.
& N. Dec. at 127. However, the findings of the BIA were not unanimous.7 In stark
disagreement with the majority, board member Lory Diana Rosenberg wrote a dissenting
opinion in which six other board members joined. The dissent reasoned:
The word “ ‘when’ [is defined] as ‘just after the moment that.’ “ Alikhani v. Fasano, 70 F.Supp.2d 1124, 1130 (S.D. Cal. 1999) (quoting Webster's Third New International Dictionary 2602 (3d ed. 1976). Therefore, as one court noted, the clear language of the statute requires that “the mandatory detention of aliens ‘when’ they are released requires that they be detained at the time of release.” Alikhani v. Fasano, supra, at 1130; see also Velasquez v. Reno, 37 F.Supp.2d 663, 672 (D.N.J. 1999) (“This court cannot simply ignore the plain language of the statute which provides that an alien is to be taken into custody ‘when the alien is released.’ ”). As another court noted, “Congress could have required custody ‘regardless of when the alien is released’ or ‘at any time after the alien is released,’ “ but did not do so. Alwaday v. Beebe, 43 F. Supp. 2d 1130, 1133 (D. Or. 1999).... These courts have concluded uniformly that “[t]he plain meaning of this language is that it applies immediately after release from incarceration, not to aliens released many year [s] earlier.” Pastor– Camarena v. Smith, supra, at 1417–18.
Matter of Rojas, 23 I. & N. Dec. at 132–33 (Rosenberg, dissenting).
The dissenting opinion cogently concluded:
The stretch of interpretation required by the majority's construction is not supported by the plain language of the statute and is unreasonable. The aliens described in paragraph (1) of section [1226(c) ] are the ones who are deemed to be inadmissible and deportable for the cited violations and taken into custody when they are released from criminal incarceration. These are the aliens described in paragraph (2) as the ones who may not be released.
The interpretation I reach from a straightforward reading of the plain language of the statute would allow for a hearing when an individual alien, such as this respondent, has already been released into the community, and it would authorize the detention of such individuals where warranted following an individualized hearing.
7 In addition to the dissent, discussed infra, two BIA members filed a concurring and dissenting opinion, joining in the BIA’s result but not its reasoning.
9

Matter of Rojas, 23 I. & N. Dec. at 139 (Rosenberg, dissenting). I find, consistent with my prior rulings, that I am not required to defer to the
BIA’s interpretation of § 1226(c) and I decline the Government’s invitation to hold otherwise. Under Chevron, if “Congress has directly spoken to the precise question at issue,” a court and an agency “must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43. In the immigration context, “[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” INS v. Cardoza–Fonseca, 480 U.S. 421, 447–48 (1987) (quoting Chevron, 467 U.S. at 843 n. 9). Deference to an agency's interpretation of a statute “is called for only when the devices of judicial construction have been tried and found to yield no clear sense of congressional intent.” Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581 (2004).
In order to defer to the BIA’s construction in Matter of Rojas, this Court would have to first find that when Congress wrote that the Attorney General “shall take into custody any alien [specified in this section], when the alien is released,” Congress intended it to mean that the Attorney General “shall take into custody any alien [specified in this section], any time after the alien is released.” This Court would also have to ignore the fact that the BIA itself found that “[t]he statute does direct the Attorney General to take custody of aliens immediately upon their release from criminal confinement,” before inexplicably continuing its analysis and issuing a ruling inconsistent with that interpretation. Matter of Rojas, 23 I. & N. Dec. at 122. This Court has not previously
10

adopted such a strained reading of the statute and will not do so now. Instead, I concur that:
Rather than taking the plain meaning of the statute, the government has rewritten the statute ... The command that “the Attorney General shall take into custody any alien [specified in this section] when the alien is released” means just what it says, i.e., the Attorney General shall take the alien into custody when the alien is released. Because taking the alien into custody more than [five years] after the alien is released does not fall within the command to take the alien into custody when the alien is released, the BIA's interpretation is contrary to the plain meaning of [§ 1226(c) ]. Parfait v. Holder, 2011 WL 4829391 (D.N.J. Oct. 11, 2011). Almost every federal court considering the issue shares this Court’s reading of § 1226(c). See, e.g., Beckford v. Aviles, 2011 WL 3515933 (D.N.J. Aug. 9, 2011); Sylvain v. Holder, 2011 WL 2580506 at *7 (D.N.J. June 28, 2011) (“Respondents also argue that the statute is ambiguous because it is plausible that the word ‘when’ means ‘after,’ and, in that case, the statute commands that the government ‘shall take the alien into custody after the alien is released.’ This Court rejects the argument that ‘when’ means ‘after.’ ”); Keo v. Lucero, 2011 WL 2746182 *3 (E.D. Va. July 13, 2011) (“[t]he term ‘when’ includes the characteristic of ‘immediacy,’ referring in its primary conjunctive sense, to action or activity occurring ‘at the time that’ or ‘as soon as' other action has ceased or begun”) (citations omitted); Louisaire v. Muller, 758 F. Supp. 2d 229, 236 (S.D.N.Y. 2010) (“Matter of Rojas, however, is wrong as a matter of law and contrary to the plain language of the statute. The clear purpose of § 1226(c)(1) is to authorize the mandatory detention of immigrants who have committed offenses enumerated within § 1226(c)(1)(A)-(D) immediately upon their release from criminal sentences for those same offenses, even if they are still serving part of their sentence out in the community, under
11

‘parole, supervised release, or probation’ ”); Dang v. Lowe, 2010 WL 2044634 (M.D. Pa. May 20, 2010) (holding that § 1226(c)(1) does not apply where alien was not taken into immigration custody until 10 years after release from incarceration for an enumerated offense); Khodr v. Adduci, 697 F. Supp. 2d 774, 774–75 (E.D. Mich. 2010) (“Because the Court finds that the statute at issue clearly and unambiguously requires the Attorney General to take into custody certain aliens without delay in order to make applicable the mandatory detention provisions of 8 U.S.C. § 1226(c), the Court does not defer to the Board of Immigration Appeals' decision to the contrary in Matter of Rojas” ); Scarlett v. DHS, 632 F. Supp. 2d 214, 219 (W.D.N.Y. 2009) (“the statute does not apply when the alien was not taken into immigration custody at the time of his release from incarceration on the underlying criminal charges”); Waffi v. Loiselle, 527 F. Supp. 2d 480, 488 (E.D. Va. 2007) (“the mandatory detention statute ... does not apply to an alien ... who has been taken into immigration custody well over a month after his release from state custody” for an enumerated offense). But see Diaz v. Muller, 2011 WL 3422856 (D.N.J. Aug 04, 2011) (finding “when released” to be ambiguous); Gomez v. Napolitano, 2011 WL 2224768 (S.D.N.Y. May 31, 2011) (same); Sulayao v. Shanahan, 2009 WL 3003199 (S.D.N.Y. Sept. 15, 2009) (same).
My reading of § 1226(c) is also consistent with the First Circuit's interpretation of the statute in Saysana v. Gillen, 590 F.3d 7 (1st Cir. 2009). In Saysana, Massachusetts released Mr. Saysana in 1991 from a five-year sentence for a 1990 (removable) conviction. In 2007, DHS took him into custody under 8 U.S.C. § 1226(c)(1), and initiated removal proceedings charging that the 1990 conviction qualified as an aggravated felony rendering him removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).
12

See Saysana, 590 F.3d at 9. In a precedential decision, Matter of Saysana, 24 I. & N.
Dec. 602 (BIA 2008), the BIA held that Saysana was covered by the “when the alien is
released” language of § 1226(c) because he was released from state custody on a
dismissed non-removable charge after October 8, 1998. See Saysana, 590 F.3d at 9. The
First Circuit held, however, that, because the plain meaning of § 1226(c) was contrary to
the BIA's reading of the statute, Chevron deference was not permissible.
In our view, the natural reading of the statutory provision from top to bottom makes clear that the congressional requirement of mandatory detention is addressed to the situation of an alien who is released from custody for one of the enumerated offenses. The statutory language embodies the judgment of Congress that such an individual should not be returned to the community pending disposition of his removal proceedings. Both the language and the structure of the statutory provision state this mandate in a clear and straightforward manner. As explained ... in Oscar v. Gillen, 595 F.Supp.2d 166[, 170] (D. Mass. 2009) (Tauro, J.):
The “when released” provision immediately follows the list of enumerated offenses, indicating that the former modifies the latter. Additionally, § 1226(c) provides that the alien shall be detained upon release regardless of whether he is subsequently arrested for the “same offense,” reinforcing the notion that the entire clause applies to the list of enumerated offenses immediately preceding it.
Saysana, 590 F.3d at 13.
As I have articulated previously, Saysana clearly envisions a continuous chain of
custody of dangerous aliens: “The Court is not persuaded that the legislature was seeking
to justify mandatory immigration custody many months or even years after an alien had
been released from state custody.” Saysana, 590 F.3d at 16 (quoting Quezaa-Bucio v.
Ridge, 317 F. Supp. 2d 1221, 1230 (W.D. Wash. 2004)); see also Baguidy, 2012 WL
5406193, at *8; Nimako, 2012 WL 4121102, at *7. The Third Circuit has also read §
1226(c) as envisioning a continuous chain of custody. In Diop v. ICE/Homeland Sec.,
13

656 F.3d at 231, the Circuit noted that in enacting § 1226(c), “Congress was concerned with the immigration authorities’ ‘wholesale failure’ to ‘deal with the increasing rates of criminal activity by aliens.’ § 1226(c) was intended to remedy this perceived problem by ensuring that aliens convicted of certain crimes would be present in their removal proceedings and not on the loose in their communities, where they might pose a danger.” These concerns are consistent with those of Saysana. Saysana, 590 F.3d at 17-18 (“By any logic, it stands to reason that the more remote in time a conviction becomes and the more time after a conviction an individual spends in a community, the lower his bail risk is likely to be”). I also noted this concern in Nimako. Nimako, 2012 WL 4121102, at *7 (“The Government also disregards the consistency in this Court's and Saysana's reading of § 1226(c) as clearly envisioning a continuous chain of custody of dangerous aliens[.]”). Saysana ultimately concluded that “because the ‘when released language is unambiguous,’ there is nothing for the agency to interpret – no gap for it to fill – and there is no justification for resorting to agency interpretation to address an ambiguity.” Saysana at 16. This Court agrees and again declines to follow Matter of Rojas and instead follows the persuasive interpretation given the statutory language by the Saysana court.
B. The Fourth Circuit’s Decision in Hosh v. Lucero Respondents urge this Court to depart from its prior precedent and instead follow the Fourth Circuit’s ruling in Hosh v. Lucero, 680 F.3d 375 (4th. Cir. 2012).8 Based on the following analysis, the Fourth Circuit held that § 1226(c) is ambiguous:
8 Also in support of its contention that § 1226(c) is ambiguous, Petitioners rely upon an 1807 Supreme Court case dealing with the meaning of “when” in the context of the post-sale registration of boats. United States v. Willings, 8 U.S. (4 Cranch) 48 (1807). The Willings Court construed the phrase “when … sold” to designate when a boat owner’s duty to register his boat accrues, as opposed to the “precise time” registration
14

The meaning of § 1226(c) is not plain to us. To be sure, “‘when’ in § 1226(c) can be read, on one hand, to refer to action or activity occurring ‘at the time that’ or ‘as soon as’ other action has ceased or begun.” Waffi v. Loiselle, 527 F. Supp. 2d 480, 488 (E.D.Va. 2007) (citing The Oxford English Dictionary 209 (2d ed. 1989); The American Heritage Dictionary of the English Language (4th ed. 2000)). On the other hand, “when” can also be read to mean the temporally broader “at or during the time that,” “while,” or “at any or every time that ….” Free Merriam-Webster Dictionary, available at http://www.merriamwebster.com/dictionary/when (last visited April 30, 2012). We must therefore consider the BIA’s interpretation.
Hosh, 680 F.3d at 379-80.
The Fourth Circuit deferred to the BIA's interpretation of the statute in Rojas because the
interpretation was not “ ‘arbitrary, capricious, or manifestly contrary to the statute.’ ”
Hosh, 680 F.3d at 378 (quoting Chevron, 467 U.S. at 844).
Given the dearth of analysis in Hosh, Respondents have not persuaded this Court
to follow the reasoning or the result of the Fourth Circuit; indeed, its analysis, based upon
resorting to dictionary definitions of “when” as opposed to looking to the context of how
“when” is used in § 1226(c), is unpersuasive. Neither the BIA nor the Fourth Circuit
explains how the words “The Attorney General shall take into custody any alien ... when
the alien is released” can be read to state that “The Attorney General shall take into
custody any alien ... any time after the alien is released.” As discussed in Saysana and
throughout this Opinion, the context makes it abundantly clear that “when” requires
immediacy. Furthermore, the full clause at issue reads “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
must be performed. However, Willings itself notes that “the context must decide in which sense [‘when’] is used in the law under consideration.” Id. at 55. As discussed supra, the context of § 1226(c) renders the word “when,” as used, unambiguous.
15

offense.” If the Government’s reading of § 1226(c) were correct, the remainder of the phrase could be rendered superfluous. If § 1226(c) empowered the Government to detain aliens months, years, or decades into their release, there would be no reason for the statute to make mention of the conditions of the alien’s release that attach immediately upon his release. The more natural reading of the statute is that the Government must take the alien into custody when he is released, regardless of the conditions of that release, if it is to subject the alien to mandatory detention.
This Court further notes that no District Court (outside the Fourth Circuit) postHosh has been persuaded to follow the Fourth Circuit's analysis in Hosh. See Cox v. Elwood, 2012 WL 3757171, at *4 (D.N.J. Aug. 28, 2012) (“This Court is also not persuaded by the Fourth Circuit's decision in Hosh to defer to the BIA's interpretation of “when ... released” as it is not binding authority on this Court.... Until the Third Circuit decides this issue, this Court will rely on the plain meaning of § 1226(c)”); Martial v. Elwood, 2012 WL 3532324 (D.N.J. Aug. 14, 2012) (same); Bogarin–Flores v. Napolitano, 2012 WL 3283287, at *3 (S.D. Cal. Aug. 10, 2012) (“The Fourth Circuit ... found Rojas was decided correctly but did not present any independent reasoning or statutory construction, instead giving deference to the BIA's decision.... This Court finds that the plain language of the statute is not ambiguous and clearly applies the mandatory detention provision to those aliens who are detained upon release from criminal custody”); Dimanche v. Tay–Taylor, 2012 WL 3278922 (D.N.J. Aug. 9, 2012); Munoz v. Tay–Taylor, 2012 WL 3229153, at *3 (D.N.J. Aug. 6, 2012) (“This Court is also not persuaded by the Fourth Circuit's decision in Hosh to defer to the BIA's interpretation”); Gonzalez–Ramirez v. Napolitano, 2012 WL 3133873, at n. 8 (D.N.J. July 30, 2012)
16

(“The Court recognizes the recent decision by the Court of Appeals for the Fourth Circuit .... Absent a directive from the Third Circuit, the Court respectfully declines to adopt the Hosh holding and will instead follow the reasoning utilized by the First Circuit in Saysana”).
This Court agrees with the analysis of the above cases and that employed by this Court regarding a lack of ambiguity in § 1226(c). Thus, “[a]bsent a directive from the Third Circuit… [I] respectfully decline to adopt the Hosh holding and will instead follow the reasoning utilized by the First Circuit in Saysana.” Gonzalez–Ramirez, 2012 WL 3133873 at n. 8. II. Requiring the Government to Comply With the Clear and Unambiguous Language of § 1226 Does Not Amount to a Coercive Sanction
Respondents argue that even if § 1226(c) requires immediacy, as this Court finds that it does, this Court does not have the power to order coercive sanctions in this case. The Government’s argument is wholly misplaced. Contrary to the Government’s characterization, the Court is not sanctioning the Government for its failure to detain petitioner immediately. Rather, the Court finds that, in the absence of the immediacy required by § 1226(c), the relevant authority for the Government’s detention of Petitioner is § 1226(a), and that the detention is subject to the criteria set forth in that section, including the right to a hearing before an immigration judge to determine if Petitioner can be released on bond pending his challenge to removal. In other words, the Court is not stripping Respondents of their power to act, nor is it ordering that Petitioner be released. Simply put, the Government failed to comply with the unambiguous terms of § 1226(c), and therefore, the Government’s detention of Petitioner is not authorized by § 1226(c); instead it falls under the ambit § 1226(a).
17

CONCLUSION For the foregoing reasons, the Court holds that Petitioner is not subject to the mandatory detention authorized by § 1226(c) because the Government did not take him into custody immediately. Petitioner’s pre-removal detention is instead governed by 8 U.S.C. § 1226(a), which authorizes an Immigration Judge to release him on bond if he is neither a flight risk nor a danger to the community. This Court grants the Writ of Habeas Corpus and directs that an Immigration Judge provide Petitioner with an individualized bond hearing, pursuant to 8 U.S.C. § 1226(a)(2), to determine if he is a flight risk or danger to the community, within 10 days of the date of the entry of the Order accompanying this Opinion.

March 15, 2013

/s/ Freda L.Wolfson Freda L. Wolfson, U.S.D.J.

18

 
 Case: 3:12-cv-2806 As of: 03/24/2013 04:28 PM EDT 1 of 7
U.S. District Court District of New Jersey [LIVE] (Trenton) CIVIL DOCKET FOR CASE #: 3:12−cv−02806−FLW

HABEAS

GAYLE v. ELWOOD et al Assigned to: Judge Freda L. Wolfson Cause: 28:2241 Petition for Writ of Habeas Corpus (federa
Petitioner

Date Filed: 05/10/2012 Jury Demand: None Nature of Suit: 463 Habeas Corpus − Alien Detainee Jurisdiction: U.S. Government Defendant

GARFIELD O. GAYLE TERMINATED: 03/15/2013

represented by JONATHAN MATTHEW MANES GIBBONS PC ONE GATEWAY CENTER NEWARK, NJ 07102 973−596−4823 Email: jmanes@gibbonslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

LAWRENCE S. LUSTBERG GIBBONS, PC ONE GATEWAY CENTER NEWARK, NJ 07102−5310 (973) 596−4731 Email: llustberg@gibbonslaw.com ATTORNEY TO BE NOTICED

Petitioner NEVILLE SUKHU

represented by JONATHAN MATTHEW MANES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

LAWRENCE S. LUSTBERG (See above for address) ATTORNEY TO BE NOTICED

Petitioner SHELDON FRANCOIS

represented by JONATHAN MATTHEW MANES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

LAWRENCE S. LUSTBERG (See above for address) ATTORNEY TO BE NOTICED

V.
Respondent
BRIAN ELWOOD in his/her official capacity as Warden

represented by JENNIFER A. BOWEN U.S. DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION P.O. BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202−616−3558

Case: 3:12-cv-2806 As of: 03/24/2013 04:28 PM EDT 2 of 7

Email: jennifer.bowen@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

PETER G. O'MALLEY OFFICE OF THE U.S. ATTORNEY 970 BROAD STREET SUITE 700 NEWARK, NJ 07102 (973) 645−2921 Email: peter.omalley@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
MONMOUTH COUNTY CORRECTIONAL FACILITY

represented by JENNIFER A. BOWEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

PETER G. O'MALLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
SCOTT A. WEBER in his official capacity as Newark Field Office Director for Detention and Removal

represented by JENNIFER A. BOWEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

PETER G. O'MALLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
JOHN T. MORTON in his official capacity as Acting Assistant Secretary of U.S. Immigration and Customs Enforcement

represented by JENNIFER A. BOWEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

PETER G. O'MALLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
JANET NAPOLITANO in her official capacity as the Secretary of the U.S. Department of Homeland Security

represented by JENNIFER A. BOWEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

PETER G. O'MALLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
ERIC HOLDER in his official capacity as Attorney General of the U.S. Department of Justice

represented by JENNIFER A. BOWEN (See above for address) LEAD ATTORNEY

Case: 3:12-cv-2806 As of: 03/24/2013 04:28 PM EDT 3 of 7

ATTORNEY TO BE NOTICED

PETER G. O'MALLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
JUAN OSUNA in his official capacity as Director of the Executive Office of Immigration Review

represented by JENNIFER A. BOWEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
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

represented by JENNIFER A. BOWEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
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

represented by JENNIFER A. BOWEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
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

represented by JENNIFER A. BOWEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
ROBERT BIGGOTT in his official capacity as Warden of the Bergen County Jail

represented by JENNIFER A. BOWEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
JOSEPH TRABUCCO in his official capacity as Director of the Delaney Hall Detention Facility

represented by JENNIFER A. BOWEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
ORLANDO RODRIGUEZ in his official capacity as Warden of the Elizabeth Contract Detention Facility

represented by JENNIFER A. BOWEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
Warden ROY L. HENDRICKS in his official capacity as Warden of the Essex County Correctional Facility

represented by JENNIFER A. BOWEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent

Case: 3:12-cv-2806 As of: 03/24/2013 04:28 PM EDT 4 of 7

OSCAR AVILES in his official capacity as Director of the Hudson County Correctional Facility

represented by JENNIFER A. BOWEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/10/2012 05/10/2012 09/05/2012 10/19/2012
10/22/2012 10/22/2012 10/24/2012 11/05/2012 11/05/2012 11/05/2012 11/05/2012 11/15/2012
11/15/2012
11/15/2012

# Docket Text
1 PETITION for Writ of Habeas Corpus 2241 (Filing fee $ 5, Receipt number TRE021690.), filed by GARFIELD O. GAYLE. (Attachments: # 1 Civil Cover Sheet, # 2 Letter from The Legal Aid Society)(jjc) (Entered: 05/10/2012)
2 APPLICATION for Issuance of Order to Show Cause for by GARFIELD O. GAYLE. (Attachments: # 1 Text of Proposed Order)(jjc) (Entered: 05/10/2012)
3 Letter from Garfield O. Gayle requesting that an Order to Show Cause be issued. (mmh) (Entered: 09/05/2012)
4 ORDER that the Clerk of the Court shall serve copies of the Petition, this Order, and all other documents docketed in this matter upon Respondents by certified mail, return receipt requested; the Clerk shall forward a copy of the Petition and this Order to the Chief Civil Division, United States Attorney's Office; that, within 30 days after the date of entry of this Order, Respondents shall electronically file a full and complete answer to said Petition. Signed by Judge Freda L. Wolfson on 10/19/2012. (mmh) (Additional attachment(s) added on 10/19/2012: # 1 Certified Mail Receipts) (mmh). (Entered: 10/19/2012)
5 Certified Mail Receipt Returned re 4 Order to Answer; sent to BRIAN ELWOOD. (mmh) (Entered: 10/22/2012)
6 Certified Mail Receipt Returned re 4 Order to Answer, sent to MONMOUTH COUNTY CORRECTIONAL FACILITY. (mmh) (Entered: 10/22/2012)
7 Certified Mail Receipt Returned re 4 Order to Answer, sent to SCOTT A. WEBER. (mmh) (Entered: 10/24/2012)
8 Letter from Peter O'Malley, AUSA re 4 Order to Answer,,. (O'MALLEY, PETER) (Entered: 11/05/2012)
9 Certified Mail Receipt Returned re 4 Order to Answer, sent to ERIC HOLDER. (mmh) (Entered: 11/05/2012)
10 Certified Mail Receipt Returned re 4 Order to Answer, sent to JOHN T. MORTON. (mmh) (Entered: 11/05/2012)
11 LETTER ORDER granting the Respondent's request for an extension of time to file an answer to the petition; time extended up to and including 12/4/2012. Signed by Judge Freda L. Wolfson on 11/5/2012. (mmh) (Entered: 11/07/2012)
12 AMENDED COMPLAINT Amended Petition for Writ of Habeas Corpus and Class Action Complaint for Declaratory and Injunctive Relief against BRIAN ELWOOD, ERIC HOLDER, JOHN T. MORTON, JANET NAPOLITANO, JUAN OSUNA, JOHN TSOUKARIS, CHRISTOPHER SHANAHAN, RAY SIMONSE, ROBERT BIGGOTT, JOSEPH TRABUCCO, ORLANDO RODRIGUEZ, ROY L. HENDRICKS, OSCAR AVILES, filed by GARFIELD O. GAYLE, NEVILLE SUKHU, SHELDON FRANCOIS.(LUSTBERG, LAWRENCE) (Entered: 11/15/2012)
13 MOTION to Certify Class by SHELDON FRANCOIS, GARFIELD O. GAYLE, NEVILLE SUKHU. (Attachments: # 1 Brief in Support of Motion for Class Certification, # 2 Declaration of Michael Tan, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Text of Proposed Order, # 10 Certificate of Service)(LUSTBERG, LAWRENCE) (Entered: 11/15/2012)
14 CERTIFICATE OF SERVICE by SHELDON FRANCOIS, GARFIELD O. GAYLE, NEVILLE SUKHU re 13 MOTION to Certify Class (corrected) (LUSTBERG, LAWRENCE) (Entered: 11/15/2012)

Case: 3:12-cv-2806 As of: 03/24/2013 04:28 PM EDT 5 of 7

11/16/2012 11/19/2012 11/21/2012 11/26/2012 11/26/2012 12/03/2012 12/04/2012
12/21/2012
12/21/2012

Set Deadlines as to 13 MOTION to Certify Class . Motion set for 12/17/2012 before Judge Freda L. Wolfson. The motion will be decided on the papers. No appearances required unless notified by the court. (mmh) (Entered: 11/16/2012)
15 Certified Mail Receipt Returned sent to Janet Napolitano in re 4 (eaj) (Entered: 11/19/2012)
16 ORDER to Answer. Signed by Judge Freda L. Wolfson on 11/20/2012. (mmh) (Entered: 11/21/2012)
17 NOTICE of Appearance by JENNIFER A. BOWEN on behalf of OSCAR AVILES, ROBERT BIGGOTT, BRIAN ELWOOD, ROY L. HENDRICKS, ERIC HOLDER, MONMOUTH COUNTY CORRECTIONAL FACILITY, JOHN T. MORTON, JANET NAPOLITANO, JUAN OSUNA, ORLANDO RODRIGUEZ, CHRISTOPHER SHANAHAN, RAY SIMONSE, JOSEPH TRABUCCO, JOHN TSOUKARIS, SCOTT A. WEBER (BOWEN, JENNIFER) (Entered: 11/26/2012)
18 Request for Summons to be Issued by NEVILLE SUKHU, GARFIELD O. GAYLE, SHELDON FRANCOIS as to OSCAR AVILES, ROBERT BIGGOTT, ROY L. HENDRICKS, JUAN OSUNA, ORLANDO RODRIGUEZ, CHRISTOPHER SHANAHAN, RAY SIMONSE, JOSEPH TRABUCCO, JOHN TSOUKARIS. (LUSTBERG, LAWRENCE) (Entered: 11/26/2012)
19 NOTICE of Appearance by JONATHAN MATTHEW MANES on behalf of SHELDON FRANCOIS, GARFIELD O. GAYLE, NEVILLE SUKHU (MANES, JONATHAN) (Entered: 12/03/2012)
20 RESPONSE to Petition for Writ of Habeas Corpus by OSCAR AVILES, ROBERT BIGGOTT, BRIAN ELWOOD, ROY L. HENDRICKS, ERIC HOLDER, MONMOUTH COUNTY CORRECTIONAL FACILITY, JOHN T. MORTON, JANET NAPOLITANO, JUAN OSUNA, ORLANDO RODRIGUEZ, CHRISTOPHER SHANAHAN, RAY SIMONSE, JOSEPH TRABUCCO, JOHN TSOUKARIS, SCOTT A. WEBER. (Attachments: # 1 Exhibit 1 − Charles Decl., # 2 Exhibit A − Notice to Appear, # 3 Exhibit B − Custody Determination, # 4 Exhibit C − Alien Address, # 5 Exhibit D − Creation of LPR, # 6 Exhibit E − Immigration Hearing, June 2012, # 7 Exhibit F − Immigration Hearing, Aug. 2012, # 8 Exhibit G − Immigration Hearing Oct. 2012, # 9 Exhibit H − IJ Order Oct. 2012, # 10 Exhibit I − Immigration Hearing, Jan. 2013)(BOWEN, JENNIFER) (Entered: 12/04/2012)
21 Response/ ANSWER to Amended Complaint and Request to Dismiss by OSCAR AVILES, ROBERT BIGGOTT, BRIAN ELWOOD, ROY L. HENDRICKS, ERIC HOLDER, MONMOUTH COUNTY CORRECTIONAL FACILITY, JOHN T. MORTON, JANET NAPOLITANO, JUAN OSUNA, ORLANDO RODRIGUEZ, CHRISTOPHER SHANAHAN, RAY SIMONSE, JOSEPH TRABUCCO, JOHN TSOUKARIS, SCOTT A. WEBER. (Attachments: # 1 Exhibit 1 − Boyd Decl., # 2 Exhibit A − Gayle NTA, # 3 Exhibit B − Gayle I−286, # 4 Exhibit C − Gayle − Alien Address, # 5 Exhibit D − Gayle − LPR Record, # 6 Exhibit E − Gayle − June 2012 Hearing, # 7 Exhibit F − Gayle − Aug. 2012 Hearing, # 8 Exhibit G − Gayle − Oct. 2012 Hearing, # 9 Exhibit H − Gayle − IJ Order, # 10 Exhibit I − Gayle − Jan. 2013 Hearing, # 11 Exhibit J − Francois − NTA, # 12 Exhibit K − Francois − I−286, # 13 Exhibit L − Francois − Alien Address, # 14 Exhibit M − Francois − Oct. 2012 Hearing, # 15 Exhibit N − Francois − Dec. 2012 Hearing, # 16 Exhibit N−1 − Francois − Jan. 2013 Hearing, # 17 Exhibit O − Sukhu − NTA, # 18 Exhibit P − Sukhu − I−286, # 19 Exhibit Q − Sukhu − Alien Address, # 20 Exhibit R − Sukhu − Nov. 2011 Hearing, # 21 Exhibit S − Sukhu − Jan. 2012 Hearing, # 22 Exhibit T − Sukhu − March 2012 Hearing, # 23 Exhibit U − Sukhu − ICE Submission of Evidence, # 24 Exhibit V − Sukhu − Form I−261, # 25 Exhibit W − Sukhu − I−130 Petition, # 26 Exhibit X − Suhku − April 2012 Hearing, # 27 Exhibit Y − Sukhu − I−797, # 28 Exhibit Z − Sukhu − July 2012 Hearing, # 29 Exhibit AA − Sukhu − Oct. 2012 Hearing, # 30 Exhibit BB− Sukhu − ICE Prehearing Statement, # 31 Exhibit CC − Sukhu − Dec. 2012 Hearing, # 32 Exhibit DD − Suhku − Mar. 2013 Hearing)(BOWEN, JENNIFER) (Entered: 12/21/2012)
22 MEMORANDUM in Opposition filed by OSCAR AVILES, ROBERT BIGGOTT, BRIAN ELWOOD, ROY L. HENDRICKS, ERIC HOLDER, MONMOUTH COUNTY CORRECTIONAL FACILITY, JOHN T. MORTON, JANET

Case: 3:12-cv-2806 As of: 03/24/2013 04:28 PM EDT 6 of 7

01/03/2013
01/03/2013 01/07/2013 01/24/2013 01/24/2013 01/24/2013 01/24/2013 01/25/2013 01/25/2013 01/25/2013 01/25/2013

NAPOLITANO, JUAN OSUNA, ORLANDO RODRIGUEZ, CHRISTOPHER SHANAHAN, RAY SIMONSE, JOSEPH TRABUCCO, JOHN TSOUKARIS, SCOTT A. WEBER re 13 MOTION to Certify Class (BOWEN, JENNIFER) (Entered: 12/21/2012)
23 REPLY to Response re 20 Response to Habeas Petition,,,. (Attachments: # 1 Declaration of Molly Lauterback, # 2 Exhibit A − Notice to Appear dated Mar. 24, 2012, # 3 Exhibit B − Application for Cancellation of Removal filed Oct. 15, 2012, # 4 Exhibit C − Letter from UBJCA Local Union 157 dated July 16, 2012, # 5 Exhibit D − Affidavit of Martin Allen dated Oct. 9, 2012, # 6 Exhibit E − Letter from Martin Allen dated Aug. 8, 2012, # 7 Declaration of Garfield Gayle, # 8 Declaration of Antoinette Vanderveer, # 9 Declaration of Isha Gayle, # 10 Declaration of Niagerine Makanju, # 11 Certificate of Service)(LUSTBERG, LAWRENCE) (Entered: 01/03/2013)
24 Letter from Lawrence S. Lustberg re 22 Memorandum in Opposition of Motion, 21 Answer to Amended Complaint,,,,,,. (LUSTBERG, LAWRENCE) (Entered: 01/03/2013)
25 LETTER ORDER granting Petitioners/Plaintiffs request for approval of a schedule for Petitioners/Plaintiffs to file reply briefs on two outstanding matters. Signed by Judge Freda L. Wolfson on 1/7/2013. (mmh) (Entered: 01/08/2013)
26 Consent MOTION for Leave to Appear Pro Hac Vice of Judy Rabinovitz by SHELDON FRANCOIS, GARFIELD O. GAYLE, NEVILLE SUKHU. (Attachments: # 1 Certification of Judy Rabinovitz, # 2 Certification of Lawrence S. Lustberg, # 3 Statement pursuant to Local Rule 7.1, # 4 Text of Proposed Order, # 5 Certificate of Service)(LUSTBERG, LAWRENCE) (Entered: 01/24/2013)
27 Consent MOTION for Leave to Appear Pro Hac Vice of Michael Tan by SHELDON FRANCOIS, GARFIELD O. GAYLE, NEVILLE SUKHU. (Attachments: # 1 Certification of Michael K. T. Tan, # 2 Certification of Lawrence S. Lustberg, # 3 Statement pursuant to Local Civil Rule 7.1, # 4 Text of Proposed Order, # 5 Certificate of Service)(LUSTBERG, LAWRENCE) (Entered: 01/24/2013)
28 Consent MOTION for Leave to Appear Pro Hac Vice of Dror Ladin by SHELDON FRANCOIS, GARFIELD O. GAYLE, NEVILLE SUKHU. (Attachments: # 1 Certification of Dror Ladin, # 2 Certification of Lawrence S. Lustberg, # 3 Statement pursuant to Local Civil Rule 7.1, # 4 Text of Proposed Order, # 5 Certificate of Service)(LUSTBERG, LAWRENCE) (Entered: 01/24/2013)
29 Consent MOTION for Leave to Appear Pro Hac Vice of Ahilan T. Arulanantham by SHELDON FRANCOIS, GARFIELD O. GAYLE, NEVILLE SUKHU. (Attachments: # 1 Certification of Ahilan T. Arulanantham, # 2 Certification of Lawrence S. Lustberg, # 3 Statement pursuant to Local Civil Rule 7.1, # 4 Text of Proposed Order, # 5 Certificate of Service)(LUSTBERG, LAWRENCE) (Entered: 01/24/2013)
Set Deadlines as to 26 Consent MOTION for Leave to Appear Pro Hac Vice of Judy Rabinovitz. Motion set for 2/19/2013 before Judge Freda L. Wolfson. The motion will be decided on the papers. No appearances required unless notified by the court. (mmh) (Entered: 01/25/2013)
Set Deadlines as to 27 Consent MOTION for Leave to Appear Pro Hac Vice of Michael Tan. Motion set for 2/19/2013 before Judge Freda L. Wolfson. The motion will be decided on the papers. No appearances required unless notified by the court. (mmh) (Entered: 01/25/2013)
Set Deadlines as to 28 Consent MOTION for Leave to Appear Pro Hac Vice of Dror Ladin. Motion set for 2/19/2013 before Judge Freda L. Wolfson. The motion will be decided on the papers. No appearances required unless notified by the court. (mmh) (Entered: 01/25/2013)
Set Deadlines as to 29 Consent MOTION for Leave to Appear Pro Hac Vice of Ahilan T. Arulanantham. Motion set for 2/19/2013 before Judge Freda L. Wolfson.

Case: 3:12-cv-2806 As of: 03/24/2013 04:28 PM EDT 7 of 7

01/25/2013 01/25/2013
02/13/2013 03/15/2013 03/15/2013

The motion will be decided on the papers. No appearances required unless notified by the court. (mmh) (Entered: 01/25/2013)
30 REPLY BRIEF to Opposition to Motion filed by SHELDON FRANCOIS, GARFIELD O. GAYLE, NEVILLE SUKHU re 13 MOTION to Certify Class (Attachments: # 1 Declaration of Molly Lauterback, # 2 Certificate of Service)(LUSTBERG, LAWRENCE) (Entered: 01/25/2013)
31 RESPONSE re 21 Answer to Amended Complaint,,,,,,. (Attachments: # 1 Declaration of Molly Lauterback, # 2 Exhibit A −Gayle Motion To Terminate, # 3 Exhibit B −Gayle Application for Cancellation of Removal, # 4 Exhibit C −Gayle Brief in Support of Cancellation of Removal, # 5 Exhibit D − Gayle Supplemental Brief in Support of Cancellation of Removal, # 6 Exhibit E − Francois Notice To Appear, # 7 Exhibit F − Francois Application for Cancellation of Removal, # 8 Exhibit G − Francois Application for Asylum and Withholding of Removal, # 9 Exhibit H − Letter from Crystal Souza, FOIA Specialist, # 10 Exhibit I − FOIA 12−129.mdb Excerpt, # 11 Exhibit J − FOIA 12−129.mdb Lookup Tables, # 12 Exhibit K − Fong Deposition Excerpts, # 13 Exhibit L − OIG Report Excerpts, # 14 Exhibit M − Markowitz Excerpts, # 15 Exhibit N − Administrative Office of U.S. Courts Table, # 16 Declaration of Sarah Gillman, # 17 Exhibit A − Sukhu Notice To Appear, # 18 Exhibit B − Sukhu Form I−261, # 19 Exhibit C − Sukhu Brief in Support of Motion To Terminate, # 20 Exhibit D − Sukhu Form I−130, # 21 Exhibit E − Sukhu Form I−485, # 22 Exhibit F − Sukhu Form I−601, # 23 Exhibit G −Sukhu Form I−130 Approval Notice, # 24 Declaration of Neville Sukhu, # 25 Declaration of Mathrani Sukhu, # 26 Declaration of Malisa Sukhu, # 27 Declaration of Sheldon Felix Francois, # 28 Declaration of Allister Francois, # 29 Declaration of Andrea Dormeus, # 30 Declaration of Garfield Gayle, # 31 Certificate of Service)(LUSTBERG, LAWRENCE) (Entered: 01/25/2013)
32 Letter from Lawrence S. Lustberg requesting oral argument. (LUSTBERG, LAWRENCE) (Entered: 02/13/2013)
33 OPINION filed. Signed by Judge Freda L. Wolfson on 3/15/2013. (mmh) (Entered: 03/15/2013)
34 ORDER that Petitioner's Petition for Writ of Habeas Corpus is GRANTED; that an Immigration Judge provide Petitioner with an individualized bond hearing, pursuant to 8 U.S.C. § 1226, within ten (10) days of the date of this Order. Signed by Judge Freda L. Wolfson on 3/15/2013. (mmh) (Entered: 03/15/2013)