PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 19-3241 ____________ GARFIELD O. GAYLE; NEVILLE SUKHU, Appellants v. WARDEN MONMOUTH COUNTY CORRECTIONAL INSTITUTION;SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY; ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA;DIRECTOR OF IMMIGRATION AND CUSTOMS ENFORCEMENT;DIRECTOR OF THE EXECUTIVE OFFICE OF IMMIGRATION REVIEW;JOHN TSOUKARIS, in his official capacity as Field Office Director for Enforcement and Removal Operations, Newark Field Office of U.S. Immigration and Customs Enforcement; THOMAS DECKER, 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; WARDEN BERGEN COUNTY JAIL; WARDEN ELIZABETH COUNTY DETENTION CENTER; WARDEN ESSEX COUNTY CORRECTIONAL FACILITY; DIRECTOR DELANEY HALL DETENTION FACILITY; DIRECTOR HUDSON COUNTY CORRECTIONAL FACILITY ____________ On Appeal from the District Court for the District of New Jersey (D.C. No. 3-12-cv-02806) District Judge: Hon. Freda L. Wolfson, Chief Judge ____________ Argued January 12, 2021 Before: AMBRO, KRAUSE, and PHIPPS, Circuit Judges (Opinion Filed: September 3, 2021) Lawrence S. Lustberg [ARGUED] Michael R. Noveck Gibbons One Gateway Center Newark, NJ 07102 Counsel for Appellants Stefanie N. Hennes Craig W. Kuhn Dhruman Y. Sampat [ARGUED] United States Department of Justice Office of Immigration Litigation P.O. Box 868 2 Ben Franklin Station Washington, DC 20044 Counsel for Appellees ____________ OPINION OF THE COURT ____________ KRAUSE, Circuit Judge. Under 8 U.S.C. § 1226(c), the Government must detain noncitizens who are removable because they committed certain specified offenses or have connections with terrorism, and it must hold them without bond pending their removal proceedings. This appeal asks us to decide what process is due when such detainees contend that they are not properly included within § 1226(c) and whether noncitizens who have substantial defenses to removal on the merits may be detained under § 1226(c). Because the District Court granted relief in the form of a class-wide injunction, we must also decide whether 8 U.S.C. § 1252(f)(1) permits class-wide injunctive relief. For the reasons set forth below, we agree with the District Court that § 1226(c) is constitutional even as applied to noncitizens who have substantial defenses to removal. But for those detainees who contend that they are not properly included within § 1226(c) and are therefore entitled to a hearing pursuant to In re Joseph, 22 I. & N. Dec. 799 (BIA 1999), we hold that the Government has the burden to establish the applicability of § 1226(c) by a preponderance of the 3 evidence and that the Government must make available a contemporaneous record of the hearing, consisting of an audio recording, a transcript, or their functional equivalent. Because we also conclude that § 1252(f)(1) does not authorize class- wide injunctions, we will reverse the District Court’s order in part, affirm in part, and remand for the entry of appropriate relief. I. Factual & Procedural Background This case returns to us following our 2016 remand to the District Court to consider class certification. See Gayle v. Warden Monmouth Cnty. Corr. Inst., 838 …
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