GAYLE v. ELWOOD et al
OPINION filed. Signed by Judge Freda L. Wolfson on 1/28/2015. (mmh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GARFIELD O. GAYLE, et al.
Civil Action No. 12-2806 (FLW)
JEH JOHNSON, et al.,
WOLFSON, United States District Judge:
This putative class action challenges the constitutionality of detention
procedures related to mandatory detention of aliens under 8 U.S.C. § 1226(c), codified
as the Immigration and Naturalization Act (“INA”). Putative class representatives
Garfield O. Gayle (“Gayle”) and Neville Sukhu (“Sukhu”) (collectively, “Plaintiffs” or
“Named Plaintiffs”) aver that they and other similarly situated individuals in New
Jersey have been subjected to unconstitutional mandatory immigration detention
under § 1226(c) by the United States Department of Homeland Security, Immigration
and Customs Enforcement (“DHS”/“ICE”). In that connection, Plaintiffs challenge (1)
the standards to determine whether an alien is improperly designated as subject to
mandatory detention (also known as Joseph hearings, 1 which was first established in
Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999)); (2) the adequacy of notice given to
those mandatorily detained aliens regarding their right to a Joseph hearing, and (3)
the lack of a contemporaneous verbatim record of Joseph hearings. Plaintiffs seek
declaratory and injunctive relief to enjoin the Government 2 from carrying out the
current mandatory detention procedures and to require the Government to
implement constitutionally adequate procedures.
The Government moves to dismiss all of Plaintiffs’ claims or, in the alternative,
moves for summary judgment. 3 The Government contends that (1) Named Plaintiffs
The Government notes that the Executive Office of Immigration Review “does
not refer to custody redetermination hearings under 8 C.F.R. 1003.19(h)(2)(ii) as
‘Joseph hearings’ and instead uses the terms ‘custody determination,’ [‘]bond
hearing,’ and ‘custody redetermination hearing’ interchangeably to refer to all
custody reviews authorized under 8 C.F.R. § 1003.19.” Defs.’ Supp’l Stmt. of Mat’l
Facts at ¶ 1. The Court will use the terms “Joseph hearing” and “custody
redetermination hearing” interchangeably throughout this Opinion.
The various state and local government defendants include: Jeh Johnson,
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; 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 Correctional Facility; Robert Bigott, Warden of the Bergen County
Jail; and Brian Elwood, Warden of the Monmouth County Correctional Institution.
Because I find that issues raised by both parties are legal in nature, but based
upon affidavits and discovery, the Government’s motion to dismiss is converted to a
motion for summary judgment.
lack standing to bring their claims on behalf of the putative class; (2) Plaintiffs’
adequacy of notice claim is either meritless or moot; (2) Plaintiff’s’ proposed new
standard regarding the burden of proof at a Joseph hearing is not mandated by the
Constitution. In response, Named Plaintiffs oppose the Government’s motion and
cross-move for summary judgment. Named Plaintiffs also seek to certify a class
consisting of “all individuals detained within the State of New Jersey” pursuant to 8
U.S.C. § 1226(c) “who have a substantial challenge to ‘threshold deportability’ or
‘inadmissibility’ on one of the statutory grounds that trigger mandatory detention.”
For the following reasons, the Court decides the parties’ summary judgment
motions as follows: summary judgment is (1) GRANTED in favor of Plaintiffs as to
their adequacy of notice claim; (2) both parties’ motions are GRANTED in part and
DENIED in part as to Plaintiff’s claim related to the constitutionality of the Joseph
hearing; and (3) GRANTED in favor of the Government as to Plaintiffs’
contemporaneous verbatim records claim. Finally, the Court DENIES Plaintiffs’
motion to certify a class as necessary.
The following facts are undisputed. Gayle is a Jamaican national and legal
permanent resident of the United States. Defs.’ Resp. to Pls.’ Stmt. of Mat’l Facts at
¶ 22. He has lived in the United States for approximately 30 years. Id. ¶ 23. According
to documents filed by ICE, in May 1995, Gayle was convicted after a bench trial of
criminal possession of a controlled substance with the intent to sell in the third degree
under New York State Penal Law § 220.16. Id. ¶ 24. In March 2007, Gayle pleaded
guilty to a misdemeanor marijuana possession charge for which he was sentenced to
ten days in jail. Id. ¶ 25. On March 24, 2012, ICE officers arrested Gayle. Pls.’ Resp.
to Defs.’ Stmt. of Mat’l Facts at ¶ 3. ICE issued a Notice to Appear (“NTA”), charging
Gayle with removal on the ground that his 1995 conviction rendered him deportable,
and also found him subject to mandatory immigration detention based on his 2007
conviction. 4 Defs.’ Resp. to Pls.’ Stmt. of Mat’l Facts at ¶¶ 27-28.
On March 24, 2012, Gayle received a Form I-286 Notice of Initial Custody
Determination. Id. ¶ 29. At the time of receipt, as its policy, ICE provided every
detainee under § 1226(c) mandatory detention with a Form I-286 notifying him that
he “shall be: detained in the custody of the Department of Homeland Security” and
checked the second box regarding IJ review, which stated that he “may not request
The Government disputes Plaintiffs’ characterization that “the [G]overnment
placed Mr. Gayle in mandatory detention under § 1226(c) based on his 2007
marijuana conviction, although it did not charge him with deportability on this basis
in his NTA.” Defs.’ Resp. to Pls.’ Stmt. of Mat’l Facts ¶ 28. Rather, the Government
claims that “ICE placed Mr. Gayle in mandatory detention based on a 2007 ‘drug
conviction,’” id., and thus claims that Gayle’s deportation was also based upon his
2007 drug conviction.
While Gayle was detained and his removal proceedings were ongoing, he filed
a habeas petition in this Court asserting that DHS lacked the statutory authority to
detain him under § 1226(c), because the statute requires DHS to take an alien into
custody immediately upon release from custody on his conviction. This Court granted
Gayle’s petition and ordered the Immigration Judge to provide Gayle with a bond
hearing. Gayle was released on bond on March 25, 2013. The Government has not
appealed this Court’s March 15, 2013 Order, notwithstanding the Third Circuit’s
opinion in Sylvain v. Atty. Gen. of the United States, 714 F.3d 150 (3d Cir. 2013),
rejecting the argument that Section 1226(c) only allows for mandatory detention if
DHS takes the alien into custody immediately upon release. Gayle was granted
release on $6,500 bond on March 22, 2013. Defs.’ Resp. to Pls.’ Stmt. of Mat’l Facts ¶
review of this determination by an immigration judge [“IJ”] because the Immigration
and Nationality Act prohibits your release from custody” (“Second Box”). Id. ¶ 30.
However, the second box was not checked on the Form 1-286 served on Gayle; instead,
ICE checked the first box on Gayle’s Form I-286, indicating that he “may request”
that an IJ re-determine ICE’s custody decision (“First Box”). 5 Id. ¶ 31. Gayle checked
the box located on the bottom of the form indicating that he requested a custody
redetermination hearing by an IJ. See Gayle I-286 Form. On April 10, 2012 and June
13, 2012, proceedings were held in front of IJ Alan L. Page. Pls.’ Resp. to Defs.’ Stmt.
of Mat’l Facts at ¶ 9. At the June 13th hearing, IJ Page advised Gayle that ICE had
documents establishing that Gayle had been convicted of a controlled substance
offense in 2007, and that Gayle needed to present disposition documents showing the
substance of the 2007 conviction. Id. ¶¶ 10-11. Neither of the two hearings, however,
constituted a custody redetermination hearing under Joseph—in fact, Gayle never
received a Joseph hearing. 6 Defs.’ Resp. to Pls.’ Stmt. of Mat’l Facts at ¶ 61. Further,
While Plaintiffs characterize ICE as having “incorrectly checked the first box
on Mr. Gayle’s Form,” the Government disputes that characterization, asserting that
“[w] hile ICE policy was to check a different box, it was not incorrect for ICE to have
checked the box indicating that Mr. Gayle ‘may request’ custody redetermination by
an immigration judge because aliens detained under 8 U.S.C. §1226(c) are entitled to
such hearings–which are considered part of the ‘bond hearings’ continuum.” (citing 8
C.F.R. §1003.19(h)(2)(ii); Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999); Weisel Tr.
Gayle characterizes the hearings in front of IJ Page as “removal hearings,”
whereas the Government asserts in its Stmt. of Mat’l Facts that IJ Page “reviewed
the basis of ICE’s custody decision.” Pls.’ Resp. to Defs.’ Stmt. of Mat’l Facts ¶ 9.
However, in the Government’s response to Plaintiffs’ Cross-Motion for Summary
Judgment, the Government concedes that “Plaintiff’s hearings under 8 C.F.R. §
1003.19(h)(2) . . . may have fallen short of the standards announced by the Board of
according to Gayle’s Notice to Appear, Gayle’s 2007 drug conviction was not a basis
for his removal. See Gayle Notice to Appear.
On September 20, 2012, Gayle filed a Motion to Terminate removal
proceedings based on the Government’s failure to prove the existence of the alleged
1995 conviction, i.e., attempted drug sale. Defs.’ Resp. to Pls.’ Stmt. of Mat’l Facts at
¶ 35. The IJ denied the Motion to Terminate on October 23, 2012. Id. ¶ 36.
Subsequently, Gayle was mandatorily detained for approximately twelve months at
the Monmouth County Correctional Facility in Freehold, New Jersey. Defs.’ Resp. to
Pls.’ Stmt. of Mat’l Facts at ¶ 33.
Sukhu is a Guyanese national and LPR of the United States, who has lived in
this country for approximately 20 years, almost entirely in New York City. Id. ¶ 40.
In June 1997, Sukhu pleaded guilty to assault in the second degree in violation of
N.Y. Penal Law § 120.05(6) and was sentenced to 90 days imprisonment. Id. ¶ 41. In
May 2011, Sukhu pleaded guilty to a misdemeanor offense of theft of services in
violation of N.Y. Penal Law § 165.15 and was sentenced to time served. Id. ¶ 42; Pls.’
Resp. to Defs.’ Stmt. of Mat’l Facts at ¶ 20. On August 15, 2011, ICE officers arrested
Sukhu, Id. ¶ 21, and on the same day, ICE issued a Notice to Appear, charging Sukhu
with removal under 8 U.S.C. §1227(a)(2)(A)(i)—which governs crimes of moral
Immigration Appeals in Matter of Joseph . . . . Defendants changed their position
because the transcripts of proceedings reflect that the immigration judge did not
explicitly ask Plaintiff if he wished to challenge ICE’s initial custody determination
and on what basis.” Defs.’ Brief Opposing Pls.’ Cross-Mot. for Summ. J. at 4.
Accordingly, Gayle never received a Joseph hearing.
turpitude—based on his 1997 conviction. Defs.’ Resp. to Pls.’ Stmt. of Mat’l Facts at
On August 15, 2011, Sukhu received a Form I-286 Notice of Initial Custody
Determination. See Sukhu I-286 Form. ICE determined that Sukhu was subject to
mandatory detention under § 1226(c) based on two different convictions, i.e., 1997
and 2011 convictions, for crimes of moral turpitude. Pls.’ Resp. to Defs.’ Stmt. of Mat’l
Facts at ¶ 23. Similar to Gayle, Sukhu received a Form I-286 from ICE notifying him
that he “shall be: detained in the custody of the Department of Homeland Security.”
Along with that notification, ICE checked the First Box on the Form, which like
Gayle’s Form, indicated that he “may request” that an IJ re-determine ICE’s custody
decision 7 Id. ¶ 49. Sukhu also checked the box located on bottom portion of the form
which indicated that Sukhu requested a custody redetermination hearing by an IJ.
See Sukhu I-286 Form.
Sukhu was subject to mandatory detention under § 1226(c) for nearly 21
months at the Monmouth County Correctional Facility in Freehold, New Jersey.
Defs.’ Resp. to Pls.’ Stmt. of Mat’l Facts at ¶ 51. At no point during his detention did
the IJ inform Sukhu of his right to a Joseph hearing to challenge his mandatory
detention. Id. ¶ 52. As to a bond hearing, ICE did not take the position that Sukhu
was a flight risk nor did Sukhu receive a bond hearing or any other individualized
determination that he posed a danger to the community. Id. ¶ 53.
As with Gayle, the Government disputes Plaintiffs’ characterization that ICE
“incorrectly” checked the first box on Sukhu’s Form. See supra, n.3.
On November 11, 2012, Sukhu, represented by counsel, attended a removal
hearing before an IJ. On December 27, 2011, Sukhu sought to terminate his
deportation proceeding on the basis that his assault conviction was not a crime of
moral turpitude (“CIMT”), and thus, he was not deportable. Id. ¶ 54. Sukhu reasoned
that the BIA decision, Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008), which
would categorize Sukhu’s prior assault conviction as a CIMT should not be followed. 8
Id. ¶ 55. On March 7, 2012, the IJ rejected Sukhu’s argument and found that SilvaTrevino mandated Sukhu’s deportation based upon his assault conviction being a
CIMT. Id. ¶ 57. On March 8, 2012, ICE filed an additional charge against Sukhu,
charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(ii)—two crimes of
moral turpitude—based on the combination of his 1997 and 2011 convictions. Id. ¶
45. On April 30, 2013, however, the IJ granted Sukhu’s application for adjustment of
status based on a relative petition filed by his U.S. citizen daughter, and thus,
terminated his removal proceedings. Id. ¶ 58. On May 8, 2013, Sukhu was released
from ICE custody. Id. ¶ 59. The Government did not appeal the IJ’s ruling. Id. ¶ 60.
Importantly, at no point during his detention did Sukhu receive a Joseph hearing. Id.
At the time Sukhu’s Motion to Terminate was pending, Silva-Trevino had been
rejected by several Courts of Appeals, including the Third Circuit. However, two
circuit courts of appeals have deferred to Matter of Silva-Trevino, and the matter has
not yet been decided by the Second Circuit, the circuit in which Sukhu’s Immigration
Judge sat. Id. ¶ 56.
On August 5, 2013, Named Plaintiffs filed their third-amended class-action
complaint (“TAC”) against the Government, alleging, in relevant part, two causes of
action for violations of the Immigration and Naturalization Act (“INA”) and the due
process clause of the United States Constitution. 9 On March 14, 2014, the Court ruled
on the Government’s motion to dismiss the TAC; the Court granted the Government’s
motion to dismiss Plaintiffs’ claims for declaratory and injunctive relief in Counts
One and Two of the TAC to the extent that Plaintiffs were requesting that a Joseph
hearing be provided to any mandatorily detained alien who has a substantial
challenge to his or her removal on grounds other than whether the alien falls within
Section 1226(c) categories requiring mandatory detention. See Gayle v. Johnson, 4
F. Supp. 3d 692 (D.N.J. 2014). The Court denied the Government’s motion to dismiss
Counts One and Two with respect to Gayle’s and Sukhu’s challenges to the
constitutional and statutory adequacy of the procedures related to the Joseph
hearing. Based on those rulings, the following claims remain: as to detainees who
are mandatorily detained under Section 1226(c) by ICE, Plaintiffs assert that they,
and other similarly situated individuals, must have the opportunity to receive a
constitutionally adequate hearing before an immigration judge to make a
determination on their mandatory detention. To that end, Plaintiffs further assert
that this hearing must be one that (1) includes adequate notice; (2) places the initial
The TAC also contains individual habeas claims consisting of four causes of
action for an original named plaintiff, Sheldon Francois. The Court disposed of this
claim in an Opinion and Order dated August 23, 2013. See Dkt. Nos. 80 & 81.
burden of establishing that an alien falls within Section 1226(c) on the Government;
and (3) requires a contemporaneous record of proceedings.
Thereafter, the Government filed the instant motion to dismiss and, in the
alternative, a motion for summary judgment. The Government contends that (1)
Plaintiffs lack standing to challenge the adequacy of notice because they in fact
received notice and further, the issue is moot, since ICE now uses updated I-286 forms
in the District of New Jersey; (2) Plaintiffs lack standing to challenge the standards
applied at Joseph hearings because they did not receive Joseph hearings; 10 (3)
Plaintiffs lack standing to challenge the lack of a contemporaneous verbatim record
of Joseph hearings because IJ Page recorded his custody redeterminations for Named
Plaintiffs; (4) Plaintiffs lack standing to challenge the standards applied during
Joseph hearings because they did not possess substantial challenges to the bases for
their mandatory detention; (5) the Government already bears the initial burden at
the custody redetermination hearing; (6) the Constitution does not require that
custody redetermination hearings resemble pre-merits mini-trials; and (7) under 8
U.S.C. § 1252(f)(1), this Court is precluded from granting the requested class relief.
Initially, the Government argued that Named Plaintiffs received Joseph
hearings and thus could not challenge the adequacy of notice for such hearings. Defs.’
Mot. to Dismiss or in the Alt. for Summ. J., at 12. However, in response to Plaintiffs’
cross-motion for summary judgment, the Government concedes that the removal
proceedings in which Named Plaintiffs participated did not amount to custody
redetermination hearings and instead argues that because Plaintiffs did not receive
Joseph hearings, they “cannot establish that they were prejudiced by any deficiencies
in the procedures applicable to Joseph hearings.” Defs.’ Resp. to Pls.’ Cross-Mot. for
Summ. J. at 10.
On July 1, 2014, Plaintiffs filed a cross-motion for summary judgment.
Plaintiffs claim that (1) Plaintiffs have standing to challenge the adequacy of the
Joseph hearing and its associated procedures because Plaintiffs did not receive notice
of their right to a Joseph hearing, did not receive Joseph hearings, and each presented
a substantial challenge to the Government’s charges; (2) Plaintiffs’ notice claims are
not mooted by ICE’s updated Form I-286; (3) the Joseph standard and associated
procedures violate both the Constitution and the INA; and (5) 8 U.S. C. 1252(f)(1)
does not preclude requested class-wide injunctive relief.
Section 1226(c) and Matter of Joseph
In this Court’s March 14, 2014 Opinion, I set forth the statutory and regulatory
framework related to mandatory immigration detention and I incorporate that
Opinion’s relevant discussion herein. See Gayle, 4 F.Supp.3d at 701-05. However, for
the purposes of this motion, I briefly note that 8 U.S.C. § 1226(c), enacted in the
1990s, concerns the apprehension and detention of aliens, and during the pendency
of their removal cases, imposes mandatory detention on individuals, who are
“deportable” or “inadmissible” based on certain criminal convictions. It states,
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 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
8 U.S.C. § 1226(c); compare 8 U.S.C. § 1226(a) (allowing aliens discretionarily
detained pursuant to that provision to obtain an individualized bond hearing).
According to the Government, ICE makes the initial determination that an individual
is removable on the ground triggering mandatory detention under Section 1226(c)
under a “reason to believe” standard. 8 U.S.C. § 1357(a)(2). Then, an alien could
challenge that determination pursuant to the BIA decision in Matter of Joseph, 22 I.
& N. Dec. 799 (BIA 1999). There, the Board held that an alien whom the INS 12
Specifically, § 1226(c) applies to aliens who are deportable on account of:
having been convicted of two or more crimes involving moral turpitude, an
aggravated felony, a controlled substance offense, certain firearm-related offenses, or
certain other miscellaneous crimes, or having committed a crime of moral turpitude
within a certain amount of time since their date of admission for which a sentence of
one year or longer has been imposed; and finally, aliens who are inadmissible or
deportable because of connections to terrorism. See 8 U.S.C. § 1226(c) (referencing id.
§ 1182(a)(2), § 1227(a)(2)(A)(ii), § 1227(a)(2)(A)(iii), § 1227(a)(2)(C), § 1227(a)(2)(C), §
1227(a)(2)(D), § 1227(a)(2)(A)(i), § 1182(a)(3)(B), § 1227(a)(2)(C), § 1227(a)(4)(B)). The
sole statutory exception to mandatory detention is if the Attorney General determines
that the alien should be part of the federal witness protection program. 8 U.S.C. §
INS is the predecessor to DHS/ICE. Khouzam v. Attorney Gen. of United
States, 549 F.3d 235, 243 n. 7 (3d Cir. 2008) (“The Homeland Security Act of 2002 ...
eliminated the Immigration and Naturalization Service (‘INS') and assigned INS's
enforcement functions to the DHS's Bureau of [ICE]. . . .”). As part of the Homeland
Security Act of 2002, the functions of the INS were transferred from the Department
of Justice to three different agencies under the newly formed DHS: ICE, Customs and
Border Protection, and Citizenship and Immigration Services, with ICE assuming the
majority of the INS's immigration enforcement function. Lin–Zheng v. Attorney.
Gen., 557 F.3d 147, 152 n. 4 (3d Cir. 2009) (citing Homeland Security Act of 2002,
Pub.L. No. 107–296, 116 Stat. 2135).
determined was subject to mandatory detention could request a hearing to prove that
INS “is substantially unlikely to establish at the merits hearing, or on appeal, the
charge or charges that would otherwise subject the alien to mandatory detention.” 13
22 I. & N. Dec. 799 (BIA 1999).
The Joseph Board reasoned that the foregoing standard would give both (1)
“significant weight” to INS’s initial custody determination in line with congressional
intent that certain categories of removable aliens should be mandatorily detained,
and (2) “genuine life” to the regulation that allows the IJ to reexamine the INS's
determination. Id. at 807. In that regard, the BIA instructed the IJ to “look forward
to what is likely to be shown during the hearing on the underlying removal case.” Id.
In other words, in order to support its “reason to believe” obligation at a preliminary
hearing, the INS would not necessarily be required to provide, for example, a certified
copy of the alien's conviction that served as the basis for mandatory detention, even
though such a document ordinarily would be necessary for the Government to meet
its burden of demonstrating that the alien should be removed. See id. Indeed, the
Board made clear that the standard of proof on the Government is less exacting as
the one imposed for the merits hearing.
Consequently, ICE devised certain procedures for executing the provisions of
Section 1226 consistent with Matter of Joseph. Individuals who are subject to
The BIA has also stated that Joseph requires an individual to demonstrate
that ICE is “substantially unlikely to establish that the [individual’s] convictions
would support a [mandatory detention] charge.” Matter of Kotliar, 24 I. & N. Dec.
124, 127 (BIA 2007).
discretionary detention under Section 1226(a) or mandatory detention under Section
1226(c) are issued a notice of custody determination, i.e., Form I-286. Form I-286,
revised in March 2014, simply informs the alien that, “[p]ending final administrative
detention in your case, you will be:” either “[d]etained by the Department of
Homeland Security” or “[r]eleased under certain conditions”; it also informs aliens
that they “may request a review of this custody determination by an immigration
judge.” Simao Decl. ¶ 9; Rev. Form I-286. The manner in which the review is carried
out follows: If an individual is deemed mandatorily detained, his or her requested
review will be a hearing before an IJ on whether he or she is “properly included”
1003.19(h)(2)(ii); see also Defs.’ Resp. to Pls.’ Stmt. Of Mat’l Facts at ¶ 2. If the
individual is successful in proving that he or she is not “properly included” under
Section 1226(c), by establishing that ICE is “substantially unlikely” to prevail on the
charges that trigger mandatory detention, the individual then proceeds to an
individualized bond hearing—the same type of custody hearing accorded to those
discretionarily detained pursuant to Section 1226(a). See Demore v. Kim, 538 U.S.
510, 532 (2003).
Relatedly, Joseph hearings are not contemporaneously recorded verbatim as a
matter of policy; rather, Joseph hearings are normally summarized by the IJ’s order
determining that a noncitizen is subject to mandatory detention or is eligible for a
bond hearing. Defs.’ Resp. to Pls.’ Stmt. Of Mat’l Facts at ¶ 18. However, when a party
appeals a Joseph decision, the IJ drafts a short bond memorandum providing the
reasons for his or her decision in that context. Id.
Standard of Review
a. Motion for Summary Judgment
Courts will enter summary judgment only when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(a). An issue is
“genuine” if supported by evidence such that a reasonable jury could return a verdict
in the non-moving party’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52. A fact is “material” if, under the governing substantive law, a dispute about
the fact might affect the outcome of the suit. See id. at 252. In determining whether
a genuine issue of material fact exists, the court must view the facts and all
reasonable inferences drawn from those facts “in the light most favorable to the [nonmoving] party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
A party moving for summary judgment “bears the initial responsibility of
informing the district court of the basis for its motion.” Celotex v. Catrett, 477 U.S.
317, 323 (1986). The nonmoving party then carries the burden to “designate ‘specific
facts showing that there is a genuine issue for trial.’” Id. at 324. Moreover, the nonmoving party may not rest upon the mere allegations or denials of its pleading. Id. at
324; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994).
The non-moving party must “do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. A mere
“scintilla of evidence . . . will be insufficient.” Anderson, 477 U.S. at 252.
To satisfy the “case or controversy” standing requirement under Article III, a
plaintiff must establish that he or she has suffered a cognizable injury that is causally
related to the alleged conduct of the defendant and is redressable by judicial action.
To satisfy this requirement, a “litigant must assert his or her own legal rights and
interests, and cannot rest a claim to relief on the legal rights or interests of third
parties.” Powers v. Ohio, 499 U.S. 400, 410 (1991); Valley Forge Christian Coll. v.
Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 474-75 (1982);
Wheeler v. Travelers Ins. Co., 22 F.3d 534, 538 (3d Cir. 1994).
Constitutional standing requires an “injury-in-fact, which is an invasion of a
legally protected interest that is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical.” Reilly v. Ceridian Corp., 664 F.3d 38, 41
(3d Cir. 2011). It is insufficient for the plaintiff to merely raise a “generally available
grievance about government—claiming only harm to his and every citizen’s interest
in proper application of the Constitution and laws, and seeking relief that no more
directly and tangibly benefits him than it does the public at large.”
Defenders of Wildlife, 504 U.S. 555, 573-74 (1992). Thus, in challenging the
application of a federal statute—as Plaintiffs do here—the challengers must show
that they have already sustained, or are in immediate and certain danger of
sustaining, a real and direct injury. O’Shea v. Littleton, 414 U.S. 488, 494 (1974).
c. Procedural Due Process
“Procedural due process imposes constraints on governmental decisions which
deprive individuals of liberty or property interests within the meaning of the Due
Process Clause of the Fifth or Fourteenth Amendment . . . . The fundamental
requirement of due process is the opportunity to be heard at a meaningful time and
in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “Freedom
from imprisonment—from government custody, detention, or other forms of physical
restraint—lies at the heart of the liberty [the Due Process] Clause protects.”
Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
“The due process afforded aliens stems from those statutory rights granted by
Congress and the principle that minimum due process rights attach to statutory
rights.” Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (internal citation and
quotation marks omitted). Although an alien’s mandatory detention for a reasonable
period pending removal is constitutional, “the Fifth Amendment entitles aliens to due
process of law in deportation proceedings.” Demore, 528 U.S. at 523 (quoting Reno v.
Flores, 507 U.S. 292, 306 (1993)). Thus, even in circumstances where mandatory
detention is constitutionally permissible, due process still requires “adequate
procedural protections” to ensure that the Government’s stated justification for
detaining an alien without
a bond hearing
constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S.
at 690 (internal quotation marks omitted).
Adequacy of Notice
I first address the Government’s standing challenge in the context of the
adequacy of notice given to aliens.
The Government maintains that Plaintiffs’
adequacy of notice claim fails because (1) Plaintiffs received actual notice of their
right to a custody redetermination hearing and thus, lack standing; and (2) the claim
is now moot because beginning in December 2013, ICE agents began checking the box
on Form I-286 informing aliens that they have a right to seek review of ICE’s custody
determination in front of an IJ, and moreover, in March 2014, ICE adopted a revised
Form I-286 that informs all aliens of their right to a custody redetermination hearing.
Simao Decl. ¶¶ 8-9. In response, Plaintiffs contend that the Court has already
disposed of the Government’s standing challenge in this context in its previous
decision, and that the revised Form I-286 continues to be constitutionally infirm.
The initial inquiry is whether Named Plaintiffs have standing; Named
Plaintiffs must have suffered an injury-in-fact as a result of their allegedly
inadequate notice of a custody redetermination hearing. See Winer Family Trust v.
Queen, 503 F.3d 319, 326 (3d Cir. 2007) (holding that the “initial inquiry” into
standing in a putative class action is “whether the lead plaintiff individually has
standing, not whether or not other class members have standing”); Blum v. Yaretsky,
457 U.S. 991, 999 (1982) (“Nor does a plaintiff who has been subject to injurious
conduct of one kind possess by virtue of that injury the necessary stake in litigating
conduct of another kind, although similar, to which he has not been subject.”).
The Government argues that because ICE checked the first box on Named
Plaintiffs’ Forms I-286 -- which indicated that a detainee “may request” that an IJ redetermine ICE’s custody decision -- Named Plaintiffs indeed received notice of their
rights to a custody redetermination hearing. Plaintiffs counter that (1) the checked
box merely represented notice of a bond hearing, as opposed to a Joseph hearing, 14
and (2) even if the checked box informed each Named Plaintiff of his right to a Joseph
hearing, the notice still fell short of what due process requires, because the form did
not specifically explain the nature of a Joseph hearing—that Named Plaintiffs were
entitled to a hearing in which an IJ determines whether Named Plaintiffs were
properly included under Section 1226(c).
Furthermore, Named Plaintiffs never
received their requested hearings.
Indeed, the Form I-286 that Named Plaintiffs received stated that “[p]ursuant
to the authority contained in Section 236 of the Immigration and Nationality Act and
part 236 of title 8, Code of Federal Regulations,” DHS determined that “pending a
final determination by the immigration judge in your case, and in the event you are
Joseph hearings differ from bond hearings in that at a Joseph hearing, the
operative question is whether the alien is properly included under Section 1226(c)—
whereas the outcome of a bond hearing turns on whether the criminal defendant is a
flight risk or a danger to the community. Aliens detained under Section 1226(a) are
entitled to a bond hearing, whereas those detained under Section 1226(c) are subject
to mandatory detention and not accorded a bond hearing, with a limited exception for
those subject to the witness protection program. 8 U.S.C. § 1226(a), (c); Diop v.
ICE/Homeland Sec., 656 F.3d 221, 230, 232 (3d Cir. 2011).
ordered removed from the United States, until you are taken into custody for removal
you shall be: detained in the custody of the Department of Homeland Security.”
Sukhu Form I-286; Gayle Form I-286. DHS/ICE checked the First Box on the form,
indicating that Plaintiffs “may request a review of this determination by an
immigration judge.” Sukhu Form I-286; Form Gayle I-286. Named Plaintiffs checked
the boxes on the form indicating that they did request a hearing before an
immigration judge and that they acknowledged receipt of this notification. Sukhu
Form I-286; Gayle Form I-286.
Based on the plain language of the form, I find that Named Plaintiffs did not
receive notice of their right to a Joseph hearing and thus, have standing to challenge
the adequacy of that notice. ICE has stated that its policy at the time that Gayle and
Sukhu were detained was to check the Second Box for those detained pursuant to
Section 1226(c), and thus subject to mandatory detention. Simao Dep. at 110; Defs.’
Response to Pls.’ Stmt. Of Mat’l Facts at ¶¶ 30, 48. Importantly, there were no boxes
to check, or any language, on the form that notified a mandatorily detained alien that
he/she was entitled to a Joseph hearing. Conversely, those who were issued notices
of custody determinations pursuant to Section 1226(a) were entitled to an
individualized bond determination as a matter of right. See 8 U.S.C. § 1226; see also
Simao Dep. at 107. It appears that ICE’s policy at the time of Gayle’s and Sukhu’s
detentions was to check the First Box for only those discretionarily detained under
Section 1226(a) so as to accord such individuals their right to an individualized bond
hearing. See id. § 1226(a); Diop v. ICE/Homeland Sec., 656 F.3d 221, 230 (3d Cir.
2011). Both Gayle and Sukhu were detained pursuant to Section 1226(c). Defs.’
Response to Pls.’ Stmt. Of Mat’l Facts at ¶¶ 28, 47. It follows that ICE’s apparent
mistake by checking the First Box on Named Plaintiffs’ Form I-286s was not intended
to provide notice of Named Plaintiffs’ rights under Joseph, as suggested, post facto,
by the Government. In fact, under the language of the old Form I-286, Named
Plaintiffs were never apprised of their right to receive a Joseph hearing, let alone to
request one. Therefore, Named Plaintiffs clearly did not receive notice of their right
to a Joseph hearing, and thus have suffered an injury-in-fact sufficient to confer
standing to challenge the adequacy of the Form I-286. 15
The Government alternatively argues that Plaintiffs’ adequacy of notice claim
is now moot because of the recent changes ICE made to Form I-286. According to the
Government, the form now informs all detained aliens of their right to a custody
redetermination hearing in front of an IJ. See Rev. Form 1-286. However, Plaintiffs
argue that summary judgment in their favor is still warranted because ICE’s changes
to Form I-286 remain constitutionally infirm. At issue here is whether the amended
Form I-286 contains adequate information to apprise a detainee of his/her rights
under the law.
To comport with due process requirements, deprivations of life, liberty or
property should “be preceded by notice and an opportunity for hearing appropriate to
I further note that I have previously found that Gayle and Sukhu have
standing to challenge procedures related to the Joseph hearing. While the
Government advances additional arguments here in support of its position, my
reasons regarding standing provided in the March 14, 2014 Opinion are equally
applicable on this motion. See Gayle, 4 F. Supp. 3d at 713-14.
the nature of the case.” Mullane v. Central Hanover Bank and Trust Co., 339 U.S.
306, 313 (1950). In general, notice must be “reasonably calculated to apprise
interested parties of the pendency of the action,” id. at 314, so that they can
adequately prepare for the hearing. See Memphis Light, Gas and Water Div. v. Craft,
436 U.S. 1, 14 (1978). Notice must inform the individual whose protected interests
are at risk of the opportunity to present objections at “some kind of hearing” before
the final deprivation of those interests. Wolff v. McDonnell, 418 U.S. 539, 577–78
Here, revised Form I-286, entitled “Notice of Custody Determination,” informs
recipients in the first section that, “[p]ursuant to the authority contained in section
236 of the Immigration and Nationality Act and part 236 of title 8, Code of Federal
Regulations, [DHS has] determined that, pending a final administrative
determination,” they are either detained or released. See Rev. Form I-286. In the
second section, detainees are informed that they “may request a review of this custody
determination by an immigration judge” and must check the boxes stating that they
acknowledge receipt of this notification and that they either request or do not request
“an immigration judge review of this custody determination.” Id. Section 236 of the
INA corresponds to 8 U.S.C. § 1226. 16
INA: ACT 236 - APPREHENSION AND DETENTION OF ALIENS, U.S.
http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-05570.html (last accessed Nov. 24, 2014).
Having reviewed its content, I find that, as a matter of law, revised Form I-286
does not provide adequate notice of an alien’s right to a custody redetermination
hearing, and therefore, the revised form is constitutionally infirm. First, the revised
form expressly informs all aliens subject to detention under Section 1226—whether
under Section 1226(a) or Section 1226(c)—to request a hearing on ICE’s custody
determination, without regard to the alien’s status. See Shanahan Decl. at 2.
However, Form I-286 not only fails to provide an alien with explicit notice that he or
she is deemed subject to mandatory detention pursuant to Section 1226(c), but the
Government also concedes that no other notice of mandatory detention is given to
that alien. See Simao Tr. 142:9-17 (“Q: [D]oes ICE provide an alien subject to
mandatory detention with any notice other than the I-286? . . . A: No other notice.”). 17
It is not disputed that those subject to Section 1226(a) detention may receive an
individualized bond determination, in which an immigration judge determines
whether the alien is a flight risk or a danger to the community. 8 C.F.R. § 236.1(c)(8);
While the alien’s NTA provides information about the basis for ICE’s decision
to seek removal, the NTA’s charges are not necessarily exhaustive. For example,
Gayle was placed in mandatory detention under § 1226(c) based on a 2007 drug
conviction, though ICE did not charge him with deportability on this basis in his NTA.
See Defs.’ Resp. to Pls.’ Stmt. Of Mat’l Facts at ¶ 28; Gayle’s NTA. The BIA has held
that “where the basis for detention is not included in the charging document, the alien
must be given notice of the circumstances or convictions that provide the basis for
mandatory detention and an opportunity to challenge the detention before the
Immigration Judge during the bond redetermination hearing.” In Re Kotliar, 24 I. &
N. Dec. 124, 127 (BIA 2007). Still, even if the NTA contains the charges that may
trigger mandatory detention, it does not actually state whether ICE has deemed the
individual subject to mandatory detention under Section 1226(c). Simply put, the
NTA does not, even when read together with the revised Form I-286, adequately
apprises aliens of their rights.
Sylvain v. Attorney Gen. of U.S., 714 F.3d 150, 154 (3d Cir. 2013). On the other hand,
an alien detained under Section 1226(c) may request a Joseph hearing, wherein the
alien must prove that he or she is not properly included under Section 1226(c). It is
beyond dispute that the two hearings are procedurally distinct and involve different
evidentiary burdens; indeed, only if an alien is successful at a Joseph hearing does he
or she then proceed to receive an individualized bond determination. See Demore, 538
U.S. at 532. The failure of Form I-286 to differentiate between the basis for detention,
i.e., whether it is section 1226(a) or Section 1226(c), and what type of hearing is
permitted, i.e., a Joseph hearing or bond hearing, results in inadequate notice to the
alien regarding his or her rights to a hearing and the type of hearing to which he or
she is entitled.
Indeed, this sort of omission does not comport with procedural due process
requirements. It is a fundamental requirement of due process “in any proceeding
which is to be accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.” Mullane, 339 U.S. at 314; West v.
Spencer, 321 Fed. Appx. 151, 153 (3d Cir. 2009); Nu-Look Design, Inc. v. C.I.R., 356
F.3d 290, 295 (3d Cir. 2004). Significantly, “[t]he notice must be of such nature as
reasonably to convey the required information.” In re Penn Cent. Transp. Co., 771
F.2d 762, 768 (3d Cir. 1985). Thus, the purpose of the notice requirement is to advise
individuals who will be affected by the outcome of any proceeding of the impending
hearing so that they can take steps to safeguard their interests. Memphis Light Gas,
436 U.S. at 14; Greene v. Lindsey, 456 U.S. 444, 451 (1982). Here, the omission is
significant because if an alien is not apprised of his or her detention status, it follows
that the alien would not know, and the form fails to indicate, the type of custody
redetermination hearing to which he or she is entitled. In that regard, the notice does
not adequately convey the necessary information such that the alien could properly
prepare for either the Joseph hearing or a bond hearing, particularly since the
hearings require different types of proofs and the alien has a significantly higher
burden of proof at a Joseph hearing, see infra.
Accordingly, I find that ICE’s revised Form I-286 does not provide adequate
notice to aliens detained pursuant to Section 1226(c) of their right to contest their
detention and thus, I grant summary judgment in favor of Plaintiffs on their
adequacy of notice claim.
Constitutionality of the Joseph Hearing
The Government argues that Plaintiffs lack standing to challenge the Joseph
hearing procedures. In its brief, the Government argues that Plaintiffs lack standing
because they did not possess substantial challenges to the bases for their mandatory
detention. 18 In support of its argument, the Government claims that (1) Plaintiffs
have not set out a definition of “substantial,” (2) Gayle’s motion to terminate merely
As explained supra, the Government, having conceded that Plaintiffs did not
receive Joseph hearings, abandoned its initial argument that Plaintiffs lack standing
to challenge the adequacy of the Joseph hearing and its associated procedures
because they received Joseph hearings; accordingly, the Court will not analyze this
claimed that ICE did not properly document the 1995 conviction charged in his Notice
to Appear, which the court denied based on “binding case law” and (3) Sukhu’s
challenge cannot qualify as substantial because the case law upon which his
challenge rests—the broad rejection of Silva-Trevino—has not been universally
confirmed. Plaintiffs, on the other hand, argue that (1) the test for determining
whether they possess a “substantial challenge” to their detention is the test used by
the Third Circuit to determine the standards applicable to the Bail Reform Act of
1984, (2) the Government failed over several months to provide documentation
proving the existence of Gayle’s charged conviction, rendering Gayle’s argument
legitimate, and (3) because the Third Circuit agrees with Sukhu’s reading of Silva-
Trevino as do a majority of the circuits that have considered this issue, Sukhu has at
least raised a “substantial” question about whether he was properly subject to Section
In essence, the issues raised by the parties in this context relate to the
respective merits of Gayle and Sukhu’s deportability, i.e., whether Gayle and Sukhu
each has a substantial basis to terminate removal proceedings. Thus, the question
relating to the definition of “substantial challenge,” a term advanced by Plaintiffs, is
not one that impacts standing. Indeed, the Government improperly injects one of its
arguments opposing Plaintiffs’ class certification motion19 into its motion for
In its opposition to Plaintiffs’ class certification motion, the Government claims
that Plaintiffs lack standing to bring the class action defined by Plaintiffs because
their challenges to threshold deportability are not substantial; thus, “Plaintiffs are
not part of the class they seek to represent.” Defs.’ Opp. Br. to Pls.’ Renewed Mot. for
Class Cert., Docket. No. 101 at 10.
summary judgment. Rather, the Court has already addressed the standing issue in
its March 14, 2014 Opinion. I found that both Gayle and Sukhu had sufficiently
alleged injury and, thus, standing to challenge the Joseph hearing and associated
procedures because (1) Gayle “had a basis for challenging his inclusion under Section
1226, which he did not waive or otherwise concede” and (2) Sukhu “had a substantial
argument for termination of his removal proceedings on the basis that his assault
conviction is not a crime involving moral turpitude,” which “is a basis for Sukhu to
challenge, in a Joseph hearing, his inclusion under Section 1226(c) and [both
Plaintiffs] were thus eligible to receive a Joseph hearing.” See Gayle, 4 F.Supp. 3d at
Although the Government argues that Named Plaintiffs lack standing because
they purport to bring a class action on behalf of those who possess a “substantial
challenge” to their inclusion under Section 1226(c), and Named Plaintiffs do not have
“substantial challenges” to their own inclusion under that statutory provision, I
nonetheless find that my previous ruling on this issue remains the law of the case
here. 20 Whether Named Plaintiffs are appropriate representatives of a putative class
does not impact the Court’s decision that Named Plaintiffs have standing to bring
The law of the case “doctrine posits that when a court decides upon a rule of
law, that decision should continue to govern the same issues in subsequent stages in
the same case.” In re Pharmacy Benefit Managers Antitrust Litig., 582 F.3d 432, 439
(3d Cir. 2009). “[A]s a rule courts should be loathe to [revisit prior decisions] in the
absence of extraordinary circumstances such as where the initial decision was clearly
erroneous and would make a manifest injustice.” Id. (quoting Christianson v. Colt
Indus. Operating Corp., 486 U.S. 800, 816 (1988)).
their own claims. Moreover, the Government has submitted no additional facts on
this motion that would alter the Court’s prior determination on Plaintiffs’ standing;
Plaintiffs have standing to challenge the adequacy of the Joseph hearing and its
Finally, as a part of its standing arguments, the Government submits that
because Plaintiffs never had Joseph hearings, the Court lacks “a specific example of
an immigration judge applying the standards articulated in Joseph to a plaintiff’s
challenges to removal and should thus “dismiss Plaintiffs’ challenge to Joseph
standards as unripe.” 21 Defs.’ Reply Br. at 8. This argument has been addressed in
my March 14th Opinion:
I do not find it determinative for standing purposes, as the Government
suggests, that neither Gayle nor Sukhu ever received a Joseph hearing.
In order for Gayle and Sukhu to have standing, it is not necessary that
they obtained a Joseph hearing because, based on the facts as [pleaded],
both Gayle and Sukhu were entitled to such a hearing—irrespective of
whether such a hearing would have been nothing more than an exercise
in futility . . . .
Gayle, 4 F. Supp. 3d at 715. Furthermore, discovery has taken place in this case;
“It is usually improper for a moving party to shift gears and introduce new
legal arguments in the reply brief.” Stockroom, Inc. v. Dydacomp Dev. Corp., 941 F.
Supp. 2d 537, 543 (D.N.J. 2013) (citing Laborers' Int'l Union of N. Am., AFL–CIO v.
Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir.1994) (“An issue is waived
unless a party raises it in its opening brief”). However, I will consider the argument
because Plaintiffs are not prejudiced by my doing so and because the Government, in
its opposition brief, gave some notice of its intention to raise the issue of ripeness in
its reply. Defs.’ Reply at 1 n.1 (“Defendants will reply to Plaintiffs’ opposition in a
reply to be filed on August 5, 2014. At that time, Defendants will address more fully
Plaintiffs’ lack of standing and their claims’ lack of ripeness.”) (internal citation
contrary to the Government’s assertion, Judge Wiesel’s testimony during his
deposition provides explanation, and specific instances, of how immigration judges
apply the Joseph standards.
In sum, the Government does not offer any explanation for why the Court
should revisit its prior holding. As such, its ripeness argument is unavailing and I
deny the Government’s motion for summary judgment on this basis. Accordingly,
consistent with my prior ruling, both Gayle and Sukhu have standing to challenge
the Joseph hearing procedures.
b. Due Process 22
One of the aspects of Plaintiffs’ challenge to the Joseph hearing procedures
concerns the burden of proof. Plaintiffs advance that as a matter of constitutional
protection of liberty interests, the Government should bear the initial burden at a
Joseph hearing. Based on that position, the Government argues that Plaintiffs’
claims regarding the Joseph hearing standards should be dismissed because ICE, in
fact, has the initial burden to prove that it had a “reason to believe that the alien . . .
is in the United States in violation of any [immigration] law or regulation and is likely
to escape before a warrant can be obtained for his arrest” before arresting an alien
and issuing an NTA charging the alien with removability. See 8 U.S.C. § 1357(a)(2).
However, like the Government’s justiciability arguments on Plaintiffs’ Joseph
standards claim, this particular issue was already raised and addressed by this
Court. In the Government’s prior motion to dismiss, the Government argued that it
“necessarily must first make a decision that all detainees are deportable (or
inadmissible) in order to detain them under [S]ection 1226, even if they concede their
deportability.” Defs.’ Br. In Support of First Mot. to Dismiss, Docket No. 75, at 18
(quoting Gonzalez v. O’Connell, 355 F.3d 1010, 1015 (7th Cir. 2004) (emphasis in
original)). In my March 14th opinion, I distinguished between the “reason to believe”
standard ICE initially employs in issuing NTAs and the burdens of proof at a Joseph
hearing and found that
Plaintiffs have alleged, which . . . this Court accepts as true on this
motion and is also in line with the language of Joseph, that in order to
show that mandatory detention is proper at the Joseph stage, the
Government does not even have to produce a certified record of the
alien’s predicate criminal convictions. . . . Not requiring such a de
Both Plaintiffs and the Government move for summary judgment on Plaintiffs’
claim that Joseph hearings do not satisfy due process because the burden of proof on
aliens during such hearings is unconstitutionally burdensome. On this issue, the
Government reasons that while the Joseph standard -- which requires an alien to
show that ICE is “substantially unlikely” to prove the charges through which
mandatory detention is triggered -- may be high, it is not constitutionally
impermissible because the standard satisfies the Mathews test. 23 While Plaintiffs
agree that I should apply the Mathews test when determining whether the
procedures related to a Joseph hearing are constitutionally adequate, nonetheless,
Plaintiffs contend that the Government’s application of the Mathews test is erroneous
because the Government (1) fails to account for the gravity of the private interest in
freedom from imprisonment or the substantial risk that an individual would be
minimis burden of production be placed on the Government to show its
‘reason to believe’ that the alien is included under Section 1226(c), when
combined with the high burden placed on the alien to show that the
Government is ‘substantially unlikely’ to prove its case, further makes
it plausible that the alien’s ability to challenge his or her mandatory
detention is all but illusory.
Gayle, 4 Supp.3d at 718 (internal citations omitted). The Government seeks to re-
litigate its prior motion to dismiss without any explanation warranting
reconsideration of my March 14th opinion and order addressing the argument in
question. Accordingly, I reject the Government’s argument based on who carries the
initial burden of proof at a Joseph hearing as a basis for dismissal of this claim. More
importantly, as explained below, I find ICE’s initial burden at the Joseph hearing
before an IJ is constitutionally infirm.
In Mathews, the Supreme Court devised a three-part test to determine
whether an administrative procedure comports with due process. 424 U.S. at 333; see
improperly subjected to mandatory detention under Section 1226(c); and (2) fails to
establish that a change in the standard would impose a discernable burden on the
In assessing whether a particular administrative procedure comports with due
process, courts should “look to see if the process at issue fits with the notion that
“[t]he fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.” Dia, 353 F.3d at 239 (quoting
Mathews, 424 U.S. at 333). “(D)ue process is flexible and calls for such procedural
protections as the particular situation demands.” Id. at 334 (quoting Morrissey v.
Brewer, 408 U.S. 471, 481 (1972)).
In Mathews, the Supreme Court held that the “identification of the
specific dictates of due process generally requires consideration of three
distinct factors: First, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the
Government's interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural
requirement would entail.”
Biliski v. Red Clay Consol. Sch. Dist. Bd. of Educ., 574 F.3d 214, 220 (3d Cir. 2009)
(quoting Mathews, 424 U.S. at 335).
I note at the outset that whether the Joseph standards are constitutionally
adequate is an open question. See Demore, 538 U.S. at 514 n.3 (“[W]e have no
occasion to review the adequacy of Joseph hearings generally in screening out those
who are improperly detained pursuant to 1226(c).”); Diop, 656 F.3d at 231 n.8
(“[B]ecause the parties do not question the constitutional adequacy of a Joseph
hearing, we decline to address it here. We note, however, that the issue is an open
one . . . .”). 24
Because the Mathews test is flexible, precedent has not established a uniform
approach to which this Court must adhere. Rather, it is this Court’s role to address
each factor of the test and, if necessary, weigh them in fashioning a proper remedy.
Thus, a court’s first task is to identify and discuss each of the factors before weighing
them. I begin my analysis under Mathews by examining whether Plaintiffs have
identified a private interest that is affected by the Government’s action. There is no
dispute that: Plaintiffs have identified a private liberty interest, i.e., remain free from
detention; that the Government’s mandatory detention procedures affect this
interest; and that a liberty interest may not be impaired without due process of law.
See Demore, 538 U.S. at 523 (“It is well established that the Fifth Amendment
entitles aliens to due process of law in deportation proceedings.”). However, the
parties dispute how much weight should be given to this factor in the flexible
Mathews analysis. Plaintiffs argue that under Zadvydas, an alien’s interest in
freedom from detention “lies at the heart of the liberty that Clause protects,” and that
the Government must prove a “special justification” outweighing the “individual's
As I noted in my March 14th opinion, at least one Court of Appeals judge, sitting
in the Ninth Circuit, has raised questions whether Joseph provides an adequate
constitutional safeguard for those aliens who wish to challenge the Government’s
determination that they should be subject to mandatory detention. See Tijani v.
Willis, 430 F.3d 1241, 1244 (9th Cir. 2005) (Tashima, J., concurring) (“The BIA’s
Joseph decision was, plainly put, wrong . . . . [Joseph] establishes a system of
‘detention by default’ by placing the burden fully on the alien to prove that he should
not be detained.”).
constitutionally protected interest in avoiding physical restraint.” 533 U.S. at 690.
The Government, however, points to language in Demore and other cases that “[t]he
liberty rights of the aliens before us here are subject to limitations and conditions not
applicable to citizens,” Demore, 538 U.S. at 522 (internal quotations and citations
Essentially, the tension here is between Plaintiffs’ liberty interest and the
Government’s authority, granted by Congress, to mandatorily detain deportable
aliens who have committed certain crimes. The Government’s position relies heavily
on the third factor of the Mathews test -- the Government's interests and burdens.
On this factor, the Government identifies certain interests that it argues weigh
heavily in favor of maintaining the current Joseph standard. First, the Government
submits that the Joseph standard protects the congressional aim of preventing
deportable aliens from fleeing the country before their removal proceedings. This
interest, indeed, coincides with Congress’s stated intent in enacting § 1226(c). Section
(1) to protect the public from potentially dangerous criminal aliens; (2)
to prevent aliens from absconding during removal procedures; (3) to
correct former bond procedures under which over twenty percent of
criminal aliens absconded before their deportation hearings; and (4) to
restore public faith in the immigration system.
Dean v. Ashcroft, 176 F.Supp.3d 316 (D.N.J. 2001) (citing S. Rep. No. 104-48, 1995
WL 170285, at *1-6, 9 (1995)), abrogated on other grounds by Demore, 538 U.S. at
These interests have been considered compelling by the Supreme Court, which
found that § 1226(c) is premised on a sufficiently strong special justification so as not
to run afoul of the Constitution. See Demore, 538 U.S. at 518-21. In so finding, the
Court stressed that mandatory detention
necessarily serves the purpose of preventing deportable criminal aliens
from fleeing prior to or during their removal proceedings, thus
increasing the chance that, if ordered removed, the aliens will be
successfully removed . . . . Congress had before it evidence suggesting
that permitting discretionary release of aliens pending their removal
hearings would lead to large numbers of deportable criminal aliens
skipping their hearings and remaining at large in the United States
Id. at 529. Similarly, the Third Circuit recently reiterated that “Congress adopted
the mandatory-detention statute against a backdrop of rising crime by deportable
aliens . . . . To make matters worse, many aliens failed to show up at their deportation
proceedings . . . . [Section 1226(c)] promotes the public interest by keeping the most
dangerous aliens off the streets.” Sylvain, 714 F.3d at 159. As the Supreme Court
observed in Demore, deportation proceedings “would be vain if those accused could
not be held in custody pending the inquiry into their true character.” Demore, 538
U.S. at 523 (quoting Wong Wing v. United States, 163 U.S. 228, 235 (1896)) (quotation
Second, the current standard preserves the distinction between preliminary or
custody hearings and merits hearings, a distinction clearly warranted for procedural
and practical reasons. See, e.g., United States v. Delker, 757 F.2d 1390, 1396 (3d Cir.
1985) (“Congress [has] warned that bail hearings should not become mini-trials.”)
(citations omitted); Kaley v. United States, 134 S.Ct 1090 (2014) (“[T]he Government
has a substantial interest in freezing potentially forfeitable assets without an
evidentiary hearing about the probable cause underlying criminal charges. At the
least, such an adversarial proceeding—think of it as a pre-trial mini-trial (or maybe
a pre-trial not-so-mini-trial)—could consume significant prosecutorial time and
To impose a more searching analysis in custody redetermination
hearings, such as Plaintiffs’ proposed “substantial challenge” standard, would, as
argued by the Government, expend more governmental resources and further delay
the ultimate disposition of an alien’s removal proceedings.
As a result, Joseph
hearings would become more time consuming and complex.
I finally turn to the second Mathews factor, the risk of an erroneous
deprivation and the probable value of additional procedural safeguards. Mathews,
424 U.S. at 335.
Plaintiffs contend that under Joseph, the risk of erroneous
deprivations of aliens’ liberty interests is impermissibly high. Plaintiffs cite to a
panoply of BIA cases which found that aliens had failed to establish under Joseph
that ICE was “substantially unlikely” to prevail on its charges, despite asserting,
among other claims, (1) U.S. citizenship, 25 (2) a circuit split or even unpublished case
See, e.g., In re Romeo Ramirez-Garcia, 2007 WL 1153825 (BIA Apr. 5, 2007)
(rejecting a Joseph challenge because evidence that the detainee was a U.S. citizen
was “inconclusive”). The Ninth Circuit eventually determined that the individual was
a citizen. See Ramirez-Garcia v. Holder, 550 Fed. Appx. 501 (9th Cir. 2013). In the
meantime, the citizen had been subjected to nearly two and a half years of mandatory
detention until his eventual release on an order of supervision. See Ramriez-Garcia
v. Keisler, No. 07-1902, 2009 WL 111512, at *2 (D. Ariz. Jan. 15, 2009).
law from within the circuit casting doubt on the alien’s removability, 26 and (3)
conviction under a divisible statute, which contains only some provisions constituting
a basis for removal. 27 Because Joseph essentially mandates detention unless ICE’s
charges are frivolous, and requires that the BIA resolve any doubt arising from
incomplete evidence and unsettled law in favor of the Government, Plaintiffs argue
that the Joseph standard “forces individuals facing detention to shoulder the entire
risk of error.” Pls.’ Cross-Mot. at 28. Plaintiffs also cite to a deposition taken of the
Honorable Robert Weisel, an assistant chief immigration judge of the United States,
who admits that the Joseph hearing standard is “a very, very high standard . . . I
don’t know how high, but it’s high.” Weisel Tr. 90:18-22. Tellingly, Judge Weisel
refuses to state that ICE is required to produce at least some kind of documentary
evidence to support its initial custody determination. 28 See id. at 109:22-24, 110.
See, e.g., In re Garcia, 2007 WL 46699861, at *1 (BIA Nov. 5, 2007) (explaining
that “[a] legal argument that deportability will not be established is insufficient to
meet the respondent’s burden of proof in this matter in the absence of precedent case
law directly on point that mandates a finding that the charge of removability will not
be sustained.”); In re Flores-Lopez, 2008 WL 762690 (BIA Mar. 5, 2008) (reversing IJ
decision to grant a bond hearing based on a decision in the relevant circuit court that
had determined that the offense was not an aggravated felony because that decision
See, e.g., In re Grajeda, 2010 WL 559182, at *2 (BIA Dec. 15 2010) (rejecting
Joseph challenge where “the conviction documents contained in the bond record
[were] inconclusive with regard to whether the [alien] was removable for commission
of a controlled substance violation).
However, Judge Weisel does state, “I think the government would be hardpressed to [prevail in a Joseph hearing] without documents, without a record of
conviction,” and “[w]ithout documents, it would be hard for the government to
prevail.” Weisel Tr. 110:3-5, 16-17.
Plaintiffs further argue that their proposed alternative standard -- rejecting
mandatory detention at custody redetermination hearings for those who possess a
“substantial challenge” to their inclusion under Section 1226(c) -- would greatly
enhance the protection of an alien’s liberty interest. The proposed standard for
whether a convicted defendant may be released on bail pending his or her appeal,
borrows the “substantial question” analysis from U.S. v. Smith, 793 F.2d 85 (3d Cir.
1986), and “requires that the issue on appeal be significant in addition to being novel,
not governed by controlling precedent or fairly doubtful.” Smith, 793 F.2d at 88.
According to Plaintiffs, this standard would potentially allow aliens to successfully
challenge their inclusion under Section 1226(c) so long as the legal basis for their
inclusion has not been decided by the Supreme Court, and would allow for a case-bycase analysis of whether a particular alien’s challenge was “substantial.” 29
The Government, on the other hand, argues that the preliminary nature of the
Joseph hearing does not create a constitutionally impermissible risk of erroneous
deprivation of an alien’s liberty interest, since aliens have another, more substantial
bite at the apple to prove they are not subject to Section 1226(c) in their removal
proceedings, at which point the burden of proof is on ICE, not the alien. Therefore,
requiring the alien to establish the inapplicability of Section 1226(c) under the
Plaintiffs illustrate their proposed standard by pointing to Sukhu’s claims.
“Under the current BIA standard, Mr. Sukhu would bear the burden of identifying
controlling circuit precedent that renders the Government’s charge effectively
frivolous. Under Plaintiffs’ proposed standard, it is the Government that would have
to bear the burden of showing that Mr. Sukhu’s challenge is not substantial.” Pls.’
Cross-Mot. at 30.
“substantially unlikely to prevail” standard does not, according to the Government,
raise constitutional concerns. To that end, the Government analogizes to (1) Morissey
v. Brewer, 408 U.S. 471, 484-490 (1972), which noted the distinction and differing
due process requirements between preliminary, informal bail hearings for parolees
suspected of violating the terms of their parole and the ensuing formal bail revocation
hearings, 30 and (2) preliminary injunction hearings, in which the movant has a high
burden of proof—“substantial likelihood” of success on the merits to procure an
injunction—“before the facts are developed to a full extent through the normal course
of discovery.” Amer. Tel. & Tel. Co. v. Winback and Conserv Program, Inc., 42 F.3d
1241, 1426-27 (3d Cir. 1994).
Furthermore, the Government advances that the
Joseph standard is not toothless because the IJ assesses whether there is “reason to
believe that this person falls within a category barred from release under applicable
law,” Joseph I, 22 I. & N. Dec. at 668, such as, U.S. citizenship, mistaken identity, or
vacation of the alleged conviction. See Weisel Tr. 95:16-19; see, e.g., Joseph, 22 I. &
N. Dec. at 806; Matter of Davey, 26 I. & N. Dec. 37 (BIA 2012); In re Hernandez, 2012
WL 3911850 (BIA 2012).
Plaintiffs, however, attack the Government’s reliance on Morrissey, arguing
that “criminal parolees provide an entirely inapposite comparison to civil detainees.
Parolees are still under compulsion of serving a criminal sentence, and remain subject
to criminal imprisonment during the balance of their sentence.” Pls.’ Reply Br. at 8.
“Revocation [of parole] deprives an individual, not of the absolute liberty to which
every citizen is entitled, but only of the conditional liberty properly dependent on the
observance of special parole restrictions.” I note, however, that the Supreme Court
has since made clear that individuals do not enjoy absolute liberty, even from civil
detention. Kansas v. Hendricks, 521 U.S. 346, 356 (1997).
I now turn to weighing the Mathews factors to determine whether the current
Joseph standards violate the Constitution and if so, what remedy is necessary to
prevent such violation. This Court recognizes, as I must, pursuant to the Supreme
Court and the Third Circuit precedent, that the Government has a compelling
interest under § 1226(c) in detaining aliens pending their removal proceedings and
preventing them from absconding during those proceedings, despite competing
liberty interests that the Constitution safeguards. However, it is my task to balance
governmental interests with those of the detained aliens. In that respect, having
surveyed BIA decisions regarding Joseph hearings, I find that there is a real risk that
the liberty interests of a narrow class of aliens -- those who cannot establish that ICE
is “substantially unlikely” to prevail in its charges against them but who are
ultimately not subject to Section 1226(c) -- will be erroneously deprived. My analysis
begins with the “reason to believe” standard which ICE uses to issue its NTAs, and
which, according to the Government, the IJ also uses to test the sufficiency of the
Government’s evidence in the first instance during the Joseph hearing.
The “reason to believe” language is set forth in the regulations and the
commentary accompanying them: an authorized ICE agent may detain an alien if
there is "reason to believe that this person was convicted of a crime covered by the
statute." 63 Fed. Reg. 27444; 8 C.F.R. § 236.1; Diop, 656 F.3d at 230. The law is clear
that this determination is made at the agency level in the first instance. However,
what is not clear is whether an IJ uses the same standard to assess the Government’s
initial burden at a Joseph hearing. And, if the IJ does indeed analyze the matter
using the “reason to believe” standard, the Government nowhere explains what
considerations go into the IJ finding a “reason to believe” that an alien is subject to
mandatory detention under Section 1226(c). I find that the Constitution demands a
more exacting standard under the Mathews test, particularly since the Supreme
Court has recognized the importance of the protections the Joseph hearing is
intended to afford. See Demore, 538 U.S. at 514 n.3.
The confusion starts with the Joseph decision. Under that decision, it is not
clear that ICE explicitly bears any sort of evidentiary burden at a Joseph hearing.
The Joseph court stated,
the “reason to believe” that the alien “falls within a category barred from
release,” which led the [INS] to bring a particular charge, can often be
expected to suffice until the Immigration Judge resolves the merits of
the removal case, a resolution that frequently occurs speedily in cases
involving detained criminal aliens. But the Immigration Judge is able
to examine the basis for that charge and make an independent
determination whether the alien “actually falls within a category of
aliens subject to mandatory detention.” In requiring that the
Immigration Judge be convinced that the Service is substantially
unlikely to prevail on its charge, when making this determination before
the resolution of the underlying case, we provide both significant weight
to the Service's “reason to believe” that led to the charge and genuine
life to the regulation that allows for an Immigration Judge's
reexamination of this issue.
Joseph, 22 I. & N. Dec. at 807. Nowhere does the BIA delineate the requirements of
the “reason to believe” standard. Indeed, since the Joseph decision, contrary to the
Government’s position, immigration courts have focused almost exclusively on
Joseph’s language imposing the burden on the alien to prove that ICE is
“substantially unlikely to prevail.” See, e.g., In Re: Raul Capi-Esquivel A.K.A. Raul
Esquivel-Capi, 2011 WL 1792600, at *1 (DCBABR Apr. 13, 2011) (“In a so-called
‘Joseph’ hearing, the respondent bears the burden of establishing that DHS would be
substantially unlikely to prevail on a charge of removability under a section of the
Act mandating custody.”). However, the Government does not claim, and the Court
has found no case holding, that ICE bears any sort of formal burden at a Joseph
hearing. Moreover, even if ICE has an initial burden of proof, it is unclear how an IJ
evaluates whether ICE has met its burden.
Furthermore, the deposition of Judge Weisel, the assistant chief immigration
judge, is telling as to the practice of IJs at Joseph hearings. Judge Weisel’s testimony
reveals that there do not appear to be any objective standards under which IJs
evaluate the Government’s proffered evidence at the Joseph hearing. See Weisel Tr.
105:12-15 (“The government may produce a record of conviction. I don’t know what
evidence the government would use. They could even produce testimony” to show they
would likely prevail at the merits proceedings.). And, indeed, according to Judge
Weisel, it appears, at times, the IJs do not even require the Government to produce
any evidence. See Id. at 107:21-108:11; 109:22-24 (“It would behoove the government
to produce documents to demonstrate that they would be able to prevail.”); 110:19-21
(Judge Wiesel testified that it is not impossible for the government to prevail without
any evidence). On the other end of the spectrum, Judge Weisel anecdotally points to
one judge, as an example, who has required fingerprints of an alien to prove identity
at a custody redetermination hearing. But, Judge Weisel does not suggest that IJs
generally impose that type of burden on the Government during a Joseph hearing.
One thing is clear from Judge Weisel’s testimony and the case law: there is no
uniform standard by which to assess the Government’s initial burden under the
“reason to believe” analysis. Among its inadequacies, questions remain (1) whether
the reason to believe analysis imposes a subjective standard or otherwise; (2) whose
belief the IJ must evaluate; and (3) what, if any, evidence would be sufficient to justify
the belief. And, finally, there is scant precedent to guide the IJ. Exacerbating the illdefined process, the Government tacitly concedes that “[t]he burden on the
Government during a Joseph hearing may change over time and in relation to the
allegations and evidence presented by the alien”; this concession raises the vexing
question of how an alien is able to prepare his or her argument against mandatory
detention while navigating a seemingly constantly shifting procedural landscape.
Thus, based on the current standard, it is likely that an individual may be deemed
subject to mandatory detention even if ICE merely presented a scintilla of unrefuted
This result, as a matter of constitutional jurisprudence, is a serious
deprivation of an individual’s liberty interest that is not justified by the Government’s
interests under § 1226(c).
Accordingly, because the Government’s initial burden, i.e., “reason to believe”
that the alien is subject to mandatory detention, at the Joseph hearing is virtually
undefined—and, at best, minimal—and the individual’s burden under the
“substantial unlikely” standard is particularly heavy, I find that the current Joseph
hearing standard creates a high risk of an erroneous deprivation of Plaintiffs’ liberty
Having made that finding, I, next, determine to what standard the
Government should be subjected in carrying its initial burden at a Joseph hearing.
I need go no further than the Government’s own concession. On its motion, the
Government repeatedly equates the “reason to believe” standard to that of a probable
cause inquiry. However, as a practical matter and in the absence of any judicial
precedent, the probable cause standard has not been articulated or adopted by any
immigration judges or even the Government itself. Yet, I find the probable cause
standard is sufficient to ameliorate any potential wrongful deprivation of liberty an
alien may suffer in light of his or her “substantially unlikely to prevail” burden at
Joseph hearings. In fact, if ICE were to establish to the satisfaction of an IJ at the
Joseph hearing that there is probable cause to place an alien in mandatory detention,
prior to the alien presenting his or her objections, the alien would be better able to
meet the challenge and the “substantially unlikely” to prevail burden the alien
currently bears would not, in this Court’s view, be constitutionally infirm. This
conclusion has substantial support in the case law. See Mich. v. Summers, 452 U.S.
692, 697 (1981).
On one hand, probable cause, albeit in a criminal context, protects an
individual’s liberty under the Constitution; such protection cannot be compromised.
See id. Because mandatory detention in the immigration context deprives aliens of
their liberty interests, it is prudent to impose the probable cause standard to protect
those interests. Indeed, the probable cause inquiry has been the subject of numerous
court decisions and the parameters of this standard are well-known. In that regard,
immigration judges would have at their disposal an arsenal of precedents to guide
them in determining whether the Government has met such a burden. On the other
hand, heeding the Supreme Court’s admonition that the purposes of § 1226(c)
mandatory detention are compelling as is the Government’s interest in efficiently
administering justice, the Court finds that the probable cause inquiry sufficiently
takes into account those governmental interests, while adequately balancing the
liberty interests of individuals.
The probable cause inquiry does not require a rigorous showing by the
Government, nor any burdensome or rigid analysis on the part of an IJ. In fact, the
probable cause standard would only place a minimal additional burden on the
Government. To illustrate, in the Joseph context, under a probable cause analysis,
an IJ would examine whether the facts and circumstances, based upon reasonably
trustworthy information, are sufficient to warrant a prudent man to believe that the
alien is subject to mandatory detention under § 1226(c). See United States v. Burton,
288 F.3d 91, 98 (3d Cir. 2002). Probable cause requires “the kind of ‘fair probability’
on which ‘reasonable and prudent people, not legal technicians, act.” Florida v.
Harris, 133 S. Ct. 1050, 1055 (2013). While the test is “fluid,” importantly, and
contrary to the current “reason to believe standard,” it contains an objective
component -- the “reasonably prudent man” standard -- which can adequately be
reviewed by judges. See Devenpeck v. Alford, 543 U.S. 146, 153 (2004). By contrast,
the “reason to believe” standard, to the extent it exists as ICE’s burden of proof in a
Joseph hearing, has no clear objective component.
Importantly, requiring ICE to satisfy the IJ that there is probable cause for
mandatory detention before the alien has to prove that ICE is “substantially unlikely”
to prevail at the merits hearing, does not disturb congressional intent to prevent
potentially deportable aliens from committing more crimes or fleeing before their
removal proceedings; as always, an individual who has succeeded in a Joseph hearing
would then proceed to a bond hearing, where he or she may still be subject to
detention if an IJ determines the alien is a flight risk or a danger to the community.
I note, however, in the criminal context, in evaluating whether there was
probable cause to search or make an arrest, courts examine the facts and
circumstances known to the officer at the time he or she took action. See Burton, 288
F.3d at 98. Here, because Plaintiffs only challenge the standards applied at the
hearing, not at ICE’s initial custody determination, I make no findings about the
constitutional adequacy of ICE’s initial determination in issuing an NTA. Rather,
the probable cause inquiry imposed by the Court here only concerns an IJ’s initial
determination whether the Government’s evidence supports a finding that the alien
is subject to § 1226(c)’s mandatory detention. In that regard, the IJ should examine
the facts and circumstances known to ICE, and of which ICE has reasonably
trustworthy information, at the time of the Joseph hearing to determine whether a
reasonably prudent person would believe that the alien had committed the offenses
triggering mandatory detention.
I next address whether the alien’s subsequent burden of showing that the
Government is “substantially unlikely to prevail” at the merits hearing violates due
process. There is no dispute that the alien bears a high burden of proof at a Joseph
As a result, Plaintiffs argue that such a burden should not survive
constitutional scrutiny. Plaintiffs propose a less stringent standard: that the alien
has to only show that he or she has a substantial challenge to the bases for mandatory
detention. However, in light of the imposition of a probable cause inquiry as the
Government’s initial burden at a Joseph hearing, I do no find that Plaintiffs’
subsequent burden at the Joseph hearing violates due process.
On this issue, I must balance the interest of the Government against the liberty
concerns of the alien. There is no doubt that Congress has a compelling governmental
interest in regulating, and the authority to regulate, the conduct of aliens. Flores,
507 U.S. at 303-06.
To that end, in general, “detention during the deportation
proceedings [is] a constitutionally valid aspect of the deportation process.” Demore,
538 U.S. at 523.
Indeed, the reason that an alien’s right to be at liberty is
circumscribed is because of national interest considerations. A reading of Demore
suggests that the Government need not bear a heavy burden to justify detaining an
alien pending a more formal hearing.
To require more, would impermissibly
undermine ICE’s authority and the purposes underlying § 1226(c).
Kennedy wrote: “due process requires individualized procedures to ensure that there
is at least some merit to [ICE’s] charge, and therefore, sufficient justification to detain
a lawful permanent alien pending a more formal hearing.” Demore, 538 U.S. at 531
(Kennedy, concurring). “At least some merit” certainly is a much lower standard than
the one Plaintiffs propose here.
Moreover, the Supreme Court has advised, albeit not in the context of a Joseph
hearing, that preliminary hearings are different and distinct than final hearings on
the merits. See Morrissey, 408 U.S. at 488. The difference, as the Supreme Court
advised, is that preliminary hearings are less formal and not rigorous, while merit
hearings call for formal findings of fact and conclusions of law. Id. at 487. In that
connection, preliminary and final hearings each impose different evidentiary
standard. Id. at 490-91. Here, the Joseph hearing and the final removal hearing, too,
are separate and distinct proceedings, each with a different set of burdens of proof.
Yet, Plaintiffs propose that, at a Joseph hearing, so long as the alien can show that
he or she has a substantial challenge to the Government’s determination under §
1226(c), he or she should not be subject to mandatory detention. However, in order
for an IJ to decide whether an alien has a substantial challenge, the IJ would
necessarily engage in a potentially more expansive analysis of the merits of an alien’s
detention. This type of review could obviate the purpose of, and the need for, a final
After a weighing of the different interests, I do not find that the Constitution
requires altering the alien’s burden of proof at a Joseph hearing. On one hand,
because I recognize that the alien has a liberty interest in not being erroneously
detained by the Government, the imposition of a probable cause standard will protect
against such errors. On the other hand, however, the private interest does not trump
the Government’s compelling interest, as set forth by the Supreme Court and the
Third Circuit, in detaining aliens who have committed certain crimes pursuant to §
1226(c). To impose a higher burden on the Government than the current standard
would severely undermine the purposes of the statute.
In sum, I grant in part Plaintiffs’ summary judgment motion by imposing a
probable cause standard on the IJ’s initial determination of whether the Government
has a sufficient basis to detain individuals under § 1226(c). In light of this procedural
protection, I do not find that Plaintiffs’ proposed standard -- a showing that the alien
has a substantial challenge to the Government’s basis for detention under § 1226(c),
as opposed to the alien’s current standard of showing the Government is substantially
unlikely to prevail -- is constitutionally required. Instead, at that juncture of the
proceedings when probable cause is obtained and when the alien has the opportunity
to object to the bases for his or her mandatory detention, the alien will have received
constitutionally sustainable due process. I grant in part the Government’s motion in
Lack of a Contemporaneous Verbatim Record
The Government initially contended that Plaintiffs lack standing to claim that
ICE’s practice of not contemporaneously recording Joseph hearings is unlawful,
because both Gayle’s and Sukhu’s custody redetermination hearings were recorded.
The Government appears to have abandoned this argument because it concedes in its
opposition to Plaintiffs’ cross-motion for summary judgment that Plaintiffs did not,
in fact, receive a custody redetermination hearing. Accordingly, the Court will not
analyze this argument. I proceed to the parties’ arguments on the merits.
Both parties move for summary judgment on Plaintiffs’ claim that the
Government’s policy of failing to require that contemporaneous verbatim records of
Joseph hearings be made and kept has resulted in statutory and constitutional
violations under the Fifth Amendment’s due process clause. The Government argues
that a contemporaneous verbatim record of Joseph hearings is not required by the
INA and its applicable regulations, the Third Circuit, the Supreme Court, or the
Constitution. In support, the Government points to (1) the distinction between merits
hearings and preliminary hearings (into which they classify Joseph hearings) codified
in the INA, 31 its regulations, 32 and the Executive Office of Immigration Review’s
operating manual; 33 and (2) the Supreme Court’s decision not to impose a
contemporaneous verbatim records requirement in criminal trials. 34
Compare 8 U.S.C. § 1229a(b)(4)(C) requiring a “complete record . . . of all
testimony and evidence produced” in a removal proceeding with 8 U.S.C. § 1226
(containing no such specific requirement with respect to the process of ascertaining
whether an alien is subject to mandatory or discretionary immigration detention).
See, e.g., 8 § C.F.R. 1003.19(d) (consideration of custody matters “shall be
separate and apart from, and shall form no part of, any deportation or removal
hearing or proceeding”); accord Matter of Guerra, 24 I. & N. Dec. at 40 n.2 (“Bond
proceedings are separate and apart from the removal hearing.”); see also Matter of
Adeniji, 22 I & N. Dec 1102, 1115 (BIA 1999) (noting that an IJ writes up a bond
memorandum as a record of a bond proceeding).
Immigration Court Practice Manual § 9.3(e)(iii) (“Bond hearings are generally
not recorded.”); see also Matter of Chirinos, 16 I. & N. Dec. 276, 277 (BIA 1977)
(“[T]here is no right to a transcript of a bond redetermination hearing. Indeed there
is no requirement of a formal ‘hearing.’”).
Mayer v. City of Chicago, 404 U.S 189, 193-94 (1971) (requiring “that the State
must afford the indigent a record of sufficient completeness to permit proper
consideration of (his) claims” but noting that “[a] record of sufficient completeness
does not translate automatically into a complete verbatim transcript”).
Plaintiffs, on the other hand, urge the Court to conduct an independent
analysis of whether due process compels the availability of a contemporaneous
verbatim record of Joseph hearings under the Mathews balancing test. Under the
Mathews test, Plaintiffs argue, Plaintiffs’ substantial private interests in remaining
free and preventing errors resulting from memorandum decisions prepared after-thefact outweigh the minimal burden ICE would incur in activating the recording
equipment already installed and used in other contexts by the immigration courts.
As with my due process analysis of the Joseph standards, because the parties
do not dispute whether Plaintiffs have identified a substantial private interest in
remaining free from detention under Mathews, the Court turns to the next factor of
analysis: “the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute procedural
safeguards.” Mathews, 424 U.S. at 335.
To begin, I look for guidance from due process case law in other contexts. In
that regard, I find the non-dispositive nature of Joseph hearings similar to the
preliminary hearings held for parolees who have potentially violated their parole. In
Morrissey, 35 the Court examined the minimum due process requirements for such
preliminary hearings as well as the final parole revocation hearing. At the
preliminary hearing, the Court found that
While I note that the liberty interest at stake in Morrissey is not the same as
the liberty interest at stake here, see supra, I do find that the existence of a
preliminary and final procedure in the parole revocation context and the attendant
recording requirements useful for comparison purposes.
[t]he hearing officer shall have the duty of making a summary, or digest,
of what occurs at the hearing in terms of the responses of the parolee
and the substance of the documents or evidence given in support of
parole revocation and of the parolee's position. Based on the information
before him, the officer should determine whether there is probable cause
to hold the parolee for the final decision of the parole board on
revocation. Such a determination would be sufficient to warrant the
parolee's continued detention and return to the state correctional
institution pending the final decision. . . . [T]he decision maker should
state the reasons for his determination and indicate the evidence he
relied on but it should be remembered that this is not a final
determination calling for formal findings of fact and conclusions of law.
No interest would be served by formalism in this process; informality
will not lessen the utility of this inquiry in reducing the risk of error.
Morrissey, 408 U.S. at 487 (internal citation and quotation marks omitted). Similar
to the parolees in Morrissey, alien detainees under section 1226(c) are entitled to a
hearing to determine whether ICE is “substantially unlikely to establish at the merits
hearing, or on appeal, the charge or charges that would otherwise subject the alien to
mandatory detention.” Joseph, 22 I. & N. at 806. Even if the IJ presiding over a
Joseph hearing finds that the Government is substantially likely to prevail on its
charges and the alien is ordered into mandatory detention, the alien receives another
chance to contest the applicability of Section 1226(c), or any other basis to contest
removal, in the ensuing removal proceedings, and to potentially secure freedom from
detention as well as from removal. 36 Put differently, because of the preliminary
nature of Joseph hearings, under Morrissey, there is no constitutional infirmity in
failing to require a contemporaneous verbatim record in Joseph hearings. See Fahy
Further, as the Third Circuit found in Diop, an alien who has been subjected
to mandatory detention for an unreasonably prolonged amount of time before removal
proceedings is accorded an individualized bond determination, mitigating the liberty
interest impairment created by mandatory detention. Diop, 656 F.3d at 221.
v. Horn, 516 F.3d 169, 190 (3d Cir. 2008) (While “[i]t is indisputably true that a
criminal defendant has the right to an adequate review of his conviction, i.e., a
sufficiently complete record . . . . , neither the Supreme Court, nor our Court, has held
that due process requires a verbatim transcript of the entire proceedings or that an
incomplete record confers automatic entitlement to relief.”). (citing Mayer v. City of
Chicago, 404 U.S. 189, 198 (1971)).
As a practical matter, the typical evidence presented at a Joseph hearing also
weighs against the necessity of requiring contemporaneous verbatim records in such
hearings, and Plaintiffs fail to demonstrate otherwise. The Government advances,
and Plaintiffs do not dispute, that Joseph hearings “generally turn on a review of
conviction records and consideration of the arguments of counsel,” as opposed to
sworn witness testimony. See Defs.’ Br. Opp. Pls.’ Cross-Mot. Summ. J. at 31; see
also Weisel Tr. 64:16-20, 95:24-25, 96:2-4. Thus, “even though the only record of a
Joseph hearing is the IJ’s resulting order, which may simply be a check mark on the
Form I-286 or a written summary order,” a detainee’s arguments against mandatory
detention can still be presented on appeal without the aid of a contemporaneous
verbatim record. Importantly, Plaintiffs merely mention, in passing, the “risk of error
occasioned by memorandum decisions” without further explanation. As such,
Plaintiffs fail to tangibly demonstrate the risk of erroneous deprivation of their
liberty interest resulting from the lack of a contemporaneous verbatim record. See
Weisel Tr. 130:10-12 (“I really haven’t had the need to use DAR [digital audio
recordings] to determine the accuracy of my trial notes.”).
Moreover, IJs are not prohibited from recording Joseph hearings if they wish
to do so, see Weisel Tr. 130:19-20, 131:3-4, and existing immigration procedures
already provide that formal bond hearings may be required when prejudice would
result from following more informal procedures. Because of these already existing
safeguards, “there is no requirement in bond proceedings for a formal hearing and
that informal procedures may be used so long as no prejudice results.” In Re
Mohammad J.A. Khalifah, 21 I. & N. Dec. 107, 112 (BIA 1995). Because I find that a
summarized record of Joseph hearing proceedings is adequate for purposes of appeal,
I find that the second Mathews factor weighs against requiring contemporaneous
verbatim records of Joseph hearings.
Plaintiffs focus their argument on the third prong of the Mathews analysis:
that the Government has a low interest in maintaining its current policy of not
requiring contemporaneous verbatim records in Joseph hearings. Plaintiffs reason
that the Government does not dispute that “digital audio recording equipment is
available in every immigration court that conducts any hearing granted to an alien
detained under 8 U.S.C. 1226(c) who requests a custody redetermination.” Defs.’
Resp. to Pls.’ Stmt. of Mater. Facts at ¶¶ 19-21. Nor does the Government dispute
that “[i]t would not be more burdensome for the IJ to record a Joseph hearing than a
removal hearing, which is always recorded.” Id. ¶ 21. While the Government does
not articulate the extent to which requiring a contemporaneous verbatim record in
Joseph hearings would impose a fiscal or administrative burden, any additional
burden in requiring that a record be kept would necessarily result in more procedural
complexity. For example, if an immigration court’s digital audio recording equipment
was malfunctioning for some reason, a Joseph hearing could not take place. See
Weisel Tr. 127:15. Further, immigration courts would have to preserve all of their
Joseph hearing recordings for appeal, creating an additional administrative burden.
See id. at 128:15-16 (explaining that audio recordings of removal proceedings are
transferred to a central location in Northern Virginia to be kept for an unspecified
period of time). Therefore, I find that the Government would bear at least a minimal
burden in complying with a contemporaneous verbatim records requirement for
Finally, Plaintiffs urge the Court to adopt the reasoning in Singh v. Holder,
wherein the Ninth Circuit held that a contemporaneous verbatim record was required
in Casas hearings. Singh, 638 F.3d 1196 (9th Cir. 2011). However, the Court finds
Singh distinguishable because the hearings at issue in that case materially differ
from Joseph hearings. Casas hearings are “bond hearings for aliens facing prolonged
detention while their petitions for review of their removal orders are pending.” Id. at
1200. Because they are individualized hearings turning on whether an alien is a flight
risk or a danger to the community, Casas hearings often involve witness testimony
in the form of direct and cross-examination as well as a more general examination of
an alien’s personal history. See id. at 1201-02. Joseph hearings, on the other hand,
solely consider evidence pertaining to an alien’s past convictions and determine
whether ICE is “substantially unlikely” to prevail in its “charge or charges that would
otherwise subject the alien to mandatory detention.” Joseph, 22 I. & N. Dec. at 806.
Because any prejudice that would result from failing to require a contemporaneous
verbatim records requirement in Joseph hearings is significantly lower than that
which would result from failing to contemporaneously record the testimony and
statements made at Casas hearings, I do not find the Ninth Circuit’s holding in Singh
persuasive for the purposes of my analysis here.
This Court concludes that under a balancing of the Mathews factors, while an
alien’s interest in remaining free is indisputably substantial, the lack of a
contemporaneous verbatim transcript in the Joseph hearing does not create a high
risk of erroneous deprivation of an alien’s liberty interest.
contemporaneous verbatim records would not add substantial value as a procedural
safeguard. Thus, even though the Government’s burden resulting from requiring
contemporaneous verbatim records of Joseph hearings appears relatively slight, the
Mathews factors tip against finding such a constitutional requirement. See, e.g.,
Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 642 (6th Cir. 2005) (finding that while the
administrative cost of a proposed alternative procedure “would likely be minimal, the
additional safeguard in this case is negligible” and accordingly finding Due Process
“do[es] not warrant such a safeguard”).
That said, however, my legal holding rests upon the minimal protection that
the Constitution requires. But, as a matter of sound practice, I find that recording
the Joseph proceedings would be a preferable practice, particularly since there is little
burden on the part the Government or the immigration courts to impose such a
procedure, and the equipment is generally available. In my view, whenever an
individual’s liberty is at stake, any protections to avoid errors should be considered
Nonetheless, that protection is not constitutionally required;
therefore, I grant summary judgment for the Government on this issue.
The Government argues that under 8 U.S.C. § 1252(f)(1), the Court is barred
from granting injunctive relief to the putative class of plaintiffs even in the event that
the Court finds they have been harmed, because Section 1252(f)(1) bars courts other
than the Supreme Court from enjoining or restraining the operation of Section
1226(c). See 8 U.S.C. § 1252(f)(1). 37 Plaintiffs, however, argue that they do not seek
to enjoin or restrain the operation of Section 1226(c), but rather request that the
Government be enjoined from violating or misapplying the statute. On this issue, the
Court has already considered and addressed the Government’s position. In the March
14th opinion, I stated,
[i]n focusing on the nature of Plaintiffs' challenge—which, again, is
based on the claim that the Government's current mandatory detention
procedures violate the INA—it does not appear that § 1252(f)(1)
precludes Plaintiffs from pursuing injunctive relief. See Rodriguez v.
Hayes, 591 F.3d 1105, 1120 (9th Cir.2010) (“Section 1252(f) prohibits
only injunction of ‘the operation of’ the detention statutes, not injunction
of a violation of the statutes.”). Plaintiffs are not challenging mandatory
8 U.S.C. § 1252(f)(1) states,
Regardless of the nature of the action or claim or of the identity of the
party or parties bringing the action, no court (other than the Supreme
Court) shall have jurisdiction or authority to enjoin or restrain the
operation of the provisions of part IV of this subchapter, as amended by
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, other than with respect to the application of such provisions to an
individual alien against whom proceedings under such part have been
detention per se, acknowledging that such a challenge is not available
in light of the Demore decision. Instead, Plaintiffs question the
constitutional adequacy of the Joseph hearing and related procedures
meant to ensure that the Government mandatorily detains only those
aliens who should be detained under § 1226(c). In light of this, and given
the Government's cursory treatment of this issue and the lack of
authority to support its position, the Court declines to dismiss Plaintiffs'
claims for injunctive relief at this point. In any event, Plaintiffs clearly
may seek class-wide declaratory relief without running afoul of §
1252(f). Alli v. Decker, 650 F.3d at 1016.
Gayle, 4 F.Supp.3d at 721. In asking the Court to rule otherwise, the Government
has not presented any bases to disturb my previous decision in this context.
Therefore, the Government’s argument is rejected.
As a result of my findings herein, the Government shall be enjoined from using
the current revised version of the Form I-286. The Government is directed to amend
Form I-286 consistent with this Opinion.
In addition, during a custody
redetermination hearing, i.e., Joseph hearing, the Government must initially satisfy
an Immigration Judge that there is probable cause to find that that a detained alien
falls within the mandatory detention requirements under Section 1226(c).
In connection with their constitutional claims, Named Plaintiffs seek to certify
a class of all individuals who are or will be detained within the State of New Jersey
pursuant to the mandatory detention provision of § 1226(c) and who have a
substantial challenge to “threshold deportability” or “inadmissibility” on one of the
statutory grounds that trigger mandatory detention. Having determined the merits
of Named Plaintiffs’ claims, I do not find certification of a class necessary.
In Ihrke v. Northern States Power Co., 459 F.2d 566 (8th Cir. 1972), vacated
on other grounds, 409 U.S. 815 (1972), the Eight Circuit declared that "(t)he
determination of the constitutional question can be made by the Court and the rules
and regulations determined to be constitutional or unconstitutional regardless of
whether this action is treated as an individual action or as a class action. No useful
purpose would be served by permitting this case to proceed as a class action.” 459
F.2d at 572. Consistent with this principle, courts across the country have considered
the class device superfluous when the plaintiff has challenged a statute as facially
unconstitutional. As one judge has voiced, "It makes me wonder why the complexities
of Federal Rule of Procedure 23 are entered into when the declaration of
unconstitutionality for one would, or at least should, in effect proclaim
unconstitutionality for all …." Bond v. Dentzer, 325 F. Supp. 1343, 1352 (N.D.N.Y.
Indeed, other circuits have followed the Ihrke approach. See Carter v. Butz,
479 F.2d 1084, 1089 (3d Cir. 1973); James v. Ball, 613 F.2d 180, 186 (9th Cir. 1979);
Craft v. Memphis Light, Gas and Water Div., 534 F.2d 684, 686 (6th Cir. 1976);;
Martinez v. Richardson, 472 F.2d 1121, 1127 (10th Cir. 1973) (“But as we view it, a
class action was not demanded here because the same relief could be afforded without
its use and seemingly the court had something of this kind in mind when it provided
in paragraph 6 of its findings for further enforcement action if the same should
become necessary. Thus the court was thinking of future compliance and this was, of
course, the important problem.”); United Farmworkers of Florida Housing Project,
Inc. v. City of Delray Beach, 493 F.2d 799, 812 (5th Cir. 1974); Cockerel v. Caldwell,
378 F. Supp. 491, 494 (W.D. Ky. 1974); Doe v. Wohlgemuth, 376 F. Supp. 173, 181-82
(W.D. Pa. 1974), vacated on other grounds sub. nom. Doe v. Beal, 523 F.2d 611, 613,
n. 2 (3rd Cir. 1975) (en banc); Koehler v. Ogilvie, 53 F.R.D. 98, 101 (N.D. Ill. 1971),
aff'd mem., 405 U.S. 906 (1972); Holt v. Brown, 336 F. Supp. 2, 6 (W.D. Ky. 1971)
(three-judge court); Nelson v. Likins, 389 F. Supp. 1234, 1239 (D. Minn. 1974); Mohr
v. Jordan, 370 F. Supp. 1149, 1151 n. 3 (D. Md. 1974); Rappaport v. Katz, 62 F.R.D.
512, 515 (S.D.N.Y. 1974); Bonser v. New Jersey, 605 F. Supp. 1227, 1236 (D.N.J.
The reasoning is straightforward: if the statutes, regulations or policies at
issue are held to be unconstitutional, such decision would be binding on all of the
governmental agencies and would indeed inure to the benefit of all members of the
proposed class, thus obviating the need for a lawsuit to proceed as a class action. See
Craft, 534 F.2d at 686 ("As to a Rule 23(b)(2) class asserting claims to injunctive and
declaratory relief, the district court properly recognized that such relief to the extent
'granted [would] . . . accrue to the benefit of others similarly situated,' and,
consequently, . . . 'no useful purpose would be served by permitting this case to
proceed as a class action' because 'the determination of the constitutional question
can be made by the Court and the rules and regulations determined to be
constitutional or unconstitutional regardless of whether this action is treated as an
individual action or as a class action.’” (quoting Ihrke, 459 F.2d at 572)); United
Farmworkers of Fla. Housing Project, 493 F.2d at 812 ("Even with the denial of class
action status, the requested injunctive and declaratory relief will benefit not only the
individual appellants and the nonprofit corporation but all other persons subject to
the [discriminatory] practice under attack."); Galvan v. Levine, 490 F.2d 1255, 1261
(2d Cir. 1973) ("[A]n action seeking declaratory or injunctive relief against state
officials on the ground of unconstitutionality of a statute . . . is the archetype of one
where class action designation is largely a formality, at least for the plaintiffs.");
Martinez, 472 F.2d at 1127 ("[A] class action was not demanded here because the
same relief could be afforded without its use.").
More recently, district courts have adhered to this rule. See Mills v. District
of Columbia, 266 F.R.D. 20, 22 (D.D.C. 2010) (“Class certification is particularly
unnecessary where . . . ‘the suit is attacking a statute or regulation as being facially
unconstitutional.’ . . . In that circumstance, 'there would appear to be little need for
the suit to proceed as a class action’ because ‘it can be assumed that if the court
declares the statute or regulation unconstitutional then the responsible government
officials will discontinue the [regulation's] enforcement.’” (internal citations
omitted)); Arnett v. Strayhorn, 515 F. Supp. 2d 690, 698 (W.D. Tex. 2006) (“The only
issue remaining in this case is Plaintiff's challenge to the constitutionality of the
Texas Unclaimed Property statute. . . . No useful purpose would be served by
requiring this case to proceed as a class because all individuals who are not a part of
this action, but who are aggrieved by the Texas Unclaimed Property Law in the same
manner as Plaintiff, will have the benefit of this Court's ruling concerning the
statute's constitutionality.”); Phelps v. Powers, 295 F.R.D. 349, 356-57 (D. Iowa 2013);
Johnson v. City of Opelousas, 488 F. Supp. 433, 435-36 (W.D. La. 1980) ("[A] class
action is unnecessary to insure an appropriate examination of the constitutionality
of the [juvenile curfew] ordinance in question [because] [a]ny declaratory or
injunctive relief given in the individual action of the named plaintiffs would inure to
the benefit of other similarly situated minors.").
Here, I have already determined that ICE’s use of the revised Form I-286 does
not satisfy procedural due process, and that IJs’ application of a “reason to believe”
standard at the Joseph hearing is constitutionally infirm.
As a result, the
Government is directed by this Court to amend Form I-286 and Joseph hearings shall
be conducted consistent with the rulings made herein. In that regard, no useful
purpose would be served by certifying a class because all aliens who are subjected to
mandatory detention would benefit from the injunctive relief and remedies that this
Court has imposed.
Accordingly, I deny Plaintiffs’ motion to certify a class as
For the foregoing reasons, the Court decides the parties’ summary judgment
motions as follows: summary judgment is (1) GRANTED in favor of Plaintiffs as to
their adequacy of notice claim; (2) both parties’ motion are GRANTED in part and
DENIED in part as to Plaintiffs’ claim related to the constitutionality of the Joseph
hearing; and (3) GRANTED in favor of the Government as to Plaintiffs’
contemporaneous verbatim records claim. Finally, the Court DENIES Plaintiffs’
motion to certify a class.
An appropriate order shall follow.
Date: January 28, 2015
Freda L. Wolfson
Hon. Freda L. Wolfson
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?