GAYLE v. ELWOOD et al

Filing 150

OPINION filed. Signed by Chief Judge Freda L. Wolfson on 09/03/2019. (jmh)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
GARFIELD O. GAYLE, et al.,
:
:
Plaintiffs, :
Civil Action No. 12-2806 (FLW)
:
v.
:
:
OPINION
:
WARDEN MONMOUTH COUNTY, :
CORRECTIONAL INSTITUTION,
:
et al.,
:
:
Defendants. :
:
____________________________________:
WOLFSON, Chief Judge:
This class action challenges the constitutionality of detention procedures
related to mandatory detention of aliens under 8 U.S.C. § 1226(c), codified in the
Immigration and Naturalization Act (“INA”).

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 is
twofold: first, with regard to the mandatory detention scheme of § 1226(c), they argue
that it is unconstitutional under the Due Process Clause that aliens, like themselves,
1

with substantial challenges to deportability be detained; and relatedly, such aliens,
Plaintiffs say, are not subject to mandatory detention in the first instance because
doing so would run afoul of the canon of constitutional avoidance. Second, Plaintiffs
mount a constitutional attack on the standards determining whether an alien is
properly 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)), and the lack of a contemporaneous verbatim record in those Joseph hearings.
In this suit, 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 ones.
Because under 8 C.F.R. § 1003.19(h)(2)(ii) a “Joseph hearing” is characterized
as a “custody redetermination hearing,” the Court will use the terms “Joseph hearing”
and “custody redetermination hearing” interchangeably throughout this Opinion.
1

In light of the substitutions under Fed. R. Civ. P. 25(d), the named Defendants
include: Donald Sutton, in his official capacity as Warden of Monmouth County
Correctional Institution; Kirstjen Nielsen, in her official capacity as Secretary of
Homeland Security (“DHS”); William Barr, in his official capacity as Attorney
General of the United States; Thomas Homan, in his official capacity as Acting
Director for Immigration and Customs Enforcement (“ICE”); James McHenry, in his
official capacity as Acting Director of the Executive Office for Immigration Review;
John Tsoukaris, in his official capacity as Field Office Director for Enforcement and
Removal Operations, Newark Field Office of ICE; Thomas Decker, in his official
capacity as Field Office Director for Enforcement and Removal Operations, New York
City Field Office of ICE; Steven Ahrendt, in his official capacity as Warden of the
Bergen County Jail; Orlando Rodriguez, in his official capacity as Warden of the
Elizabeth Contract Detention Facility; Charles L. Green, in his official capacity as
Warden of the Essex County Correctional Facility; Ron Edwards, in his official
capacity as Director of the Hudson County Correctional Facility; and Stephen
Pringle, in his official capacity as Director of the Delaney Hall Detention Facility.
These defendants will collectively be referred to as “the Government.” I note that
since the pendency of this case, several substituted defendant-officials have left their
posts; however, the Government has not subsequently substituted any new
defendants.
2

2

Both Plaintiffs and the Government separately move for summary judgment
on all of the constitutional claims in this case. For the following reasons, the Court
decides the parties’ summary judgment motions as follows: (1) 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 (2) GRANTED in favor of the
Government as to all other claims, including those related to contemporaneous
verbatim records in Joseph hearings. As a result, the Court issues a class-wide
injunction that directs the Government to establish before an immigration judge
(“IJ”) that there is probable cause to find that a detained alien under § 1226(c) falls
under the statute’s mandatory detention requirements.
BACKGROUND
I.

Named Plaintiffs
A.

Gayle

The following facts are undisputed. 3 Gayle is a Jamaican national and legal
permanent resident (“LPR”) of the United States. He has lived in the United States
for approximately 35 years. In May 1995, Gayle was convicted after a bench trial of

This case has a long procedural history. Not only has this Court rendered
multiple opinions in which the facts of this case have been thoroughly addressed, the
Third Circuit, in Gayle v. Warden, Monmouth County Correctional Institution, 838
F.3d 297 (3d Cir. 2016)(“Gayle III”), has also set forth the undisputed facts of this
case. More recently, I issued an opinion concerning class certification, see Gayle v.
Warden Monmouth Cty. Corr. Inst., No. 12-2806, 2017 U.S. Dist. LEXIS 188498
(D.N.J. Nov. 15, 2017)(“Gayle IV”), wherein I, again, discussed the relevant facts and
procedural history. Thus, to conserve judicial resources, I will omit any citations to
the record to the extent the undisputed facts have already been recounted in Gayle
IV.
3

3

criminal possession of a controlled substance with the intent to sell in the third degree
under New York State Penal Law § 220.16. In March 2007, Gayle pleaded guilty to
a misdemeanor marijuana possession charge for which he was sentenced to ten days
in jail. Based on these prior convictions, on March 24, 2012, ICE officers arrested
Gayle, and 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
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., the attempted drug sale. An IJ denied the motion on October 23, 2012.
Subsequently, Gayle was mandatorily detained for approximately twelve months at
the Monmouth County Correctional Facility in Freehold, New Jersey. On March 15,
2013, this Court granted Gayle’s claim for individual habeas relief on a ground not at
issue in this class action. 5

Although the Government did not charge Gayle with removal for his 2007
offense in the initial Notice to Appear, it amended the Notice in February 2013 to
seek his removal for this offense in addition to the 1995 offense. See Additional
Charges of Inadmissibility/Deportability dated February 26, 2013.
4

I note that in February 2014, Gayle became eligible for relief from deportation
for his 1995 offense under former INA § 212(c), pursuant to a change in BIA case law.
See Matter of Abdelghany, 26 I. & N. Dec. 254 (BIA 2014)(holding that Section 212(c)
relief is available to lawful permanent residents who were convicted of a deportable
offense after trial). Moreover, in June 2017, the Second Circuit, according to Gayle,
clarified that his 2007 offense did not constitute a controlled substance offense
subjecting him to deportation. See Harbin v. Sessions, 860 F.3d 58 (3d Cir. 2017). In
that respect, Gayle posits that the IJ has indicated that he intends to issue a written
opinion granting Gayle’s Section 212(c) relief. See Brown Decl.,¶ 8.
5

4

B.

Sukhu

Sukhu is a Guyanese national and LPR of the United States, who has lived in
this country for approximately 24 years, almost entirely in New York City. 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. In May 2011, Sukhu
pleaded guilty to a misdemeanor offense of theft of services (turnstile jumping) in
violation of N.Y. Penal Law § 165.15 and was sentenced to time served. With these
prior offenses, on August 15, 2011, ICE officers arrested Sukhu, and on the same day,
ICE issued a Notice to Appear, charging Sukhu with removal under 8 U.S.C.
§1227(a)(2)(A)(i)—which governs crimes of moral turpitude—based on his 1997
conviction.
Sukhu was subject to mandatory detention under § 1226(c) for nearly 21
months at the Monmouth County Correctional Facility in Freehold, New Jersey. On
November 11, 2012, Sukhu, represented by counsel, attended a removal hearing
before an Immigration Judge. 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. 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. 6 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 IJ sat.
6

5

55. On March 7, 2012, the Immigration Judge rejected Sukhu’s argument and found
that Silva-Trevino mandated Sukhu’s deportation based upon his assault conviction
being a CIMT. On March 8, 2012, ICE filed an additional charge against Sukhu,
charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(ii)—two crimes of
moral turpitude—based on the combination of his 1997 and 2011 convictions. On
April 30, 2013, however, the 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. On May 8, 2013, Sukhu was released from ICE custody. The
Government did not appeal that ruling. Importantly, at no point during his detention
did Sukhu receive a Joseph hearing.
II.

Procedural History
In May 2012, Gayle filed his individual habeas petition. In November 2012,

the First Amended Petition was filed, adding individual habeas claims of Sukhu and
Sheldon Francois, 7 as well as claims brought on behalf of a putative class, seeking
declaratory and injunctive relief. Also, on November 15, 2012, Plaintiffs moved to
certify a class of all individuals who were or would be subject to § 1226(c) mandatory
detention in the District of New Jersey. The Government moved to dismiss Plaintiffs’
amended petition, and opposed Plaintiffs’ motion for class certification.
On May 10, 2013, I heard oral argument on these motions; I dismissed Gayle’s
and Sukhu’s individual habeas claims as moot, and denied the Government’s motion

In Gayle IV, I dismissed Francois’s claims based on standing grounds. As such,
Francois is no longer a plaintiff in this matter.

7

6

to dismiss at that time. I further instructed Plaintiffs to file an amended habeas
petition and class action complaint. Further, the parties proceeded to engage in classrelated discovery.
Although Gayle and Sukhu were released from custody on March 22, 2013 and
May 8, 2013, respectively, the Third Amended Petition was filed on August 5, 2013,
which included individual claims, as well as claims on behalf of a putative class of
aliens who are being or will be mandatorily detained pursuant to § 1226(c). The first
claim asserted violations of substantive and procedural due process.
Plaintiffs’ procedural due process claim challenged, and still challenges, the
procedures surrounding the “Joseph hearing,” the mechanism by which an alien who
is mandatorily detained pending his removal proceedings is provided “with the
opportunity to offer evidence and legal authority on the question [of] whether [ICE]
has properly included him within a category that is subject to mandatory detention.”

In re Joseph, 22 I. & N. Dec. at 805. Specifically, Plaintiffs allege (1) that Joseph
hearing procedures impermissibly place the initial burden of proof on the alien, and
(2) that a contemporaneous verbatim record should be made of each Joseph hearing. 8
In August 2013, the Government moved to dismiss Plaintiffs’ Third Amended
Complaint. Thereafter, on March 14, 2014, I partially granted the Government’s
motion to dismiss, holding that § 1226(c) did not violate substantive due process with

Plaintiffs also raised a constitutional issue regarding Notice of Custody
Determination through a Form I-286. However, I found that Named Plaintiffs are
not proper class representatives with regard to that claim, because they did not
receive the current Form I-286, which is substantially different than the previous
version.
8

7

respect to aliens who assert a substantial challenge to their final, not threshold,
removability. Gayle v. Johnson, 4 F. Supp. 3d 692, 706–12 (D.N.J. 2014)(“Gayle I”).
Thus, Plaintiffs’ petition was dismissed “to the extent that Plaintiffs are requesting
that a Joseph hearing be provided to any mandatorily detained alien who has a
‘substantial challenge’ to his or her removal on grounds other than whether the alien
falls within the § 1226(c) categories requiring mandatory detention.” Id. at 721. This
Court held that Gayle and Sukhu had standing to challenge the Government’s
mandatory detention procedures, id. at 713–14, but found Francois lacked standing
to proceed in that context, because he did not challenge whether he fell within a §
1226(c) category, id. at 716. The motion to dismiss was denied in all other respects;
I found that Plaintiffs had “adequately stated a claim that the Joseph hearing fails
to provide an alien, who has a challenge to whether he or she is included in § 1226(c),
with a meaningful opportunity to challenge his or her detention status.” Id. at 717.
Thereafter, the parties filed cross-motions for summary judgment, and
Plaintiffs, again, moved for class certification. In January 2015, this Court issued an
Opinion and Order addressing the summary judgment and class certification
motions. Gayle v. Johnson, 81 F. Supp. 3d 371 (D.N.J. 2015)(“Gayle II”). As to the
merits of Plaintiffs’ claims, I entered partial summary judgment for Plaintiffs. In
that decision, I found that the Joseph hearing procedures violate due process Id. at
395–98. I also held that while it would be preferable to have a Joseph hearing
recorded verbatim, it is not, as a constitutional matter, required. Id. at 402. Lastly,
I denied Plaintiffs’ class certification motion as moot, reasoning that certification was

8

“unnecessary” because the rulings on the merits of the claims meant that “all aliens
who are subjected to mandatory detention would benefit from the injunctive relief
and remedies that this Court has imposed.” Id. at 404. Both parties appealed.
On September 22, 2016, the Third Circuit vacated and remanded this Court’s
two prior Opinions and Orders of March 14, 2014 and January 28, 2015, finding that,
absent a certified class, this Court lacked jurisdiction to reach the merits of Plaintiffs’
Petition, since the individual Plaintiffs’ claims were moot. Gayle III, 838 F.3d at 30305. The Third Circuit reasoned that by the time this Court ruled on the merits, the
Named Plaintiffs had been released from detention, and therefore, their individual
habeas claims were mooted. Id. Because the Third Circuit found a lack of standing,
the merits of Plaintiffs’ constitutional claims related to the Joseph hearing were not
addressed. As such, this Court’s previous substantive analyses in Gayle II were
vacated, and the case was remanded for a determination whether class certification
was appropriate.
After remand, the parties engaged in limited discovery on the issue of class
certification. Subsequently, Plaintiffs moved to certify a class. In November 2017,
after a rigorous review, I certified the following class: the right of all persons within
the District of New Jersey, now and in the future, who are mandatorily detained
pursuant to 8 U.S.C. § 1226(c) to obtain a bond hearing on the basis of a substantial
claim to relief that would prevent the entry of a removal order, which includes
challenging the constitutionality of the Joseph hearing process, namely, the
allocation of the burden of proof, and the contemporaneous recording of the hearing.

9

I noted that because Gayle and Sukhu are proper representatives for this class, they
have standing to bring the instant matter.
Now, both parties move for summary judgment on the remaining
constitutional claims. Briefly, the Government contends that it already bears the
initial burden at custody redetermination hearings, and that the Constitution does
not

require

these

hearings

to

resemble

pre-merits

mini-trials

or

any

contemporaneous recordings. The Government further contends that under 8 U.S.C.
§ 1252(f)(1), this Court is precluded from granting the requested class injunctive
relief. On the other hand, Plaintiffs maintain that they, and the class, must have the
opportunity to receive a constitutionally adequate hearing before an immigration
judge such that a determination on their mandatory detention can be made. In that
connection, Plaintiffs argue that this hearing must be one that (1) does not violate
due process and places the initial burden of establishing that an alien falls within
Section 1226(c) on the Government; and (2) requires a contemporaneous record of
these proceedings.

Plaintiffs claim that 8 U.S.C. § 1252(f)(1) does not preclude

requested class-wide injunctive relief.
DISCUSSION
I.

Standard of Review
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

10

“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
(1986).
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.
II.

Section 1226(c) and Matter of Joseph
A.

Section 1226

I start with an overview of the relevant statutory scheme of Section 1226(c),
which governs mandatory detention. Section 1226 in full reads:
(a) Arrest, detention, and release

11

On a warrant issued by the Attorney General, an alien may be arrested
and detained pending a decision on whether the alien is to be removed
from the United States. Except as provided in subsection (c) of this
section and pending such decision, the Attorney General—
(1) may continue to detain the arrested alien; and
(2) may release the alien on—
(A) bond of at least $1,500.; or
(B) conditional parole; but
(3) may not provide the alien with work authorization ... unless the
alien is lawfully admitted for permanent residence or otherwise
would ... be provided such authorization.
(b) Revocation of bond or parole
The Attorney General at any time may revoke a bond or parole
authorized under subsection (a) of this section, rearrest the alien under
the original warrant, and detain the alien.
(c) Detention of criminal aliens
(1) Custody
The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any offense
covered in section 1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense
covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this
title,
(C) is deportable under section 1227(a)(2)(A)(i) of this title on
the basis of an offense for which the alien has been sentence[d]
to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or
deportable under section 1227(a)(4)(B) of this title,

12

when the alien is released, without regard to whether the alien is
released on parole, supervised release, or probation, and without
regard to whether the alien may be arrested or imprisoned again
for the same offense.
(2) Release
The Attorney General may release an alien described in paragraph
(1) only if the Attorney General decides pursuant to section 3521 of
Title 18 that release of the alien from custody is necessary to
provide protection to a witness, a potential witness, a person
cooperating with an investigation into major criminal activity, or
an immediate family member or close associate of a witness,
potential witness, or person cooperating with such an investigation,
and the alien satisfies the Attorney General that the alien will not
pose a danger to the safety of other persons or of property and is
likely to appear for any scheduled proceeding. A decision relating
to such release shall take place in accordance with a procedure that
considers the severity of the offense committed by the alien.
8 U.S.C. § 1226.
Section 1226 governs the pre-removal detention of an alien who is present and
living in the United States.

See Demore v. Kim, 538 U.S. 510, 527-28 (2003);

Jennings v. Rodriguez, 138 S. Ct. 830, 846 (2018); Nielsen v. Preap, 139 S. Ct. 954,
959 (2019)(Ҥ1226(a) . . . applies to most such aliens, and it sets out the general rule
regarding their arrest and detention pending a decision on removal.”). In that regard,
Section 1226(a) provides the Attorney General the authority to arrest and detain an
alien pending a decision on whether the alien is to be removed from the United States,
except as provided in Subsection (c). See 8 U.S.C. § 1226(a). Distinctly, detention
under Subsection (a) is discretionary; that is, the Attorney General may seek to
release the alien on bond or parole. Jennings, 138 S. Ct. at 846. An alien also has
the right to a hearing before an immigration judge to determine whether the alien

13

should be released on bond, pending any challenge to removal and a decision as to
whether that alien is to be removed. See 8 U.S.C. § 1226(a).
The exception under Subsection (c), however, directs that for certain categories
of aliens, the Attorney General “shall take into custody any alien . . . when the alien
is released, without regard to whether the alien is released on parole, supervised
release, or probation, and without regard to whether the alien may be arrested or
imprisoned again for the same offense.” 8 U.S.C. § 1226(c)(1). This group of aliens
fall into one of the enumerated categories in the statute involving criminal offenses
and terrorist activities. See id. “Section 1226(c) then goes on to specify that the
Attorney General ‘may release’ one of those aliens ‘only if the Attorney General
decides’ both that doing so is necessary for witness-protection purposes and that the
alien will not pose a danger or flight risk.” Jennings, 138 S. Ct. at 846 (quoting 8
U.S.C. §1226(c)(2)) (emphasis in the original).
Relevant to the arguments made by the parties, a brief history of enactment of
Section 1226(c) is critical. Originating from the comprehensive overhaul of the INA
that occurred in the 1980s and 1990s, this specific provision represents a significant
change to the government’s detention provisions established by the Antiterrorism
and Effective Death Penalty Act (“AEDPA”) and the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”). As the Supreme Court explained in

Demore, Congress was dissatisfied with the Immigration and Naturalization

14

Service’s 9 (“INS”) apparent failure to remove deportable criminal aliens. Demore, 538
U.S. at 518-21; see also id. at 519 (citing Senate report finding that “more than 20%
of deportable criminal aliens failed to appear for their removal hearings”). To reform
the immigration laws, Congress enacted § 1226, which “requir[es] the Attorney
General to detain a subset of deportable criminal aliens pending a determination of
their removability.” Id. at 521. Section 1226(c) provides for mandatory detention
pending removal proceedings for any alien who has committed certain categories of
crimes. Crucially, an alien mandatorily detained under § 1226(c) has no right to a
bond hearing to seek release from detention by showing that the alien is not a flight
risk or danger to the community; similarly, neither the DHS/ICE nor an immigration
judge has the discretion to release an alien detained under § 1226(c) pending the final
resolution of the alien’s removal proceedings, provided that detention has not become
unreasonably prolonged. See 8 U.S.C. § 1226(c); Diop v. ICE/Homeland Sec., 656 F.3d
230, 232 (3d Cir. 2011)(“At a certain point [under due process of the Fifth Amendment
of the Constitution], continued detention becomes unreasonable and the Executive
Branch's implementation of § 1226(c) becomes unconstitutional unless the

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 ...
9

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).
15

Government has justified its actions at a hearing inquiring into whether continued
detention is consistent with the law’s purposes of preventing flight and dangers to
the community.”).
B.

In re Matter of Joseph

The dispute in this case centers on the constitutionality of the Joseph hearing,
which is provided to a § 1226(c) alien who challenges his or her mandatory detention.
According to the Government, ICE makes the initial determination that an individual
is removable on the ground triggering mandatory detention under Section 1226(c);
that decision is made pursuant to a “reason to believe” standard. Then, an alien could
challenge that determination pursuant to procedural safeguards announced in

Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999). There, the BIA held that an alien
whom the INS 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.” 10 Id. at 800.
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 immigration judge to
reexamine the INS's determination. Id. at 807. In that regard, the BIA instructed

Joseph also 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).

10

16

immigration judges 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 than the one imposed for the merits hearing.
In sum, since Matter of Joseph, the initial burden at a Joseph hearing is on
ICE to establish that there is “reason to believe” that the detained alien is deportable
or inadmissible under a ground listed in § 1226(c)(1)(A)-(D). In order to arrest an
alien and issue a Notice to Appear in removal proceedings, ICE must first have
“reason to believe that the alien . . . is in the United States in violation of any
[immigration] law or regulation and it is likely to escape before a warrant can be
obtained for his arrest.” 11 8 U.S.C. § 1357(a)(2). According to the Government, not
disputed by Plaintiffs, in practice, the “reason to believe” standard — in the context
of a Joseph hearing — has been equated to a finding of “probable cause.” See Matter

of U-H-, 23 I. & N. Dec. 2355, 356 (BIA 2002)(“we determined that the ‘reasonable
ground to believe’ standard is akin to the familiar ‘probable cause’ standard.”).

After an alien is detained, ICE provides the alien with notice of, inter alia, the
“charges against the alien and the statutory provisions alleged to have been violated.”
8 U.S.C. § 1229(a)(1)(D).
11

17

Once ICE has carried its initial burden, an alien “may avoid mandatory
detention by demonstrating [at a Joseph hearing] that he is not an alien, was not
convicted of the predicate crime, or that [ICE] is otherwise substantially unlikely to
establish that he is in fact subject to mandatory detention.” Demore, 528 U.S. at 514
n.3 (citing 8 C.F.R. § 3.19(h)(2)(ii) and Matter of Joseph, 22 I. & N. Dec. 799); see

Jennings, 138 S. Ct. at 838 n.1 (“Anyone who believes that he is not covered by
§1226(c) may also ask for what is known as a ‘Joseph hearing.’”). The directive of the
administrative code, cited by the Supreme Court, is to provide the detained-alien an
opportunity to adduce evidence or legal authority on the question whether ICE has
properly included him/her within a category that is subject to mandatory detention.

See 8 C.F.R. § 3.19(h)(2)(ii). 12 If the alien 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 alien may then proceed to an individualized bond hearing—the same type of
custody hearing accorded to those discretionarily detained pursuant to Section
1226(a). See 8 C.F.R. § 1236.1(c)(8).
Relatedly, Joseph hearings are not contemporaneously recorded verbatim as a
matter of policy; rather, Joseph hearings are normally summarized by the

This code provision states that “[n]othing in this paragraph shall be construed
as prohibiting an alien from seeking a redetermination of custody conditions by [ICE]
in accordance with part 235 or 236 of this chapter. In addition, with respect to
paragraphs (h)(2)(i)(C), (D), and (E) of this section, nothing in this paragraph shall
be construed as prohibiting an alien from seeking a determination by an immigration
judge that the alien is not properly included within any of those paragraphs.”
12

18

immigration judge’s order determining that a noncitizen is subject to mandatory
detention or is eligible for a bond hearing. However, when a party appeals a Joseph
decision, the judge drafts a short bond memorandum providing the reasons for his or
her decision in that context.
C.

Relevant Supreme Court Cases

To better address the parties’ arguments on these motions, I survey the
relevant Supreme Court cases, most of which are relied upon by both parties.
1.

Zadvydas v. Davis

This earlier Supreme Court case concerned 8 U.S.C. § 1231(a)(6), which
authorizes the detention of aliens who have already been ordered removed from the
country. Under this section, when an alien is ordered removed, the Attorney General
is directed to complete removal within a period of 90 days, 8 U. S. C. §1231(a)(1)(A),
and the alien must be detained during that period. 8 U.S.C. § 1231(a)(2). After the
expiration of that proscribed time period, §1231(a)(6) provides that certain aliens
“may be detained” while efforts to complete removal continue. The Supreme Court
interpreted this language to limit the government’s detention of an alien who has
been ordered removed by imposing a six month presumptively reasonable period.

Zadvydas, 533 U.S. 678, 701 (2001). The Court held that, under § 1231(a)(6), aliens
may not be detained beyond “a period reasonably necessary to secure removal.” Id.
at 699. In that regard, the Court concluded that if the alien “provides good reason to
believe that there is no significant likelihood of removal in the reasonably foreseeable
future,” the government must either rebut that showing or release the alien. Id.

19

The Supreme Court based its decision on the fact that § 1231(a)(6) is
ambiguous based upon Congress’s use of the phrase “may be detained.” “May,” the
Court reasoned, “suggests discretion,” but not unfettered discretion. Id. at 697. By
finding such ambiguity, the Court resorted to employing the canon of constitutional
avoidance, which rests on the principle that “[w]hen a serious doubt is raised about
the constitutionality of an act of Congress, it is a cardinal [rule] that [ ] [courts] will
first ascertain whether a construction of the statute is fairly possible by which the
question may be avoided.” Jennings, 138 S. Ct. at 842 (citations and quotations
omitted).
2.

Demore v. Kim

In Demore, the Supreme Court held that § 1226(c)'s mandatory detention
scheme is not facially unconstitutional. The alien in Demore had been detained the
day after his release from state custody, and he argued that § 1226(c) violates due
process because it allows the Attorney General to detain an alien indefinitely without
a finding that the alien is dangerous or a flight risk. Demore, 538 U.S. at 514. The
Supreme Court rejected that argument, concluding that aliens falling under § 1226(c)
may constitutionally be detained “for the brief period necessary for their removal
proceedings.” Id. at 513. The Court distinguished its Zadvydas decision, which held
that aliens whose deportation is unfeasible (e.g., because no country will accept them)
cannot be held indefinitely unless the government demonstrates a continued need for
their detention. Demore, 538 U.S. at 528. “While the period of detention at issue in

Zadvydas [after the statutory deadline for an alien's removal has passed] was
20

'indefinite' and 'potentially permanent,' the detention [under § 1226(c)] is of a much
shorter duration.” Id. (citation omitted). Statistics cited by the Court showed that
most removal cases were completed in a few months, and the remainder, on average,
were completed in just four months more. Id. at 529. Aware of Congressional intent,
the Court then balanced the alien’s due process rights under the Fifth Amendment
and Congress’s deep-rooted authority to detain aliens during deportation
proceedings. Id. at 523. After such a weighing, the Court concluded that the alien’s
mandatory detention under § 1226(c) did not raise any due process concerns. Id. at
529. Indeed, the Court explained that, although aliens are entitled to “due process of
law in deportation proceedings,” id. at 523 (citation and quotations omitted), the
government may constitutionally detain deportable aliens “during the limited period
necessary for their removal proceedings.” Id. at 526.
While Demore did not place limits on the permissibility of mandatory
detention, Justice Kennedy, in joining the majority opinion, made clear that in his
view, § 1226(c) should be construed in light of constitutional concerns if an alien's
detention became unreasonable or unjustified. Demore, 538 U.S. at 532 (Kennedy, J.,
concurring). Justice Kennedy noted that since mandatory detention under § 1226(c)
is “premised upon the alien's deportability,” due process requires “individualized
procedures” such as a Joseph hearing to ensure that the alien is in fact deportable.

Id. at 531-32. “For similar reasons,” he continued, “since the Due Process Clause
prohibits arbitrary deprivations of liberty, a lawful permanent resident alien such as
respondent could be entitled to an individualized determination as to his risk of flight

21

and dangerousness if the continued detention became unreasonable or unjustified.”

Id. at 532. “Were there to be an unreasonable delay by [ICE] in pursuing and
completing deportation proceedings, it could become necessary then to inquire
whether the detention is not to facilitate deportation, or to protect against risk of
flight or dangerousness, but to incarcerate for other reasons.” Id. at 532-33.
3.

Jennings v. Rodriguez

More recently, in Jennings, the Court held — as a matter of statutory
construction — that both §§ 1225(b) and 1226(c) unambiguously call for the
mandatory detention of aliens within those provisions’ purview throughout the
pendency of the aliens’ removal proceedings, without any right to a bond hearing.

Jennings, 138 S. Ct. at 842, 845-847. In so holding, the Court overruled the Ninth
Circuit, which had applied the doctrine of constitutional avoidance to impose an
implicit six-month limit on the period that an alien could be detained under those
statues without a bond hearing. Id. at 839. The Supreme Court cautioned that the
constitutional-avoidance canon is an aid to the interpretation of a statute that could
“plausibly be read” either to offend or to comport with the Constitution, id. at 843,
but could not be used to “graft a time limit” onto an unambiguous statute that could
not “reasonably be read to limit detention to six months.” Id. at 833-844. Concluding
from the language and structure of §§ 1225(b) and 1226(c) that their meaning was
“clear,” the Court declined to extend the rule of Zadvydas to aliens detained under
those provisions. Id. at 848.

22

Jennings did not reach the constitutional questions under due process, such as
whether the mandatory detention provision of § 1226(c) violates the Due Process
Clause as applied to aliens whose detention has become unusually prolonged. Rather,
the Court remanded the case to the Court of Appeals to consider those issues “in the
first instance.” Id. at 851; see Dryden v. Green, 321 F. Supp. 3d 496, 501-02 (D.N.J.
2018). 13
4.

Nielsen v. Preap

In the Supreme Court’s latest decision, Nielsen v. Preap, 139 S. Ct. 954 (2019),
the Court dealt with statutory construction of Section 1226(c) in the context of
whether an alien is exempt from mandatory detention when ICE fails to take him/her
into immigration custody immediately after release from custody. While this case did
not directly answer the questions at issue here, the Supreme Court provided some
guidance as to how to interpret § 1226(c).
First, the Court began its opinion by acknowledging that “[a]liens who are
arrested because they are believed to be deportable may generally apply for release
on bond or parole while question of their removal is being decided . . . . . Congress has
decided, however, that this procedure is too risky . . . for aliens who have committed
certain dangerous crimes and those who have connection to terrorism . . . [u[nder §
1226(c) . . . .” Nielsen, 139 S. Ct. at 959 (emphasis added). The Nielsen plaintiffs
argued that they were not subject to § 1226(c)’s mandatory-detention scheme, but

No decision on that issue has been made by the Ninth Circuit or the District
Court on remand.

13

23

instead were entitled to the bond hearings available to those aliens held under the
general arrest and release authority under § 1226(a). These plaintiffs reasoned that
they are not the type of aliens described in paragraph (1) of Section § 1226(c) – even
though they fall into at least one of the categories of aliens who have committed a
crime listed in subparagraph (A)-(D) – because they were not taken into custody by
ICE immediately “when released” from prison. Id. at 964. The Supreme Court
rejected that argument on the basis that it runs counter to the plain language of the
statute. The Court held that the “when released” clause “plays no role in identifying
for [ICE] which aliens [it] must immediately arrest,” since only subparagraphs (A)(D) settle who is “described in paragraph (1),” or in other words, those aliens who
committed a crime under those subparagraphs are subject to mandatory detention
without regard to when they were released from custody. Id. at 965 (emphasis in the
original).
Next, the Supreme Court made clear that § 1226(c) and § 1226(a) are not
separate sources of arrest, but rather, Subsection (c) merely places a limit on the
authority or discretion conferred upon ICE by Subsection (a).

Id. at 966.

particular,
subsection (a) creates authority for anyone’s arrest or release under §
1226 – and it gives [ICE] broad discretion as to both actions – while
subsection (c)’s job is to subtract some of that discretion when it comes
to the arrest and release of criminal aliens. Thus, subsection (c)(1) limits
subsection (a)’s first sentence by curbing the discretion to arrest: [ICE]
must arrest those aliens guilty of a predicate offense. And subsection
(c)(2) limits subsection (a)’s second sentence by cutting back [ICE’s]
discretion over the decision to release: [ICE] may not release aliens
“described in” subsection (c)(1) – that is those guilty of a predicate
offense.
24

In

Id. (emphasis in the original).
Finally, the Court addressed the plaintiffs’ argument on the canon of
constitutional avoidance. The plaintiffs maintained that a reading of § 1226(c) that
would mandate arrest and detention years after an alien’s release from criminal
custody – when many aliens will have developed strong ties to the country and a
good chance of being allowed to stay if given a hearing – would raise constitutional
concerns.

The Court disposed of this argument, reasoning that constitutional

avoidance “comes into play only when, after the application of ordinary textual
analysis, the statute is found to be susceptible of more than one construction.” Id.
at 972 (citations and quotations omitted). The Supreme Court also stressed that the
canon “has no application absent ambiguity.” Id. (citations and quotations omitted).
Because § 1226(c)’s language is clear on its face, the Court found that the canon of
constitutional avoidance is plainly inapplicable. Id.
III.

Mandatory Detention
Plaintiffs advance the following arguments: (1) the Due Process Clause of the

Constitution prohibits the mandatory detention of individuals with substantial
challenges to removability; (2) the burden of proof imposed by the Joseph Hearing is
unconstitutional; and (3) Section 1226(c) does not impose mandatory detention on
individuals with a substantial challenge to removability. Because the first and third
arguments are similar, I will address them first.

25

A.

Constitutionality

According to Plaintiffs, under the Due Process Clause, mandatory detention,
with no bond hearing, of individuals who raise substantial arguments that they are
not deportable is unconstitutional. This is so, Plaintiffs contend, because such aliens
with substantial arguments against deportability do not categorically pose the
heightened risk of flight or threat to public safety that justifies such an extreme
deprivation of liberty.

To sum up Plaintiffs argument: under Section 1226(c),

Congress only intended to give ICE authority to mandatorily detain those aliens who
do not have a substantial challenge to their deportation. I do not agree with Plaintiffs’
reading of the statute, particularly in light of the Supreme Court’s decision in

Demore.
“It is well established that the Fifth Amendment entitles aliens to due process
of law in deportation proceedings.” Demore, 538 U.S. at 522 (citations and quotations
omitted). However, relevant here, the Supreme Court has recognized “detention
during deportation proceedings as a constitutionally valid aspect of the deportation
process.” Id. As noted earlier, the Supreme Court has found constitutional the
mandatory detention imposed under § 1226(c). Notwithstanding Demore, Plaintiffs
contend that their mandatory detention violates due process because they are not
“deportable” under the meaning of Section 1226(c). In that regard, Plaintiffs reason
that at the outset, some aliens may have a substantial argument as to why they do
not have one of the enumerated removable offenses under Section 1226(c), or that
even if these aliens are removable in the threshold sense, some may still have bases

26

for contesting their removability as a final matter, pursuing relief such as
cancellation of removal or adjustment status. What Plaintiffs suggest is that so long
as the criminal alien has a substantial reason why he/she is not “deportable,” his/her
mandatory detention under § 1226(c) would be unconstitutional.
In making their argument, Plaintiffs submit that the Supreme Court in

Demore recognized a narrow exception to the general rule that due process requires
procedures to ensure that detention serves its purposes. In Demore, the Supreme
Court held that the mandatory detention of criminal aliens under § 1226(c) does not
deprive those individuals of their due process rights. Demore, 538 U.S. at 529.
Plaintiffs, here, argue that the Supreme Court’s holding in that regard is only
confined to aliens who are deportable, because the petitioner in Demore conceded his
deportability. Plaintiffs maintain that, here, they stand on a different footing, since
they have a substantial challenge to deportability. I disagree. First, I do not find that

Demore’s holding is only limited to those aliens who have conceded deportability.
Even the facts of Demore belie Plaintiffs’ position. While the Supreme Court noted
that the petitioner, there, conceded deportation for the purposes of the habeas
petition, he nevertheless had, at the time of the decision, applied for withholding of
removal by challenging his deportability. Id. at 1717, n.6. But, even in light of that
fact, the Supreme Court explained that “by conceding he is ‘deportable’ and, hence,
subject to mandatory detention under § 1226(c), respondent did not concede that he
will ultimately be deported.” Id. (emphasis in the original). Indeed, not once in its
decision did the Supreme Court draw such a distinction that Plaintiffs make here.

27

Rather, in upholding § 1226(c), the Court found 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 be removed.” Id. at 528.
Plaintiffs also argue that detaining aliens who have a substantial challenge to
deportability does not serve any legitimate governmental interests. They explain
that these aliens do not categorically pose the heightened risk of flight or threat to
public safety that justifies detention, because by challenging their deportability, they
have strong incentives to appear at their proceedings and litigate those defenses.
But, as Demore made clear, in enacting § 1226(c), Congress sought to impose
mandatory detention on those criminal aliens who ICE believes are deportable
pending their removal proceedings.

Indeed, the Supreme Court recognized

Congress’s intent that detention is necessary to prevent “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.” Demore, 538 U.S.
at 527. This is so because 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 unlawfully.” Id. at 528. 14 According to the Supreme Court, such
evidence “certainly supports the approach [Congress] selected even if other,

Indeed, once released, “more than 20% of deportable criminal aliens failed to
appear for their removal hearings.” Id. at 519.
14

28

hypothetical studies might have suggested different courses of action.” Id. I stress
that in coming to this conclusion, the Supreme Court not once made the distinction
that its due process holding only applies to aliens who have conceded deportability.
In fact, as the Government correctly points out, Demore expressly reversed both Patel

v. Zemski, 275 F.3d 299, 314 (3d Cir. 2001) and Welch v. Ashcroft, 293 F.3d 213, 226
(4th Cir. 2002), cases which involved mandatory detention of criminal aliens who did

not concede removability and, just like the petitioner in Demore, had applied for relief
from removal. See Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469, 473
(3d Cir. 2015)(“Congress lawfully required the Attorney General to make
presumptions of flight and dangerousness about the alien solely because he belonged
to the group of aliens convicted of the types of crimes defined in Section 1226(c). These
presumptions, Demore says, justified the alien’s detention and eliminated the need
for an individualized bond hearing . . . .”).

As the Supreme Court concluded,

“deportation proceedings would be vain if those accused could not be held in custody
pending the inquiry into their true character.” 15 Id. at 523. Accordingly, based on
the Supreme Court’s reasoning, I reject Plaintiffs’ due process arguments regarding
§ 1226(c) in this context.

Plaintiffs’ position that criminal aliens who have substantial challenges to
their deportability should not be mandatorily detained raises other concerns. Based
on Demore and its progeny, it is neither the purpose nor the intent of § 1226(c) to
permit the release of criminal aliens – who ICE has reasons to believe are deportable
under the statute – simply because they assert a challenge to their deportability.
Even if that were so, the question remains who should make the assessment in the
first instance that the challenges raised are substantial, such that the alien would
not be deportable under the statute. And, relatedly, what would be the standard in
making such an assessment.
15

29

B.

Constitutional Avoidance

Next, as a corollary argument, Plaintiffs contend that under the canon of
constitutional avoidance, the Court should read § 1226(c) as requiring the mandatory
detention only of those aliens who do not have a substantial challenge to
deportability.

Plaintiffs explain that such a construction is consistent with the

statutory language, because § 1226(c) only imposes mandatory detention if an alien
“is deportable by reason of having committed” a predicate criminal offense. 8 U.S.C.
§ 1226(c)(1(B), (C). In their view, the word “deportable” is susceptible to two different
meanings. The first interpretation is the Government’s position that § 1226(c) applies
to all aliens whom it charges as having committed the specified offenses designated
by statute, unless the alien proves the Government is “substantially unlikely” to
establish that his/her conviction was actually for an offense that falls within a ground
of removal listed in the statute. In Plaintiffs’ view, however, § 1226(c)’s use of
“deportable” should be read to allow an alien to seek release on bond, so long as he or
she has a substantial challenge to his or her deportability.

Based on Nielsen,

however, I cannot find that “deportable” is ambiguous, such that the canon of
constitutional avoidance would apply.
The canon of constitutional avoidance is employed “[w]hen ‘a serious doubt’ is
raised about the constitutionality of an act of Congress,” which requires courts to
“first ascertain whether a construction of the statute is fairly possible by which the
question may be avoided.” Jennings, 128 S. Ct. at 842 (quotations and citations
omitted). However, the canon can only come into play “when, after the application of

30

ordinary textual analysis, the statute is found to be susceptible of more than one
construction.”

Id. (quoting Clark v. Martinez, 543 U. S. 371, 385 (2005)).

Importantly, and relevant here, “[i]n the absence of more than one plausible
construction, the canon simply ‘has no application.’” Id. (quoting United States v.

Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 494 (2001)).
In construing a statute, the court must begin with the text itself, “and proceed
from the understanding that ‘[u]nless otherwise defined, statutory terms are
generally interpreted in accordance with their ordinary meaning.’” Sebelius v. Cloer,
569 U.S. 369, 376 (2013)(quoting BP America Production Co. v. Burton, 549 U.S. 84,
91 (2006)). The first step “is to determine whether the language at issue has a plain
and unambiguous meaning with regard to the particular dispute in the case.”

Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (quoting Robinson v. Shell Oil
Co., 519 U.S. 337, 340 (1997)). “When the meaning of statutory text is plain, [courts]
inquiry is at an end.” Roth v. Norfalco, L.L.C., 651 F.3d 367, 379 (3d Cir. 2011).
If the text is “reasonably susceptible of different interpretations,” it may be
ambiguous. Edwards v. A.H. Cornell and Son, Inc., 610 F.3d 217, 222 (3d Cir. 2010)
(internal quotation marks and citation omitted). Only when a statute appears to be
ambiguous, courts may look to other portions of the statute, because “‘statutory
interpretation focuses on the language itself, the specific context in which that
language is used, and the broader context of the statute as a whole.’” AT&T Mobility,

L.L.C. v. Concepcion, 131 S. Ct. 1740, 1754 (2011)(quoting Robinson v. Shell Oil Co.,
519 U.S. 337, 341 (1997)).

And, only when a statute is ambiguous and after

31

consideration of the statutory scheme, may courts consider the legislative history or
other extrinsic material — and then, only if it “shed[s] a reliable light on the enacting
Legislature's understanding of otherwise ambiguous terms.” Exxon Mobil Corp. v.

Allapattah Servs., Inc., 545 U.S. 546, 568 (2005).
Here, the canon of constitutional avoidance has no application, since the word
“deportable” is not susceptible to different interpretations. While Plaintiffs argue
that “deportable” should be read to mean an alien who has conceded deportability, a
plain reading of § 1226(c) does not support their strained interpretation. Section
1226(a) grants the Attorney General the authority to arrest and detain an alien
“pending a decision on whether [that] alien is to be removed from the United States.”
8 U.S.C. § 1226(c).

While Subsection (a) provides the Attorney General with

discretion to release the alien on bond, see 8 U.S.C.§ 1226(a)(2), § 1226(c) instructs
that “deportable” aliens, who have committed certain enumerated offenses, be
mandatorily held without bond. See 8 U.S.C. § 1226(c); Sylvain v. Att’y Gen., 714 F.3d
150, 154 (3d Cir. 2013)(holding that Section 1226(c) “imposes mandatory detention
on a narrow class of criminal aliens.”).

Indeed, those include “any alien” who “is

inadmissible” under § 1182(a)(2) or is “deportable” under § 1227(a)(2)(A)(ii), (B), (C),
(D). 16 The term “deportable” is defined as someone who is “subject to deportation.”

See deportable, Webster’s New Collegiate Dictionary (9th ed. 1985), and it modifies
the phrase “by reason of having committed any offense.” 8 U.S.C. § 1226(c)(1)(A), (B).

There is no dispute that the terms “inadmissible” and “deportable” are used
similarly in these statutes.

16

32

A plain reading of the statute compels only one interpretation; that is, those aliens
who are subject to deportation by virtue of committing a certain enumerated offense
must be mandatorily detained by the Attorney General, without the possibility of
release on bond. Such an interpretation is consistent with the aim of the statute.
Clearly, Section 1226(a) directs the Attorney General to arrest a certain
category of aliens, and Subsection (c) instructs that criminal aliens who committed
certain enumerated offenses be held on mandatory detention, pending a decision on
whether the alien could be removed. In light of this statutory scheme, to adopt
Plaintiffs’ reading would effectively render § 1226(c) meaningless. Indeed, if § 1226(c)
could only apply to an alien who does not challenge his/her deportability – either at
the threshold level or adjustment of status – there would be no reason for any removal
proceedings; rather, the alien would be ordered removed, since he/she does not contest
deportation, and the Attorney General would continue to detain that particular alien
under the authority and procedures set forth in 8 U.S.C. § 1231. In that respect, the
Government correctly notes that to adopt Plaintiffs’ reading would essentially leave
no time period during which § 1226(c) could apply.
Furthermore, aside from statutory interpretation, Plaintiffs’ position finds no
support in the recent Supreme Court cases. In Jennings, the Court explained that Ҥ
1226(c) makes clear that detention of aliens within its scope must continue ‘pending
a decision on whether the alien is to be removed from the United States.’” Jennings,
138 S. Ct. at 846 (quoting 8 U.S.C. § 1226(a))(emphasis in the original). In that
regard, the Court emphasized that the enactment of § 1226(c) by Congress was its

33

effort to provide “immigration officials time to determine an alien’s status without
running the risk of the alien’s either absconding or engaging in criminal activity
before a final decision can be made.” Id. at 836. In interpreting the language of §
1226(c), the Supreme Court did not read into, or carve out, any exception for those
groups of aliens who may have challenges to their deportability. Rather, quite the
opposite, the Supreme Court found that all aliens who met the requirements of
mandatory detention must be detained until a decision can be made with regard to
their removal. In fact, just recently, in Nielsen, the Supreme Court stressed that ICE
detains criminal aliens pursuant to § 1226(c) because those aliens are “believed to be
deportable,” not because those aliens have somehow conceded deportability, or
otherwise could not contest their removability. Nielsen, 139 S. Ct. at 958-59.
Hence, because I find that the term “deportable,” in the context of § 1226(c),
can only be subject to one interpretation, the canon of constitutional avoidance does
not apply. While Plaintiffs raises certain issues that they argue are violations of due
process, the Supreme Court has advised that “[s]potting a constitutional issue does
not give a court the authority to rewrite a statute as it pleases. Instead, the canon
permits a court to ‘choos[e] between competing plausible interpretations of a
statutory text.’” Jennings, 138 S. Ct. at 843 (quoting Clark v. Suarez Martinez, 543
U.S. 371, 381 (2005))(emphasis in the original). To prevail, Plaintiffs must show that
§ 1226(c)’s use of word “deportable” is subject to differing meanings. Because they
have not done so, I cannot find that the canon of constitutional avoidance has any
application here.

34

Having rejected Plaintiffs’ statutory interpretation and due process
arguments, I turn to the question whether the burden placed upon the detainedaliens in a Joseph hearing violates due process.
IV.

Constitutionality of the Joseph Hearing
Unlike their prior motion for summary judgment, Plaintiffs do not devote a

significant amount of their current motion to the constitutionality of Joseph hearings.
Nonetheless, Plaintiffs argue that Joseph severely restricts the type of arguments
detainees can make, and that the hearing unconstitutionally places the burden on
the detainee to show that the Government is “substantially unlikely” to establish that
the alien committed a criminal offense properly included within a category listed in
§ 1226(c). Accordingly, Plaintiffs argue that in a practical sense, the Joseph standard
makes it virtually impossible for aliens to contest their mandatory detention.
A.

Joseph Standard

The Government argues 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 – is not constitutionally impermissible because the
standard satisfies the Mathews test. 17

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

In Mathews v. Eldridge, the Supreme Court devised a three-part test to
determine whether an administrative procedure comports with due process. 424 U.S.
319, 333 (1976). See, infra.
17

35

manner.’” Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003)(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 standard is constitutionally
adequate still remains an open question even after the various Supreme Court
decisions discussing mandatory detention under § 1226(c). 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 . . . .”). 18

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
18

36

Because the Mathews test is flexible, it is this Court’s task to address each
factor of the test and, if necessary, weigh them in fashioning a proper remedy. I begin
my analysis under Mathews by examining whether Plaintiffs have identified a
private interest that is affected by the Government’s action. Indeed, Plaintiffs have
identified a private liberty interest, i.e., remaining 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.”). Plaintiffs argue that under Zadvydas, an alien’s
liberty interest in freedom from detention is protected by due process, and that the
Government must prove a “special justification” outweighing the “individual's
constitutionally protected interest in avoiding physical restraint.” 533 U.S. at 690.
The Government responds that the liberty rights of the aliens are subject to
limitations and conditions not applicable to citizens.
The tension here is between Plaintiffs’ liberty interests and the Government’s
authority, granted by Congress, to mandatorily detain deportable aliens who have
committed certain crimes. The Government’s position places significant emphasis 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

. . . . [Joseph] establishes a system of ‘detention by default’ by placing the burden fully
on the alien to prove that he should not be detained.”).
37

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 1226(c)
aims:
(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
531.
In addition, these particular interests have been found compelling by the
Supreme Court, which held 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 51821. 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
unlawfully.

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
38

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
marks omitted).
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, 1101 (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 minitrial (or maybe a pre-trial not-so-mini-trial)—could consume significant prosecutorial
time and resources.”).

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.
Next, I 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

39

deprivations of aliens’ liberty interests is impermissibly high. For example, Plaintiffs
cite to cases that found that aliens had failed to establish under Joseph that ICE was
“substantially unlikely” to prevail on its charges, because (1) the alien cannot cite to
“precedent case law directly on point,” 19 (2) the alien failed to establish U.S.
citizenship with conclusive evidence, 20 or (3) a circuit split or even unpublished case
law from within the circuit casts doubt on the alien’s removability. 21 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 is virtually
impossible to satisfy.

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
19

[were] inconclusive with regard to whether the [alien] was removable for commission
of a controlled substance violation).

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

20

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).
21

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
was unpublished).
40

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
“substantially unlikely to prevail” standard does not, according to the Government,
raise constitutional concerns. Furthermore, the Government advances that the

Joseph standard is not toothless, because if an alien has a strong facial challenge to
a removal ground that triggers § 1226(c) detention, he/she can have it considered by
the IJ at a Joseph hearing, and if successful, can request a bond hearing and seek
release pending determination of whether removal is appropriate, Joseph I, 22 I. &
N. Dec. at 668, such as, U.S. citizenship, mistaken identity, or vacation of the alleged
conviction. 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).
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. I recognize, 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

41

interests with those of the detained aliens. At the outset, I note that Plaintiffs, on
this current motion, do not place a significant emphasis on the “reason to believe”
standard imposed on the Government in the first instance when it mandatorily
detains an alien that ICE believes to have committed an enumerated offense under §
1226(c). Rather, Plaintiffs argue, here, that this Court’s previous ruling that the
“reason to believe” standard should be defined similarly as a “probable cause”
standard does not sufficiently protect those aliens with substantial challenges to their
ultimate deportability. The Government, for its part, does not address the “reason to
believe” standard in its brief. Because I find, just as I did in my last ruling on this
issue, that the “reason to believe” standard does not meet constitutional safeguard
under due process, I address that issue, below. 22
I have surveyed BIA decisions involving Joseph hearings and the
inconsistencies in the manner in which the IJs have applied the “reason to believe”
standard, and hence, 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 of their liberty. My analysis begins

While I acknowledge that some BIA decisions have equated the “reason to
believe” standard to “probable cause,” that standard has not been applied uniformly.
Furthermore, although the Government conceded in the last go around that the
probable cause standard is appropriate, it has not done so this time. But, I remain
convinced that the probable cause standard applies in determining whether the
Government has any reason to believe that an alien should be mandatorily detained
under § 1226(c). As such, it is necessary and appropriate, in my decision here, to
address this issue once again.
22

42

with the “reason to believe” standard that ICE uses to issue its NTAs, and that the
IJs also use 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 or easily definable 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 begins 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
43

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. Rather, since the Joseph decision 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, there is no
case that outlines what type of initial burden ICE bears 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 that burden. Compounding the problem, the Government has
not cited any 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 IJs.
This ill-defined process raises the vexing question of how an alien is able to prepare
his or her argument against mandatory detention. Based on the current standard, it
44

is likely that an individual may be deemed subject to mandatory detention even if
ICE merely presented a scintilla of unrefuted evidence. This result, as a matter of
constitutional jurisprudence, is a serious deprivation of an alien’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
“substantially unlikely” standard is particularly heavy, I find that the current Joseph
hearing standard creates a high risk of an erroneous deprivation of Plaintiffs’ liberty
interests.

Having made that finding, I, next, determine to what standard the

Government should be subjected in carrying its initial burden at a Joseph hearing.
To begin, the Government has, during this litigation, 23 equated the “reason to
believe” standard to that of a probable cause inquiry. That standard, however, has
not been articulated or adopted by immigration judges or even the Government itself.
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 in a better position to meet the “substantially unlikely” burden that

Indeed, as recently as its opposition to Plaintiffs’ renewed motion for class
certification filed in May 2017, the Government continued to assert that the “reason
to believe” standard equates to a probable cause inquiry.
23

45

the alien currently bears. 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. This makes practical sense, because 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
standard 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,

46

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

47

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.
Plaintiffs argue that the probable cause standard does not prevent the
mandatory detention of an immigrant who presents a strong legal argument that
his/her conviction does not render him/her deportable. However, as I have found, the
probable cause standard only speaks to the Government’s initial burden. Rather,
substantively, Plaintiffs’ argument goes to the alleged inadequacies of the Joseph
hearing as a whole, which includes the burden that the aliens have at the next stage
of the hearing — whether the Government is “substantially unlikely to prevail” at the
merits hearing violates due process. I turn to that question next.
There is no dispute that the alien bears a high burden of proof at a Joseph
hearing.

Plaintiffs argue that such a burden should not survive constitutional

scrutiny. However, in light of the imposition of a probable cause inquiry as the
Government’s initial burden at a Joseph hearing, I do not find that Plaintiffs’
subsequent burden at the Joseph hearing violates due process. On this particular
inquiry, 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.

48

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 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). As Justice 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).
The “substantially unlikely” standard imposed on a detained-alien, in my view,
passes the “at-least-some-merit” review.
Moreover, the Supreme Court has advised, albeit not in the context of a Joseph
hearing, that preliminary hearings are different and distinct from 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
standards. 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. According to Plaintiffs, 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 §

49

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
removal hearing.
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
outweigh 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). 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
adequate due process under the law. I grant in part the Government’s motion in this
context and dismiss Plaintiffs’ claim that the Joseph hearing, as a whole, violates due
process.

50

V.

Lack of a Contemporaneous Verbatim Record
Both parties move for summary judgment on Plaintiffs’ claim that the

Government’s policy of not requiring 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 24 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, 25
its regulations, 26 and the Executive Office of Immigration Review’s operating

At the outset, the Government raises the familiar argument that because the
Named Plaintiffs never made any factual challenges to their detention or
removability at Joseph hearings, they cannot assert “as-applied” claims to the
conduct of hearings that never took place. But, as the Court has already defined, the
Named Plaintiffs represent a class of aliens, now and in the future, who are
mandatorily detained pursuant to § 1226(c), and that they allege the absence of a
contemporary recording violates due process.
In that regard, the alleged
constitutional infirmity that flows from such practice is the very type of categorical
harm that this Court may consider under the Mathews test. See, infra.
24

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).
25

26

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).
51

manual; 27 and (2) the Supreme Court’s decision not to impose a contemporaneous
verbatim records requirement in criminal trials. 28
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
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.’”).
27

28

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”).
52

preliminary hearings held for parolees who have potentially violated their parole. In

Morrissey, 29 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
[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

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.
29

53

removal, in the ensuing removal proceedings, and to potentially secure freedom from
detention as well as from removal. 30 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

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. Joseph hearings generally
turn on a review of conviction records and consideration of the arguments of counsel,
as opposed to sworn witness testimony. 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.

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.
30

54

Still, Plaintiffs argue that there are instances where the contemporaneous
record is necessary to “detect” abuses of discretion and misconduct by IJs. While I
certainly recognize that there have been circumstances of misconduct by IJs,
particularly those that have been previously identified by the Third Circuit, see Qun

Wang v. Attorney General, 423 F.3d 260, 268 (3d Cir. 2005)(finding inappropriate the
“bullying” nature of the immigration judge’s questioning), these types of misconduct,
while flagrant, do not go to the ultimate substantive question of whether a lack of
record keeping during a Joseph hearing is unconstitutional. 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.
Moreover, IJs are not prohibited from recording Joseph hearings, 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.
As to the third prong of the Mathews analysis, Plaintiffs argue that the
Government has little interest in maintaining its current policy of not requiring
contemporaneous verbatim records in Joseph hearings, because digital audio

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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. Plaintiffs also point out that the Government has conceded that it
is no more burdensome for the IJ to record a Joseph hearing than a removal hearing,
which is always recorded. Tellingly, the Government does not articulate the extent to
which requiring a contemporaneous verbatim record in Joseph hearings would
impose a fiscal or administrative burden. Conceivably, I recognize that there would
be at least some minimal administrative burden in requiring records to be kept. That
said, however, the minimal burden of record keeping is counterbalanced by the
burden currently imposed on the IJs when they are called upon to issue memoranda
of reasoning if an appeal were taken. Stated differently, should a recording be kept
of the Joseph hearings, presumably, any factual or legal findings would be placed on
the record; in that sense, there would be little need for the IJs to issue any written
decisions, particularly since a transcript of the proceedings would be available.
Therefore, I find that the Government would bear no additional burden in complying
with a contemporaneous verbatim records requirement for Joseph hearings. This
third Mathews factor is equipoised.
Finally, the parties discuss the import of the decision 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

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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 citizenship status and/or past
convictions to 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.
I conclude 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.

Further, requiring contemporaneous

verbatim records would not add substantial value as a procedural safeguard. While I
have found that the Government would bear no additional burden resulting from
requiring contemporaneous verbatim records of Joseph hearings, a weighing of all
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
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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”).
I caution that my legal holding rests solely upon the minimal protection that
the Constitution requires. But, as a matter of sound practice, recording the Joseph
proceedings would be a preferable practice, particularly since there is virtually no
additional burden on the part of the Government or the immigration courts to
implement 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 and encouraged. Nonetheless, since that protection is not constitutionally
required, I grant summary judgment for the Government on this issue.
VI.

Injunctive Relief
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). 31 Plaintiffs, however, argue that they do not seek

31

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
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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
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 reasoning in this context.
Therefore, the Government’s argument is rejected.
As a result of my findings herein, 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).

individual alien against whom proceedings under such part have been
initiated.
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CONCLUSION
On a final note, there is no doubt that the current immigration climate has led
some aliens, particularly those who are in the United States legally and have been in
this country for many years, i.e., legal permanent residents as are the Named
Plaintiffs here, to be wary of their status. More and more immigrants have resorted
to challenging, in courts, certain policies and laws in order to defend their asserted
rights to remain in this country. Indeed, the mandatory detention scheme under §
1226(c) and the Supreme Court decisions upholding various aspects of that statute,
have had a deleterious effect on the aliens who are detained by ICE. I am well aware
of these potentially harsh consequences and that there may be better options to treat
these individuals; nonetheless, having survived constitutional muster, the
appropriate forum to address § 1226(c) is Congress.
For the foregoing reasons, the Court decides the parties’ summary judgment
motions as follows: both parties’ summary judgment motions are GRANTED in part
and DENIED in part as to Plaintiffs’ claim related to the constitutionality of the

Joseph hearing; specifically, the Court issues a class-wide injunction that directs the
Government to initially satisfy an immigration judge that there is probable cause to
find that a detained alien under § 1226(c) falls under the mandatory detention
requirements under that statute. The Government’s motion is GRANTED as to all
other

claims,

including

Plaintiffs’

constitutional

contemporaneous verbatim records in Joseph hearings.

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challenge

to

a

lack

of

An appropriate order shall follow.

Date: September 3, 2019

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

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