GAYLE v. ELWOOD et al

Filing 94

OPINION filed. Signed by Judge Freda L. Wolfson on 3/14/2014. (eaj)

FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
GARFIELD O. GAYLE, et al.
:
:
Plaintiffs
:
Civil Action No. 12-2806 (FLW)
:
v.
:
:
OPINION
:
JEH JOHNSON,1 et al.,
:
:
Defendants.
:
:
___________________________________ :

WOLFSON, United States District Judge:
On August 5, 2013, putative class representatives Garfield O. Gayle (“Gayle”),
Neville Sukhu (“Sukhu”), and Sheldon Francois (“Francois”) (collectively, “Plaintiffs” or
“Named Plaintiffs”) filed their third amended class-action complaint (“TAC”) against
various federal and state government defendants 2 (collectively, the “Government”),

1

At the time the third amended class-action complaint was filed, Janet Napolitano
was Secretary of the DHS, but pursuant to Fed. R. Civ. P. 25(d), current Secretary of the
Department of Homeland Security (“DHS”) Jeh Johnson has been substituted.
2

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

alleging violations of the Immigration and Naturalization Act (“INA”) and the due
process clause of the United States Constitution. Specifically, Plaintiffs claim that they
and other similarly situated individuals in the District of New Jersey have been subjected
to unauthorized and/or unconstitutional mandatory immigration detention—i.e., detention
without any bond hearing to determine their dangerousness or risk of flight—under 8
U.S.C. § 1226(c), by the Department of Homeland Security, Immigration and Customs
Enforcement (“DHS”/“ICE”).3
Plaintiffs’ challenge to the Government’s application of § 1226(c) is two-fold.
First, Plaintiffs contend that serious constitutional issues arise from the Government’s
decision to provide an opportunity to challenge mandatory detention status to only those
aliens who argue that they are not “properly included” under § 1226(c).

In that

connection, Plaintiffs argue that the Court should interpret the statutory language “is
deportable” in § 1226(c) to cover all aliens who have a “substantial challenge” to
deportability, either because they are attacking their specified § 1226(c) detention
charges, as is already contemplated by In re Joseph, 22 I. & N. Dec. 799 (BIA 1999), or
because they are requesting discretionary relief from removal. Second, Plaintiffs contend
that the standards and burdens applied in the Joseph hearing—the hearing provided to
aliens challenging whether they are “properly included” in the mandatory detention
statute—are constitutionally inadequate and violate their due process rights. Plaintiffs

the Bergen County Jail; and Brian Elwood, Warden of the Monmouth County
Correctional Institution.
3

The TAC also contains an individual habeas claim for Francois. The Court
disposed of this claim in an Opinion and Order dated August 23, 2013. See Dkt. Nos. 80
& 81. This Opinion addresses only Plaintiffs’ remaining class-wide claims.
2

claim that the Joseph hearing standard unconstitutionally places a near-insurmountable
burden on the alien to show why he or she is not properly included under § 1226(c),
whereas the other burdens in removal proceedings—including the ultimate burden to
demonstrate that removal is appropriate—rest with the Government. Similarly, Plaintiffs
argue that certain other procedures used by the Government in enforcing § 1226(c) raise
due process concerns, particularly, the adequacy of the notice of a Joseph hearing and the
lack of a contemporaneous record of the hearing. To be sure, Plaintiffs do not challenge
the constitutionality of mandatory detention in removal proceedings under § 1226(c) per
se, which the Supreme Court found constitutional in Demore v. Kim, 538 U.S. 510
(2003); rather, Plaintiffs dispute their access to, and the adequacy of, the procedural
safeguards associated with mandatory detention, a question not yet addressed by the
Supreme Court or the Third Circuit. Based on these alleged statutory and constitutional
violations, Plaintiffs seek declaratory and injunctive relief against the Government (i)
permitting all aliens with substantial challenges to removal, whether based upon the
merits of the Government’s charges or discretionary relief, to seek a hearing to determine
the appropriateness of their mandatory detention status, and (ii) requiring the Government
to implement adequate procedures in carrying out mandatory detention proceedings.
Plaintiffs have filed several amended pleadings raising both individual habeas
claims on behalf of Named Plaintiffs, and claims for declaratory and injunctive relief on
behalf of a putative class of aliens similarly situated to Plaintiffs. As explained infra,
Named Plaintiffs’ individual claims for a bond hearing are moot. The only claims in the
TAC currently pending and subject to the Government’s most recent motion to dismiss
are the class-claims in the first cause of action for violation of the due process clause of

3

the Fifth Amendment and the second cause of action for violation of the INA. For the
reasons that follow, the Court grants in part and denies in part the Government’s motion
to dismiss.

Specifically, the Government’s motion to dismiss Plaintiffs’ claims for

declaratory and injunctive relief in Counts One and Two of the TAC is granted to the
extent that Plaintiffs are seeking to mandate a Joseph hearing for any mandatorily
detained alien under § 1226(c) who has a “substantial challenge” to his or her removal
based upon discretionary relief only. For that reason, Plaintiff Francois is dismissed for
lack of standing. The Government’s motion to dismiss is denied with respect to Gayle’s
and Sukhu’s challenges to the constitutional and statutory adequacy of the Joseph hearing
and its related procedures.
I.

BACKGROUND
Named Plaintiffs are each aliens with lawful permanent resident (“LPR”) status.

TAC, ¶¶ 8-10.4 Based on previous criminal convictions, Plaintiffs were charged by ICE
as removable5 under the INA. Id. Due to the nature of the convictions upon which ICE

4

For the purposes of this motion to dismiss, the following facts are drawn from
Plaintiffs’ TAC and supporting documents that are integral to the TAC, see In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997), and are
assumed to be true.
5

Like the applicable statutes and regulations, as well as the parties’ papers, this
Opinion uses the terms “removal” and “deportation” interchangeably to refer to
Plaintiffs’ immigration proceedings. See generally 5 CHARLES GORDON, STANLEY
MAILMAN, STEPHEN YALE-LOEHR, & RONALD Y. WADA, IMMIGRATION LAW AND
PROCEDURE § 64.01[1] (rev. ed. 2012) (“For cases starting on or after April 1, 1997, there
is a single removal proceeding, rather than separate “exclusion” and “deportation”
proceedings, as provided under prior law.”). Although Plaintiffs also frame their
arguments in terms of “inadmissibility” proceedings, Plaintiffs’ removal proceedings are
based only deportation, not inadmissibility; thus, I do not address this aspect of Plaintiffs’
argument.
4

based Plaintiffs’ removal, Plaintiffs were also arrested by ICE and mandatorily detained
pending the completion of their removal proceedings pursuant to § 1226(c). Id.
Plaintiff Garfield Gayle is a Jamaican national and LPR of the United States, who
has lived in the United States for approximately 30 years, most of the time in New York
City. Id. at ¶ 24. In 1995, Gayle was convicted of criminal possession of a controlled
substance with the intent to sell in the third degree under New York State Penal Law
§ 220.16. He served approximately two years of jail time and was released on parole in
June 1997. Id. at ¶ 26. On March 24, 2012, a team of ICE officers took Gayle from his
home in Brooklyn and placed him in their custody. Id. at ¶¶ 27, 30. ICE charged Gayle
with removal on the grounds that his 1995 conviction rendered him deportable, and also
found him subject to mandatory detention based on a March 2007 misdemeanor
controlled substance offense. Id. at ¶ 28.
While Gayle was detained and his removal proceedings were ongoing, he filed a
habeas petition in this Court asserting that DHS lacked the statutory authority to detain
him under 8 U.S.C. § 1226(c), because the statute requires DHS to take an alien into
custody immediately upon release from his conviction. See Dkt. Nos. 1; 12. In that
regard, Gayle argued that because DHS failed to take him into custody immediately upon
his release in 2007, he could not be subject to mandatory detention, and was instead
entitled to a bond hearing before an Immigration Judge. This Court agreed with Gayle
and ordered the Immigration Judge to provide Gayle with a bond hearing. See Dkt. No.
34 (Order granting Gayle’s habeas petition); see also Gayle v. Napolitano, Civ. No. 122806(FLW)(DEA), 2013 WL 1090993 (D.N.J. Mar. 15, 2013). Gayle was released on

5

bond on March 25, 2013, and the Government has not appealed this Court’s March 15,
2013 order.6
Plaintiff Neville Sukhu is a Guyanese national and LPR of the United States, who
has lived in the United States for approximately 20 years, almost entirely in New York
City. TAC, ¶ 45. In 1997, Sukhu pleaded guilty to assault in the second degree under
New York State Penal Law § 120.05(6). He served approximately 90 days of jail time
and was discharged from parole in September 2002. Id. at ¶ 46. In or around May 2011,
Sukhu pleaded guilty to a charge of disorderly conduct. Id. at ¶ 47. On August 15, 2012,
a team of ICE officers took Sukhu into custody upon Sukhu’s release from the disorderly
conduct conviction. Id. ICE charged Sukhu with removal on the grounds that his 1997
assault conviction was a crime involving moral turpitude that rendered him deportable,
and also that the combination of his 1997 conviction and a 2011 conviction for turnstile
jumping, under New York State Penal Law § 165.15, rendered him deportable. Id. ICE
also found Sukhu subject to mandatory detention under § 1226(c) based on his 1997
assault conviction. Id.
During his removal proceedings, Sukhu filed an individual habeas claim in this
Court premised on the Third Circuit’s holding in Diop v. ICE/Homeland Security, 656
F.3d 221 (3d Cir. 2011), which requires the Government to provide a mandatorily
detained alien with a bond hearing when the alien’s detention exceeds a reasonable

6

A subsequent decision by the Third Circuit in another case rejected the argument
that § 1226(c) only allows for mandatory detention if DHS takes the alien into custody
immediately upon release. See Sylvain v. Attorney Gen. of the United States, 714 F.3d
150 (3d Cir. 2013). However, as noted above, the Government did not appeal my
decision with respect to Gayle, and has not appeared to otherwise challenge his release on
bond by the Immigration Judge.
6

period of time. See Dkt. No. 12, ¶¶ 77-83. Also, as part of his removal proceedings,
Sukhu filed a motion to terminate removal on the basis that his 1997 conviction did not
constitute a crime involving moral turpitude, which motion was denied by the
Immigration Judge.

Id. at ¶ 48.

Sukhu additionally filed an application with the

Immigration Judge for discretionary relief in the form of adjustment of status. Id. at ¶ 49.
On April 30, 2013, the Immigration Judge granted Sukhu’s application for adjustment of
status and terminated his removal proceedings, see Dkt. No. 47-1, Ex. A, and on May 8,
2013, Sukhu was released from DHS custody. See Dkt. No. 48, 1. The Government has
not appealed the Immigration Judge’s decision.
Plaintiff Sheldon Francois is a citizen of Trinidad and Tobago and a LPR of the
United States, who has lived in the United States for approximately 20 years, most of the
time in New York City. TAC, ¶ 33. In 2011, Francois was convicted of petit larceny
under New York State Penal Law § 155.25.

He was sentenced to time served of

approximately one day, and discharged from parole in May 2011. Id. at ¶ 35. Also in
2011, Francois was convicted of criminal possession of a controlled substance in the
seventh degree under New York State Penal Law § 220.03, and was sentenced to time
served of approximately one day. Id. In March 2012, Francois was again convicted of
petit larceny under the same statute as his 2011 conviction, and ultimately sentenced to
30 days of incarceration. Id. On August 6, 2012, ICE officers took Francois into their
custody and charged him as removable and subject to mandatory detention under §
1226(c) based on his (i) 2011 drug possession conviction, and/or (ii) 2011 and 2012 petit
larceny convictions. Id. at ¶ 36.

7

Francois filed an individual habeas action in this Court, claiming that he had a
substantial challenge to his deportability and thus should be entitled to a hearing to
challenge whether he was subject to the mandatory detention statute. See Dkt. No. 51,
¶¶ 79-81.7 Francois did not file any motion to terminate in his immigration proceedings;
he did, however, file an application for discretionary relief in the form of cancellation of
removal pursuant to 8 U.S.C. § 1229b(a).8 Id. at ¶ 37. At a hearing on July 12, 2013, the
Immigration Judge orally granted Francois’ application, thereby cancelling his removal
and terminating the removal proceedings pending a forthcoming written decision in four
to six weeks. Id. at ¶ 41; see also Dkt. No. 63 at 1. Notwithstanding the Immigration
Judge’s pronouncement, Francois remained mandatorily detained, without any hearing to
determine whether he should be released on bond, and would continue to be so detained
through the duration of an appeal taken by either party. TAC, ¶ 42; see 8 U.S.C. § 1226.
In a decision dated August 23, 2013, this Court granted Francois’ individual habeas claim
for relief under the reasoning of Diop v. ICE/Homeland Security, 656 F.3d 221, and

7

Plaintiffs’ Amended Complaint, although naming and including facts relating to
Francois, did not include a cause of action for Francois individually. Plaintiffs informed
the Court, however, that they had also intended to include an individual habeas claim for
Francois. The Government did not oppose allowing Plaintiffs to amend their claims to
include Francois’ individual claim, which resulted in the Second Amended Habeas
Petition and Class Action Complaint. See Dkt. No. 51.
8

The INA provides that an Immigration Judge may cancel removal for a deportable
LPR who has (1) held LPR status for at least five years, (2) resided in the United States
continuously for seven years after having been admitted in any status; and (3) has not
been convicted of an aggravated felony at any time. 5 GORDON, ET AL., supra Footnote 5,
§ 64.04[2][b] (citing INA § 240A(a)(1)-(3), 8 U.S.C. § 1229b(a)(1)-(3)).

8

ordered the Immigration Judge to provide Francois with a bond hearing.9 See Dkt. No.
81; see also Francois v. Napolitano, Civ. No. 12-2806(FLW)(DEA), 2013 WL 4510004
(D.N.J. Aug. 23, 2013). On August 30, 2013, Francois was released on bond, and, on
September 26, 2013, the Immigration Judge issued his written decision granting
Francois’ application for cancellation of removal.
Accordingly, all that remains in the TAC are two claims for declaratory judgment
and injunctive relief on behalf of Named Plaintiffs as putative class representatives based
on violations of (1) the Due Process Clause of the Fifth Amendment, and (2) the INA.10
The Government’s pending motion to dismiss under Fed. R. Civ. P. 12(b)(6) seeks the
dismissal of both of these claims.
II.

STANDARD OF REVIEW
When reviewing a motion to dismiss on the pleadings, courts “accept all factual

allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be
entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)
9

Following additional submissions from the parties relating to the relevance of the
Third Circuit’s decision in Diop v. ICE/Homeland Security, 656 F.3d 221, the Court
granted Plaintiffs leave to file the instant TAC and to include a claim for Francois under
Diop.
10

At the request of the parties, on May 10, 2013, the Court held oral argument on
Plaintiffs’ declaratory and injunctive claims and on a motion to certify the class. At the
end of the argument, the Court (1) dismissed Gayle and Sukhu’s individual habeas claims
as moot, (2) denied the Government’s motion to dismiss based in part on the preliminary
finding that Plaintiffs had alleged sufficient facts with respect to Francois to support
Plaintiffs’ declaratory and injunctive challenges, (3) denied without prejudice Plaintiffs’
motion to certify the class pending additional discovery on that issue, and (4) granted
Plaintiffs leave to file a Second Amended Petition/Class Action Complaint and
supplemental briefing on Francois’s individual habeas claim. See Dkt. No. 50; see
generally Transcript of Oral Argument, May 20, 2013. No written decision was issued.
9

(citation and quotations omitted). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), the Supreme Court clarified the Rule 12(b)(6) standard, holding that the factual
allegations set forth in a complaint “must be enough to raise a right to relief above the
speculative level.” Id. at 555. “[T]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Moreover, “only a complaint that states a plausible
claim for relief survives a motion to dismiss.” Id.
The Third Circuit has reiterated that “judging the sufficiency of a pleading is a
context dependent exercise” and “[s]ome claims require more factual explication than
others to state a plausible claim for relief.” W. Penn Allegheny Health Sys., Inc. v.
UPMC, 627 F.3d 85, 98 (3d Cir. 2010). That said, the Rule 8 pleading standard is to be
applied “with the same level of rigor in all civil actions.” Id. (citations and quotations
omitted); see also Covington v. Int’l Ass’n of Approved Basketball Officials, 710 F.3d
114, 118 (3d Cir. 2013) (“[A] claimant does not have to set out in detail the facts upon
which he bases his claim. . . . The pleading standard is not akin to a probability
requirement . . . . [T]o survive a motion to dismiss, a complaint merely has to state a
plausible claim for relief.” (Citations and internal quotation marks omitted.)).
III.

ANALYSIS
Plaintiffs’ claims arise out of the Government’s application of the mandatory

detention scheme set forth in 8 U.S.C. § 1226(c).11 This is not the first judicial challenge
to this statute or mandatory detention generally in the immigration context, and thus,
11

This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal
question) and 28 U.S.C. §§ 2201-2202 (declaratory relief).

10

before setting forth the particulars of Plaintiffs’ claims, I begin with the legislative
background surrounding the enactment of § 1226(c) and the relevant controlling
precedent dealing with the constitutionality of mandatory detention of LPRs during
immigration removal proceedings. I note further that although the Government has
raised a standing challenge, thereby implicating this Court’s subject matter jurisdiction, I
delay my resolution of this issue until later in this Opinion because the question of
whether Plaintiffs have standing is dependent on the initial determination of which aliens
may properly challenge their mandatory detention status.12
A.

Section 1226(c)

Section 1226 governs the pre-removal detention of an alien, and 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.”13 8 U.S.C. § 1226(c)(1).

12

I further note that the resolution of Named Plaintiffs’ individual claims does not
necessarily prevent them from bringing their class-wide claims as putative class
representatives because they had viable claims at the time their initial class action motion
was filed. Wilkerson v. Bowen, 828 F.2d 117 (3d Cir. 1987) (no automatic
disqualification for putative class representative whose individual claim was mooted after
motion was filed but before the motion was decided). Because the Government has not
meaningfully raised such a challenge in its most recent motion to dismiss, I find no need
to address the appropriateness of Named Plaintiffs as putative class representatives at this
juncture apart from whether they have standing to bring their constitutional and statutory
claims.
13

Section 1226(c)(1) provides in full:
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,
11

Section 1226(c) finds its origin in the comprehensive overhaul of the INA that
occurred in the 1980s and 1990s, and represents one of the significant changes to the
INA’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 v. Kim, 538 U.S. 510
(2003), the importance of which will be discussed in more detail infra, Congress was
dissatisfied with the Immigration and Naturalization Service’s (“INS”) apparent failure to
remove deportable criminal aliens. 14 Id. 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

(B) is deportable by reason of having committed any offense
covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of
this title,
(C) is deportable under section 1227(a)(2)(A)(i) of this title on the
basis of an offense for which the alien has been sentence[d] to a
term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or
deportable under section 1227(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is
released on parole, supervised release, or probation, and without
regard to whether the alien may be arrested or imprisoned again for
the same offense.
8 U.S.C. § 1226(c).
14

INS is the predecessor to DHS/ICE. Khouzam v. Attorney Gen. of United States,
549 F.3d 235, 243 n.7 (3d Cir. 2008) (“The Homeland Security Act of 2002 . . .
eliminated the Immigration and Naturalization Service (‘INS’) and assigned INS’s
enforcement functions to the DHS’s Bureau of [ICE] . . . .”). As part of the Homeland
Security Act of 2002, the functions of the INS were transferred from the Department of
Justice to three different agencies under the newly formed DHS: ICE, Customs and
Border Protection, and Citizenship and Immigration Services, with ICE assuming the
majority of the INS’s immigration enforcement function. Lin-Zheng v. Attorney. Gen.,
557 F.3d 147, 152 n.4 (3d Cir. 2009) (citing Homeland Security Act of 2002, Pub. L. No.
107-296, 116 Stat. 2135).

12

removal hearings”).15 As part of a wholesale reform to 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. In particular,
§ 1226(c) provides for mandatory detention pending removal proceedings for any alien
who has committed certain categories of crimes.16 Significantly, 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 the 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.17 See 8 U.S.C. § 1226(c); Diop v.
ICE/Homeland Sec., 656 F.3d at 230, 232 (“At a certain point, continued detention
becomes unreasonable and the Executive Branch’s implementation of § 1226(c) becomes
unconstitutional unless the Government has justified its actions at a hearing inquiring into

15

As explained infra in this Opinion, there is some question as to the accuracy of
this data.
16

Specifically, § 1226(c) applies to aliens who are deportable on account of: having
been convicted of two or more crimes involving moral turpitude, an aggravated felony, a
controlled substance offense, certain firearm-related offenses, or certain other
miscellaneous crimes; or having committed a crime of moral turpitude within a certain
amount of time since their date of admission for which a sentence of one year or longer
has been imposed; and finally, aliens who are inadmissible or deportable because of
connections to terrorism. See 8 U.S.C. § 1226(c) (referencing id., §§ 1182(a)(2),
1227(a)(2)(A)(ii), 1227(a)(2)(A)(iii), 1227(a)(2)(B), 1227(a)(2)(C), 1227(a)(2)(D),
1227(a)(2)(A)(i), 1182(a)(3)(B), 1227(a)(4)(B)).
17

The sole statutory exception to mandatory detention is if the Attorney General
determines that the alien should be part of the federal witness protection program. Id.,
§ 1226(c).

13

whether continued detention is consistent with the law’s purposes of preventing flight and
dangers to the community.”).
In Demore v. Kim, 538 U.S. 510, the Supreme Court reviewed a challenge
brought under the due process clause to the constitutionality of mandatory detention
under § 1226(c). A majority of the Supreme Court held that “[d]etention during removal
proceedings is a constitutionally permissible part of that process” and thus, the “detention
of . . . a criminal alien who has conceded that he is deportable, for the limited period of
his removal proceedings” does not violate the alien’s constitutional rights. Id. at 531.
B.

Mandatory Detention Procedures and In re Joseph

In In re Joseph, 22 I. & N. Dec. 799 (BIA 1999), the Board of Immigration
Appeals (“BIA”) was presented with a challenge to the procedures used by the
Government in mandatorily detaining aliens under § 1226(c).

In Joseph, the INS

initiated removal proceedings against the respondent Joseph, an alien LPR from Haiti, on
the basis that the INS had “reason to believe” that Joseph was deportable for having been
convicted of an aggravated felony, and thus also subject to mandatory detention under §
1226(c).18 Id. at 801. The Immigration Judge ultimately determined that Joseph was not
an aggravated felon and, based on that determination, issued an order releasing Joseph
from custody. Id. The INS appealed both the Immigration Judge’s decision on the merits
and the release on bond, but the BIA in Joseph only addressed the issue of whether the
Immigration Judge properly released Joseph. Id. On appeal, the INS argued that under
18

DHS/ICE initiates removal proceedings by filing a “notice to appear,” Form I286, with the immigration court, which document normally includes the time and place of
the hearing; internal policy instructs that the notice must be served on the alien within 24
hours if the alien will be detained in custody. See generally 5 GORDON, ET AL., supra
Footnote 5, § 64.02[1].

14

the mandatory detention statute and corresponding regulation, the Immigration Judge
“lacked jurisdiction to redetermine the custody conditions imposed by the [INS].” Id. In
that connection, the INS claimed that, notwithstanding the Immigration Judge’s decision
on the merits, Joseph “remain[ed] ineligible for release [from mandatory detention
pending appeal] because his conviction record [still] provided the requisite ‘reason to
believe’ that he is removable as an aggravated felon.” Id. at 802 (citing Matter of Joseph,
Interim Decision 3387, at 10 (BIA 1999)).
The BIA, rejecting the INS’s argument, began by addressing the regulation
governing mandatory detention: 8 C.F.R. § 1003.19.19 Specifically, the BIA focused on
one provision of the regulation that permits, in limited circumstances, a mandatorily
detained alien to “seek a determination from the [Immigration Judge] ‘that the alien is not
properly included’ within certain of the regulatory provisions that would deprive the
[Immigration Judge] of bond jurisdiction” under § 1226(c). In re Joseph, 22 I. & N. Dec.
19

In Joseph, the relevant CFR provision was found at 8 C.F.R. § 3.19(h)(2). As part
of the Homeland Security Act of 2002, see supra, Footnote 14, the provision was
renumbered as 8 C.F.R. § 1003.19. I refer only to the current numbering in this Opinion
in the interest of consistency.
Section 1003.19(h) further provides, in relevant part:
(2)(i) . . . [A]n immigration judge may not redetermine conditions of
custody imposed by the Service with respect to the following classes of
aliens:
...
(D) Aliens in removal proceedings subject to section 236(c)(1) of the
Act [8 U.S.C. § 1226(c)(1)]
...
(ii) . . . [W]ith 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.
8 U.S.C. § 1003.19(h) (2013).
15

at 802 (quoting 8 C.F.R. § 3.19(h)(2)(ii) (1999)). Contrary to the INS’s claim that the
Immigration Judge lacked jurisdiction to reconsider the INS’s initial custody
determination, the BIA explained that although the alien’s “conviction record provided
the [INS] with the requisite ‘reason to believe’ . . . for the purposes of making the initial
custody determination . . . the [INS’s] decision . . . is not unreviewable by the
[Immigration Judge] or the [BIA] in either the bond or removal context.” Id. at 804.
(emphasis added). According to the BIA, the INS’s contrary position failed to allow for
any review of the INS’s determination, which was clearly at odds with the regulations.
See id. (citing Procedures for the Detention and Release of Criminal Aliens by the
Immigration and Naturalization Service and for Custody Redeterminations by the
Executive Office for Immigration Review, 63 Fed. Reg. 27,441, 27,447 (1998)).
The BIA explained that the very purpose of Section 1003.19(h)(2)(ii) “is to
provide an alien . . . with the opportunity to offer evidence and legal authority on the
question of whether the [INS] has properly included him within a category that is subject
to mandatory detention.” Id. at 805. Nevertheless, the BIA acknowledged that the
regulations did not provide the Immigration Judge with much guidance in determining
whether an alien is “properly included” in the mandatory detention statute. Id. at 806.
The BIA clarified that an alien is not “properly included” in a mandatory detention
category under § 1226(c) when an Immigration Judge or the BIA is convinced that the
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.” Id. (emphasis
added). Such a standard, the Joseph board reasoned, would give both (1) “significant
weight” to the INS’s initial custody determination, in line with congressional intent that

16

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 connection, the BIA further explained that an alien
could seek a hearing at the commencement of the removal proceedings, and the
Immigration Judge could make a determination based upon evidence presented at that
time; however, the BIA instructed the Immigration Judge 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.
The hearing and standard set forth in Joseph has since been applied to any alien
seeking a determination that he or she is not properly included under the mandatory
detention statute, and is commonly referred to as a “Joseph hearing.” Demore v. Kim,
538 U.S. at 514 n.3 (referencing Joseph hearing); see, e.g., In Matter of Davey, 26 I. & N.
Dec. 37, 38 (BIA 2012) (noting that Immigration Judge applied Joseph “substantially
unlikely” standard to alien challenging mandatory detention status).
C.

Plaintiffs’ Arguments

Plaintiffs raise two primary challenges to the application of, and procedures
related to, mandatory detention under § 1226(c). First, Plaintiffs challenge the scope of §
1226(c), namely who may argue that he or she is not properly mandatorily detained under
the statute.

In that connection, Plaintiffs argue that the language of § 1226(c) is

17

ambiguous, and that the Court should interpret the phrase “is deportable” for mandatory
detention purposes to cover only those aliens who do not have a “substantial challenge”
to deportability—whether by virtue of the fact that they ultimately (1) may be adjudged
not to be deportable or (2) may be found to be deportable under § 1226(c) but
nevertheless obtain discretionary relief that prevents them from actually being deported.
Second, in addition to, and apart from, who should be able to obtain a Joseph hearing,
Plaintiffs argue that the current standard and burdens imposed by the BIA at the Joseph
hearing effectively preclude any alien from challenging the merits of the Government’s
determination that the alien is properly included under the mandatory detention statute.
Finally, Plaintiffs challenge the constitutional and statutory propriety of other associated
procedures used by the Government in enforcing § 1226(c), attacking the adequacy of the
notice concerning the availability of a Joseph hearing as well as the lack of a
contemporaneous record made at such a hearing.
To reiterate, in light of the Demore decision, in neither of their claims are
Plaintiffs challenging the constitutionality of mandatory detention per se. Plaintiffs’
attack on pre-removal immigration detention only concerns who should be mandatorily
detained, and how a detainee may challenge detention, not mandatory detention itself.
Plaintiffs’ individual habeas petitions did not request immediate release from detention,
and they are not requesting such relief with respect to the prospective class. Instead,
Plaintiffs simply seek an interpretation of the statute and regulation governing mandatory
detention, and/or the BIA’s decision in Joseph, that would allow an Immigration Judge to

18

consider the question of bond for aliens such as Plaintiffs under the custody standards of
8 U.S.C § 1226(a).20
The Government moves to dismiss Plaintiffs’ claims, arguing first that the plain
language of § 1226(c) is unambiguous and provides for the mandatory detention of all
aliens that prima facie fall under the criminal categories in the statute, without regard to
whether they will ultimately be deported. The Government further relies on Demore to
support its reasoning, asserting that in upholding the constitutionality of mandatory
detention under § 1226(c), the Supreme Court did not base its decision on the actual
deportability of the detained alien. With respect to Plaintiffs’ challenge to the Joseph
hearing and the other procedures associated with mandatory detention, the Government
argues that none of the Named Plaintiffs have adequately alleged an injury as a result
thereof, and thus lack standing to bring their constitutional challenge. The Government
also argues that, in any event, the Joseph hearing standard and other mandatory detention
procedures are constitutionally adequate. As I noted previously, although a standing
challenge normally must be addressed first because it implicates a court’s subject-matter
jurisdiction, here I begin my analysis by addressing the parties’ arguments regarding who
20

Section 1226(a) provides in relevant part:
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 with security approved by, and
containing conditions prescribed by, the Attorney General; or
(B) conditional parole . . . .

8 U.S.C. § 1226(a).

19

is entitled to challenge his or her classification under the mandatory detention statute,
because resolution of this issue will determine whether Named Plaintiffs have viable
claims with respect to the adequacy of the Joseph hearing and related procedures.
1.

Challenges to Inclusion under § 1226(c)

Plaintiffs ask this Court to interpret § 1226(c) and corresponding regulation, 8
C.F.R. § 1003.19(h), to allow for a broader category of mandatorily detained aliens to
raise a challenge to their custody status—namely, the category should include any alien
who has a “substantial challenge” to his or her ultimate removal, including those aliens
who are adjudged to be removable but may receive discretionary relief from actual
deportation.

Plaintiffs acknowledge that the statute by its own terms applies to

“individuals who are ‘deportable’ on designated criminal grounds.”

TAC, ¶ 52.

Nevertheless, Plaintiffs claim that the term “is deportable,” and the related term “is
removable,” are not defined or used consistently in the INA, and are thus ambiguous. Id.
at ¶ 57. Specifically, Plaintiffs posit that “is deportable” could refer either to (1) any
alien that meets the threshold criteria for deportation, without regard to whether the alien
is actually deported, or (2) only those aliens who actually will be deported. In light of
this alleged ambiguity, Plaintiffs contend that, in order to avoid potential constitutional
issues, § 1226(c) should be read as not applying to any alien who has a “substantial
challenge to [his or her] final deportability.” Id. at ¶ 60. In other words, Plaintiffs seek
an interpretation of the statute that would allow a challenge to mandatory detention to be
raised either by an alien who has a threshold challenge to removal, e.g., that the alien’s
predicate conviction(s) on which removal is based is not covered by § 1226(c), or by an
alien who has a substantial claim to discretionary relief from removal, e.g., that the alien

20

may be eligible for cancellation of removal or adjustment of status. 21

Id.

The

Government opposes Plaintiffs’ interpretation on the basis that the plain language of the
statute unambiguously covers all aliens who are potentially removable, regardless of
whether they are actually deported, and that the current operation of § 1226(c) and
corresponding regulation do not raise any of the constitutional due process concerns
posited by Plaintiffs.
Contrary to Plaintiffs’ position, the Supreme Court’s decision in Demore all but
forecloses the argument that the term “is deportable,” as used in § 1226(c), means
something other than an alien who prima facie qualifies for removal under that statute’s
criteria. In upholding the constitutionality of mandatory detention, the Demore court
focused in large part on the fact that the alien had not argued that “he himself was not
‘deportable’ within the meaning of § 1226(c).” Demore, 538 U.S. at 522. The court
further explained in an accompanying footnote that by “conceding” his deportability “at
all previous stages of this proceeding,” the alien “by his own choice did not receive one
of the procedural protections otherwise provided to aliens detained under § 1226(c),” i.e.,
the Joseph hearing. Id. at 522 n.6 (cross-referencing id. at 514 n.3, which noted that the
“‘Joseph hearing’ is immediately provided to a detainee who claims that he is not
covered by § 1226(c)”). Significantly, the Demore court clarified that, “[l]est there be

21

Similarly, Plaintiffs also challenge the limited nature in which the BIA’s decision
in In re Joseph, 22 I. & N. Dec. 799, defines the individuals who are “deportable” within
the meaning of the statute. Plaintiffs contend that Joseph adopts a construction of this
term that raises serious constitutional concerns that could otherwise be avoided, and
therefore this Court should reject the Joseph standard as an impermissible construction of
§ 1226(c). See TAC, ¶ 71. I need not reach this argument because I conclude that the
statute itself is not ambiguous, and, further, that Joseph’s treatment of the term
“deportable” is consistent with the statutory language.
21

any confusion . . . by conceding he is ‘deportable’ and, hence subject to mandatory
detention under § 1226(c), [the alien] did not concede that he will ultimately be
deported.”22 Id. In other words, regardless of whether the alien has a challenge to his
ultimate removal, the Demore court held that it is constitutionally permissible to
mandatorily detain a deportable alien covered by § 1226(c), pending removal
proceedings, for a reasonable period of time. In doing so, the Demore court implicitly
acknowledged that the Joseph hearing is only available to those aliens challenging
whether they fell within § 1226(c); if the alien concedes that § 1226(c) applies, it is
constitutionally permissible to detain that alien without a bond hearing even if that alien
also has a challenge to his or her ultimate removal on other grounds. In sum, the Demore
Court did not consider it relevant to the constitutionality of § 1226(c) whether the statute
applies to a “deportable” alien who nevertheless might not ultimately be deported.
Admittedly, the issue in Demore of who should be included in the statute is
dictum, as the sole issue before the Court was whether an alien who conceded his actual
deportability could be mandatorily detained without an individualized determination of
dangerousness or risk of flight. Thus, I acknowledge that, in Demore, the Supreme Court
was not specifically called upon to interpret the term “is deportable” in deciding the
constitutionality of mandatory detention with respect to “deportable” aliens; however, it
is apparent that none of the Justices seemed concerned with distinguishing mandatorily
detained aliens who fall within the criminal categories specified in § 1226(c) from those
aliens who concede their deportability under that statute but also have the potential to
22

The Demore court referenced Justice Souter’s concurring and dissenting opinion
that noted that the alien had applied for discretionary relief in the form of withholding of
removal. Demore, 538 U.S. at 522 n.6.

22

obtain discretionary relief from their actual removal.

Indeed, even Justice Souter,

dissenting in Demore, acknowledged that aliens could be “covered” by § 1226(c) and still
have a challenge to their ultimate removal. Demore v. Kim, 538 U.S. at 561 (Souter, J.,
dissenting) (“Some individual aliens covered by § 1226(c) have meritorious challenges to
removability or claims for relief from removal.”).
This reading of Demore is further buttressed by the fact that the other Courts of
Appeals decisions explicitly abrogated by Demore concerned aliens who had either
conceded deportability or had been adjudicated deportable but nevertheless raised a
defense to actual removal. Patel v. Zemski, 275 F.3d 299, 308 (3d Cir. 2001) (holding
that “mandatory detention of aliens after they have been found subject to removal but
who have not yet been ordered removed because they are pursuing their administrative
remedies violates their due process rights unless they have been afforded the opportunity
for an individualized hearing at which they can show that they do not pose a flight risk or
danger to the community”) abrogated by Demore v. Kim, 538 U.S. 510; Welch v.
Ashcroft, 293 F.3d 213, 217-18 (4th Cir. 2002) (“Although the DOJ maintains that Welch
is deportable, his removal is not certain. . . . A successful application for either
citizenship or cancellation of removal will effectively terminate the DOJ’s current efforts
to remove Welch.”) abrogated by Demore v. Kim, 538 U.S. 510.
Beyond Demore, the term “deportable” and the related term “deportability” have
long been used to refer to whether an alien meets the criteria that would cause him to be
removed, independent of whether that alien qualified for discretionary relief that would
prevent him from being ultimately deported. See Foti v. Immigration and Naturalization
Service, 375 U.S. 217, 223 (1963) (“[T]he administrative discretion to grant a suspension

23

of deportation has historically been consistently exercised as an integral part of the
proceedings which have led to the issuance of a final deportation order, and discretionary
relief, if sought, must be requested prior to or during the deportation hearing. The
hearings on deportability and on an application for discretionary relief have, as a matter
of traditional uniform practice, been held in one proceeding before the same special
inquiry officer, resulting in one final order of deportation. Significantly, when suspension
is granted, no deportation order is rendered at all, even if the alien is in fact found to be
deportable.” (Emphasis added.)); Sandoval v. Reno, 166 F.3d 225, 239 (3d Cir. 1999)
(“Prior to AEDPA, INA § 212(c) permitted deportable aliens, other than those who had
committed specified crimes (such as aggravated felonies and crimes of moral turpitude),
to apply to the Attorney General for a waiver of deportation. AEDPA § 440(d) added
drug offenses to the list of deportable offenses that made aliens ineligible for
discretionary relief.”); Parra v. Perryman, 172 F.3d 954, 956 (7th Cir. 1999) (noting that
“an immigration judge concluded that Parra is deportable and ineligible for any relief
from removal” (emphasis added)); Yanez v. Holder, 149 F. Supp. 2d 485, 488 (N.D. Ill.
2001) (“Garza admits that he is deportable on grounds he was convicted of a firearm
charge. At his removal hearing, Garza challenged the INS’s aggravated felony charge
and argued that, if he is not an aggravated felon, he is eligible for discretionary relief
from removal under INS § 240A.”).23 But see Sengkeo v. Horgan, 670 F. Supp. 2d 116,

23

Likewise, in a recently issued opinion relating to whether an alien was eligible for
cancellation of removal, the Third Circuit noted as follows:
Significantly, our holding that a conviction under N.Y. Penal Law §
150.10 [for arson] does not constitute an aggravated felony does not mean
that Bautista will escape deportation. It only means avoiding mandatory
24

128 (D. Mass. 2009) (using the term “deportability” to refer to whether alien would
actually be deported in light of her challenge under the Convention Against Torture). I
therefore find that “is deportable,” as used in § 1226(c) and by the Supreme Court in
Demore, is not ambiguous. Rather, such a term refers to those aliens who, by virtue of
having committed certain crimes, are subject to removal proceedings and, in the case of §
1226(c), mandatory detention.24
Furthermore, adopting Plaintiffs’ broader application of the regulation by making
the right to a Joseph hearing available to any alien who has a substantial challenge to
removal, rather than merely a challenge to his or her classification under § 1226(c),
would undermine the congressional purpose of the statute. Prior to the enactment of
§ 1226(c) and the current mandatory detention scheme, the INS and Immigration Judges
had the discretion not to detain removable aliens; however, in response to perceived

removal. Bautista has conceded his removability for committing a crime
involving moral turpitude, and now will be eligible to apply for
cancellation of removal . . . .
Bautista v. Attorney General of the United States, ___ F.3d ___, 2014 WL
783019, at *11 n.8 (3d Cir. 2014).
24

Thus, I am not persuaded by Plaintiffs’ argument, advanced previously in
response to a motion to dismiss the Second Amended Petition/Class Action Complaint,
that the INA ambiguously employs the term “is deportable.” In support, Plaintiffs point
to a definitional section of the INA, which sets forth that “[t]he term ‘order of
deportation’ means the order of the special inquiry officer, or other such administrative
officer to whom the Attorney General has delegated the responsibility for determining
whether an alien is deportable, concluding that the alien is deportable or ordering
deportation.” See Dkt. No. 56 (Pls. Reply to Def. Motion to Dismiss), 2-3 (quoting 8
U.S.C. § 1101(a)(47)(A)). This limited example of the phrase “is deportable” being used
in the context of actual deportation appears only in the section of the INA defining the
deportation order. As noted above, in circumstances that do not reference a final
deportation order, courts have routinely treated the phrase “is deportable” to refer to the
threshold determination of deportability.
25

institutional failures of the immigration system—in particular, a finding that “more than
20% of deportable criminal aliens failed to appear for their removal hearings”—Congress
acted to remove this discretion with respect to a certain category of aliens. See Demore v.
Kim, 538 U.S. at 520-21 (explaining that § 1226(c) strongly circumscribes the Attorney
General’s discretion over custody determinations for certain deportable aliens). As the
Third Circuit has explained “[s]ection 1226(c) was intended to remedy this perceived
problem [of aliens failing to appear at proceedings] by ensuring that aliens convicted of
certain crimes would be present at their removal proceedings and not on the loose in their
communities, where they might pose a danger.” Diop v. ICE/Homeland Sec., 656 F.3d at
231-32 (citing Demore, 538 U.S. at 519; id. at 531 (Kennedy, J., concurring)); Demore,
538 U.S. at 528 (“[Section 1226(c)] 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.”).
Thus, § 1226(c) represents a clear congressional intent to remove from the immigration
authorities the discretion not to detain a certain category of aliens.25 See id.

25

While it appears that the primary basis for mandatory detention was congressional
concern over the possibility that potentially deportable aliens who were not detained
would fail to appear for their removal proceedings, frustrating the Government’s removal
efforts, see Diop v. ICE/Homeland Sec., 656 F.3d at 231-32 (citing Demore v. Kim, 538
U.S. at 519; id. at 531 (Kennedy, J., concurring)), nevertheless, the reports and data relied
on by Congress in enacting § 1226(c), and by the Supreme Court in upholding the
constitutionality of the law, have been heavily criticized by several scholarly
commentators as inaccurate and misleading. Scholars question whether there was in fact
a significant percentage of removable aliens who actually appeared before an
Immigration Judge for a bond hearing that then failed to return for their remaining
proceedings. See, e.g., Alina Das, Immigration Detention: Information Gaps and
Institutional Barriers to Reform, 80 U. CHI. L. REV. 137, 151-52 (2013) (“The
nonappearance statistics [relied on by Congress in enacting § 1226(c)]—which did not
clearly distinguish between noncitizens never detained by INS, noncitizens released by
26

Plaintiffs’ proposed interpretation of § 1226(c) runs counter to this purpose—a
purpose that the Supreme Court ruled was constitutional in Demore—by narrowing the
category of aliens whom the immigration authorities lack the discretion not to detain. In

INS on a low bond, or noncitizens released by an immigration judge after a bond
hearing—reveal little if anything about the effectiveness of bond hearings.”); Margaret H.
Taylor, Demore v. Kim: Judicial Deference to Congressional Folly, in DAVID A. MARTIN
AND PETER H. SCHUCK, EDS., IMMIGRATION STORIES 343, 348 (Foundation 2005) (“It was
not . . . a history of making poor judgments about flight risk or dangerousness, that
caused the INS to have such a weak record of deporting criminal offenders. Rather, the
agency . . . had no system in place to keep track of those who remained at liberty pending
deportation or after a final order was entered against them.”); see also Demore v Kim,
538 U.S. at 563 (Souter, J., concurring in part and dissenting in part) (arguing that the
congressional reports “tell[] us nothing about flight risk at all because . . . the INS was
making its custody determinations . . . in large part, according to the number of beds
available in a particular region.” (Internal quotation marks omitted.)).
Plaintiffs also posit that detention is costly. While, on this motion to dismiss, the
parties have not presented evidence comparing the costs of detention to the costs of
additional hearings, as would be required under Plaintiffs’ proposed interpretation of
§ 1226(c)—and thus I make no explicit finding in this regard—at least one commentator
cited by Plaintiffs has gleaned from recent DHS budget documents that, at a minimum,
the “federal government . . . spends $122 per day to detain a noncitizen facing removal
. . . [and] taxpayers spend $1.9 billion on immigration detention annually.” Das,
Immigration Detention, 80 U. CHI. L. REV. at 143 (citing DHS, Congressional Budget
Justification: FY 2012, 938-39 (2012)); see also id. at 143 n.33 (explaining that the
average costs of immigration detention increase when operating costs are taken into
account). At the very least, the cost of detention merits consideration of whether a broad
application of the mandatory detention statute aligns with the public’s fiscal interests;
indeed, it may be that the increased administrative burden and costs associated with
allowing a broader group of aliens to challenge their mandatory detention, as Plaintiffs
propose, is still less than the costs of detaining those aliens.
Lastly, I note that Plaintiffs argue that mandatory detention is problematic
because it may make it more difficult for mandatorily detained aliens to secure legal
representation in their removal proceedings. In that connection, Plaintiffs cite a recent
study showing both (i) the lack of representation for mandatorily detained aliens, and (ii)
a positive correlation between representation and a favorable outcome for the alien in the
removal proceedings.
See Steering Committee of the New York Immigrant
Representation Study Report, Accessing Justice: the Availability and Adequacy of
Counsel in Removal Proceedings, 33 CARDOZO L. REV. 357, 363 (2011). As with
Plaintiffs’ other similar arguments, although the findings in this study raise concerns over
the effects of mandatory detention, this type of data is more properly considered by
Congress, and not this Court in interpreting § 1226(c).
27

other words, by providing any alien who has a substantial challenge to removal to obtain
a hearing challenging his or her mandatory detention, despite that alien fitting within the
strictures of § 1226(c), Plaintiffs seek to allow an Immigration Judge the opportunity to
release the category of aliens that Congress explicitly determined should not be afforded
that opportunity. Such an interpretation fails as it runs counter to congressional intent as
expressed in the plain language of § 1226(c). See Lin-Zheng v. Atty. Gen., 557 F.3d 147,
156 (3d Cir. 2009) (“In matters of statutory construction, the duty of this Court is to give
effect to the intent of Congress, and in doing so our first reference is of course to the
literal meaning of the words employed.” (quoting Flora v. United States, 357 U.S. 63, 65
(1958))).
In sum, Plaintiffs’ argument that, constitutionally, a Joseph hearing must be
afforded to all aliens who have a substantial challenge to their removal—regardless of
whether these aliens are concededly subject to § 1226(c)—must be rejected. First, the
Supreme Court explicitly has held that Congress has the power to detain removable aliens
pending their removal proceedings for a reasonable amount of time, and specifically, that
there is sufficient justification for detaining without bond the certain categories of aliens
identified by Congress in § 1226(c). Diop v. ICE/Homeland Sec., 656 F.3d at 231-32
(“[The Supreme Court] reasoned that, although Congress’s powers are limited by the Due
Process Clause, aliens’ due process rights are not necessarily violated when they are
initially detained without a specific, individualized, finding that a particular alien poses a
flight risk or a risk of danger to the community.” (Citing Demore v. Kim, 538 U.S. at 52334.)). Second, in upholding the constitutionality of § 1226(c), the Supreme Court relied
on the existence of a procedural safeguard—the Joseph hearing—that would allow

28

someone to challenge mandatory detention solely on the basis that § 1226(c) did not
apply; however the Demore Court did not find it significant that some of these aliens who
fall within § 1226(c)’s categories may also have a challenge to their ultimate removal
based on discretionary administrative remedies.

Thus, if it does not violate the

Constitution to detain certain deportable aliens without an individualized finding of
dangerousness or flight, and without regard to the likelihood of their ultimate removal, a
fortiori it does not violate the Constitution to limit the availability of the Joseph hearing
to only those individuals challenging whether they fall within the categories of aliens to
which § 1226(c) applies. Accordingly, I reject Plaintiffs’ argument that those aliens who
concede their deportability under the terms of the statute, but still have a substantial
challenge to removal on other discretionary grounds, can challenge whether they are
“properly included” under § 1226(c) for mandatory detention purposes.26
Thus, while I reject Plaintiffs’ proposed interpretation of § 1226(c) on this
motion, I nevertheless appreciate the concerns with, and practical ramifications of,
preventing all aliens with a substantial challenge to removal from obtaining a hearing
challenging their detention. See supra, Footnote 25. It is not for this Court, however, to
contravene Supreme Court and Third Circuit precedent, or to intrude upon the role of
Congress, and so I am constrained to dismiss Plaintiffs’ challenge to the Government’s

26

Similarly, there is no basis for claiming that the very existence of 8 C.F.R. §
1003.19(h) and the Joseph hearing demonstrates congressional intent to insure that all
aliens with substantial challenges to removal can challenge their mandatory detention
status. The mere fact that the Government has a regulation and the BIA has established a
procedure to provide a hearing for aliens to challenge whether they have been properly
mandatorily detained does not inform whether Congress intended § 1226(c) to apply to
all aliens who prima facie fall within the scope of the statute, without regard to their
ultimate deportation.
29

§ 1226(c)’s application to all aliens who prima facie fit within the statute’s criminal
categories, despite their having other discretionary grounds for challenging removability.
2.

Plaintiffs’ Standing

The Government opposes Plaintiffs’ due process challenge to the Joseph hearing
and related procedures on two grounds. First, the Government contends that none of the
Named Plaintiffs has standing to bring such a claim because there is no allegation that
any of the Named Plaintiffs suffered any injury, and second, that neither § 1226(c) nor
Demore supports Plaintiffs’ claims.
To satisfy the “case or controversy” standing requirement under Article III, a
plaintiff must establish that he or she has suffered a cognizable injury that is causally
related to the alleged conduct of the defendant and is redressable by judicial action. In
the jurisprudence of standing, a “litigant must assert his or her own legal rights and
interests, and cannot rest a claim to relief on the legal rights or interests of third parties.”
Powers v. Ohio, 499 U.S. 400, 410 (1991); Valley Forge Christian Coll. v. Ams. United
for Separation of Church and State, Inc., 454 U.S. 464, 474-75 (1982); Wheeler v.
Travelers Ins. Co., 22 F.3d 534, 538 (3d Cir. 1994). A plaintiff will fail to meet this
requirement if the plaintiff merely raises a “generally available grievance about
government—claiming only harm to his and every citizen’s interest in proper application
of the Constitution and laws, and seeking relief that no more directly and tangibly
benefits him than it does the public at large.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 573-74 (1992).

Thus, in challenging the application of a federal statute—as

Plaintiffs do here—the challengers must show that they have already sustained, or are in

30

immediate and certain danger of sustaining, a real and direct injury. O’Shea v. Littleton,
414 U.S. 488, 494 (1974); Massachusetts v. Mellon, 262 U.S. 447, 488 (1923).
In this case, my inquiry must begin with Named Plaintiffs’ standing. Winer
Family Trust v. Queen, 503 F.3d 319, 326 (3d Cir. 2007) (holding that the “initial
inquiry” into standing in a putative class action is “whether the lead plaintiff individually
has standing, not whether or not other class members have standing”); see also Blum v.
Yaretsky, 457 U.S. 991, 999 (1982) (“Nor does a plaintiff who has been subject to
injurious conduct of one kind possess by virtue of that injury the necessary stake in
litigating conduct of another kind, although similar, to which he has not been subject.”).
Here, then, my first question is whether any of the Named Plaintiffs has suffered an
injury-in-fact due to allegedly inadequate mandatory detention procedures.
The Government contends that Plaintiffs lack standing to challenge the
constitutionality of the Joseph hearing and its associated procedures because none of the
three Named Plaintiffs has alleged his entitlement to such a hearing.

Review of

Plaintiffs’ TAC reveals the following general allegations and claims concerning the
Joseph hearing and other mandatory detention procedures:
“Plaintiffs are among hundreds of detainees in New Jersey held pursuant to the
government’s sweeping misapplication of the mandatory immigration detention
statute, 8 U.S.C. § 1226(c).” TAC, ¶ 60.
“On any given day, there are roughly 200-400 proposed class members in New
Jersey who, like Plaintiffs, are subject to mandatory detention under the Joseph
standard and the agency’s deficient procedures.” Id. at ¶ 64.
“[T]here are several common questions of law and fact in this action, including
(1) whether the government’s policy of subjecting non-citizens to mandatory
detention under the unlawful Joseph standard and deficient hearing procedures is
authorized by statute . . . .” Id. at ¶ 65.

31

“[L]ike all the proposed class members, the Named Plaintiffs are individuals who,
pursuant to the government’s policy, have been subjected to mandatory detention
under the Joseph standard and deficient hearing procedures pending completion
of removal proceedings.” Id. at ¶ 66.
“Proposed class members are currently subject to mandatory immigration
detention without the substantive and procedural protections that such a
significant deprivation of liberty requires.” Id. at ¶ 71.
“[P]roposed class members have been subject to mandatory detention under the
BIA’s unlawful Joseph standard and without an adequate hearing . . . .” Id. at
¶ 76.
“[D]etainees who request and obtain a Joseph hearing can prevail only if they
show that the government’s charges are frivolous—i.e., that their criminal offense
clearly does not render them ‘deportable’ or ‘inadmissible.’” Id. at ¶ 54.
“[B]ecause the custody determination notice that the government provides to
individuals subject to mandatory detention states that no review of their custody
determinations is available, many, and perhaps most, of these detainees are not
even aware that they may request a Joseph hearing . . . .” Id. at ¶ 55.
Although Plaintiffs speak in terms of the “unlawful Joseph standard” and “deficient
hearing procedures,” these allegations are too generalized to show that Named Plaintiffs
suffered any actual injury-in-fact. Accordingly, I must turn to the facts specific to each
of the Named Plaintiffs.
Plaintiff Garfield Gayle has sufficiently alleged standing to challenge the Joseph
hearing and associated procedures. Unlike the alien in Demore, Gayle has not conceded
his removability. Indeed, the TAC contains allegations that Gayle is seeking termination
of his removal proceedings because he contends that the Government cannot meet its
burden of proving the existence of the 1995 state conviction for drug possession with
intent to sell—the crime on which the Government bases its removal proceedings. See
TAC, ¶¶ 26-29. The Demore Court acknowledged that a Joseph hearing is available to
an alien challenging his or her basis for removal. See Demore, 538 U.S. at 514 n.3; see

32

also Joseph, 22 I. & N. at 806-807. Thus, based on the facts and pleadings currently
before the Court, it appears that Gayle could properly have sought and obtained a Joseph
hearing. Further supporting Gayle’s standing are his statements, in a declaration, that he
sought but did not receive a Joseph hearing.27 Specifically, Gayle declared that on the I286 Notice to Appear form he received from ICE on March 24, 2012, he checked a box
requesting a redetermination of his custody hearing by an Immigration Judge. See Dkt.
No. 31-30 (Decl. of Garfield Gayle, dated Jan. 23, 2013), ¶ 1. However, Gayle stated that
(i) he never received any such hearing, (ii) ICE never told him that he was entitled to a
Joseph hearing, and (iii) when Gayle first appeared before the Immigration Judge, Gayle
was told he was not eligible for any hearing with respect to his detention status. See id. at
¶ 2. In light of the foregoing, I find that Gayle had a basis for challenging his inclusion
under § 1226(c), which he did not waive or otherwise concede, and thus, Gayle has
standing to bring a challenge to the adequacy of the Joseph hearing and its associated
procedures.
Plaintiff Neville Sukhu, also has standing to challenge the Government’s
mandatory detention procedures, including the Joseph hearing.

The TAC contains

allegations that ICE charged Sukhu with being deportable and removable based on a
1997 state assault conviction and a 2011 state turnstile jumping conviction, and, as a
result, detainable under § 1226(c). TAC, ¶ 47. The TAC also contains an allegation that,
27

Although Gayle’s declaration, like others I consider in this Opinion for standing
purposes, was attached to a previously filed pleading, given (i) the nature of how this
matter has progressed, with the amended pleadings filed only in connection with the
Named Plaintiffs’ individual habeas claims, (ii) the fact that the affidavit is wholly
consistent with Plaintiffs’ TAC allegations, and (iii) the Government does not appear to
dispute these allegations, I find it appropriate to rely on the declaration in ruling on the
Government’s motion to dismiss the TAC.
33

prior to his removal being terminated on discretionary grounds, Sukhu had a substantial
argument for termination of his removal proceedings on the basis that his assault
conviction is not a crime involving moral turpitude. Id. at ¶ 48. Like Gayle, such an
argument is a basis for Sukhu to challenge, in a Joseph hearing, his inclusion in
§ 1226(c); if the assault conviction is not a crime involving moral turpitude, then Sukhu’s
criminal record would not place him in mandatory detention. See id.; 8 U.S.C. § 1226(c).
Notably, the Government does not appear to contest this fact. Moreover, and again like
Gayle, Sukhu submitted an affidavit explaining that upon receipt of the I-286 form,
Sukhu checked the box requesting a redetermination of his custody status but never
received any such hearing. See Dkt. No. 31-24 (Decl. of Neville Sukhu, dated Jan. 23,
2013), ¶ 3. Sukhu further declared that when he finally appeared before an Immigration
Judge for his removal proceeding, the Immigration Judge told Sukhu that he was subject
to mandatory detention, which led Sukhu to believe he could not ask for review of his
custody status. See id. at ¶ 4.
Finally, with respect to Plaintiff Sheldon Francois, the TAC makes clear that
throughout his removal proceedings he only has claimed a strong case to challenge his
ultimate deportability through discretionary relief in the form of cancellation of removal.
See id. at ¶¶ 37, 41. There is no allegation that he ever challenged his detention by
requesting a Joseph hearing on the basis that he was not properly included under
§ 1226(c), or otherwise challenging the Government’s prima facie case of deportability.28

28

This Court denied the Government’s previous motion to dismiss Plaintiffs’ First
Amended Complaint (“FAC”), which contained a claim virtually identical to the one
discussed above, based in part on the declaration of Plaintiff Sheldon Francois attached to
Plaintiffs’ response to the Government’s motion to dismiss. In that declaration, Francois
34

Cognizant of the principle espoused by the Third Circuit that the requirement to
“clearly and specifically set forth facts sufficient to satisfy [the] standing requirements,”
should not be “exaggerated” at the motion to dismiss stage, see Hosp. Council of W. Pa.
v. City of Pittsburgh, 949 F.2d 83, 86-87, 88 (3d Cir. 1991), I find that both Gayle and
Sukhu have pleaded facts sufficient to demonstrate standing to challenge the issue of the
constitutional adequacy of the Joseph hearing: at the time their original pleadings were
filed, Gayle and Sukhu had claims that they should not be detained under § 1226(c). See
also Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 104 (1998) (holding that at the
pleading stage, the court may “presume that the general allegations in the complaint [as
to standing] encompass the specific facts necessary to support those allegations”).
Specifically, Gayle had a claim that the Government could not prove its case for removal,

stated that he received Form I-286 Notice of Custody Determination from U.S.
Immigration and Customs Enforcement—the form at question in Plaintiffs’ procedural
challenges—which indicated that Francois was being detained and that he could not
request review of his detention by an Immigration Judge. See Pl. Response to Gov’t First
Motion to Dismiss, Dkt. 31-27 (Decl. of Sheldon Francois), ¶ 3. Francois further
declared that he nevertheless checked a box on the form requesting a hearing, but never
received one. At oral argument on May 10, 2013, I stated that Francois’s declaration
provided a sufficient basis to find that Plaintiffs had standing to pursue their challenge to
the Joseph hearing procedures, finding the form to be confusing and/or misleading, a fact
that the Government appeared to acknowledge as well. See Tran. Oral Arg., May 10,
2013, T18:3-T21:6.
My original analysis is altered now that I have concluded that the Joseph hearing
applies only to those aliens who have a challenge to their inclusion in § 1226(c), rather
than to those who have a substantial challenge to their removal. Francois never alleged
or argued that he was not properly included under § 1226(c); he only claimed that he had
a strong case to challenge his ultimate deportability through discretionary relief in the
form of cancellation of removal. Thus, the pleadings as well as Francois’ declaration are
insufficient to confer standing to challenge the Joseph hearing because Francois himself,
like the detained alien in Demore, conceded that his detention was proper under the plain
terms of § 1226(c). See Demore v. Kim, 538 U.S. at 514 n.3; id. at 522 & n.6 (explaining
that by conceding deportability, detained alien “by his own choice” did not receive
Joseph hearing). In sum, Francois has no standing to challenge the Joseph hearing and
associated procedures.
35

and Sukhu had a claim that the nature of his criminal offenses did not subject him to
mandatory detention.
I do not find it determinative for standing purposes, as the Government suggests,
that neither Gayle nor Sukhu ever received a Joseph hearing. In order for Gayle and
Sukhu to have standing, it is not necessary that they obtained a Joseph hearing because,
based on the facts as plead, both Gayle and Sukhu were entitled to such a hearing—
irrespective of whether such a hearing would have been nothing more than an exercise in
futility, as discussed infra. See Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (quoting
Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 94-95 (D.C. Cir. 2002) (“A
plaintiff who alleges a deprivation of a procedural protection to which he is entitled never
has to prove that if he had received the procedure the substantive result would have been
altered.” (Emphasis added.)); Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7
(1992) (“The person who has been accorded a procedural right to protect his concrete
interests can assert that right without meeting all the normal standards for redressability
and immediacy.” (Emphasis added.)); cf. Newark Branch, NAACP v. Harrison, 907 F.2d
1408, 1415 (noting that “[t]hreatened injury can constitute injury-in-fact [for purposes of
establishing standing] where the threat is so great that it discourages the threatened party
from even attempting to exercise his or her rights” (internal quotation marks omitted)).
Indeed, as explained in more detail infra, Plaintiffs’ TAC also alleges that the
Government fails to provide adequate notice of Joseph hearings to mandatorily detained
aliens and, worse, in fact provides mandatorily detained aliens with an affirmatively

36

misleading document informing these aliens that they are not entitled to any hearing.29
See TAC, ¶ 55. In light of this fact, I also find that because Gayle and Sukhu have
standing to challenge the adequacy of the Joseph hearing, they similarly have standing to
challenge the adequacy of the procedures employed by the Government in carrying out a
Joseph hearing.30
In sum, the TAC does not contain allegations sufficient to demonstrate that
Francois sustained an injury-in-fact related to the Joseph hearing or its associated
procedures.

Rather, Francois is akin to the alien in Demore, who, by conceding

deportability, “by his own choice” forewent the opportunity to receive a Joseph hearing
to contest that his detention was proper under § 1226(c). See Demore v. Kim, 538 U.S. at
514 n.3, 522 & n.6. Conversely, Gayle and Sukhu have alleged facts showing that they
had a challenge to whether they were properly detained under § 1226(c), and thus were
eligible to receive a Joseph hearing; accordingly, Gayle and Sukhu have standing to
challenge the adequacy of the hearing and its associated procedures.
3.

Plaintiffs’ Challenges to the Joseph Hearing and Related Procedures

Plaintiffs contend that the Joseph hearing does not afford aliens an adequate
protection to challenge mandatory detention, and thus, the Government is violating
29

See my discussion of the I-286 Form, supra, Footnote 28. Although the
Government has suggested that mandatorily detained aliens are informed in other ways
about their ability to request a Joseph hearing, see Tran. Oral Arg., May 10, 2013,
T18:25-T20:18, I must accept Plaintiffs’ allegations as true at this stage.
30

On the other hand, because Francois does not have standing to challenge the
Joseph hearing, he also does not have standing to challenge the procedures associated
with that hearing. The cases Plaintiffs rely on to argue that all three Named Plaintiffs
have standing, which are cited in the text above, expressly acknowledge that in order to
have standing, the individual must nevertheless be entitled to such procedures in the first
instance.

37

Plaintiffs’ constitutional and statutory rights by failing to provide a meaningful hearing.
Specifically, Plaintiffs argue that because the Joseph hearing requires the mandatorily
detained alien to prove that the Government is “substantially unlikely” to prove its case in
the immigration proceedings—which evidentiary hurdle is “virtually insurmountable”
according to Plaintiffs—an alien detained under § 1226(c) has no meaningful opportunity
to challenge whether he or she is “properly included” under the statute. 31 As noted, in
order for an alien to show that he or she is not “properly included” in a mandatory
detention category under § 1226(c), the alien must prove at a Joseph hearing that the
DHS “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.” Matter of
Joseph, 22 I & N. Dec. at 806 (emphasis added). At this juncture, the Government does
not dispute that some form of a hearing must be provided to aliens detained pursuant to
§ 1226(c); it argues only that the Joseph hearing satisfies due process and the provisions
of the INA.32 See Def. Br. at 18-19. Specifically, the Government argues that Plaintiffs

31

Further, Plaintiffs appear to be challenging not only the legal standard as it is set
forth in Joseph but also how Immigration Judges and the BIA have since applied that
standard. See Tran. Oral Arg., May 10, 2013, T11:23-T12:13.
32

At one point in this litigation, the Government argued that the BIA’s decision and
standard set forth in Joseph are subject to deference under Auer, as being the reasonable
interpretation of the agency’s regulations. See Auer v. Robbins, 519 U.S. 452 (1997).
This argument appears to have been withdrawn, as there is no reference to the Auer
decision in the Government’s motion to dismiss the TAC. Nevertheless, I note that
Plaintiffs are challenging In re Joseph and the regulation it interpreted, 8 C.F.R. §
3.19(h)(2)(ii), on the basis that the decision and regulation are “substantively unlawful,”
which would not appear to be governed by Auer. Auer v. Robbins, 519 U.S. at 459 (“A
court may certainly be asked by parties . . . to disregard an agency regulation that is
contrary to the substantive requirements of the law . . . .”). Accordingly, I do not find it
appropriate to defer to the BIA’s Joseph decision under Auer.
38

fail to offer any factual allegations in support of their claim that the Joseph hearing
prevents aliens from challenging whether they are properly included under § 1226(c).
The constitutional adequacy of the Joseph hearing is an open question not
addressed by the Supreme Court in Demore or by the Third Circuit. See Demore v. Kim,
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 v. ICE/Homeland Security, 656 F.3d 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 . . . .”). Indeed, the Government acknowledges
that neither the Supreme Court nor the Third Circuit has passed on this issue.33
According to Plaintiffs, the stringent burden placed on an alien under Joseph
effectively prevents that alien from meaningfully challenging whether he or she is
properly included in § 1226(c), and thus, there are aliens being mandatorily detained
improperly simply because they are unable to sustain the onerous burden placed on them
by Joseph. In that sense, Plaintiffs’ characterization of their challenge to the Joseph
hearing, as unconstitutional and/or unauthorized by the INA, is viable—section 1226(c)
only authorizes, and the Supreme Court only ruled on, mandatory detention for those
aliens who fall within the strictures of that statute. The Government argues, however,

33

In that connection, it is worth noting that at least one Court of Appeals judge,
from the Ninth Circuit, has raised questions concerning whether Joseph provides an
adequate constitutional safeguard for those aliens who wish to challenge the
Government’s determination that they should be subject to mandatory detention. See
Tijani v. Willis, 430 F.3d 1241, 1244 (9th Cir. 2005) (Tashima, J., concurring) (“The
BIA’s Joseph decision was, plainly put, wrong. . . . [Joseph] establishes a system of
‘detention by default’ by placing the burden fully on the alien to prove that he should not
be detained.”).
39

that the Joseph hearing and standard is an adequate procedural mechanism to contest
detention.
I conclude that Plaintiffs have 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.
Plaintiffs’ TAC is replete with allegations that the incredibly high burden placed on the
alien in the Joseph hearing—requiring the alien to show that Government is
“substantially unlikely” to prove that the alien is deportable—is nearly “impossible to
satisfy.” See, e.g., TAC, ¶ 54. According to Plaintiffs’ allegations, which I must take to
be true at this stage, only where aliens can show that the Government’s charges are
frivolous—“i.e., that their criminal offense clearly does not render them ‘deportable’ or
‘inadmissible’”—do aliens detained under § 1226(c) have a chance of showing that they
are being mandatorily detained in error. Id. (emphasis added). Such a standard is
problematic, both under the INA and the Constitution.

The characterization of the

criminal offense or offenses on which an alien’s mandatory detention is based is often not
readily apparent. See Joseph, 22 I. & N. Dec. at 806-807 (noting same). Indeed, whether
an alien’s predicate state crimes can be properly categorized as offenses under the INA
that would subject the alien to mandatory detention are heavily litigated and frequently
result in appeals from the Immigration Judge to the BIA and the Court of Appeals. E.g.,
Bautista v. Attorney Gen. of the United States, ___ F.3d ___, 2014 WL 783019 (3d Cir.
2014) (determining, for purposes of alien’s eligibility for cancellation of removal,

40

whether New York arson conviction qualified as “aggravated felony” under INA). 34
Thus, it is entirely plausible that an alien subject to mandatory detention, who has a bona
fide challenge to his or her inclusion under § 1226(c), will nonetheless be unable to show
that the Government’s charges are clearly frivolous at a Joseph hearing.
Moreover, Plaintiffs have alleged, which again this Court accepts as true on this
motion and is also in line with the language of Joseph, that in order to show that
mandatory detention is proper at the Joseph stage, the Government does not even have to
produce a certified record of the alien’s predicate criminal convictions. See TAC, ¶ 53;
Joseph 22 I. & N. Dec. at 807. Not requiring such a de minimis burden of production be
placed on the Government to show its “reason to believe” that the alien is included under
§ 1226(c), when combined with the high burden placed on the alien to show that the
Government is “substantially unlikely” to prove its case, further makes it plausible that
the alien’s ability to challenge his or her mandatory detention is all but illusory. The
Joseph standard is particularly disturbing because the Government must prove ultimate
deportability by a clear and convincing evidence standard, “based upon reasonable,
substantial, and probative evidence,” 8 U.S.C. § 1229a(c)(3)(A)—a standard the
Government itself acknowledges, see Def. Br. at 19—but the Government appears to
have little to no burden of production or proof to show that mandatory detention is proper
until the final stages of the removal proceeding.
In that connection, I note that, notwithstanding Demore’s countenance of
mandatory detention during immigration proceedings for certain categories of aliens, the
34

Although Bautista concerns cancellation of removal, and not mandatory
detention, the legal analysis applied by the Immigration Judge, and subsequently on
appeal, would be the same in either case. Cf. Joseph, 22 I. & N. Dec. at 806-807.
41

Supreme Court has long and consistently recognized that aliens—especially LPRs such
as Plaintiffs—are entitled to “‘due process of law in deportation proceedings.’” Demore,
538 U.S. at 523 (quoting Reno v. Flores, 507 U.S. 292, 306 (1992), in turn citing The
Japanese Immigrant Case, 189 U.S. 86, 100-101 (1903)); see also Diop, 656 F.3d at 231
(“[The] Due Process Clause refers to ‘any person,’ which means that aliens, no less than
native-born citizens, are entitled to its protection.” (Citing Zadvydas v. Davis, 533 U.S.
678, 693 (2001)). In light of this due process requirement, and given that the Joseph
standard essentially reverses the normal burdens applicable in a removal proceeding, I
find that Plaintiffs’ allegations that Joseph is constitutionally infirm are sufficient to
withstand the Government’s motion to dismiss and to permit discovery to proceed.35
In sum, the question of whether Joseph provides an alien who is mandatorily
detained pursuant to §1226(c) a constitutionally adequate means to challenge the
Government’s detention determination is an open question. I conclude that Plaintiffs
have more than sufficiently alleged that the burdens placed on aliens at the Joseph
hearing effectively deprive those aliens of bringing a meaningful challenge to their
inclusion in the mandatory detention scheme, thereby preventing aliens who should not
be mandatorily detained from being considered for release on bail as would otherwise be
appropriate. Mandatory detention is a severe deprivation of liberty, and thus an alien
who has been mandatorily detained but should not have been, because the alien did not fit

35

For exampe, although not specifically alleged, a plausible inference can be drawn
from the facts alleged in the TAC that an alien who has been mandatorily detained under
§ 1226(c) often may be unlikely to develop a record sufficient to rebut the Government’s
case because the mandatorily detained alien will be unable to obtain the necessary
documents or other proofs necessary to challenge the Government’s detention
determination.
42

within § 1226(c), has a viable claim for a violation of his or her due process rights. See,
e.g., Demore, 538 U.S. at 531-33 (Kennedy, J., concurring) (“[D]ue process requires
individualized procedures to ensure there is at least some merit to the [INS’] charge and,
therefore, sufficient justification to detain a lawful permanent resident alien pending a
more formal hearing.”); Zadvydas, 533 U.S. at 690 (“A statute permitting indefinite
detention of an alien would raise a serious constitutional problem. . . . Freedom from
imprisonment—from government custody, detention, or other forms of physical
restraint—lies at the heart of the liberty that [the Due Process] clause protects.”); Diop,
656 F.3d at 232 (adopting Justice Kennedy’s concurring view in Demore that
“Congress’s broad immigration powers allow it to pass a law authorizing an alien’s initial
detention [without an individualized bond hearing], so long as those implementing the
statute provided individualized procedures through which an alien might contest the basis
of his detention”). Accordingly, the Government’s motion to dismiss will be denied on
the issue of the adequacy and constitutionality of the Joseph hearing.36
Plaintiffs also seek a judgment declaring that the Government’s procedures used
in carrying out mandatory detention under § 1226(c), namely those associated with how
the Joseph hearing is noticed and conducted, violate the INA and/or the Constitution.
Specifically, Plaintiffs claim that the following aspects of mandatory detention violate the

36

To the extent that the Government argues that its motion to dismiss should be
granted because Plaintiffs have not adequately alleged that the burden of proving the
appropriateness of mandatory detention should be placed on the Government at a Joseph
hearing, the Government’s argument is misplaced. Although Plaintiffs seek such a ruling
in their prayer for relief, my analysis of the Government’s motion to dismiss turns on
whether Plaintiffs have adequately stated a claim for a violation of their constitutional
and statutory rights, which I conclude they have, and not on what ultimate relief, if any,
may be ordered.
43

INA and/or Plaintiffs’ due process rights under the Constitution: (1) the DHS/ICE form
used to inform aliens of the basis for their detention and their right to request a Joseph
hearing, and (2) the lack of a contemporaneous record during the Joseph hearing.
“Procedural due process imposes constraints on governmental decisions which
deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due
Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S.
319, 332 (1976). “The right to be heard before being condemned to suffer grievous loss
of any kind, even though it may not involve the stigma and hardships of a criminal
conviction, is a principle basic to our society.” Id. at 333. Thus, “[t]he fundamental
requirement of due process is the opportunity to be heard at a meaningful time and in a
meaningful manner.” Id. (Internal quotation marks omitted.)).
Although an alien’s mandatory detention for a reasonable period pending removal
is constitutional, nevertheless, “‘the Fifth Amendment entitles aliens to due process of
law in deportation proceedings.’” Demore v. Kim, 538 U.S. at 523, (quoting Reno v.
Flores, 507 U.S. 292, 306 (1993)).

Thus, even in circumstances where mandatory

detention is constitutionally permissible, due process still requires “adequate procedural
protections” to ensure that the Government’s stated justification for detaining an alien
without a bond hearing “outweighs the individual’s constitutionally protected interest in
avoiding physical restraint.” Zadvydas v. Davis, 533 U.S. at 690 (internal quotation
marks omitted); see id. at 695 (distinguishing the deferential review afforded to
congressional immigration policies from the more stringent review of the implementing
procedures used to carry out those policies); Demore, 538 U.S. at 531-33 (Kennedy, J.,
concurring).

44

Plaintiffs have made colorable claims for due process violations arising from the
procedures related to mandatory detention. Specifically, Plaintiffs object to the primary
form used to notify aliens of the Government’s decision to place them in mandatory
detention, Form I-286, which states on the form that an alien detained under § 1226(c)
may not request review of his or her custody determination by an Immigration Judge.
See supra, Footnote 28. Plaintiffs allege, and the Court agrees, that Form I-286 is flawed.
At best, the form is confusing, and at worst, it is affirmatively misleading. As such, use
of this form raises serious issues as to whether aliens who are informed of their
mandatory detention status by Form I-286 receive constitutionally adequate notice of
their right to a Joseph hearing.

Thus, Plaintiffs have stated a claim regarding the

adequacy of notice.
Plaintiffs further argue that the lack of a contemporaneous recording or transcript
of the Joseph hearing prevents any meaningful appeal of the Immigration Judge’s
decision rendered at or after the hearing. The Government contends that Plaintiffs have
failed to adequately allege how an alien is denied meaningful appellate review by lack of
a record, and, further, that appellate review turns largely on legal determinations that do
not require a factual record. The Government’s argument, however, is based primarily on
the fact that Plaintiffs have not alleged an injury-in-fact. As I have already explained,
having found that Gayle and Sukhu have standing to challenge the adequacy of the
Joseph hearing, they also have standing to challenge the hearing’s associated procedures.
See Massachusetts v. EPA, 549 U.S. at 518. I also find that, for the purposes of ruling on
the Government’s motion to dismiss, it is certainly plausible that the lack of a
contemporaneous record could preclude meaningful review of erroneous decisions made

45

by the Immigration Judge in a Joseph hearing. Accordingly, I find that Plaintiff’s claims
of procedural due process violations may proceed.
4. Injunctive Relief
Lastly, the Government argues, in a single, brief, paragraph, that 8 U.S.C. §
1252(f)(1) precludes class claims for injunctive relief relating to federal immigration
statutes. Both parties acknowledge that this is an open question in this circuit. See Alli v.
Decker, 650 F.3d 1007, 1009, 1013 (3d Cir. 2011). Plaintiffs contend that their request
for class-wide declaratory judgment and injunctive relief in this regard does not go to the
“operation” of § 1226(c), i.e., whether the government can employ mandatory detention
for a certain category of aliens pending removal proceedings. Rather, Plaintiffs submit
that they are challenging, and seeking to enjoin, the implementation of procedures used in
connection with the Joseph hearing on the grounds that those procedures have been
implemented in a manner that violates both the Constitution and § 1226(c).
In 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.”).37 Plaintiffs are not challenging mandatory detention per se, acknowledging

37

Compare Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999), which held that
§ 1252(f) “forecloses jurisdiction to grant class-wide injunctive relief to restrain
operation of §§ 1221-31 by any court other than the Supreme Court, [and thus it] is
therefore apparent that a district court has no jurisdiction to restrain the Attorney
General’s power to transfer aliens to appropriate facilities by granting injunctive relief
in a Bivens class action suit.” (Emphasis added.)
46

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. Thus, Plaintiffs’ TAC will not be dismissed on this ground. Accord Reid v.
Donelan, ___ F.R.D. ___, ___, 2014 WL 545144, at *8 (D. Mass. 2014) (citing Alli,
supra).
CONCLUSION
For the foregoing reasons, the Government’s motion to dismiss Plaintiffs’ claims
for declaratory and injunctive relief in Counts One and Two of the TAC is granted 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. For that reason, Plaintiff Francois is dismissed for lack of standing. The
Government’s motion to dismiss is denied with respect to Gayle’s and Sukhu’s
challenges to the constitutional and statutory adequacy of the Joseph hearing and its
related procedures.
Further, in light of my ruling with respect to Plaintiffs’ claim on who may obtain
a Joseph hearing, the current proposed class in Plaintiffs’ TAC, which includes all aliens
detained in New Jersey who have a substantial challenge to removal, is overbroad as it

47

necessarily includes aliens who, like Francois, concede that they are properly detained
under the terms of § 1226(c), but seek a Joseph hearing solely because they have a claim
for discretionary relief. Accordingly, Plaintiffs’ currently pending motion to certify the
class will be terminated and Plaintiffs may re-file that motion with a proposed class
limited to those individuals who are entitled to a Joseph hearing consistent with this
Opinion.

March 14, 2014

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

48