Garfield Gayle v. Warden Monmouth County Corr

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 19-3241
____________

GARFIELD O. GAYLE; NEVILLE SUKHU,
Appellants

v.

WARDEN MONMOUTH COUNTY CORRECTIONAL
INSTITUTION;SECRETARY UNITED STATES
DEPARTMENT OF HOMELAND SECURITY;
ATTORNEY GENERAL OF THE UNITED STATES OF
AMERICA;DIRECTOR OF IMMIGRATION AND
CUSTOMS ENFORCEMENT;DIRECTOR OF THE
EXECUTIVE OFFICE OF IMMIGRATION
REVIEW;JOHN TSOUKARIS, in his official capacity as
Field Office Director for Enforcement and Removal
Operations, Newark Field Office of U.S. Immigration and
Customs Enforcement; THOMAS DECKER, in his official
capacity as the Field Office Director for Enforcement and
Removal Operations, New York City Field Office of U.S.
Immigration and Customs Enforcement; WARDEN
BERGEN COUNTY JAIL; WARDEN ELIZABETH
COUNTY DETENTION CENTER; WARDEN ESSEX
COUNTY CORRECTIONAL FACILITY; DIRECTOR
 DELANEY HALL DETENTION FACILITY; DIRECTOR
HUDSON COUNTY CORRECTIONAL FACILITY
____________

On Appeal from the District Court for the
District of New Jersey
(D.C. No. 3-12-cv-02806)
District Judge: Hon. Freda L. Wolfson, Chief Judge
____________

Argued January 12, 2021

Before: AMBRO, KRAUSE, and PHIPPS, Circuit Judges

(Opinion Filed: September 3, 2021)

Lawrence S. Lustberg [ARGUED]
Michael R. Noveck
Gibbons
One Gateway Center
Newark, NJ 07102

Counsel for Appellants

Stefanie N. Hennes
Craig W. Kuhn
Dhruman Y. Sampat [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 868

2
Ben Franklin Station
Washington, DC 20044

Counsel for Appellees
____________

OPINION OF THE COURT
____________

KRAUSE, Circuit Judge.

Under 8 U.S.C. § 1226(c), the Government must detain
noncitizens who are removable because they committed certain
specified offenses or have connections with terrorism, and it
must hold them without bond pending their removal
proceedings. This appeal asks us to decide what process is due
when such detainees contend that they are not properly
included within § 1226(c) and whether noncitizens who have
substantial defenses to removal on the merits may be detained
under § 1226(c). Because the District Court granted relief in
the form of a class-wide injunction, we must also decide
whether 8 U.S.C. § 1252(f)(1) permits class-wide injunctive
relief.

For the reasons set forth below, we agree with the
District Court that § 1226(c) is constitutional even as applied
to noncitizens who have substantial defenses to removal. But
for those detainees who contend that they are not properly
included within § 1226(c) and are therefore entitled to a
hearing pursuant to In re Joseph, 22 I. & N. Dec. 799 (BIA
1999), we hold that the Government has the burden to establish
the applicability of § 1226(c) by a preponderance of the

3
evidence and that the Government must make available a
contemporaneous record of the hearing, consisting of an audio
recording, a transcript, or their functional equivalent. Because
we also conclude that § 1252(f)(1) does not authorize class-
wide injunctions, we will reverse the District Court’s order in
part, affirm in part, and remand for the entry of appropriate
relief.

I. Factual & Procedural Background

This case returns to us following our 2016 remand to the
District Court to consider class certification. See Gayle v.
Warden Monmouth Cnty. Corr. Inst., 838 F.3d 297 (3d Cir.
2016). Because our prior opinion related the history of the case
to that point in detail, see id. at 300–02, we will recount it only
briefly here.

In 2012, Garfield Gayle and Neville Sukhu filed a
habeas petition on behalf of a putative class of noncitizens who
are detained under § 1226(c) in the District of New Jersey. 1
Contending that it violates due process to mandatorily detain
noncitizens who have substantial defenses to removal and that
the procedure for conducting Joseph hearings is
constitutionally inadequate, they sought declaratory and
injunctive relief on behalf of the putative class.

In 2015, the District Court granted partial summary
judgment in favor of Gayle and Sukhu individually and then
denied their class certification motion as moot. Gayle v.

1
A third named plaintiff, Sheldon Francois, is no longer
a party in this matter.

4
Johnson, 81 F. Supp. 3d 371, 402–03 (D.N.J. 2015). On
appeal, however, we determined that because Gayle and Sukhu
themselves had been released from detention before the
District Court granted relief, it was their individual claims that
were moot. Gayle, 838 F.3d at 300. That meant the District
Court lacked jurisdiction to rule on the merits of those
individual claims but retained jurisdiction over the class
certification motion that was filed while the named plaintiffs
were still in custody. Id. at 303–04. We therefore remanded
for the District Court to determine if the purported class should
be certified and, if so, to address the class claims. Id. at 312–
13.

On remand, the parties engaged in limited discovery
regarding class certification, and the District Court certified a
class consisting of:

all persons within the District of New Jersey,
now and in the future, who are mandatorily
detained pursuant to 8 U.S.C. § 1226(c) [and
who seek] to obtain a bond hearing on the basis
of a substantial claim to relief that would prevent
the entry of a removal order, which includes
challenging the constitutionality of the Joseph
hearing process, namely, the allocation of the
burden of proof and the contemporaneous
recording of the hearing.

Gayle v. Warden Monmouth Cnty. Corr. Inst., No. 12-cv-
02806, 2017 WL 5479701, at *1 (D.N.J. Nov. 15, 2017).

5
 The parties subsequently filed cross-motions for
summary judgment. The record developed in those
proceedings highlights what is at stake for the plaintiff class
(hereinafter “Plaintiffs”). As of 2017, there were nearly 1,200
detainees in New Jersey held under § 1226(c), at least 20% of
whom were Lawful Permanent Residents (LPRs). JA 308,
318, 442. Among cases that concluded in 2017, the average
time of detention was 300 days, with a median of 224 days, and
some § 1226(c) detainees were held for more than a year. JA
308, 318, 442–43. In addition, of those cases in New Jersey
that concluded in 2017, 41% of § 1226(c) detainees raised a
defense to removal—either by challenging the Government’s
removal charge or by applying for discretionary relief—and
55% of those detainees ultimately prevailed. JA 308, 318.

After considering this record, the District Court granted
summary judgment to the Government in part and to the
Plaintiffs in part. Gayle v. Warden Monmouth Cnty. Corr.
Inst., No. 12-cv-2806, 2019 WL 4165310, at *2 (D.N.J. Sept.
3, 2019). It ruled that § 1226(c) may apply to noncitizens who
have substantial defenses to removal on the merits without
violating due process and that the Government need not make
a contemporaneous record of Joseph hearings. Id. at *12, *24.
But it agreed with the Plaintiffs that the standard of proof
currently applied at Joseph hearings is “virtually undefined”
and places too much risk of error on § 1226(c) detainees. Id.
at *19. Thus, even though the Government took the position
that Joseph requires it to make an initial showing of “probable
cause” to believe a detainee committed a relevant offense
under § 1226(c), id. at *19, the District Court “issue[d] a class-
wide injunction that directs the Government to establish [at the
Joseph hearing] that there is probable cause to find that a
detained alien under § 1226(c) falls under the statute’s

6
mandatory detention requirements,” id. at *2. It thereby
rejected the Plaintiffs’ contentions that probable cause is too
low a standard and that noncitizens may not be subjected to
§ 1226(c) detention if they raise “substantial challenges to
entry of a final removal order.” Appellants’ Br. 5.

With the District Court having denied their due process
claims concerning the standard of proof at Joseph hearings, the
applicability of § 1226(c) to detainees with substantial
defenses to removal, and the requirement for a
contemporaneous record of Joseph hearings, the Plaintiffs
appealed. 2

II. Jurisdiction & Standard of Review

The District Court had jurisdiction under 28 U.S.C.
§ 1331, and we have jurisdiction under 28 U.S.C. § 1291.
Although the named plaintiffs’ individual claims “were long
ago moot,” Gayle, 838 F.3d at 302–03, the certified class has
standing to litigate its claims and the named plaintiffs may
continue to represent the class so long as they meet the
requirements of Rule 23, which the District Court found they
did, see Gayle, 2017 WL 5479701, at *19; Holmes v. Pension
Plan of Bethlehem Steel Corp., 213 F.3d 124, 135–36 (3d Cir.
2000).

We review the District Court’s summary judgment
decision de novo. Cranbury Brick Yard, LLC v. United States,
943 F.3d 701, 708 (3d Cir. 2019).

The Government initially cross-appealed as well, but
2

it subsequently withdrew that appeal.

7
 III. Discussion

In 1996, during a comprehensive revision of the
immigration laws, Congress enacted § 1226(c), which requires
the Government to detain noncitizens who are removable on
the basis of certain crimes or connections with terrorism and to
hold them without bond until their removal proceedings. See
Nielsen v. Preap, 139 S. Ct. 954, 959 (2019); Demore v. Kim,
538 U.S. 510, 517–18 (2003). Under Joseph, such detainees
are entitled to a hearing before an Immigration Judge (IJ) to
determine “whether the [Government] has properly included
[them] within a category that is subject to mandatory
detention” under § 1226(c). 22 I. & N. Dec. at 805; 8 C.F.R.
§ 1003.19(h)(2)(i)(D), (h)(2)(ii). If a detainee is found not to
be “properly included” within § 1226(c), she may then seek
release on bond under 8 U.S.C. § 1226(a). 3 Joseph, 22 I. & N.
Dec. at 806.

3
With narrow exceptions, § 1226(c) provides:

The Attorney General shall take into custody any
alien who—
(A) is inadmissible by reason of having
committed any offense covered in section
1182(a)(2) of this title,
(B) is deportable by reason of having committed
any offense covered in section 1227(a)(2)(A)(ii),
(A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(A)(i)
of this title on the basis of an offense for which

8
 Plaintiffs challenge § 1226(c) detention and the Joseph
hearing framework on three grounds: (A) that it violates due
process to apply § 1226(c) to noncitizens who have substantial
defenses to removal; (B) that the Government at Joseph
hearings must establish the applicability of § 1226(c) by a
standard greater than “probable cause”; and (C) that due
process requires the Government to make a contemporaneous
verbatim record of Joseph hearings. Defending the form of
relief entered by the District Court, Plaintiffs also argue (D)
that § 1252(f)(1) authorizes district courts to enter class-wide
injunctions. We address these issues in turn.

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 . . . .

8 U.S.C. § 1226(c)(1) (emphasis added).

For its part, § 1226(a) provides, as relevant here, that
“[o]n 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” and that
“[e]xcept as provided in subsection (c) and pending such
decision, the Attorney General . . . may release the alien on . . .
bond.” 8 U.S.C. § 1226(a)(1)–(2) (emphasis added).

9
 A. The constitutionality of § 1226(c) as applied to
noncitizens with substantial defenses to removal

Plaintiffs first argue that § 1226(c) is unconstitutional to
the extent it requires detention without bond for those
noncitizens who have “a substantial defense to entry of a
removal order,” Appellants’ Br. 22–23—whether the defense
be a claim for discretionary relief, such as cancellation of
removal or adjustment of status, 8 U.S.C. §§ 1229b(a), (b)(1),
1255, or that the noncitizens is not deportable or is not
inadmissible, for example, because she did not commit a
removable offense, see 8 U.S.C. §§ 1227, 1182. Plaintiffs
derive their “substantial defense” approach from the context of
bail pending appeal, where a defendant may be released if she
“raises a substantial question of law or fact likely to result” in
her prevailing, 18 U.S.C. § 3143(b)(1)(B), and where a
“substantial question” is defined as one that is “fairly
debatable” by “‘jurists of reason,’” United States v. Smith, 793
F.2d 85, 88–89 (3d Cir. 1986) (quoting Barefoot v. Estelle, 463
U.S. 880, 893 n.4 (1983)). So, Plaintiffs posit, if a detainee
raises one of these defenses to removal 4 and the merits are

4
To the extent Plaintiffs are arguing that mandatory
detention is impermissible for noncitizens who claim they did
not commit “one of the [removal offenses] specified in
[§] 1226(c),” Appellants’ Br. 21, Plaintiffs challenge not the
constitutionality of § 1226(c) as applied to those with
substantial defenses to removal, but rather the adequacy of the
process by which detainees may contest whether they are
“properly included” within § 1226(c), i.e., the Joseph hearing,
see Joseph, 22 I. & N. Dec. at 805. We address that issue in
the next section.

10
fairly debatable, that detainee cannot constitutionally be
subjected to mandatory detention under § 1226(c).

As we read the case law, however, that argument, has
been foreclosed by the Supreme Court. In Demore v. Kim, the
Court assessed the constitutionality of mandatory detention
under § 1226(c) against the due process test from Zadvydas v.
Davis, 533 U.S. 678 (2001), which requires that immigration
detention “bear[] a reasonable relation to the purpose for which
the individual was committed,” Demore, 538 U.S. at 527
(quoting Zadvydas, 533 U.S. at 690). It concluded that
§ 1226(c) passes muster under that standard, explaining that
the “detention of deportable criminal aliens pending their
removal proceedings” advances Congress’s goal of
“preventing deportable criminal aliens from fleeing prior to or
during their removal proceedings” and thus “increas[es] the
chance that, if ordered removed, the aliens will be successfully
removed.” Id. at 527–28 (second emphasis added). By its
terms, this reasoning reflects that the Court understood
§ 1226(c) to cover even those noncitizens who are ultimately
successful in opposing removal.

Plaintiffs try to distinguish Demore on two grounds,
neither of which is persuasive. First, they say that because the
detainee in Demore did not “argue that he himself was not
‘deportable’ within the meaning of § 1226(c),” id. at 522 & n.6,
we should follow dicta from the Seventh Circuit and treat
Demore as “le[aving] open the question whether mandatory
detention under § 1226(c) is consistent with due process when
a detainee makes a colorable claim that he is not in fact
deportable,” Gonzalez v. O’Connell, 355 F.3d 1010, 1019–20
(7th Cir. 2004). But the Supreme Court in Demore expressly
noted that the detainee there “did not concede that he will

11
ultimately be deported” because he had “applied for
withholding of removal.” 538 U.S. at 522 n.6.

Second, Plaintiffs argue that § 1226(c) detention does
not “bear[] a reasonable relation” to Congress’s goal of
“preventing deportable criminal aliens from fleeing,” id. at
527–28, when the noncitizen has a substantial defense to
removal because such individuals are less likely to abscond.
But any lower likelihood of flight is conjectural, and even if
we accept Plaintiffs’ proposition, they do not explain why
mandatory detention would not bear a “reasonable relation” to
a lesser but still extant likelihood of flight. Id. at 527.
Demore’s rationale—that § 1226(c) detention is permissible
because it “increas[es] the chance that, if ordered removed, the
aliens will be successfully removed,” id. at 528 (emphasis
added)—therefore governs this case.

Were there any doubt, the Supreme Court has observed
in the years since Demore both that § 1226(c) requires the
Government to “detain an alien until ‘a decision on whether the
alien is to be removed’ is made,” Jennings v. Rodriguez, 138
S. Ct. 830, 847 (2018) (quoting 8 U.S.C. § 1226(a)), and that it
mandates that such noncitizens “be detained without a bond
hearing until the question of their removal is resolved,” Preap,
139 S. Ct. at 959 (emphasis added).
In sum, the mandatory detention of a noncitizen does
not offend the Due Process Clause—even where she has a
substantial and ultimately successful defense to removal—so
long as she falls within the scope of § 1226(c) “by reason of

12
having committed any of the [specified] offenses.” 5 See
Demore, 538 U.S. at 527–28.

B. The burden and standard of proof at Joseph
hearings

We next examine the process that is due at the hearing
before an IJ to determine whether a detainee is “properly
included” within the scope of § 1226(c), i.e., the Joseph
hearing. Joseph, 22 I. & N. Dec. at 805. Because the detainee
in Demore did not take advantage of the opportunity for a
Joseph hearing, the Supreme Court there “ha[d] no occasion to
review the adequacy of Joseph hearings generally in screening
out those who are improperly detained pursuant to § 1226(c).”
Id. at 514 n.3. As Justice Kennedy observed, however, “due
process requires individualized procedures to ensure there is at
least some merit to the [Government’s] charge” that a
noncitizen is subject to mandatory detention under § 1226(c),

5
Although Plaintiffs press the point, we have no
occasion to consider the canon of constitutional avoidance both
because the text of the statute is unambiguous, see Jennings,
138 S. Ct. at 846 (“[Section] 1226(c) makes clear that detention
of aliens within its scope must continue ‘pending a decision on
whether the alien is to be removed from the United States.’”
(quoting 8 U.S.C. § 1226(a))), and because we find no
constitutional problem with § 1226(c) under Demore’s
rationale, cf. id. at 842 (“When a serious doubt is raised about
the constitutionality of an act of Congress, it is a cardinal
principle that this Court will first ascertain whether a
construction of the statute is fairly possible by which the
question may be avoided.” (citation and internal quotation
marks omitted)).

13
id. at 531 (Kennedy, J., concurring), and for the reasons set
forth below, we are persuaded that the Joseph hearing
framework does not provide this surety.

Under Joseph, the Government must establish merely
that there is “reason to believe” a detainee is properly included
within § 1226(c), at which point the burden shifts to the
detainee to show that the Government is “substantially unlikely
to prevail on its charge” at the eventual removal hearing.
Joseph, 22 I. & N. Dec. at 807. A detainee can make that
showing with either factual or legal arguments, but her burden
is a heavy one: Her legal arguments, for example, may only
succeed if she presents “precedent caselaw directly on point
that mandates a finding that the charge of removability will not
be sustained.” In re Garcia, 2007 WL 4699861, at *1 (BIA
Nov. 5, 2007) (unpublished). 6

6
The BIA has explained that even where “[t]he
respondent’s brief on appeal raises serious questions
concerning whether the respondent’s offense is appropriately
categorized as a crime involving moral turpitude” because the
detainee raised a precedential circuit court decision
interpreting an analogous crime, such “serious questions” do
not meet the “substantially unlikely” standard at the Joseph
hearing stage. In re Zamoripa-Tapia, 2010 WL 2390763, at *1
(BIA May 21, 2010) (unpublished) (citing Navarro-Lopez v.
Gonzalez, 503 F.3d 1063 (9th Cir. 2007)). And although
unpublished BIA decisions such as Garcia and Zamoripa-
Tapia “do not bind the BIA” in future cases, see De Leon-
Ochoa v. Att’y Gen., 622 F.3d 341, 348–51 (3d Cir. 2010), they

14
 According to the Government and the District Court, so
long as “reason to believe” equates to “probable cause,” this
framework satisfies due process because the Joseph hearing is
only preliminary and “[t]o impose a higher burden on the
Government . . . would severely undermine the purposes of
[§ 1226(c)].” 7 Gayle, 2019 WL 4165310, at *21. According
to Plaintiffs, however, a probable cause standard incorrectly
“allocate[s] the risk of error.” Addington v. Texas, 441 U.S.
418, 423 (1979). Instead, they argue, once again, that due
process requires applying the standard used for bail pending
appeal, where a defendant may be released if she “raises a

illustrate how, in practice, the BIA has applied Joseph to “those
parties for whom [those decisions were] rendered,” id. at 350.

7
In practice, the “reason to believe” standard has
produced significant confusion. Indeed, the District Court
issued its class-wide injunction requiring the Government to
meet a “probable cause” standard precisely because it found
“reason to believe” to be “virtually undefined” and
“inconsisten[tly]” applied. Gayle, 2019 WL 4165310, at *18–
*19. Although it is “often equated with mere probable cause,”
In re Lopez-Cornejo, 2011 WL 585622, at *2 (BIA Jan. 31,
2011) (unpublished), and the Government here agrees that
“reason to believe” is the same as “probable cause,” see Gayle,
2019 WL 4165310, at *19; Appellees’ Br. 12, it is susceptible
to being viewed as a standard of proof distinct from, and lower
than, “probable cause,” see Amy Greer, Giving Joseph
Hearings Their Due: How to Ensure that Joseph Hearings
Pass Due Process Muster, 26 ROGER WILLIAMS U. L. REV. 40,
65–68 (2021).

15
substantial question of law or fact likely to result” in her
prevailing. 18 U.S.C. § 3143(b)(1)(B). Adopting that
framework for Joseph hearings would mean that a detainee
would be subject to the ordinary bail standards of § 1226(a)
whenever there is a “substantial question” whether she is
properly included within § 1226(c). Appellants’ Br. 31–32. 8
At a minimum, however, Plaintiffs urge us to hold that the
Government must make an initial showing by a
“preponderance” of the evidence that the detainee is properly
included within § 1226(c). Tr. 11–12.

To determine the proper burden and standard of proof,
we “engage[] in a straight-forward consideration of the [due
process] factors identified in [Mathews v.] Eldridge.” Santosky
v. Kramer, 455 U.S. 745, 754 (1982). We balance (1) “the
private interest that will be affected by the official action”; (2)
“the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards”; and (3) “the
Government’s interest, including the function involved and the
fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” Mathews v.
Eldridge, 424 U.S. 319, 335 (1976). “The function of a
standard of proof,” the Supreme Court has explained, “is to
instruct the factfinder concerning the degree of confidence our
society thinks he should have in the correctness” of the

8
This approach is not without support: Justice Breyer
advocated a substantial question standard for Joseph hearings
in his dissent in Demore, see 538 U.S. at 578 (Breyer, J.,
dissenting), as did Judge Tashima in his concurrence in Tijani
v. Willis, 430 F.3d 1241, 1247 (9th Cir. 2005) (Tashima, J.,
concurring).

16
decision, so it “serves to allocate the risk of error between the
litigants.” Addington, 441 U.S. at 423 (citation and internal
quotation marks omitted).

Applying the Mathews test, we conclude that the
Government bears the burden of proof at Joseph hearings and
that it must establish that a detainee is properly included within
§ 1226(c) by a preponderance of the evidence. We reach this
conclusion for three reasons.

First, the loss of liberty for § 1226(c) detainees is a
particularly weighty interest, see Zadvydas, 533 U.S. at 690;
cf. B.C. v. Att’y Gen., — F.4th — , No. 19-1408, 2021 WL
3891557, at *6 (3d Cir. Sept. 1, 2021), and when such a severe
deprivation is at issue, the Government must bear the burden
of proof, see German Santos v. Warden Pike Cnty. Corr.
Facility, 965 F.3d 203, 214 (3d Cir. 2020); see also Addington,
441 U.S. at 431–33 (requiring the Government to show clear
and convincing evidence of mental illness before imposing
civil commitment); Foucha v. Louisiana, 504 U.S. 71, 80
(1992) (“The State may also confine a mentally ill person if it
shows by clear and convincing evidence that the individual is
mentally ill and dangerous.” (citation and internal quotation
marks omitted)).

The Joseph framework, however, effectively shifts the
entire burden of proof onto the detainee. Even though Joseph
encouraged IJs to engage in “more than just a perfunctory
review and ratification of the fact that the [Government] may
have had a ‘reason to believe’ the respondent was [within the
category of § 1226(c)],” 22 I. & N. Dec. at 804–05, the low
threshold it imposes and its burden-shifting paradigm mean, in

17
practice, that the detainee must disprove § 1226(c)’s
applicability. It is no surprise then that the BIA itself has
sometimes acknowledged that under Joseph, “the burden of
proof is upon the respondent to establish that he is not properly
included” within § 1226(c). In re Garcia, 2007 WL 4699861,
at *1 (BIA Nov. 5, 2007) (unpublished).

Second, the “probable cause” standard advocated by the
Government is too low a bar given the interests at stake.
Probable cause is less than a preponderance, see Illinois v.
Gates, 462 U.S. 213, 235 (1983); Gerstein v. Pugh, 420 U.S.
103, 121 (1975); United States v. Ortiz, 669 F.3d 439, 444–45
(4th Cir. 2012), and although it must be based on “more than
bare suspicion,” Brinegar v. United States, 338 U.S. 160, 175
(1949), a “reasonable ground for belief” will suffice, id.
(citation and internal quotation marks omitted), and it “does
not demand any showing that [the] belief [in question is]
correct or more likely true than false,” Texas v. Brown, 460
U.S. 730, 742 (1983). Thus, under that standard, a noncitizen
may be deemed to fall within § 1226(c) simply if “a man of
reasonable caution” could “belie[ve]” that the noncitizen
committed a relevant offense, even if that belief appears more
likely false than true. Id. (citation and internal quotation marks
omitted).

But the deprivation for § 1226(c) detainees is not only
severe in nature, see Zadvydas, 533 U.S. at 690; it is also
substantial in duration. If a noncitizen is found to fall within
§ 1226(c), she may not seek release on bond unless and until
her detention has become “unreasonably long,” which, under
our precedents, may be six months or more. German Santos,
965 F.3d at 210–11. The class representatives here, for
example, were held for nearly a year and for nearly two years,

18
respectively, and § 1226(c) detainees in New Jersey are held
for an average of 300 days and a median of 224. Detention of
that length without the opportunity to seek release on bond
must be based on more than just “a reasonable ground for
belief.” Brinegar, 338 U.S. at 175 (citation and internal
quotation marks omitted).

Indeed, while suspected parole violators may be
detained pending a final parole revocation hearing on a finding
of mere probable cause, see Morrissey v. Brewer, 408 U.S.
471, 487 (1972), they have a diminished liberty interest
compared with § 1226(c) detainees, because parole
“[r]evocation deprives an individual, not of the absolute liberty
to which every citizen is entitled, but only of the conditional
liberty properly dependent on the observance of special parole
restrictions,” id. at 480; see Zadvydas, 533 U.S. at 690.
Likewise, in the context of bail pending trial, see generally
United States v. Salerno, 481 U.S. 739, 747 (1987), although a
rebuttable presumption of dangerousness or flight risk arises if
a judge finds “probable cause to believe that the [defendant]
committed” certain specified offenses, 18 U.S.C. § 3142(e)(3),
see United States v. Perry, 788 F.2d 100, 113–15 (3d Cir.
1986), the presumption of dangerousness or flight risk under
§ 1226(c) is in effect irrebuttable once a detainee is found to be
“properly included” within that provision, Joseph, 22 I. & N.
Dec. at 805. Compared to those two guideposts, we conclude
that the Government must meet a higher standard than probable
cause here.

Third, while the “probable cause” standard places too
little risk on the Government, Plaintiffs’ proposed standard
places too much. Under Plaintiffs’ proposed framework,
borrowed from the context of bail pending appeal, raising a

19
“substantial question” about the applicability of § 1226(c)
would defeat the Government’s showing and allow the
detainee to seek bond under § 1226(a). Reply Br. 9. But, as
we have explained, a “substantial question” is merely one that
is “fairly debatable” by “‘jurists of reason,’” Smith, 793 F.2d
at 89 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983)), and given the importance of the Government’s interest
in “preventing deportable criminal aliens from fleeing prior to
or during their removal proceedings,” Demore, 538 U.S. at
528, that low threshold would tilt the scales too far. 9

Having considered the standards urged by the
Government and by Plaintiffs, we settle on one in between: To
comport with due process, the Government must show by a
preponderance of the evidence that the detainee is properly
included within § 1226(c) as both a factual and a legal matter.
See Addington, 441 U.S. at 423–24. It must show, in other
words, that it is more likely than not both that the detainee in
fact committed a relevant offense under § 1226(c) and that the
offense falls within that provision as a matter of law. Cf.

9
Similarly, although it is a “settled rule that when a
party stands to lose his liberty, even temporarily, we hold the
Government” to a “clear and convincing evidence” standard in
the context of civil detention, German Santos, 965 F.3d at 213–
14, requiring the Government to make an initial showing of
clear and convincing evidence that a detainee is properly
included within § 1226(c) would be too high a bar at the Joseph
hearing because it would effectively duplicate the burden the
Government must meet at the eventual removal hearing to
“establish[] by clear and convincing evidence that . . . the alien
is deportable,” 8 U.S.C. § 1229a(c)(3)(A); see also Woodby v.
INS, 385 U.S. 276, 285–86 (1966).

20
Joseph, 22 I. & N. Dec. at 809 (Schmidt, Chairman, dissenting)
(contending that the Government must “demonstrate[] a
likelihood of success on the merits of its charge” at the Joseph
hearing).

This approach properly places a lower burden on the
Government at the Joseph hearing than at the removal hearing,
see supra note 9, so it will not turn Joseph hearings into “mini-
trials” that duplicate the eventual removal hearing by
“requiring a full assessment of the merits of an individual’s
claims and defenses.” Appellees’ Br. 40. And requiring the
Government to make an initial showing that a detainee likely
“is inadmissible” or “is deportable” for one of the reasons
specified in § 1226(c), see 8 U.S.C. § 1226(c)(1)(A)–(D), is
consonant with other detention contexts in which we require
parties to make some initial showing of likelihood of success
pending final adjudication, see, e.g., Gerstein, 420 U.S. at 114;
18 U.S.C. § 3143(b).

In sum, the Government bears burden of proof at Joseph
hearings, and it satisfies that burden by showing that a detainee
more likely than not is properly included within § 1226(c).

C. Whether the Government must create a
contemporaneous record of Joseph hearings

Having determined the proper burden and standard of
proof at Joseph hearings, we turn to Plaintiffs’ final argument:
that due process requires a contemporaneous verbatim record
of Joseph hearings. Mathews balancing again guides our
analysis. Both parties agree that the first Mathews factor—the
“private interest” in freedom from custody, Mathews, 424 U.S.

21
at 335—is significant, so we are left to weigh the second and
third Mathews factors.

As for the second, the parties dispute “the risk of an
erroneous deprivation,” id., if the Government does not make
a contemporaneous verbatim record of Joseph hearings.
Plaintiffs assert such a record is necessary to deter, detect, and
correct “IJ misconduct,” Appellants’ Br. 47 (citation and
quotation marks omitted), while the Government retorts that
because Joseph hearings “generally turn on legal questions”
and the meaning of “conviction documents,” a
contemporaneous verbatim record is unnecessary and the BIA
can review the relevant documents and legal issues de novo,
Appellees’ Br. 53, 58.

Plaintiffs have the better argument. Misconduct or
mistakes made by IJs are often identifiable only through audio
recordings or transcripts of the proceeds. See Serrano-Alberto
v. Att’y Gen., 859 F.3d 208, 221 (3d Cir. 2017) (noting that
“the record” from an immigration proceeding may indicate that
an “IJ’s conduct crosse[d] the line”). And as demonstrated by
the record here, Joseph hearings do sometimes turn on witness
testimony. Even the Government’s designee, see Fed. R. Civ.
P. 30(b)(6), Immigration Judge Robert D. Weisel,
acknowledged at his deposition that detainees “will testify” at
Joseph hearings and that such testimony “would lend itself to
potentially . . . establishing” that the detainee is not properly
included within § 1226(c). JA 405, 417–18. If a detainee
testifies that she is not the person in the conviction records, for
example, the IJ might “direct[] the government to take the
fingerprints of the individual to determine identity.” JA 424–
25. The Government, too, Judge Weisel explained, “could

22
even produce testimony” to show that the detainee is properly
included within § 1226(c). JA 421.

Currently, however, according to the Government’s
Statement of Material Facts, “the only contemporaneous
record” that is made of Joseph hearings is “generally . . . a form
order with a box checked off,” although IJs often “maintain
contemporaneous notes of proceedings.” JA 317. In the event
a detainee appeals to the BIA, the IJ will then “prepare[] a
written memorandum,” which might be based on the IJ’s notes
and “any relevant audio recordings.” Id. But in the absence of
any requirement to create such notes or recordings, id., the
memo might be based on nothing more than an IJ’s best
recollection—after the fact and amid innumerable other
hearings over which she presided.

Either way, such post-hoc reconstruction of the events
will never be “the functional equivalent of a transcript.” Singh
v. Holder, 638 F.3d 1196, 1200, 1208 (9th Cir. 2011)
(requiring the Government to create a contemporaneous record
of bond hearings for § 1226(a) detainees whose detentions
have become unreasonably prolonged). So relative to the
existing state of affairs, we easily conclude that the “probable
value” of “additional . . . procedural safeguards” at Joseph
hearings is high. Mathews, 424 U.S. at 335; cf. Press-Enter.
Co. v. Superior Ct. Cal., Riverside Cnty., 464 U.S. 501, 508,
512 (1984) (explaining that for both “the accused and the
public,” creation of and access to transcripts plays a crucial role
in guaranteeing “the basic fairness” of proceedings and
correcting “deviations” from proper procedure).

23
 As to the “Government’s interest,” the third factor in the
Mathews test, 424 U.S. at 335, we agree with the District Court
that “the Government would bear no additional burden” if it
were required to create a contemporaneous record, Gayle, 2019
WL 4165310, at *23, because audio recording equipment is
already installed in the hearing rooms where Joseph hearings
occur, and it is often on by default. In other words, IJs already
operate that equipment during removal hearings, see JA 307–
08, 317, and in many cases must affirmatively turn it off before
a Joseph hearing. Allowing it to record instead would seem, if
anything, to lighten the Government’s load.

Given the substantial individual interest in liberty, the
relatively high value of additional safeguards, and the minimal
burden on the Government, Mathews balancing dictates that
the Government make “a record [of Joseph hearings] of
sufficient completeness” for “adequate and effective . . .
appellate review.” Mayer v. City of Chicago, 404 U.S. 189,
194 (1971) (citations and internal quotation marks omitted).10

10
Although Mayer was a criminal case, “the Due
Process Clause applies to . . . aliens” within the United States,
Zadvydas, 533 U.S. at 693, and we have recognized “the
importance of having an adequate record” for review in the
context of agency decision-making and immigration
proceedings in particular. See Pichardo v. V.I. Comm’r Labor,
613 F.3d 87, 101 (3d Cir. 2010); see also Marincas v. Lewis,
92 F.3d 195, 202–04 (3d Cir. 1996) (requiring an adequate
record in asylum proceedings); Kheireddine v. Gonzales, 427
F.3d 80, 84 (1st Cir. 2005) (“While this case involves the
failure of transcription in an immigration proceeding [not a
criminal prosecution], . . . the due process principle is the

24
This requirement does not, of course, “translate automatically
into a complete verbatim transcript.” Id. Rather, “[a]lternative
methods of reporting [the] proceedings are permissible” if they
create “an equivalent report of the events,” such as “[a]
statement of facts agreed to by both sides, a full narrative
statement based perhaps on the [IJ]’s minutes,” or an audio
recording. Id. at 194–95 (citations and internal quotation
marks omitted). The choice among those “functional
equivalent[s] of a transcript” lies with the Government, but
whatever the form, “the government must make available for
appeal a contemporaneous record of [Joseph] hearings.”
Singh, 638 F.3d at 1208–09.

D. Whether § 1252(f)(1) permits class-wide
injunctive relief

Having determined that two of Plaintiffs’ constitutional
arguments are meritorious, all that remains is to decide what
relief may be granted under 8 U.S.C. § 1252(f)(1) and whether

same: due process demands a reasonably accurate, reasonably
complete transcript, or an adequate substitute, to allow for
meaningful and adequate appellate review.” (citation and
internal quotation marks omitted)). In addition,
“[i]mmigration law is a field in which fair, accurate factfinding
is of critical importance,” B.C. v. Att’y Gen., — F.4th — , No.
19-1408, 2021 WL 3891557, at *6 (3d Cir. Sept. 1, 2021)
(quoting Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 381 (3d
Cir. 2020)), and an adequate record enhances the ability to
review factual claims made at Joseph hearings. In light of
those principles, we conclude that Mayer’s requirement of “a
record of sufficient completeness,” 404 U.S. at 194 (citation
omitted), extends to Joseph hearings as well.

25
the District Court erred by “issu[ing] a class-wide injunction”
setting the standard of proof for Joseph hearings. Gayle, 2019
WL 4165310, at *2.

Section 1252(f)(1) provides that “no court (other than
the Supreme Court) shall have jurisdiction or authority to
enjoin or restrain the operation of [8 U.S.C. §§ 1221–1232],
other than with respect to the application of such provisions to
an individual alien against whom proceedings under such part
have been initiated.” We have previously held that
§ 1252(f)(1) “permit[s] class declaratory relief.” Alli v.
Decker, 650 F.3d 1007, 1016 (3d Cir. 2011). But we have not
addressed whether it allows class-wide injunctive relief in the
specific scenario at issue here: a class in which every member
is “an individual alien against whom proceedings . . . have
been initiated.” 8 U.S.C. § 1252(f)(1).

We conclude it does not. As the Supreme Court has
explained, “[b]y its plain terms, and even by its title,
[§ 1252(f)(1)] is nothing more or less than a limit on injunctive
relief” that “prohibits federal courts from granting classwide
injunctive relief against the operation of §§ 1221–123[2].”
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S.
471, 481 (1999) [hereinafter AADC]; see also Nken v. Holder,
556 U.S. 418, 431 (2009) (describing § 1252(f)(1) as “a
provision prohibiting classwide injunctions against the
operation of removal provisions”). Of course, “[t]he Court in
AADC did not consider . . . the application of § 1252(f)(1) to
. . . a class” in which every member is an individual who is
already in immigration proceedings, Jennings, 138 S. Ct. at
875 (Breyer, J., dissenting), and the Supreme Court, too, has
treated that as an open question, see id. at 851 (majority
opinion). But as AADC suggests, the plain text of § 1252(f)(1)

26
bars class-wide injunctions because they necessarily “enjoin
. . . the operation” of § 1226(c) “with respect to” more than just
“an individual alien.” 8 U.S.C. § 1252(f)(1); see AADC, 525
U.S. at 481. 11

We therefore join the Sixth and Tenth Circuits in
holding that § 1252(f)(1) prohibits class-wide injunctions even
where the class is composed entirely of individuals who are
already in removal proceedings. See Hamama v. Adducci, 912
F.3d 869, 877 (6th Cir. 2018); Van Dinh v. Reno, 197 F.3d 427,
433 (10th Cir. 1999). But see Padilla v. Immigr. & Customs
Enforcement, 953 F.3d 1134, 1151 (9th Cir. 2020), vacated on
other grounds by Immigr. & Customs Enforcement v. Padilla,
141 S. Ct. 1041 (2021). Accordingly, the District Court erred
in entering a class-wide injunction here, and we will vacate that
order and remand for the entry of the appropriate declaratory
relief under Alli. See 650 F.3d at 1016. 12

11
Plaintiffs cite Califano v. Yamasaki, 442 U.S. 682
(1979), which held that “[t]he fact that [a] statute speaks in
terms of an action brought by ‘any individual’ . . . does not
indicate that the usual Rule providing for class actions is not
controlling,” id. at 700. But Califano concerned who could
bring a claim, holding that individual claims can be aggregated
in class actions, id., while § 1252(f)(1) concerns the scope of
relief that can be granted and bars injunctions that affect “the
application” of § 1226(c) “with respect to” more than just “an
individual,” 8 U.S.C. § 1252(f)(1). Califano is thus inapposite.

12
At oral argument, Plaintiffs asserted that although
§ 1252(f)(1) uses the word “jurisdiction,” 8 U.S.C.

27
 IV. Conclusion

For the foregoing reasons, we will affirm the District
Court’s summary judgment order in part, reverse in part, vacate
the entry of injunctive relief, and remand for the entry of
appropriate declaratory relief.

§ 1252(f)(1), it is not a jurisdictional statute, so the
Government could—and in Plaintiffs’ view did—forfeit its
§ 1252(f)(1) argument by failing to cross-appeal. As a general
matter, Plaintiffs are correct that “a party aggrieved by a
decision of the district court must file an appeal in order to
receive relief from the decision,” United States v. Tabor Court
Realty Corp., 943 F.2d 335, 342 (3d Cir. 1991), and that there
is a distinction to be made between “the question whether there
is jurisdiction to adjudicate the controversy” and “[t]he nature
of the relief available after jurisdiction attaches,” Avco Corp.
v. Aero Lodge No. 735, Int’l Ass’n of Machinists and
Aerospace Workers, 390 U.S. 557, 561 (1968); see also Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998); Swift
& Co. v. United States, 276 U.S. 311, 331 (1928); United States
v. Hart, 983 F.3d 638, 642 (3d Cir. 2020). Here, however, our
adoption of a preponderance standard in lieu of a probable
cause standard expands Plaintiffs’ rights relative to the District
Court’s order, so the Government may raise § 1252(f)(1) to
defend against that expansion even in the absence of a cross-
appeal. See Morley Const. Co. v. Maryland Cas. Co., 300 U.S.
185, 191 (1937); cf. Tabor Court Realty, 943 F.2d at 342.

28