12 F.4th 321
3rd Cir.2021Background
- Plaintiffs (a certified class of §1226(c) detainees in New Jersey) challenged mandatory, no-bond detention under 8 U.S.C. §1226(c) and the adequacy of the administrative "Joseph" hearing that determines whether a detainee is "properly included" in §1226(c).
- The case returned to the district court after this Court’s 2016 remand for class-certification proceedings; the district court later granted partial summary judgment to both sides and issued a class‑wide injunction requiring the Government to show "probable cause" at Joseph hearings.
- The record showed long average detention durations (median ~224 days; mean ~300 days) and that many detainees raised defenses to removal, a substantial fraction of whom ultimately prevailed.
- The district court held §1226(c) constitutional as applied to detainees with substantial defenses, rejected the need for a contemporaneous record, but found the Joseph burden/standard inadequate and enjoined the Government to meet a probable‑cause standard class‑wide.
- On appeal the Third Circuit (this opinion) addressed four questions: (A) constitutionality of §1226(c) for detainees with substantial defenses; (B) burden and standard at Joseph hearings; (C) whether Joseph hearings require a contemporaneous record; and (D) whether 8 U.S.C. §1252(f)(1) allows class‑wide injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| A. Is mandatory §1226(c) detention unconstitutional as applied to detainees who have substantial defenses to removal? | §1226(c) is unconstitutional for detainees who raise substantial, fairly debatable defenses because detention is not reasonably related to risk of flight. | Demore and related precedent permit mandatory detention pending removal even for those who might ultimately prevail; detention furthers the Government’s interest in securing removal. | Held: §1226(c) is constitutional as applied to detainees with substantial defenses; Demore and subsequent Supreme Court authority govern. |
| B. Who bears the burden at a Joseph hearing and what standard must the Government meet? | Plaintiffs: either a "substantial question" standard (borrowed from bail‑pending‑appeal) or at minimum the Government must prove applicability by a preponderance. | Government: "reason to believe" (often equated with probable cause) is sufficient because Joseph is preliminary and higher standards would undermine §1226(c). | Held: The Government bears the burden and must prove by a preponderance of the evidence that the detainee is properly included within §1226(c) (both factually and legally). |
| C. Must the Government create a contemporaneous record of Joseph hearings? | Yes; due process (Mathews balancing) requires an audio/transcript or functional equivalent to detect and correct errors and to permit meaningful appellate review. | No; Joseph hearings are often legal and documentary, and IJs’ post‑hoc written memoranda or notes suffice. | Held: Yes — Government must make available a contemporaneous record (audio, transcript, or functional equivalent). |
| D. Does 8 U.S.C. §1252(f)(1) permit district courts to issue class‑wide injunctions restraining operation of the removal provisions? | Plaintiffs defended the district court’s class injunction; they argued §1252(f)(1) was forfeited or does not bar class relief for a class composed of individuals in removal proceedings. | Government argued §1252(f)(1) bars class‑wide injunctions against operation of §§1221–1232. | Held: §1252(f)(1) bars class‑wide injunctive relief restraining the operation of the removal statutes; the district court’s class injunction is vacated and declaratory relief remanded. |
Key Cases Cited
- Demore v. Kim, 538 U.S. 510 (2003) (upholding mandatory detention under §1226(c) as reasonably related to Government’s interest in securing removal)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (due process requires detention to bear a reasonable relation to its purpose)
- Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (statutory text makes clear detainees can be held "pending a decision on whether [they] are to be removed")
- Nielsen v. Preap, 139 S. Ct. 954 (2019) (§1226(c) mandates detention without bond until removal question resolved)
- Addington v. Texas, 441 U.S. 418 (1979) (standard‑of‑proof analysis and allocation of risk of error)
- Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (§1252(f)(1) is a statutory limit on class‑wide injunctive relief over immigration provisions)