OPINION
This putative class action challenges the constitutionality of detention procedures related to mandatory detention of aliens under 8 U.S.C. § 1226(c), codified as the' Immigration and Nationality Act (“INA”). Putative class representatives Garfield O. Gayle (“Gayle”) and Neville Sukhu (“Suk-hu”) (collectively, “Plaintiffs” or “Named Plaintiffs”) aver that they and other similarly situated individuals in New Jersey have been subjected to unconstitutional mandatory immigration detention under § 1226(c) by the United States Department of Homeland Security, Immigration and Customs Enforcement (“DHS”/“ICE”). In that connection, Plaintiffs challenge (1) the standards to determine whether an alien is improperly designated as subject to mandatory detention (also known as Joseph hearings,
The Government moves to dismiss all of Plaintiffs’ claims or, in the alternative, moves for summary judgment.
For the following reasons, the Court decides the parties’ summary judgment motions as follows: summary judgment is (1) GRANTED in favor of Plaintiffs as to their adequacy of notice claim; (2) both parties’ motions are GRANTED in part and DENIED in part as to Plaintiffs claim related to the constitutionality of the Joseph hearing; and (3) GRANTED in favor of the Government as to Plaintiffs’ contemporaneous verbatim records claim. Finally, the Court DENIES Plaintiffs’ motion to certify a class as necessary.
BACKGROUND
The following facts are undisputed. Gayle is a Jamaican national and legal permanent resident of the United States. Defs.’ Resp. to Pis.’ Stmt, of Mat’l Facts at ¶ 22. He has lived in the United States for approximately 30 years. Id. ¶ 23. According to documents filed by ICE, in May 1995, Gayle was convicted after a bench trial of criminal possession of a controlled substance with the intent to sell in the third degree under New York State Penal Law § 220.16. Id. ¶ 24. In March 2007, Gayle pleaded guilty to a misdemeanor marijuana possession charge for which he was sentenced to ten days in jail. Id. ¶ 25. On March 24, 2012, ICE officers arrested Gayle. Pis.’ Resp. to Defs.’ Stmt, of Mat’l Facts at ¶ 3. ICE issued a Notice to Appear (“NTA”), charging Gayle with removal on the ground that his 1995 conviction rendered him deportable, and also found him subject to mandatory immigration de
On March 24, 2012, Gayle received a Form 1-286 Notice of Initial Custody Determination. Id. ¶ 29. At the time of receipt, as its policy, ICE provided every detainee under § 1226(c) mandatory detention with a Form 1-286 notifying him that he “shall be: detained in the custody of the Department of Homeland Security” and checked the second box regarding IJ review, which stated that he “may not request review of this determination by an immigration judge [“IJ”] because the Immigration and Nationality Act prohibits your release from custody” (“Second Box”). Id. ¶ 30. However, the second box was not checked on the Form 1-286 served on Gayle; instead, ICE cheeked the first box on Gayle’s Form 1-286, indicating that he “may request” that an IJ re-determine ICE’s custody decision (“First Box”).
On September 20, 2012, Gayle filed a Motion to Terminate removal proceedings based on the Government’s failure to prove the existence of the alleged 1995 conviction, i.e., attempted drug sale. Defs.’ Resp. to Pis.’ Stmt, of Mat’l Facts at ¶ 35. The IJ denied the Motion to Terminate on October 23, 2012. Id. ¶ 36. Subsequently, Gayle was mandatorily detained for approximately twelve months at the Monmouth County Correctional Facility in Freehold, New Jersey. Defs.’ Resp. to Pis.’ Stmt, of Mat’l Facts at ¶ 33.
Sukhu is a Guyanese national and LPR of the United States, who has lived in this country for approximately 20 years, almost entirely in New York City. Id. ¶ 40. In June 1997, Sukhu pleaded guilty to assault in the second degree in violation of N.Y. Penal Law § 120.05(6) and was sentenced to 90 days imprisonment. Id. ¶ 41. In May 2011, Sukhu pleaded guilty to a misdemeanor offense of theft of services in violation of N.Y. Penal Law § 165.15 and was sentenced to time served. Id. ¶ 42; Pis.’ Resp. to Defs.’ Stmt, of Mat’l Facts at ¶ 20. On August 15, 2011, ICE officers arrested Sukhu, Id. ¶ 21, and on the same day, ICE issued a Notice to Appear, charging Sukhu with removal under 8 U.S.C. § 1227(a)(2)(A)© — which governs crimes of moral turpitude — based on his 1997 conviction. Defs.’ Resp. to Pis.’ Stmt, of Mat’l Facts at ¶ 44.
On August 15, 2011, Sukhu received a Form 1-286 Notice of Initial Custody Determination. See Sukhu 1-286 Form. ICE determined that Sukhu was subject to mandatory detention under § 1226(c) based on two different convictions, i.e., 1997 and 2011 convictions, for crimes of moral turpitude. Pis.’ Resp. to Defs.’ Stmt, of Mat’l Facts at ¶ 23. Similar to Gayle, Sukhu received a Form 1-286 from ICE notifying him that he “shall be: detained in the custody of the Department of Homeland Security..” Along with that notification, ICE checked the First Box on the Form, which like Gayle’s Form, indicated that he “may request” that an IJ redetermine ICE’s custody decision
Sukhu was subject to mandatory detention under § 1226(c) for nearly 21 months at the Monmouth County Correctional Facility in Freehold, New Jersey. Defs.’ Resp. to Pis.’ Stmt, of Mat’l Facts at ¶ 51. At no point during his detention did the IJ inform Sukhu of his right to a Joseph hearing to challenge his mandatory detention. Id. ¶ 52. As to a bond hearing, ICE did not take the position that Sukhu was a flight risk nor did Sukhu receive a bond hearing or any other individualized determination that he posed a danger to the community. Id. ¶ 53.
On November 11, 2012, Sukhu, represented by counsel, attended a removal hearing before an IJ. On December 27, 2011, Sukhu sought to terminate his de
On August 5, 2013, Named Plaintiffs filed their third-amended class-action complaint (“TAC”) against the Government, alleging, in relevant part, two causes of action for violations of the Immigration and Naturalization Act (“INA”) and the due process clause of the United States Constitution.
Thereafter, the Government filed the instant motion to dismiss and, in the alternative, a motion for summary judgment. The Government contends that (1) Plaintiffs lack standing to challenge the adequacy of notice because they in fact received
On July 1, 2014, Plaintiffs filed a cross-motion for summary judgment. Plaintiffs claim that (1) Plaintiffs have standing to challenge the adequacy of the Joseph hearing and its associated procedures because Plaintiffs did not receive notice of their right to a Joseph hearing, did not receive Joseph hearings, and each presented a substantial challenge to the Government’s charges; (2) Plaintiffs’ notice claims are not mooted by ICE’s updated Form 1-286; (3) the Joseph standard and associated procedures violate both the Constitution and the INA; and (5) 8 U.S.C. 1252(f)(1) does not preclude requested class-wide in-junctive relief.
DISCUSSION
I. Section 1226(c) and Matter of Joseph
In this Court’s March 14, 2014 Opinion, I set forth the statutory and regulatory framework related to mandatory immigration detention and I incorporate that Opinion’s relevant discussion herein. See Gayle,
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)© of this title on the basis of an offense for which the alien has been sentence to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether thealien may be arrested or imprisoned again for the same offense. 11
8 U.S.C. § 1226(c); compare 8 U.S.C. § 1226(a) (allowing aliens discretionarily detained pursuant to that provision to obtain an individualized bond hearing). According to the Government, ICE makes the initial determination that an individual is removable on the ground triggering mandatory detention under Section 1226(c) under a “reason to believe” standard. 8 U.S.C. § 1357(a)(2). Then, an alien could challenge that determination pursuant to the BIA decision in Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999). There, the Board held that an alien whom the INS
The Joseph Board reasoned that the foregoing standard would give both (1) “significant weight” to INS’s initial custody determination in line with congressional intent that certain categories of removable aliens should be mandatorily detained, and (2) “genuine life” to the regulation that allows the IJ to reexamine the INS’s determination. Id. at 807. In that regard, the BIA instructed the IJ to “look forward to what is likely to be shown during the hearing on the underlying removal case.” Id. In other words, in order to support its “reason to believe” obligation at a preliminary hearing, the INS would not necessarily be required to provide, for example, a certified copy of the alien’s conviction that served as the basis for mandatory detention, even though such a document ordinarily would be necessary for the Government to meet its burden of demonstrating that the alien should be removed. See id. Indeed, the Board made clear that the standard of proof on the Government is less exacting as the one imposed for the merits hearing.
Consequently, ICE devised certain procedures for executing the provisions of
Relatedly, Joseph hearings are not contemporaneously recorded verbatim as a matter of policy; rather, Joseph hearings are normally summarized by the IJ’s order determining that a noncitizen is subject to mandatory detention or is eligible for a bond hearing. Defs.’ Resp. to Pis.’ Stmt. Of Mat’l Facts at ¶ 18. However, when a party appeals a Joseph decision, the IJ drafts a short bond memorandum providing the reasons for his or her decision in that context. Id.
II. Standard of Review
a. Motion for Summary Judgment
Courts will enter summary judgment only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the non-moving party’s favor. See Anderson v. Liberty Lobby, Inc.,
A party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion.” Celotex v. Catrett,
b. Standing
To satisfy the “case or controversy” standing requirement under Article III, a plaintiff must establish that he or she has suffered a cognizable injury that is causally related to the alleged conduct of the defendant and is redressable by judicial action. To satisfy this requirement, a “litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.” Powers v. Ohio,
Constitutional standing requires an “injury-in-fact, which is an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Reilly v. Ceridian Corp.,
c. Procedural Due Process
“Procedural due process imposes constraints on governmental decisions which ■ deprive individuals of liberty or property interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.... The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge,
“The due process afforded aliens stems from those statutory rights granted by Congress and the principle that minimum due process rights attach to statutory rights.” Dia v. Ashcroft,
I first address the Government’s standing challenge in the context of the adequacy of notice given to aliens. The Government maintains that Plaintiffs’ adequacy of notice claim fails because (1) Plaintiffs received actual notice of their right to a custody redetermination hearing and thus, lack standing; and (2) the claim is now ■ moot because beginning in December 2013, ICE agents began checking the box on Form 1-286 informing aliens that they have a right to seek review of ICE’s custody determination in front of an IJ,‘ and moreover, in March 2014, ICE adopted a revised Form 1-286 that informs all aliens of their right to a custody redetermination hearing. Simao Deck ¶¶ 8-9. In response, Plaintiffs contend that the Court has already disposed of the Government’s standing challenge in this context in its previous decision, and that the revised Form 1-286 continues to be constitutionally infirm.
The initial inquiry is whether Named Plaintiffs have standing; Named Plaintiffs must have suffered an injury-in-fact as a result of their allegedly inadequate notice of a custody redetermination hearing. See Winer Family Trust v. Queen,
The Government argues that because ICE checked the first box on Named Plaintiffs’ Forms 1-286 — which indicated that a detainee “may request” that an IJ redetermine ICE’s custody decision— Named Plaintiffs indeed received notice of their rights to a custody redetermination hearing. Plaintiffs counter that (1) the checked box merely represented notice of a bond hearing, as opposed to a Joseph hearing,
Indeed, the Form 1-286 that Named Plaintiffs received stated that “[pjursuant to the authority contained in Section 236 of the Immigration and Nationality Act and part 236 of title 8, Code of Federal Regulations,” DHS determined that “pending a final determination by the immigration judge in your case, and in the event you are ordered removed from the United States, until you are taken into custody for removal you shall be: detained in the custody of the Department of Homeland Se
Based on the plain language of the form, I find that Named Plaintiffs did not receive notice of their right to a Joseph hearing and thus, have standing to challenge the adequacy of that notice. ICE has stated that its policy at the time that Gayle and Sukhu were detained was to check the Second Box for those detained pursuant to Section 1226(c), and thus subject to mandatory detention. Simao Dep. at 110; Defs.’ Response to Pis.’ Stmt. Of Mat’l Facts at ¶¶ 30, 48. Importantly, there were no boxes to check, or any language, on the form that notified a manda-torily detained alien that he/she was entitled to a Joseph hearing. Conversely, those who were issued notices of custody determinations pursuant to Section 1226(a) were entitled to an individualized bond determination as a matter of right. See 8 U.S.C. § 1226; see also Simao Dep. at 107. It appears that ICE’s policy at the time of Gayle’s and Sukhu’s detentions was to check the First Box for only those discre-tionarily detained under Section 1226(a) so as to accord such individuals their right to an individualized bond hearing. See id. § 1226(a); Diop v. ICE/Homeland Sec., 656 F.3d 221, 230 (3d Cir.2011). Both Gayle and Sukhu were detained pursuant to Section 1226(c). Defs.’ Response to Pis.’ Stmt. Of Mat’l Facts at ¶¶ 28, 47. It follows that ICE’s apparent mistake by checking the First Box on Named Plaintiffs’ Form I-286s was not intended to provide notice of Named Plaintiffs’ rights under Joseph, as suggested, post facto, by the Government. In fact, under the language of the old Form 1-286, Named Plaintiffs were never apprised of their right to receive a Joseph hearing, let alone to request one. Therefore, Named Plaintiffs clearly did not receive notice of their right to a Joseph hearing, and thus have suffered an injury-in-fact sufficient to confer standing to challenge the adequacy of the Form I-286.
The Government alternatively argues that Plaintiffs’ adequacy of notice claim is now moot because of the recent changes ICE made to Form 1-286. According to the Government, the form now informs all detained aliens of their right to a custody redetermination hearing in front of an IJ. See Rev. Form 1-286. However, Plaintiffs argue that summary judgment in their favor is still warranted because ICE’s changes to Form 1-286 remain constitutionally infirm. At issue here is whether the amended Form 1-286 contains adequate information to apprise a detainee of his/her rights under the law.
To comport with due process requirements, deprivations of life, liberty or property should “be preceded by notice and an opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank and Trust Co.,
Here, revised Form 1-286, entitled “Notice of Custody Determination,” informs recipients in the first section that, “[p]ur-suant to the authority contained in section 236 of the Immigration and Nationality Act and part 236 of title 8, Code of Federal Regulations, [DHS has] determined that, pending a final administrative determination,” they are either detained or released. See Rev. Form 1-286. In the second section, detainees are informed that they “may request a review of this custody determination by an immigration judge” and must check the boxes stating that they acknowledge receipt of this notification and that they either request or do not request “an immigration judge review of this custody determination.” Id. Section 236 of the INA corresponds to 8 U.S.C. § 1226.
Having reviewed its content, I find that, as a matter of law, revised Form 1-286 does not provide adequate notice of an alien’s right to a custody redetermination hearing, and therefore, the revised form is constitutionally infirm. First, the revised form expressly informs all aliens subject to detention under Section 1226— whether under Section 1226(a) or Section 1226(c) — to request a hearing on ICE’s custody determination, without regard to the alien’s status. See Shanahan Deck at 2. However, Form 1-286 not only fails to provide an alien with explicit notice that he or she is deemed subject to mandatory detention pursuant to Section 1226(c), but the Government also concedes that no other notice of mandatory detention is given to that alien. See Simao Tr. 142:9-17 (“Q: [D]oes ICE provide an alien subject to mandatory detention with any notice other than the 1-286? ... A: No other notice.”).
Indeed, this sort of omission does not comport with procedural due process requirements. It is a fundamental requirement of due process “in any proceeding-which is tube accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane,
Accordingly, I find that ICE’s revised Form 1-286 does not provide adequate notice to aliens detained pursuant to Section 1226(c) of their right to contest their detention and thus, I grant summary judgment in favor of Plaintiffs on their adequacy of notice claim.
IV. Constitutionality of the Joseph Hearing
a. Justiciability
The Government argues that Plaintiffs lack standing to challenge the Joseph hearing procedures. In its brief, the Government argues that Plaintiffs lack standing because they did not possess substantial challenges to the bases for their mandatory detention.
In essence, the issues raised by the parties in this context relate to the respective merits of Gayle and Sukhu’s deportability, i.e., whether Gayle and Sukhu each has a substantial basis to terminate removal proceedings. Thus, the question relating to the definition of “substantial challenge,” a term advanced by Plaintiffs, is not one that impacts standing. Indeed, the Government improperly injects one of its arguT ments opposing Plaintiffs’ class certification motion
Although the Government argues that Named Plaintiffs lack standing because they purport to bring a class'action on behalf of those who possess a “substantial challenge” to their inclusion under Section 1226(c), and Named Plaintiffs do not have “substantial challenges” to their own inclusion under that statutory provision, I nonetheless find that my previous ruling on this issue remains the law of the case here.
I do not find it determinative for standing purposes, as the Government suggests, that neither Gayle nor Sukhu ever received a Joseph hearing. In order for Gayle and Sukhu to have standing, it is not necessary that they obtained a Joseph hearing because, based on the facts as [pleaded], both Gayle and Sukhu were entitled to such a hearing-irrespective of whether such a hearing would have been nothing more than an exercise in futility....
Gayle,
In sum, the Government does not offer any explanation for why the Court should revisit its prior holding. As such, its ripeness argument is unavailing and I deny the Government’s motion for summary judgment on this basis. Accordingly, consistent with my prior ruling, both Gayle and Sukhu have standing to challenge the Joseph hearing procedures.
6. Due Process
Both Plaintiffs and the Government move for summary judgment on Plaintiffs’
In assessing whether a particular administrative procedure comports with due process, courts should “look to see if the process at issue fits with the notion that “[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” ” Dia,
In Mathews, the Supreme Court held that the “identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
Biliski v. Red Clay Consol. Sch. Dist. Bd. of Educ.,
I note at the outset that whether the Joseph standards are constitutionally adequate is an open question. See Demore,
Because the Mathews test is flexible, precedent has not established a uniform approach to which this Court must adhere. Rather, it is this Court’s role to address each factor of the test and, if necessary, weigh them in fashioning a proper remedy. Thus, a court’s first task is to identify and discuss each of the factors before weighing them. I begin my analysis under Mathews by examining whether Plaintiffs have identified a private interest that is affected by the Government’s action. There is no dispute that: Plaintiffs have identified a private liberty interest, i.e., remain free from detention; that the Government’s mandatory detention procedures affect this interest; and that a liberty interest may not be impaired without due process of law. See Demore,
Essentially, the tension here is between Plaintiffs’ liberty interest and the Government’s authority, granted by Congress, to mandatorily detain deportable aliens who have committed certain crimes. The Government’s position relies heavily on the third factor of the Mathews test — the Government’s interests and burdens. On this factor, the Government identifies certain interests that it argues weigh heavily in favor of maintaining the current Joseph standard. First, the Government submits that the Joseph standard protects the congressional aim of preventing deportable aliens from fleeing the country before their removal proceedings. This interest, indeed, coincides with Congress’s stated intent in enacting § 1226(c). Section 1226(c) aims:
(1) to protect the public from potentially dangerous criminal aliens; (2) to prevent aliens from- absconding during removal procedures; (3) to correct former bond procedures under which over twenty percent of criminal aliens absconded before their deportation hearings; and (4) to restore public faith in the immigration system.
Dean v. Ashcroft,
These interests have been considered compelling by the Supreme Court, which found that § 1226(c) is premised on a sufficiently strong special justification so as not to run afoul of the Constitution. See Demore,
necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed.... Congress had before it evidence suggesting that permitting discretionary release of aliens pending their removal hearings would lead to large numbers of deporta-ble criminal aliens skipping their hearings and remaining at large in the United States unlawfully.
Id. at 529,
Second, the current standard preserves the distinction between preliminary or custody hearings and merits hearings, a distinction clearly warranted for procedural and practical reasons. See, e.g., United States v. Delker,
I finally turn to the second Mathews factor, the risk of an erroneous deprivation and the probable value of additional procedural safeguards. Mathews,
Plaintiffs further argue that their proposed alternative standard — rejecting mandatory detention at custody redetermi-nation hearings for those who possess a “substantial challenge” to their inclusion under Section 1226(c) — would greatly enhance the protection of an alien’s liberty interest. The proposed standard for whether a convicted defendant may be released on bail pending his or her appeal, borrows the “substantial question” analysis from U.S. v. Smith,
The Government, on the other hand, argues that the preliminary nature of the Joseph hearing does not create a constitutionally impermissible risk of erroneous
I now turn to weighing the Mathews factors to determine whether the current Joseph standards violate the Constitution and if so, what remedy is necessary to prevent such violation. This Court recognizes, as I must, pursuant to the Supreme Court and the Third Circuit precedent, that the Government has a compelling interest under § 1226(c) in detaining aliens pending their removal proceedings and' preventing them from absconding during those proceedings, despite competing liberty interests that the Constitution safeguards. However, it is my task to balance governmental interests with those of the detained aliens. In that respect, having surveyed BIA decisions regarding Joseph hearings, I find that there is a real risk that the liberty interests of a narrow class of aliens — those who cannot establish that ICE is “substantially unlikely” to prevail in its charges against them but who are ultimately not subject to Section 1226(c) — will be erroneously deprived. My analysis begins with the “reason to believe” standard which ICE uses to issue its NTAs, and which, according to the Government, the IJ also uses to test the sufficiency of the Government’s evidence in the first instance during the Joseph hearing.
The “reason to believe” language is set forth in the regulations and the commentary accompanying them: an authorized ICE agent may detain an alien if there is
The confusion starts with the Joseph decision. Under that decision, it is not clear that ICE explicitly bears any sort of evidentiary burden at a Joseph hearing. The Joseph court stated,
the “reason to believe” that the alien “falls within a category barred from release,” which led the [INS] to bring a particular charge, can often be expected to suffice until the Immigration Judge resolves the merits of the removal case, a resolution that frequently occurs speedily in cases involving detained criminal aliens. But the Immigration Judge is able to examine the basis for that charge and make an independent determination whether the alien “actually falls within a category of aliens subject to mandatory detention.” In requiring that the Immigration Judge be convinced that the Service is substantially unlikely to prevail on its charge, when making this determination before the resolution of the underlying case, we provide both significant weight to the Service’s “reason to believe” that led to the charge and genuine life to the regulation that allows for an Immigration Judge’s reexamination of this issue.
Joseph, 22 I. & N. Dec. at 807. Nowhere does the BIA delineate the requirements of the “reason to believe” standard. Indeed, since the Joseph decision, contrary to the Government’s position, immigration courts have focused almost exclusively on Joseph’s language imposing the burden on the alien to prove that ICE is “substantially unlikely to prevail.” See, e.g., In re: Raul Capi-Esquivel a.k.a. Raul Esquivel-Capi,
Furthermore, the deposition of Judge Weisel, the assistant chief immigration judge, is telling as to the practice of IJs at Joseph hearings. Judge Weisel’s testimony reveals that there do not appear to be any objective standards under which IJs evaluate the Government’s proffered evidence at the Joseph hearing. See Weisel Tr. 105:12-15 (“The government may produce a record of conviction. I don’t know what evidence the government would use. They could even produce testimony” to show they would likely prevail at the merits proceedings.). And, indeed, according to Judge Weisel, it appears, at times, the IJs do not even require the Government to produce any evidence. See Id. at 107:21-108:11; 109:22-24 (“It would behoove the government to produce documents to dem
One thing is clear from Judge Weisel’s testimony and the case law: there is no uniform standard by which to assess the Government’s initial burden under the “reason to believe” analysis. Among its inadequacies, questions remain (1) whether the reason to believe analysis imposes a subjective standard or otherwise; (2) whose belief the IJ must evaluate; and (3) what, if any, evidence would be sufficient to justify the belief. And, finally, there is scant precedent to guide the IJ. Exacerbating the ill-defined process, the Government tacitly concedes that “[t]he burden on the Government during a Joseph hearing may change over time and in relation to the allegations and evidence presented by the alien”; this concession raises the vexing question of how an alien is able to prepare his or her argument against mandatory detention while navigating a seemingly constantly shifting procedural landscape. Thus, based on the current standard, it is likely that an individual may be deemed subject to mandatory detention even if ICE merely presented a scintilla of unrefuted evidence. This result, as a matter of constitutional jurisprudence, is a serious deprivation of an individual’s liberty interest that is not justified by the Government’s interests under § 1226(c).
Accordingly, because the Government’s initial burden, i.e., “reason to believe” that the alien is subject to mandatory detention, at the Joseph hearing is virtually undefined — and, at best, minimal — and the individual’s burden under the “substantial unlikely” standard is particularly heavy, I find that the current Joseph hearing standard creates a high risk of an erroneous deprivation of Plaintiffs’ liberty interests. Having made that finding, I, next, determine to what standard the Government should be subjected in carrying its initial burden at a Joseph hearing.
I need gó no further than the Government’s own concession. On its motion, the Government repeatedly equates the “reason to believe” standard to that of a probable cause inquiry. However, as a practical matter and in the absence of any judicial precedent, the probable cause standard has not been articulated or adopted by any immigration judges or even the Government itself. Yet, I find the probable cause standard is sufficient to ameliorate any potential wrongful deprivation of liberty an alien may suffer in light of his or her “substantially unlikely to prevail” burden at Joseph hearings. In fact, if ICE were to establish to the satisfaction of an IJ at the Joseph hearing that there is probable cause to place an alien in mandatory detention, prior to the alien presenting his or her objections, the alien would be better able to meet the challenge and the “substantially unlikely” to prevail burden the alien currently bears would not, in this Court’s view, be constitutionally infirm. This conclusion has substantial support in the case law. See Mich. v. Summers,
On one hand, probable cause, albeit in a criminal context, protects an individual’s liberty under the Constitution; such protection cannot be compromised. See id. Because mandatory detention in the immigration context deprives aliens of their
The probable cause inquiry does not require a rigorous showing by the Government, nor any burdensome or rigid analysis on the part of an IJ. In fact, the probable cause standard would only place a minimal additional burden on the Government. To illustrate, in the Joseph context, under a probable cause analysis, an IJ would examine whether the facts and circumstances, based upon reasonably trustworthy information, are sufficient to warrant a prudent man to believe that the alien is subject to mandatory detention under § 1226(c). See United States v. Burton,
Importantly, requiring ICE to satisfy the IJ that there is probable cause for mandatory detention before the alien has to prove that ICE is “substantially unlikely” to prevail at the merits hearing, does not disturb congressional intent to prevent potentially deportable aliens from committing more crimes or fleeing before their removal proceedings; as always, an individual who has succeeded in a Joseph hearing would then proceed to a bond hearing, where he or she may still be subject to detention if an IJ determines the alien is a flight risk or a danger to the community.
I note, however, in the criminal context, in evaluating whether there was probable cause to search or make an arrest, courts examine the facts and circumstances known to the officer at the time he or she took action. See Burton,
I next address whether the alien’s subsequent burden of showing that the Gov
On this issue, I must balance the interest of the Government against the liberty concerns of the alien. There is no doubt that Congress has a compelling governmental interest in regulating, and the authority to regulate, the conduct of aliens. Flores,
Moreover, the Supreme Court has advised, albeit not in the context of a Joseph hearing, that preliminary hearings are different and distinct than final hearings on the merits. See Morrissey,
After a weighing of the different interests, I do not find that the Constitution requires altering the alien’s burden of proof at a Joseph hearing. On one hand, because I recognize that the alien has a liberty interest in not being erroneously detained by the Government, the imposition of a probable cause standard will protect against such errors. On the other hand, however, the private interest does not trump the Government’s compelling interest, as set forth by the Supreme Court and the Third Circuit, in detaining aliens who have committed certain crimes pursuant to § 1226(c). To impose a higher burden on the Government than the cur
In sum, I grant in part Plaintiffs’ summary judgment motion ' by imposing a probable cause standard on the IJ’s initial determination of whether the Government has a sufficient basis to detain individuals under § 1226(c). In light of this procedural protection, I do not find that Plaintiffs’ proposed standard — a showing that the alien has a substantial challenge to the Government’s basis for detention under § 1226(c), as opposed to the alien’s current standard of showing the Government is substantially unlikely to prevail — is constitutionally required. Instead, at that juncture of the proceedings when probable cause is obtained and when the alien has the opportunity to object to the bases for his or her mandatory detention, the alien will have received constitutionally sustainable due process. I grant in part the Government’s motion in this context.
V. Lack of a Contemporaneous Verbatim Record
The Government initially contended that Plaintiffs lack standing to claim that ICE’s practice of not contemporaneously recording Joseph hearings is unlawful, because both Gayle’s and Sukhu’s custody redeter-mination hearings were recorded. The Government appears to have abandoned this argument because it concedes in its opposition to Plaintiffs’ cross-motion for summary judgment that Plaintiffs did not, in fact, receive á custody redetermination hearing. Accordingly, the Court will not analyze this argument. I proceed to the parties’ arguments on the merits.
Both parties move for summary judgment on Plaintiffs’ claim that the Government’s policy of failing to require that contemporaneous verbatim records of Joseph hearings be made and kept has resulted in statutory and constitutional violations under the Fifth Amendment’s due process clause. The Government argues that a contemporaneous verbatim record of Joseph hearings is not required by the INA and its applicable regulations, the Third Circuit, the Supreme Court, or the Constitution. In support, the Government points to (1) the distinction between merits hearings and preliminary hearings (into which they classify Joseph hearings) codified in the INA,
As with my due process analysis of the Joseph standards, because the parties do not dispute whether Plaintiffs have identified a substantial private interest in remaining free from detention under Mathews, the Court turns to the next factor of analysis: “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.” Mathews,
To begin, I look for guidance from due process case law in other contexts. In that regard, I find the non-dispositive nature of Joseph hearings similar to the preliminary hearings held for parolees who have potentially violated their parole. In Morrissey,
[t]he hearing officer shall have the duty of making a summary, or digest, of what occurs at the hearing in terms of the responses of the parolee and the substance of the documents or evidence given in support of parole revocation and of the parolee’s position. Based on the information before him, the officer should determine whether there is probable cause to hold the parolee for the final decision of the parole board on revocation. Such a determination would be sufficient to warrant the parolee’s continued detention and return to the state correctional institution pending the final decision.... [T]he decision maker should state the reasons for his determination and indicate the evidence he relied- on but it should be remembered that this is not a final determination calling for formal findings of fact and conclusions of law. No interest would be served by formalism in this process; informality will not lessen the utility of this inquiry in reducing the risk of error.
Morrissey,
As a practical matter, the typical evidence presented at a Joseph hearing also weighs against the necessity of requiring contemporaneous verbatim records in such hearings, and Plaintiffs fail to demonstrate otherwise. The Government advances, and Plaintiffs do not dispute; that Joseph hearings “generally turn on a review of conviction records and consideration of the arguments of counsel,” as opposed to sworn witness testimony. See Defs.’ Br. Opp. Pis.’ Cross-Mot. Summ. J. at 31; see also Weisel Tr. 64:16-20, 95:24-25, 96:2-4. Thus, “even though the only record of a Joseph hearing is the IJ’s resulting order, which may simply be a check mark on the Form 1-286 or a written summary order,” a detainee’s arguments against mandatory detention can still be presented on appeal without the aid of a contemporaneous verbatim ' record. Importantly, Plaintiffs merely mention, in passing, the “risk of error occasioned by memorandum decisions” without further explanation. As such, Plaintiffs fail to tangibly demonstrate the risk of erroneous deprivation of their liberty interest resulting from the lack of a contemporaneous verbatim record. See Weisel Tr. 130:10-12 (“I really haven’t had the need to use DAR [digital audio recordings] to determine the accuracy of my trial notes.”).
Moreover, IJs are not prohibited from recording Joseph hearings if they wish to do so, see Weisel Tr. 130:19-20, 131:3-4, and existing immigration procedures already provide that formal bond hearings may be required when prejudice would result from following more informal procedures. Because of these already existing safeguards, “there is no requirement in bond proceedings for a formal hearing and that informal procedures may be used so long as no prejudice results.” In re Mohammad J.A. Khalifah, 21 I. & N. Dec. 107, 112 (BIA 1995). Because I find that a summarized record of Joseph hearing proceedings is adequate for purposes of appeal, I find that the second Mathews factor weighs against requiring contemporaneous verbatim records of Joseph hearings.
Plaintiffs focus their argument on the third prong of the Mathews analysis: that the Government has a low interest in maintaining its current policy of not requiring contemporaneous verbatim records in Joseph hearings. Plaintiffs reason that the Government does not dispute that “digital audio recording equipment is available in every immigration court that conducts any hearing granted to an alien detained under 8 U.S.C. 1226(c) who requests a custody redetermination.” Defs.’ Resp. to Pis.’ Stmt, of Mater. Facts at ¶¶ 19-21. Nor does the Government dispute that
Finally, Plaintiffs urge the Court to adopt the reasoning in Singh v. Holder, wherein the Ninth Circuit held that a contemporaneous verbatim record was required in Casas hearings. Singh v. Holder,
This Court concludes that under a balancing of the Mathews factors, while an alien’s interest in remaining free is indisputably substantial, the lack of a contemporaneous verbatim transcript in the Joseph hearing does not create a high risk of erroneous deprivation of an alien’s liberty interest. Further, requiring contemporaneous verbatim records would not add substantial value as a procedural safeguard. Thus, even though the Government’s burden resulting from requiring contemporaneous verbatim records of Joseph hearings appears relatively slight, the Mathews factors tip against finding such a constitutional requirement. See, e.g., Flaim v. Med. Coll. of Ohio,
That said, however, my legal holding rests upon the minimal protection that the Constitution requires. But, as a matter of sound practice, I find that recording the
VI. Injunctive Relief
The Government argues that under 8 U.S.C. § 1252(f)(1), the Court is barred from granting injunctive relief to the putative class of plaintiffs even in the event that the Court finds they have been harmed, because Section 1252(f)(1) bars courts other than the Supreme Court from enjoining or restraining the operation of Section 1226(c). See 8 U.S.C. § 1252(f)(1).
[i]n focusing on the nature of Plaintiffs’ challenge — which, again, is based on the claim that the Government’s current mandatory detention procedures violate the INA — it does not appear that § 1252(f)(1) precludes Plaintiffs from pursuing injunctive relief. See Rodriguez v. Hayes,591 F.3d 1105 , 1120 (9th Cir.2010) (“Section 1252(f) prohibits only injunction of ‘the operation of the detention statutes, not injunction of a violation of the statutes.”). Plaintiffs are not challenging mandatory detention per se, acknowledging that such a challenge is not available in light of the Demore decision. Instead, Plaintiffs question the constitutional adequacy of the Joseph hearing and related procedures meant to ensure that the Government mandatorily detains only those aliens who should be detained under § 1226(c). In light of this, and given the Government’s cursory treatment of this issue and the lack of authority to support its position, the Court declines to dismiss Plaintiffs’ claims for injunctive relief at this point. In any event, Plaintiffs clearly may seek .class-wide declaratory relief without running afoul of § 1252(f). Alli v. Decker,650 F.3d at 1016 .
Gayle,
As a result of my findings herein, the Government shall be enjoined from using the current revised version of the Form I-286. The Government is directed to amend Form 1-286 consistent with this Opinion. In addition, during a custody redetermination hearing, i.e., Joseph hearing, the Government must initially satisfy an Immigration Judge that there is probable cause to find that that a detained alien falls within
VII. Class Certification
In connection with their constitutional claims, Named Plaintiffs seek to certify a class of all individuals who are or will be detained within the State of New Jersey pursuant to the mandatory detention provision of § 1226(c) and who have a substantial challenge to “threshold deport-ability” or “inadmissibility” on one of the statutory grounds that trigger mandatory detention. Having determined the merits of Named Plaintiffs’ claims, I do not find certification of a class necessary.
In Ihrke v. Northern States Power Co.,
Indeed, other circuits have followed the Ihrke approach. See Carter v. Butz,
The reasoning is straightforward: if the statutes, regulations or policies at issue are held to be unconstitutional, such decision would be binding on all of the governmental agencies and would indeed inure to the benefit of all members of the proposed class, thus obviating the need for a lawsuit to proceed as a class action. See Craft,
More recently, district courts have adhered to this rule. See Mills v. District of Columbia,
Here, I have already determined that ICE’s use of the revised Form 1-286 does not satisfy procedural due process, and that IJs’ application of a “reason to believe” standard at the Joseph hearing is constitutionally infirm. As a result, the Government is directed by this Court to amend Form 1-286 and Joseph hearings shall be conducted consistent with the rulings made herein. In that regard, no useful purpose would be served by certifying a class because all aliens who are subjected to mandatory detention would benefit from the injunctive relief and remedies that this Court has imposed. Accordingly, I deny Plaintiffs’ motion to certify a class as unnecessary.
CONCLUSION
For the foregoing reasons, the Court decides the parties’ summary judgment motions as follows: summary judgment is (1) GRANTED in favor of Plaintiffs as to their adequacy of notice claim; (2) both parties’ motion are GRANTED in part and DENIED in part as to Plaintiffs’ claim related to the constitutionality of the Joseph hearing; and (3) GRANTED in favor of the Government as to Plaintiffs’ contem
An appropriate order shall follow.
Notes
. The Government notes that the Executive Office of Immigration Review “does not refer to custody redetermination hearings under 8 C.F.R. 1003.19(h)(2)(h) as 'Joseph hearings’ and instead uses the terms 'custody determination,’ [‘]bond hearing,’ and ‘custody rede-termination hearing’ interchangeably to refer to all custody reviews authorized under 8 C.F.R. § 1003.19.” Defs.’ Supp’l Stmt, of Mat'l Facts at ¶ 1. The Court will use the terms “Joseph hearing” and “custody redeter-mination hearing” interchangeably throughout this Opinion.
. The various state and local government defendants include: Jeh Johnson, Secretary of the DHS; Eric Holder, United States Attorney General; John Morton, Director of ICE; Juan Osuna, Director of the Office of Immigration Review; John Tsoukaris, Field Office Director for Enforcement and Removal Operations, Newark Field Office of ICE; Christopher Shanahan, Field Office Director for Enforcement and Removal Operations, New York City Field Office of ICE; Ray Simonse, Acting Field Office Director for Enforcement and Removal Operations, New York City Field Of: fice of ICE; Joseph Trabucco, Director of the Delaney Hall Detention Facility; Orlando Rodriguez, Warden of the Elizabeth Contract Detention Facility; Roy L. Hendricks, Warden of the Essex County Correctional Facility; Oscar Aviles, Director of the Hudson County Correctional Facility; Robert Bigott, Warden of the Bergen County Jail; and Brian Elwood, Warden of the Monmouth County Correctional Institution.
. Because I find that issues raised by both parties are legal in nature, but based upon affidavits and discovery, the Government’s motion to dismiss is converted to a motion for summary judgment.
.The Government disputes Plaintiffs’ characterization that "the [G]overnment placed Mr. Gayle in mandatory detention under § 1226(c) based on his 2007 marijuana conviction, although it did not charge him with deportability on this basis in his NTA.” Defs.' Resp. to Pis.’ Stmt, of Mat! Facts ¶ 28. Rather, the Government claims that "ICE placed Mr. Gayle in mandatory detention based on a 2007 'drug conviction,’ ” id., and thus claims that Gayle's deportation was also based upon his 2007 drug conviction.
While Gayle was detained and his removal proceedings were ongoing, he filed a habeas petition in this Court asserting that DHS lacked the statutory authority to detain him under § 1226(c), because the statute requires DHS to take an alien into custody immediately upon release from custody on his conviction. This Court granted Gayle’s petition and ordered the Immigration Judge to provide Gayle with a bond hearing. Gayle was released on bond on March 25, 2013. The Government has not appealed this Court's March 15, 2013 Order, notwithstanding the Third Circuit’s opinion in Sylvain v. Atty. Gen. of the United States,
. While Plaintiffs characterize ICE as having "incorrectly checked the first box on Mr. Gayle's Form,” the Government disputes that characterization, asserting that "[w]hile ICE policy was to check a different box, it was not incorrect for ICE to have checked the box indicating that Mr. Gayle 'may request' custody redetermination by an immigration judge because aliens detained under 8 U.S.C. § 1226(c) are. entitled to such hearings-which are considered part of the 'bond hearings’ continuum.” (citing 8 C.F.R. § 1003.19(h)(2)(h); Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999); Weisel Tr. 73:9, 11-12).
. Gayle characterizes the hearings in front of IJ Page as “removal hearings,” whereas the Government asserts in its Stmt, of Mat'l Facts that IJ Page "reviewed the basis of ICE’s custody decision.” Pis.’ Resp. to Defs.’ Stmt, of Mat’l Facts ¶ 9. However, in the Government’s response to Plaintiffs' Cross-Motion for Summary Judgment, the Government concedes that "Plaintiff's hearings under 8 C.F.R. § 1003.19(h)(2) ... may have fallen short of the standards announced by the Board of Immigration Appeals in Matter of Joseph ....
. As with Gayle, the Government disputes Plaintiffs’ characterization that ICE “incorrectly” checked the first box on Sukhu's Form. See supra, n. 3.
. At the time Sukhu's Motion to Terminate was pending, Silva-Trevino had been rejected by several Courts of Appeals, including the Third Circuit. However, two circuit courts of appeals have deferred to Matter of Silva-Trevino, and the matter has not yet been decided by the Second Circuit, the circuit in which Sukhu's Immigration Judge sat. Id. ¶ 56.
. The TAC also contains individual habeas claims consisting of four causes of action for an original named plaintiff, Sheldon Francois. The Court disposed of this claim in an Opinion and Order dated August 23, 2013. See Dkt. Nos. 80 & 81.
. Initially, the Government argued that Named Plaintiffs received Joseph hearings and thus could not challenge the' adequacy of notice for such hearings. Defs.’ Mot. to Dismiss or in the Alt. for Summ. J., at 12. However, in response to Plaintiffs' cross-motion for summary judgment, the Government concedes that the removal proceedings in which Named Plaintiffs participated did not amount to custody redetermination hearings and instead argues that because Plaintiffs did not receive Joseph hearings, they "cannot establish that they were prejudiced by any deficiencies in the procedures applicable to Joseph hearings." Defs.' Resp. to Pis.' Cross-Mot. for Summ. J. at 10.
. Specifically, § 1226(c) applies to aliens who are deportable on account of: having been convicted of two or more crimes involving moral turpitude, an aggravated felony, a controlled substance offense, certain firearm-related offenses, or certain other miscellaneous crimes, or having committed a crime of moral turpitude within a certain amount of time since their date of admission for which a sentence of one year or longer has been imposed; and finally, aliens who are inadmissible or deportable because of connections to terrorism. See 8 U.S.C. § 1226(c) (referencing id. § 1182(a)(2), § 1227(a)(2)(A)(ii), § 1227(a)(2)(A)(iii), § 1227(a)(2)(C), § 1227(a)(2)(C), § 1227(a)(2)(D), § 1227(a)(2)(A)®, § 1182(a)(3)(B), § 1227(a)(2)(C), § 1227(a)(4)(B)). The sole statutory exception to mandatory detention is if the Attorney General determines that the alien should be part of the federal witness protection program. 8 U.S.C. § 1226(c)(2).
. INS is the predecessor to DHS/ICE. Khouzam v. Attorney Gen. of United States,
.The BIA has also stated that Joseph requires an individual to demonstrate that ICE is "substantially unlikely to establish that the [individual’s] convictions would support a . [mandatory detention] charge.” Matter of Kotliar, 24 I. & N. Dec. 124, 127 (BIA 2007).
. Joseph hearings differ from bond hearings in that at a Joseph hearing, the operative question is whether the alien is properly included under Section 1226(c) — whereas the outcome of a bond hearing turns on whether the criminal defendant is a flight risk or a danger to the community. Aliens detained under Section 1226(a) are entitled to a bond hearing, whereas those detained under Section 1226(c) are subject to mandatory detention and not accorded a bond hearing, with a limited exception for those subject to the witness protection program. 8 U.S.C. § 1226(a), (c); Diop v. ICE/Homeland Sec., 656 F.3d 221, 230, 232 (3d Cir.2011).
. I further note that I have previously found that Gayle and Sukhu have standing to challenge procedures related to the Joseph hearing. While the Government advances additional arguments here in support of its position, my reasons regarding standing provided in the March 14, 2014 Opinion are equally applicable on this motion. See Gayle,
. INA: ACT 236-APPREHENSION AND DETENTION OF ALIENS, U.S. Citizenship and Immigration Servs., http://www.uscis.gov/ iframe/ilink/docView/SLB/HTML/SLB/O-O-O-l/0-0-0-29/0-0-0-5570.html (last accessed Nov. 24, 2014).
. While the alien's NTA provides information about the basis for ICE’s decision to seek removal, the NTA's charges are not necessarily exhaustive. For example, Gayle was placed in mandatory detention under § 1226(c) based on a 2007 drug conviction, though ICE did not charge him with deporta-bility on this basis in his NTA. See Defs.' Resp. to Pis.' Stmt. Of Mat’l Facts at ¶ 28; Gayle’s NTA. The BIA has held that “where the basis for detention is not included in the charging document, the alien must be given notice of the circumstances or convictions that provide the basis for mandatory detention and an opportunity to challenge the detention before the Immigration Judge during the bond rede-termination hearing.” In re Kotliar, 24 I. & N. Dec. 124, 127 (BIA 2007). Still, even if the NTA contains the charges that may trigger mandatory detention, it does not actually state whether ICE has deemed the individual subject to mandatory detention under Section 1226(c). Simply put, the NTA does not, even when read together with the revised Form I-286, adequately apprises aliens of their rights.
. As explained supra, the Government, having conceded that Plaintiffs did not receive Joseph hearings, abandoned its initial argument that Plaintiffs lack standing to challenge the adequacy of the Joseph hearing and its associated procedures because they received Joseph hearings; accordingly, the Court will not analyze this argument.
. In its opposition to Plaintiffs' class certification motion, the Government claims that Plaintiffs lack standing to bring the class action defined by Plaintiffs because their challenges to threshold deportability are not substantial; thus, "Plaintiffs are not part of the class they seek to represent.” Defs.’ Opp. Br. to Pis.’ Renewed Mot. for Class Cert., Docket. No. 101 at 10.
. The law of the case "doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” In re Pharmacy Benefit Managers Antitrust Litig.,
. "It is usually improper for a moving party to shift gears and introduce new legal arguments in the reply brief.” Stockroom, Inc. v. Dydacomp Dev. Corp.,
. One of the aspects of Plaintiffs' challenge to the Joseph hearing procedures concerns the burden of proof. Plaintiffs advance that as a matter of constitutional protection of liberty interests, the Government should bear the initial burden at a Joseph hearing. Based on that position, the Government argues that Plaintiffs' claims regarding the Joseph hearing standards should be dismissed because ICE, in fact, has the initial burden to prove that it had a "reason to believe that the alien ... is in the United States in violation of any [immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest” before arresting an alien and issuing an NTA charging the alien with remova-bility. See 8 U.S.C. § 1357(a)(2). However, like the Government’s justiciability arguments on Plaintiffs' Joseph standards claim, this particular issue was already raised and addressed by this Court. In the Government's prior motion to dismiss, the Government argued that it “necessarily must first make a decision that all detainees are deportable (or inadmissible) in order to detain them under [S]ection 1226, even if they concede their deportability.” Defs.’ Br. In Support of First Mot. to Dismiss, Docket No. 75, at 18 (quoting Gonzalez v. O’Connell,
Plaintiffs have alleged, which ... this Court accepts as true on this motion and is also in line with the language of Joseph, that inorder to show that mandatory detention is proper at the Joseph stage, the Government does not even have to produce a certified record of the alien’s predicate criminal convictions .... Not requiring such a de min-imis burden of production be placed on the Government to show its ‘reason to believe’ that the alien is included under Section 1226(c), when combined with the high burden placed on the alien to show that the Government is 'substantially unlikely’ to prove its case, further makes it plausible that the alien’s ability to challenge his or her mandatory detention is all but illusory.
Gayle,
. In Mathews, the Supreme Court devised a three-part test to determine whether an administrative procedure comports with due process.
. As I noted in my March 14th opinion, at least one Court of Appeals judge, sitting in the Ninth Circuit, has raised questions whether Joseph provides an adequate constitutional safeguard for those aliens who wish to challenge the Government’s determination that they should be subject to mandatory detention. See Tijani v. Willis,
. See, e.g., In re Romeo Ramirez-Garcia,
. See, e.g., In re Garcia, 2007 WL 4699861, at *1 (BIA Nov. 5, 2007) (explaining that "[a] legal argument that deportability will not be established is insufficient to meet the respondent’s burden of proof in this matter in the absence of precedent case law directly on point that mandates a finding that the charge of removability will not be sustained.”); In re Flores-Lopez,
. See, e.g., In re Grajeda,
. However, Judge Weisel does state, "I think the government would be hard-pressed to [prevail in a Joseph hearing] without documents, without a record of conviction," and “[w]ithout documents, it would be hard for the government to prevail.” Weisel Tr. 110:3-5,16-17.
. Plaintiffs illustrate their proposed standard by pointing to Sukhu’s claims. "Under the current BIA standard, Mr. Sukhu would bear the burden of identifying controlling circuit precedent that renders the Government’s charge effectively frivolous. Under Plaintiffs’ proposed standard, it is the Government that would have to bear the burden of showing that Mr. Sukhu’s challenge is not substantial.” Pis.’ Cross-Mot. at 30.
. Plaintiffs, however, attack the Government's reliance on Morrissey, arguing that "criminal parolees provide an entirely inap-posite comparison to civil detainees. Parolees are still under compulsion of serving a criminal sentence, and remain subject to criminal imprisonment during the balance of their sentence.” Pis.’ Reply Br. at 8. "Revocation [of parole] deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on the observance of special parole restrictions.” I note, however, that the Supreme Court has since made clear that individuals do not enjoy absolute liberty, even from civil detention. Kansas v. Hendricks,
. Compare 8 U.S.C. § 1229a(b)(4)(C) requiring a "complete record ... of all testimony and evidence produced” in a removal proceeding with 8 U.S.C. § 1226 (containing no such specific requirement with respect to the process of ascertaining whether an alien is subject to mandatory or discretionary immigration detention).
. See, e.g., 8 § C.F.R. 1003.19(d) (consideration of custody matters "shall be separate and apart from, and shall form no part of, any deportation or removal hearing or proceeding”); accord Matter of Guerra, 24 I. & N. Dec. 37, at 40 n. 2 (BIA 2006) ("Bond proceedings are separate and apart from the removal hearing.”); see also Matter of Adeniji, 22 I. & N. Dec. 1102, 1115 (BIA 1999) (noting that an IJ writes up a bond memorandum as a record of a bond proceeding).
. Immigration Court Practice Manual § 9.3(e)(iii) ("Bond hearings are generally not recorded.”); see also Matter of Chirinos, 16 I. & N. Dec. 276, 277 (BIA 1977) ("[T]here is no right to a transcript of a bond redetermination hearing. Indeed there is no requirement of a formal 'hearing.' ”).
. Mayer v. City of Chicago,
. While I note that the liberty interest at stake in Morrissey is not the same as the liberty interest at stake here, see supra, I do find that the existence of a preliminary and final procedure in the parole revocation context and the attendant recording requirements useful for comparison purposes.
. Further, as the Third Circuit found in Diop, an alien who has been subjected to mandatory detention for an unreasonably prolonged amount of time before removal proceedings is accorded an individualized bond determination, mitigating the liberty interest impairment created by mandatory detention. Diop,
. 8 U.S.C. § 1252(f)(1) states,
Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.