PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 19

- 3 24 1

____________

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; DIRECTOR2 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

- 1 2

- cv

- 0 280 6)

District Judge : Hon. Freda L. Wolfson , Chief Judge

____________

Argued J anuar y 1 2 , 202 1

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 8 6 83 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
noncitizen s who are removab le 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 conte nd that they are not properly
included within § 1226(c) and whether noncitizen s who have substantial defenses to removal on the merits may be detained under § 1226(c). B ecause 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 noncitizen s who have substantial defenses to removal . B ut fo r 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 o f § 1226(c) by a preponderance of the4 evidence and that t he Government must make availabl e a contemporaneous record of the hearing

, consisting of an audio recording, a transcript

, or their functional equivalent

. B ecause

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 re la ted 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 noncitizen s who

are detained under § 1226(c) in the District of New Jerse y

. 1 Contending that it violates due process to mandatorily detain
noncitizen s who have substantial defenses to removal and that the procedure for conducting Joseph hearings is constitutionally inadequate

, t hey 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 part y in this matter.5 Johnson , 81 F. Supp. 3d 371, 40 2

– 0 3 (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 D istrict
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 plaintiff s 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.

O n remand, the parties engaged in limited discovery regarding class certification, and the District Court certified a
class co nsisting of :

all persons with in 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 ent ry 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

02 806, 2017 WL 5479701, at *1 (D.N.J. Nov. 15, 2017).6 The parties subsequently filed cross

- motions for summary judgment. The record developed in th ose proceedings highlights what is at stake for the plaintiff class (hereinafter “Plaintiffs”)

. A s 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 detenti on 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, t he District C ourt 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 noncitizen s who
have substan tial 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 Jos eph 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 § 122 6(c) falls under the statute’s7 mandatory detention requirements,” id. at *2. It thereby rejected the Plaintiffs’ contentions that probable cause is too
low a standard and that noncitizen s may not be subjected to § 1226(c) detention if they raise “substant ial 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
defens es to removal, and the requirement for a contemporaneous record of Joseph hearings, t he P laintiffs 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).

2 The Government initially cross

- appealed as well, but it subsequently withdrew that appeal

.8 III. Discussion

In 1996, during a comprehensive revision of the immigration laws, Congress enacted § 1226(c), which requir es the Government to detain noncitizen s 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

, 5 38 U.S. 510, 517

– 18 (2003)

. U nder 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 d etainee 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 s hall 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 which9 P laintiffs challenge § 1226(c) detention and the Joseph hearing framework on three grounds : (A) that it violates due process to apply § 1226(c) to noncitizen s who have substantial
defenses to removal ; (B) that the Government at Joseph hearings must establis h the applicability of § 1226(c) by a standard greater than “probable cause”; and (C) that due process requires the Government t o make a contemporaneous
verbatim record of Joseph hearings

. D efending the form of relief entered by the District Court, Plaint iffs also argue (D) that § 1252(f)(1) authorizes district courts to enter class

- wide injunctions. We address these issue s 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)

.10 A. The constitutionality of § 1226(c) as appl ie d to
noncitizen s with substantial defenses to removal

Plaintiffs first argu e that § 1226(c) is unconstitutional to
the extent it requir es detention without bond for those
noncitizens who have “a substantial defense to entry of a removal order,” Appellants’ Br. 22

– 23

— whether th e 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
removabl e 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 noncitizen s 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 t he 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.11 fairly debatable , that detainee cannot constitutionally be subjected to mandatory detention under § 1226(c).

As we read the case law, however, t hat argument, has
been foreclosed by the Supreme Court

. In Demore v. Kim , the

Court a ss essed 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 go al 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

ter ms, th is reasoning reflects that the Court understood § 1226(c) to cover even those noncitizen s 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 w hether 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 will12 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 Con gress’s goal of “preventing deportable criminal aliens from fleeing,” i d. at
527

– 28, when the noncitizen has a substantial defense to
removal because such individual s are less likely to abscond.

But any lower likelihood of flight is conjectural, and even if
we accept Plaintiff s’ 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.

W ere 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 noncitizen s “ 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 succ essful defense to removal

— so long as she falls within the scope of § 1226(c ) “by reason of13 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

hearin gs

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 5 14 n.3. As Justice Kenned y 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, w e have no

oc casion 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
whe ther 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)).14 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 i s 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 ei ther factual or legal arguments, but her burden is a heavy one: H er 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 ci rcuit 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

- Lop ez 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), they15 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 preli minary 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. A ccording

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 p ractice, 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 r equiring 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 ca use,” 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 R OGER W ILLIAMS U. L. R EV

. 40,

65

– 68 (2021).16 substantial question of law or fact li kely 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

pr operly included within § 1226(c)

. Appellants’ Br. 31

– 32

. 8 At a minimum, however, Plaintiff s 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)

. T r. 11

– 12.

To determin e 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

Governm ent’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). “ T he function of a standard of proof ,” the Su preme 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).17 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 bear s the burden of proof at Joseph hearings and
that it must establish that a detainee is properly included within § 1226(c) by a preponderan ce of the evidence . We reach this
conclusion for three reasons.

First, t he 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) ; s ee also Ad dington

, 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 c lear 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, in18 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.
Probabl e 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,” Br inegar 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 f alse,” 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. I d. (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,19 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), th ey 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 Zadvy das , 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 th at the [defendant]
committed” certain specified offenses, 18 U.S.C. § 3142(e)(3), see United States v. Perry , 788 F.2d 100, 11 3

– 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 plac es too little risk on the Government, Plaintiff s’ proposed standard place s too much

. Under Plaintiffs’ proposed framework, borrowed from the context of bail pending appeal, raising a20 “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 g iven 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 woul d tilt the scales too far

. 9

Having considered the standards urged by the Government and by Plaintiff s , we settle on one in between: To comport with due process, t he Government must show by a preponderance of the evidence that the detainee is properly
in cluded 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

t he context of civil detention, German Santos , 965 F.3d at 2 13

– 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 becau se 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).21 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

, s ee, e.g. , Gerstein , 420 U.S. at 114;

1 8 U.S.C. § 3143(b).

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

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

Having determined the proper burden and standard of proof at Joseph hearings, we turn to Plaintiff s’ final argument : that due process requires a contemporaneous verbatim record
of Joseph hearings. Mathews balan cing again guides our analysis. Both parties agree that the first Mathews factor

— the “private interest” in freedom from custody, Mathews , 424 U.S.22 at 335

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

A s 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

. Plaintiff s assert such a record is necessary to deter, detect, and correct “IJ misconduct,” Appellants ’ Br. 47 (citation and quotation marks omitted)

, while the Government retort s 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.

Plaintiff s have the better argument. Misconduct or mistakes made by IJs are often identifiable only through audio recordings or transcripts of the proceeds. See Serran o

- Alberto

v. A tt’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”). A nd a s demonstrated by
the record here

, Joseph hearings do sometimes turn on witnes s testimony. Even t he 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 s he is not the person in the conviction records, for example, the IJ might “dir ect [] the government to take the fingerprints of the individual to determine identity.” JA 42 4

– 25. The Government, too, Judge Weisel explained, “could23 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 “generall y

. . . a f orm 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 reconst ruction of the events
will never be “the functional equivalent of a transcript

. ” S ingh
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 detenti ons have become unreasonably prolonged). So r elative 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 cr ucial role in guaranteeing “the basic fairness” of proceedings and correcting “deviati ons” from proper procedure ).24 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 whe re 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 inste ad 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 Governme nt 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 wa s 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 age ncy 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); Kheired dine 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 the25 This requirement does not, of c ourse, “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, rea sonably 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 critica l 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 a n adequate record enhances the ability to review factual claims made at Joseph hearings. In light of those principles, we conclude that Mayer ’s require ment of “a record of sufficient completeness,” 404 U.S. at 194 (citation omitted) , extend s to Joseph hearings as well.26 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) sh all 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) . B ut we have not
addressed whether it allows class

- wide injuncti ve 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 m ore 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 th at as an open question, see id. at 851 (majority opinio n) . But as AADC suggest s, the plain text of § 1252(f)(1)27 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. I mmigr. & Customs Enforcement , 953 F.3d 1134, 1151 (9th Cir. 2020), vacated on other grounds by I mmigr. & Customs Enforcement v. Padilla

, 141 S. Ct. 104 1 (2021). Accordingly, the District Court erred

in enter ing 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 Plaintiff s cit e Califano v. Yama saki , 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 action s , id.

, while § 1252(f)(1) concerns the sco pe of relief that can be granted and bar s 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 al though § 1252(f)(1) uses the word “jurisdiction,” 8 U.S.C.28 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 Plaintiff s’ view did

— forfei t 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 distincti on 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 preponderanc e standard in lieu of a probable cause standard expand s Plaintiff s’ 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. Ma ryland Cas. Co. , 300 U.S. 185, 191 (1937); cf. Tabor Court Realty , 943 F. 2 d at 342.