PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 19-3241

____________

GARFIELD O. GAYLE; NEVILLE SUKHU,

 Appellants

v.

WARDEN MONMOUTH COUNTY CORRECTIONAL 

INSTITUTION;SECRETARY UNITED STATES 

DEPARTMENT OF HOMELAND SECURITY;

ATTORNEY GENERAL OF THE UNITED STATES OF 

AMERICA;DIRECTOR OF IMMIGRATION AND 

CUSTOMS ENFORCEMENT;DIRECTOR OF THE 

EXECUTIVE OFFICE OF IMMIGRATION 

REVIEW;JOHN TSOUKARIS, in his official capacity as 

Field Office Director for Enforcement and Removal 

Operations, Newark Field Office of U.S. Immigration and 

Customs Enforcement; THOMAS DECKER, in his official 

capacity as the Field Office Director for Enforcement and 

Removal Operations, New York City Field Office of U.S. 

Immigration and Customs Enforcement; WARDEN 

BERGEN COUNTY JAIL; WARDEN ELIZABETH 

COUNTY DETENTION CENTER; WARDEN ESSEX 

COUNTY CORRECTIONAL FACILITY; DIRECTOR 
2

DELANEY HALL DETENTION FACILITY; DIRECTOR 

HUDSON COUNTY CORRECTIONAL FACILITY

____________

On Appeal from the District Court for the

District of New Jersey

(D.C. No. 3-12-cv-02806)

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

____________

Argued January 12, 2021

Before: AMBRO, KRAUSE, and PHIPPS, Circuit Judges

(Opinion Filed: September 3, 2021)

Lawrence S. Lustberg [ARGUED]

Michael R. Noveck

Gibbons

One Gateway Center

Newark, NJ 07102

Counsel for Appellants

Stefanie N. Hennes

Craig W. Kuhn

Dhruman Y. Sampat [ARGUED]

United States Department of Justice

Office of Immigration Litigation

P.O. Box 868
3

Ben Franklin Station

Washington, DC 20044

Counsel for Appellees

____________

OPINION OF THE COURT

____________

KRAUSE, Circuit Judge.

Under 8 U.S.C. § 1226(c), the Government must detain 

noncitizens who are removable because they committed certain 

specified offenses or have connections with terrorism, and it

must hold them without bond pending their removal 

proceedings. This appeal asks us to decide what process is due 

when such detainees contend that they are not properly 

included within § 1226(c) and whether noncitizens who have 

substantial defenses to removal on the merits may be detained 

under § 1226(c). Because the District Court granted relief in 

the form of a class-wide injunction, we must also decide 

whether 8 U.S.C. § 1252(f)(1) permits class-wide injunctive 

relief.

For the reasons set forth below, we agree with the 

District Court that § 1226(c) is constitutional even as applied 

to noncitizens who have substantial defenses to removal. But 

for those detainees who contend that they are not properly 

included within § 1226(c) and are therefore entitled to a 

hearing pursuant to In re Joseph, 22 I. & N. Dec. 799 (BIA 

1999), we hold that the Government has the burden to establish 

the applicability of § 1226(c) by a preponderance of the 
4

evidence and that the Government must make available a 

contemporaneous record of the hearing, consisting of an audio 

recording, a transcript, or their functional equivalent. Because 

we also conclude that § 1252(f)(1) does not authorize classwide injunctions, we will reverse the District Court’s order in 

part, affirm in part, and remand for the entry of appropriate 

relief.

I. Factual & Procedural Background

This case returns to us following our 2016 remand to the 

District Court to consider class certification. See Gayle v. 

Warden Monmouth Cnty. Corr. Inst., 838 F.3d 297 (3d Cir. 

2016). Because our prior opinion related the history of the case

to that point in detail, see id. at 300–02, we will recount it only 

briefly here.

In 2012, Garfield Gayle and Neville Sukhu filed a 

habeas petition on behalf of a putative class of noncitizens who 

are detained under § 1226(c) in the District of New Jersey.

1

 

Contending that it violates due process to mandatorily detain 

noncitizens who have substantial defenses to removal and that 

the procedure for conducting Joseph hearings is 

constitutionally inadequate, they sought declaratory and 

injunctive relief on behalf of the putative class.

In 2015, the District Court granted partial summary 

judgment in favor of Gayle and Sukhu individually and then 

denied their class certification motion as moot. Gayle v. 

1 A third named plaintiff, Sheldon Francois, is no longer

a party in this matter.
5

Johnson, 81 F. Supp. 3d 371, 402–03 (D.N.J. 2015). On 

appeal, however, we determined that because Gayle and Sukhu 

themselves had been released from detention before the 

District Court granted relief, it was their individual claims that

were moot. Gayle, 838 F.3d at 300. That meant the District 

Court lacked jurisdiction to rule on the merits of those 

individual claims but retained jurisdiction over the class 

certification motion that was filed while the named plaintiffs 

were still in custody. Id. at 303–04. We therefore remanded 

for the District Court to determine if the purported class should 

be certified and, if so, to address the class claims. Id. at 312–

13.

On remand, the parties engaged in limited discovery 

regarding class certification, and the District Court certified a 

class consisting of:

all persons within the District of New Jersey, 

now and in the future, who are mandatorily 

detained pursuant to 8 U.S.C. § 1226(c) [and 

who seek] to obtain a bond hearing on the basis 

of a substantial claim to relief that would prevent 

the entry of a removal order, which includes 

challenging the constitutionality of the Joseph

hearing process, namely, the allocation of the 

burden of proof and the contemporaneous 

recording of the hearing.

Gayle v. Warden Monmouth Cnty. Corr. Inst., No. 12-cv02806, 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 those

proceedings highlights what is at stake for the plaintiff class

(hereinafter “Plaintiffs”). As of 2017, there were nearly 1,200 

detainees in New Jersey held under § 1226(c), at least 20% of 

whom were Lawful Permanent Residents (LPRs). JA 308, 

318, 442. Among cases that concluded in 2017, the average 

time of detention was 300 days, with a median of 224 days, and 

some § 1226(c) detainees were held for more than a year. JA 

308, 318, 442–43. In addition, of those cases in New Jersey 

that concluded in 2017, 41% of § 1226(c) detainees raised a 

defense to removal—either by challenging the Government’s 

removal charge or by applying for discretionary relief—and 

55% of those detainees ultimately prevailed. JA 308, 318.

After considering this record, the District Court granted 

summary judgment to the Government in part and to the 

Plaintiffs in part. Gayle v. Warden Monmouth Cnty. Corr. 

Inst., No. 12-cv-2806, 2019 WL 4165310, at *2 (D.N.J. Sept. 

3, 2019). It ruled that § 1226(c) may apply to noncitizens who 

have substantial defenses to removal on the merits without 

violating due process and that the Government need not make 

a contemporaneous record of Joseph hearings. Id. at *12, *24. 

But it agreed with the Plaintiffs that the standard of proof 

currently applied at Joseph hearings is “virtually undefined” 

and places too much risk of error on § 1226(c) detainees. Id.

at *19. Thus, even though the Government took the position

that Joseph requires it to make an initial showing of “probable 

cause” to believe a detainee committed a relevant offense 

under § 1226(c), id. at *19, the District Court “issue[d] a classwide injunction that directs the Government to establish [at the

Joseph hearing] that there is probable cause to find that a 

detained alien under § 1226(c) falls under the statute’s 
7

mandatory detention requirements,” id. at *2. It thereby 

rejected the Plaintiffs’ contentions that probable cause is too 

low a standard and that noncitizens may not be subjected to 

§ 1226(c) detention if they raise “substantial challenges to 

entry of a final removal order.” Appellants’ Br. 5.

With the District Court having denied their due process 

claims concerning the standard of proof at Joseph hearings, the 

applicability of § 1226(c) to detainees with substantial 

defenses to removal, and the requirement for a 

contemporaneous record of Joseph hearings, the Plaintiffs 

appealed.

2

II. Jurisdiction & Standard of Review

The District Court had jurisdiction under 28 U.S.C. 

§ 1331, and we have jurisdiction under 28 U.S.C. § 1291. 

Although the named plaintiffs’ individual claims “were long 

ago moot,” Gayle, 838 F.3d at 302–03, the certified class has 

standing to litigate its claims and the named plaintiffs may 

continue to represent the class so long as they meet the 

requirements of Rule 23, which the District Court found they 

did, see Gayle, 2017 WL 5479701, at *19; Holmes v. Pension 

Plan of Bethlehem Steel Corp., 213 F.3d 124, 135–36 (3d Cir. 

2000).

We review the District Court’s summary judgment 

decision de novo. Cranbury Brick Yard, LLC v. United States, 

943 F.3d 701, 708 (3d Cir. 2019).

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 requires

the Government to detain noncitizens who are removable on 

the basis of certain crimes or connections with terrorism and to 

hold them without bond until their removal proceedings. See

Nielsen v. Preap, 139 S. Ct. 954, 959 (2019); Demore v. Kim, 

538 U.S. 510, 517–18 (2003). Under Joseph, such detainees 

are entitled to a hearing before an Immigration Judge (IJ) to 

determine “whether the [Government] has properly included 

[them] within a category that is subject to mandatory 

detention” under § 1226(c). 22 I. & N. Dec. at 805; 8 C.F.R. 

§ 1003.19(h)(2)(i)(D), (h)(2)(ii). If a detainee is found not to 

be “properly included” within § 1226(c), she may then seek 

release on bond under 8 U.S.C. § 1226(a).3

 Joseph, 22 I. & N. 

Dec. at 806.

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

The Attorney General shall take into custody any 

alien who—

(A) is inadmissible by reason of having 

committed any offense covered in section 

1182(a)(2) of this title,

(B) is deportable by reason of having committed 

any offense covered in section 1227(a)(2)(A)(ii), 

(A)(iii), (B), (C), or (D) of this title,

(C) is deportable under section 1227(a)(2)(A)(i) 

of this title on the basis of an offense for which 
9

Plaintiffs challenge § 1226(c) detention and the Joseph

hearing framework on three grounds: (A) that it violates due 

process to apply § 1226(c) to noncitizens who have substantial 

defenses to removal; (B) that the Government at Joseph

hearings must establish the applicability of § 1226(c) by a 

standard greater than “probable cause”; and (C) that due 

process requires the Government to make a contemporaneous 

verbatim record of Joseph hearings. Defending the form of 

relief entered by the District Court, Plaintiffs also argue (D) 

that § 1252(f)(1) authorizes district courts to enter class-wide 

injunctions. We address these issues in turn.

the alien has been sentence[d] to a term of 

imprisonment of at least 1 year, or

(D) is inadmissible under section 1182(a)(3)(B) 

of this title or deportable under section 

1227(a)(4)(B) of this title . . . .

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

For its part, § 1226(a) provides, as relevant here, that 

“[o]n a warrant issued by the Attorney General, an alien may

be arrested and detained pending a decision on whether the 

alien is to be removed from the United States” and that 

“[e]xcept as provided in subsection (c) and pending such 

decision, the Attorney General . . . may release the alien on . . . 

bond.” 8 U.S.C. § 1226(a)(1)–(2) (emphasis added).
10

A. The constitutionality of § 1226(c) as applied to 

noncitizens with substantial defenses to removal

Plaintiffs first argue that § 1226(c) is unconstitutional to 

the extent it requires detention without bond for those 

noncitizens who have “a substantial defense to entry of a 

removal order,” Appellants’ Br. 22–23—whether the defense 

be a claim for discretionary relief, such as cancellation of 

removal or adjustment of status, 8 U.S.C. §§ 1229b(a), (b)(1), 

1255, or that the noncitizens is not deportable or is not 

inadmissible, for example, because she did not commit a 

removable offense, see 8 U.S.C. §§ 1227, 1182. Plaintiffs 

derive their “substantial defense” approach from the context of 

bail pending appeal, where a defendant may be released if she

“raises a substantial question of law or fact likely to result” in 

her prevailing, 18 U.S.C. § 3143(b)(1)(B), and where a 

“substantial question” is defined as one that is “fairly 

debatable” by “‘jurists of reason,’” United States v. Smith, 793 

F.2d 85, 88–89 (3d Cir. 1986) (quoting Barefoot v. Estelle, 463 

U.S. 880, 893 n.4 (1983)). So, Plaintiffs posit, if a detainee 

raises one of these defenses to removal4 and the merits are 

4 To the extent Plaintiffs are arguing that mandatory 

detention is impermissible for noncitizens who claim they did 

not commit “one of the [removal offenses] specified in 

[§] 1226(c),” Appellants’ Br. 21, Plaintiffs challenge not the 

constitutionality of § 1226(c) as applied to those with 

substantial defenses to removal, but rather the adequacy of the 

process by which detainees may contest whether they are 

“properly included” within § 1226(c), i.e., the Joseph hearing, 

see Joseph, 22 I. & N. Dec. at 805. We address that issue in 

the next section.
11

fairly debatable, that detainee cannot constitutionally be 

subjected to mandatory detention under § 1226(c).

 

As we read the case law, however, that argument, has 

been foreclosed by the Supreme Court. In Demore v. Kim, the 

Court assessed the constitutionality of mandatory detention 

under § 1226(c) against the due process test from Zadvydas v. 

Davis, 533 U.S. 678 (2001), which requires that immigration 

detention “bear[] a reasonable relation to the purpose for which 

the individual was committed,” Demore, 538 U.S. at 527 

(quoting Zadvydas, 533 U.S. at 690). It concluded that 

§ 1226(c) passes muster under that standard, explaining that 

the “detention of deportable criminal aliens pending their 

removal proceedings” advances Congress’s goal of 

“preventing deportable criminal aliens from fleeing prior to or 

during their removal proceedings” and thus “increas[es] the 

chance that, if ordered removed, the aliens will be successfully 

removed.” Id. at 527–28 (second emphasis added). By its 

terms, this reasoning reflects that the Court understood 

§ 1226(c) to cover even those noncitizens who are ultimately 

successful in opposing removal.

Plaintiffs try to distinguish Demore on two grounds, 

neither of which is persuasive. First, they say that because the 

detainee in Demore did not “argue that he himself was not 

‘deportable’ within the meaning of § 1226(c),” id. at 522 & n.6, 

we should follow dicta from the Seventh Circuit and treat 

Demore as “le[aving] open the question whether mandatory 

detention under § 1226(c) is consistent with due process when 

a detainee makes a colorable claim that he is not in fact 

deportable,” Gonzalez v. O’Connell, 355 F.3d 1010, 1019–20 

(7th Cir. 2004). But the Supreme Court in Demore expressly 

noted that the detainee there “did not concede that he will 
12

ultimately be deported” because he had “applied for 

withholding of removal.” 538 U.S. at 522 n.6.

Second, Plaintiffs argue that § 1226(c) detention does 

not “bear[] a reasonable relation” to Congress’s goal of 

“preventing deportable criminal aliens from fleeing,” id. at 

527–28, when the noncitizen has a substantial defense to 

removal because such individuals are less likely to abscond. 

But any lower likelihood of flight is conjectural, and even if 

we accept Plaintiffs’ proposition, they do not explain why 

mandatory detention would not bear a “reasonable relation” to 

a lesser but still extant likelihood of flight. Id. at 527. 

Demore’s rationale—that § 1226(c) detention is permissible 

because it “increas[es] the chance that, if ordered removed, the 

aliens will be successfully removed,” id. at 528 (emphasis 

added)—therefore governs this case.

Were there any doubt, the Supreme Court has observed

in the years since Demore both that § 1226(c) requires the 

Government to “detain an alien until ‘a decision on whether the 

alien is to be removed’ is made,” Jennings v. Rodriguez, 138 

S. Ct. 830, 847 (2018) (quoting 8 U.S.C. § 1226(a)), and that it 

mandates that such noncitizens “be detained without a bond 

hearing until the question of their removal is resolved,” Preap, 

139 S. Ct. at 959 (emphasis added).

In sum, the mandatory detention of a noncitizen does 

not offend the Due Process Clause—even where she has a 

substantial and ultimately successful defense to removal—so 

long as she falls within the scope of § 1226(c) “by reason of 
13

having committed any of the [specified] offenses.”5

 See 

Demore, 538 U.S. at 527–28.

B. The burden and standard of proof at Joseph

hearings

We next examine the process that is due at the hearing 

before an IJ to determine whether a detainee is “properly 

included” within the scope of § 1226(c), i.e., the Joseph

hearing. Joseph, 22 I. & N. Dec. at 805. Because the detainee 

in Demore did not take advantage of the opportunity for a 

Joseph hearing, the Supreme Court there “ha[d] no occasion to 

review the adequacy of Joseph hearings generally in screening 

out those who are improperly detained pursuant to § 1226(c).” 

Id. at 514 n.3. As Justice Kennedy observed, however, “due 

process requires individualized procedures to ensure there is at 

least some merit to the [Government’s] charge” that a 

noncitizen is subject to mandatory detention under § 1226(c), 

5 Although Plaintiffs press the point, we have no 

occasion to consider the canon of constitutional avoidance both 

because the text of the statute is unambiguous, see Jennings, 

138 S. Ct. at 846 (“[Section] 1226(c) makes clear that detention 

of aliens within its scope must continue ‘pending a decision on 

whether the alien is to be removed from the United States.’” 

(quoting 8 U.S.C. § 1226(a))), and because we find no 

constitutional problem with § 1226(c) under Demore’s 

rationale, cf. id. at 842 (“When a serious doubt is raised about 

the constitutionality of an act of Congress, it is a cardinal 

principle that this Court will first ascertain whether a 

construction of the statute is fairly possible by which the 

question may be avoided.” (citation and internal quotation 

marks omitted)).
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 is properly included

within § 1226(c), at which point the burden shifts to the 

detainee to show that the Government is “substantially unlikely 

to prevail on its charge” at the eventual removal hearing.

Joseph, 22 I. & N. Dec. at 807. A detainee can make that 

showing with either factual or legal arguments, but her burden 

is a heavy one: Her legal arguments, for example, may only 

succeed if she presents “precedent caselaw directly on point 

that mandates a finding that the charge of removability will not 

be sustained.” In re Garcia, 2007 WL 4699861, at *1 (BIA 

Nov. 5, 2007) (unpublished).6

6 The BIA has explained that even where “[t]he 

respondent’s brief on appeal raises serious questions 

concerning whether the respondent’s offense is appropriately 

categorized as a crime involving moral turpitude” because the 

detainee raised a precedential circuit court decision 

interpreting an analogous crime, such “serious questions” do 

not meet the “substantially unlikely” standard at the Joseph

hearing stage. In re Zamoripa-Tapia, 2010 WL 2390763, at *1 

(BIA May 21, 2010) (unpublished) (citing Navarro-Lopez v. 

Gonzalez, 503 F.3d 1063 (9th Cir. 2007)). And although

unpublished BIA decisions such as Garcia and ZamoripaTapia “do not bind the BIA” in future cases, see De LeonOchoa v. Att’y Gen., 622 F.3d 341, 348–51 (3d Cir. 2010), they 
15

According to the Government and the District Court, so 

long as “reason to believe” equates to “probable cause,” this 

framework satisfies due process because the Joseph hearing is 

only preliminary and “[t]o impose a higher burden on the 

Government . . . would severely undermine the purposes of 

[§ 1226(c)].”7

 Gayle, 2019 WL 4165310, at *21. According 

to Plaintiffs, however, a probable cause standard incorrectly 

“allocate[s] the risk of error.” Addington v. Texas, 441 U.S. 

418, 423 (1979). Instead, they argue, once again, that due 

process requires applying the standard used for bail pending 

appeal, where a defendant may be released if she “raises a 

illustrate how, in practice, the BIA has applied Joseph to “those 

parties for whom [those decisions were] rendered,” id. at 350.

7 In practice, the “reason to believe” standard has 

produced significant confusion. Indeed, the District Court 

issued its class-wide injunction requiring the Government to 

meet a “probable cause” standard precisely because it found 

“reason to believe” to be “virtually undefined” and 

“inconsisten[tly]” applied. Gayle, 2019 WL 4165310, at *18–

*19. Although it is “often equated with mere probable cause,” 

In re Lopez-Cornejo, 2011 WL 585622, at *2 (BIA Jan. 31, 

2011) (unpublished), and the Government here agrees that 

“reason to believe” is the same as “probable cause,” see Gayle, 

2019 WL 4165310, at *19; Appellees’ Br. 12, it is susceptible 

to being viewed as a standard of proof distinct from, and lower 

than, “probable cause,” see Amy Greer, Giving Joseph

Hearings Their Due: How to Ensure that Joseph Hearings 

Pass Due Process Muster, 26 ROGER WILLIAMS U. L. REV. 40,

65–68 (2021).
16

substantial question of law or fact likely to result” in her 

prevailing. 18 U.S.C. § 3143(b)(1)(B). Adopting that 

framework for Joseph hearings would mean that a detainee 

would be subject to the ordinary bail standards of § 1226(a) 

whenever there is a “substantial question” whether she is 

properly included within § 1226(c). Appellants’ Br. 31–32.

8

 

At a minimum, however, Plaintiffs urge us to hold that the 

Government must make an initial showing by a 

“preponderance” of the evidence that the detainee is properly 

included within § 1226(c). Tr. 11–12.

To determine the proper burden and standard of proof, 

we “engage[] in a straight-forward consideration of the [due 

process] factors identified in [Mathews v.] Eldridge.” Santosky 

v. Kramer, 455 U.S. 745, 754 (1982). We balance (1) “the 

private interest that will be affected by the official action”; (2) 

“the risk of an erroneous deprivation of such interest through 

the procedures used, and the probable value, if any, of 

additional or substitute procedural safeguards”; and (3) “the 

Government’s interest, including the function involved and the 

fiscal and administrative burdens that the additional or 

substitute procedural requirement would entail.” Mathews v. 

Eldridge, 424 U.S. 319, 335 (1976). “The function of a 

standard of proof,” the Supreme Court has explained, “is to 

instruct the factfinder concerning the degree of confidence our 

society thinks he should have in the correctness” of the 

8 This approach is not without support: Justice Breyer 

advocated a substantial question standard for Joseph hearings 

in his dissent in Demore, see 538 U.S. at 578 (Breyer, J., 

dissenting), as did Judge Tashima in his concurrence in Tijani 

v. Willis, 430 F.3d 1241, 1247 (9th Cir. 2005) (Tashima, J., 

concurring).
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 bears the burden of proof at Joseph hearings and 

that it must establish that a detainee is properly included within 

§ 1226(c) by a preponderance of the evidence. We reach this 

conclusion for three reasons.

First, the loss of liberty for § 1226(c) detainees is a 

particularly weighty interest, see Zadvydas, 533 U.S. at 690; 

cf. B.C. v. Att’y Gen., — F.4th — , No. 19-1408, 2021 WL 

3891557, at *6 (3d Cir. Sept. 1, 2021), and when such a severe 

deprivation is at issue, the Government must bear the burden 

of proof, see German Santos v. Warden Pike Cnty. Corr. 

Facility, 965 F.3d 203, 214 (3d Cir. 2020); see also Addington, 

441 U.S. at 431–33 (requiring the Government to show clear 

and convincing evidence of mental illness before imposing 

civil commitment); Foucha v. Louisiana, 504 U.S. 71, 80

(1992) (“The State may also confine a mentally ill person if it 

shows by clear and convincing evidence that the individual is 

mentally ill and dangerous.” (citation and internal quotation 

marks omitted)).

The Joseph framework, however, effectively shifts the 

entire burden of proof onto the detainee. Even though Joseph

encouraged IJs to engage in “more than just a perfunctory 

review and ratification of the fact that the [Government] may 

have had a ‘reason to believe’ the respondent was [within the 

category of § 1226(c)],” 22 I. & N. Dec. at 804–05, the low 

threshold it imposes and its burden-shifting paradigm mean, in 
18

practice, that the detainee must disprove § 1226(c)’s 

applicability. It is no surprise then that the BIA itself has 

sometimes acknowledged that under Joseph, “the burden of 

proof is upon the respondent to establish that he is not properly 

included” within § 1226(c). In re Garcia, 2007 WL 4699861, 

at *1 (BIA Nov. 5, 2007) (unpublished).

Second, the “probable cause” standard advocated by the 

Government is too low a bar given the interests at stake. 

Probable cause is less than a preponderance, see Illinois v. 

Gates, 462 U.S. 213, 235 (1983); Gerstein v. Pugh, 420 U.S. 

103, 121 (1975); United States v. Ortiz, 669 F.3d 439, 444–45 

(4th Cir. 2012), and although it must be based on “more than 

bare suspicion,” Brinegar v. United States, 338 U.S. 160, 175 

(1949), a “reasonable ground for belief” will suffice, id.

(citation and internal quotation marks omitted), and it “does 

not demand any showing that [the] belief [in question is] 

correct or more likely true than false,” Texas v. Brown, 460 

U.S. 730, 742 (1983). Thus, under that standard, a noncitizen

may be deemed to fall within § 1226(c) simply if “a man of 

reasonable caution” could “belie[ve]” that the noncitizen

committed a relevant offense, even if that belief appears more 

likely false than true. Id. (citation and internal quotation marks 

omitted).

But the deprivation for § 1226(c) detainees is not only 

severe in nature, see Zadvydas, 533 U.S. at 690; it is also 

substantial in duration. If a noncitizen is found to fall within 

§ 1226(c), she may not seek release on bond unless and until 

her detention has become “unreasonably long,” which, under 

our precedents, may be six months or more. German Santos,

965 F.3d at 210–11. The class representatives here, for 

example, were held for nearly a year and for nearly two years, 
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), they have a diminished liberty interest 

compared with § 1226(c) detainees, because parole 

“[r]evocation deprives an individual, not of the absolute liberty 

to which every citizen is entitled, but only of the conditional 

liberty properly dependent on the observance of special parole 

restrictions,” id. at 480; see Zadvydas, 533 U.S. at 690. 

Likewise, in the context of bail pending trial, see generally

United States v. Salerno, 481 U.S. 739, 747 (1987), although a 

rebuttable presumption of dangerousness or flight risk arises if 

a judge finds “probable cause to believe that the [defendant] 

committed” certain specified offenses, 18 U.S.C. § 3142(e)(3),

see United States v. Perry, 788 F.2d 100, 113–15 (3d Cir. 

1986), the presumption of dangerousness or flight risk under 

§ 1226(c) is in effect irrebuttable once a detainee is found to be 

“properly included” within that provision, Joseph, 22 I. & N. 

Dec. at 805. Compared to those two guideposts, we conclude 

that the Government must meet a higher standard than probable 

cause here.

Third, while the “probable cause” standard places too 

little risk on the Government, Plaintiffs’ proposed standard 

places too much. Under Plaintiffs’ proposed framework,

borrowed from the context of bail pending appeal, raising a 
20

“substantial question” about the applicability of § 1226(c) 

would defeat the Government’s showing and allow the 

detainee to seek bond under § 1226(a). Reply Br. 9. But, as 

we have explained, a “substantial question” is merely one that 

is “fairly debatable” by “‘jurists of reason,’” Smith, 793 F.2d 

at 89 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4

(1983)), and given the importance of the Government’s interest 

in “preventing deportable criminal aliens from fleeing prior to 

or during their removal proceedings,” Demore, 538 U.S. at 

528, that low threshold would tilt the scales too far.

9

Having considered the standards urged by the 

Government and by Plaintiffs, we settle on one in between: To 

comport with due process, the Government must show by a 

preponderance of the evidence that the detainee is properly 

included within § 1226(c) as both a factual and a legal matter. 

See Addington, 441 U.S. at 423–24. It must show, in other 

words, that it is more likely than not both that the detainee in 

fact committed a relevant offense under § 1226(c) and that the 

offense falls within that provision as a matter of law. Cf. 

9 Similarly, although it is a “settled rule that when a 

party stands to lose his liberty, even temporarily, we hold the 

Government” to a “clear and convincing evidence” standard in 

the context of civil detention, German Santos, 965 F.3d at 213–

14, requiring the Government to make an initial showing of 

clear and convincing evidence that a detainee is properly 

included within § 1226(c) would be too high a bar at the Joseph

hearing because it would effectively duplicate the burden the 

Government must meet at the eventual removal hearing to 

“establish[] by clear and convincing evidence that . . . the alien 

is deportable,” 8 U.S.C. § 1229a(c)(3)(A); see also Woodby v. 

INS, 385 U.S. 276, 285–86 (1966).
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 “minitrials” that duplicate the eventual removal hearing by 

“requiring a full assessment of the merits of an individual’s 

claims and defenses.” Appellees’ Br. 40. And requiring the 

Government to make an initial showing that a detainee likely 

“is inadmissible” or “is deportable” for one of the reasons 

specified in § 1226(c), see 8 U.S.C. § 1226(c)(1)(A)–(D), is 

consonant with other detention contexts in which we require 

parties to make some initial showing of likelihood of success 

pending final adjudication, see, e.g., Gerstein, 420 U.S. at 114; 

18 U.S.C. § 3143(b).

In sum, the Government bears burden of proof at Joseph

hearings, and it satisfies that burden by showing that a detainee 

more likely than not is properly included within § 1226(c).

C. Whether the Government must create a 

contemporaneous record of Joseph hearings

Having determined the proper burden and standard of 

proof at Joseph hearings, we turn to Plaintiffs’ final argument: 

that due process requires a contemporaneous verbatim record 

of Joseph hearings. Mathews balancing again guides our 

analysis. Both parties agree that the first Mathews factor—the 

“private interest” in freedom from custody, Mathews, 424 U.S. 
22

at 335—is significant, so we are left to weigh the second and 

third Mathews factors.

As for the second, the parties dispute “the risk of an 

erroneous deprivation,” id., if the Government does not make 

a contemporaneous verbatim record of Joseph hearings. 

Plaintiffs assert such a record is necessary to deter, detect, and 

correct “IJ misconduct,” Appellants’ Br. 47 (citation and 

quotation marks omitted), while the Government retorts that 

because Joseph hearings “generally turn on legal questions” 

and the meaning of “conviction documents,” a 

contemporaneous verbatim record is unnecessary and the BIA

can review the relevant documents and legal issues de novo, 

Appellees’ Br. 53, 58. 

Plaintiffs have the better argument. Misconduct or 

mistakes made by IJs are often identifiable only through audio 

recordings or transcripts of the proceeds. See Serrano-Alberto 

v. Att’y Gen., 859 F.3d 208, 221 (3d Cir. 2017) (noting that 

“the record” from an immigration proceeding may indicate that 

an “IJ’s conduct crosse[d] the line”). And as demonstrated by

the record here, Joseph hearings do sometimes turn on witness 

testimony. Even the Government’s designee, see Fed. R. Civ. 

P. 30(b)(6), Immigration Judge Robert D. Weisel, 

acknowledged at his deposition that detainees “will testify” at 

Joseph hearings and that such testimony “would lend itself to 

potentially . . . establishing” that the detainee is not properly 

included within § 1226(c). JA 405, 417–18. If a detainee

testifies that she is not the person in the conviction records, for 

example, the IJ might “direct[] the government to take the 

fingerprints of the individual to determine identity.” JA 424–

25. The Government, too, Judge Weisel explained, “could 
23

even produce testimony” to show that the detainee is properly 

included within § 1226(c). JA 421.

Currently, however, according to the Government’s 

Statement of Material Facts, “the only contemporaneous 

record” that is made of Joseph hearings is “generally . . . a form 

order with a box checked off,” although IJs often “maintain 

contemporaneous notes of proceedings.” JA 317. In the event

a detainee appeals to the BIA, the IJ will then “prepare[] a 

written memorandum,” which might be based on the IJ’s notes

and “any relevant audio recordings.” Id. But in the absence of 

any requirement to create such notes or recordings, id., the 

memo might be based on nothing more than an IJ’s best 

recollection—after the fact and amid innumerable other 

hearings over which she presided.

Either way, such post-hoc reconstruction of the events 

will never be “the functional equivalent of a transcript.” Singh 

v. Holder, 638 F.3d 1196, 1200, 1208 (9th Cir. 2011)

(requiring the Government to create a contemporaneous record 

of bond hearings for § 1226(a) detainees whose detentions 

have become unreasonably prolonged). So relative to the 

existing state of affairs, we easily conclude that the “probable 

value” of “additional . . . procedural safeguards” at Joseph

hearings is high. Mathews, 424 U.S. at 335; cf. Press-Enter. 

Co. v. Superior Ct. Cal., Riverside Cnty., 464 U.S. 501, 508, 

512 (1984) (explaining that for both “the accused and the 

public,” creation of and access to transcripts plays a crucial role 

in guaranteeing “the basic fairness” of proceedings and 

correcting “deviations” from proper procedure).
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 where Joseph hearings 

occur, and it is often on by default. In other words, IJs already 

operate that equipment during removal hearings, see JA 307–

08, 317, and in many cases must affirmatively turn it off before 

a Joseph hearing. Allowing it to record instead would seem, if 

anything, to lighten the Government’s load.

Given the substantial individual interest in liberty, the 

relatively high value of additional safeguards, and the minimal 

burden on the Government, Mathews balancing dictates that 

the Government make “a record [of Joseph hearings] of 

sufficient completeness” for “adequate and effective . . .

appellate review.” Mayer v. City of Chicago, 404 U.S. 189, 

194 (1971) (citations and internal quotation marks omitted).10 

10 Although Mayer was a criminal case, “the Due 

Process Clause applies to . . . aliens” within the United States, 

Zadvydas, 533 U.S. at 693, and we have recognized “the 

importance of having an adequate record” for review in the 

context of agency decision-making and immigration 

proceedings in particular. See Pichardo v. V.I. Comm’r Labor, 

613 F.3d 87, 101 (3d Cir. 2010); see also Marincas v. Lewis, 

92 F.3d 195, 202–04 (3d Cir. 1996) (requiring an adequate 

record in asylum proceedings); Kheireddine v. Gonzales, 427 

F.3d 80, 84 (1st Cir. 2005) (“While this case involves the 

failure of transcription in an immigration proceeding [not a 

criminal prosecution], . . . the due process principle is the 
25

This requirement does not, of course, “translate automatically 

into a complete verbatim transcript.” Id. Rather, “[a]lternative

methods of reporting [the] proceedings are permissible” if they 

create “an equivalent report of the events,” such as “[a] 

statement of facts agreed to by both sides, a full narrative 

statement based perhaps on the [IJ]’s minutes,” or an audio 

recording. Id. at 194–95 (citations and internal quotation 

marks omitted). The choice among those “functional 

equivalent[s] of a transcript” lies with the Government, but 

whatever the form, “the government must make available for 

appeal a contemporaneous record of [Joseph] hearings.” 

Singh, 638 F.3d at 1208–09.

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

injunctive relief

Having determined that two of Plaintiffs’ constitutional 

arguments are meritorious, all that remains is to decide what 

relief may be granted under 8 U.S.C. § 1252(f)(1) and whether 

same: due process demands a reasonably accurate, reasonably 

complete transcript, or an adequate substitute, to allow for 

meaningful and adequate appellate review.” (citation and 

internal quotation marks omitted)). In addition, 

“[i]mmigration law is a field in which fair, accurate factfinding 

is of critical importance,” B.C. v. Att’y Gen., — F.4th — , No. 

19-1408, 2021 WL 3891557, at *6 (3d Cir. Sept. 1, 2021) 

(quoting Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 381 (3d 

Cir. 2020)), and an adequate record enhances the ability to

review factual claims made at Joseph hearings. In light of 

those principles, we conclude that Mayer’s requirement of “a 

record of sufficient completeness,” 404 U.S. at 194 (citation 

omitted), extends to Joseph hearings as well.
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) shall have jurisdiction or authority to 

enjoin or restrain the operation of [8 U.S.C. §§ 1221–1232], 

other than with respect to the application of such provisions to 

an individual alien against whom proceedings under such part 

have been initiated.” We have previously held that 

§ 1252(f)(1) “permit[s] class declaratory relief.” Alli v. 

Decker, 650 F.3d 1007, 1016 (3d Cir. 2011). But we have not 

addressed whether it allows class-wide injunctive relief in the 

specific scenario at issue here: a class in which every member 

is “an individual alien against whom proceedings . . . have 

been initiated.” 8 U.S.C. § 1252(f)(1).

We conclude it does not. As the Supreme Court has 

explained, “[b]y its plain terms, and even by its title, 

[§ 1252(f)(1)] is nothing more or less than a limit on injunctive 

relief” that “prohibits federal courts from granting classwide 

injunctive relief against the operation of §§ 1221–123[2].”

Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 

471, 481 (1999) [hereinafter AADC]; see also Nken v. Holder, 

556 U.S. 418, 431 (2009) (describing § 1252(f)(1) as “a 

provision prohibiting classwide injunctions against the 

operation of removal provisions”). Of course, “[t]he Court in 

AADC did not consider . . . the application of § 1252(f)(1) to 

. . . a class” in which every member is an individual who is 

already in immigration proceedings, Jennings, 138 S. Ct. at 

875 (Breyer, J., dissenting), and the Supreme Court, too, has 

treated that as an open question, see id. at 851 (majority 

opinion). But as AADC suggests, the plain text of § 1252(f)(1) 
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. Immigr. & Customs 

Enforcement, 953 F.3d 1134, 1151 (9th Cir. 2020), vacated on 

other grounds by Immigr. & Customs Enforcement v. Padilla, 

141 S. Ct. 1041 (2021). Accordingly, the District Court erred 

in entering a class-wide injunction here, and we will vacate that 

order and remand for the entry of the appropriate declaratory 

relief under Alli. See 650 F.3d at 1016.12

11 Plaintiffs cite Califano v. Yamasaki, 442 U.S. 682 

(1979), which held that “[t]he fact that [a] statute speaks in 

terms of an action brought by ‘any individual’ . . . does not 

indicate that the usual Rule providing for class actions is not 

controlling,” id. at 700. But Califano concerned who could 

bring a claim, holding that individual claims can be aggregated 

in class actions, id., while § 1252(f)(1) concerns the scope of 

relief that can be granted and bars injunctions that affect “the 

application” of § 1226(c) “with respect to” more than just “an 

individual,” 8 U.S.C. § 1252(f)(1). Califano is thus inapposite.

12 At oral argument, Plaintiffs asserted that although 

§ 1252(f)(1) uses the word “jurisdiction,” 8 U.S.C. 
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 Plaintiffs’ view did—forfeit its 

§ 1252(f)(1) argument by failing to cross-appeal. As a general 

matter, Plaintiffs are correct that “a party aggrieved by a 

decision of the district court must file an appeal in order to 

receive relief from the decision,” United States v. Tabor Court 

Realty Corp., 943 F.2d 335, 342 (3d Cir. 1991), and that there 

is a distinction to be made between “the question whether there 

is jurisdiction to adjudicate the controversy” and “[t]he nature 

of the relief available after jurisdiction attaches,” Avco Corp. 

v. Aero Lodge No. 735, Int’l Ass’n of Machinists and 

Aerospace Workers, 390 U.S. 557, 561 (1968); see also Steel 

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998); Swift 

& Co. v. United States, 276 U.S. 311, 331 (1928); United States 

v. Hart, 983 F.3d 638, 642 (3d Cir. 2020). Here, however, our 

adoption of a preponderance standard in lieu of a probable 

cause standard expands Plaintiffs’ rights relative to the District 

Court’s order, so the Government may raise § 1252(f)(1) to 

defend against that expansion even in the absence of a crossappeal. See Morley Const. Co. v. Maryland Cas. Co., 300 U.S. 

185, 191 (1937); cf. Tabor Court Realty, 943 F.2d at 342.