Immigration Article of the Day: “Making Sense of ‘Substantially Unlikely’: An Empirical Analysis of the Joseph Standard in Mandatory Detention Custody Hearings” by JULIE DONA

“Making Sense of ‘Substantially Unlikely’: An Empirical Analysis of the Joseph Standard in Mandatory Detention Custody Hearings” JULIE DONA.  ABSTRACT:  This paper provides a systematic, empirical analysis of the “substantially unlikely” burden set forth in Matter of Joseph. Under Joseph, an Immigration Judge must defer to the government’s decision to subject a noncitizen to mandatory detention under INA § 236(c); the noncitizen may obtain a bond hearing only if he first proves that the government is “substantially unlikely” to prevail on the immigration charges subjecting him to detention. I examine how the Board of Immigration Appeals has applied the Joseph standard in 165 custody appeal decisions issued over a four-year period. I find that Immigration Judges confront a host of difficult legal and evidentiary questions in Joseph hearings, and that the BIA interprets the Joseph standard as requiring that virtually all doubt be resolved in favor of the government. I argue that this uneven allocation of the risk of error between the individual and the government is inconsistent with traditional due process requirements.

KJ