An alien may seek a determination from the IJ that he is “not properly included” in the mandatory detention category because ICE is “substantially unlikely to prevail” on the removal charge that subjects him to that category, see 8 C.F.R. § 1003.19(h)(2)(ii); Matter of Joseph, 22 I. & N. Dec. 799, 807 (BIA 1999). If the IJ rules against the alien, he may appeal this determination to the BIA.

8 C.F.R. § 1003.19(d); see also Demore, 538 U.S. at 514 n. 3 (explaining that a Joseph hearing gives an alien the opportunity to avoid mandatory detention by establishing that he is not an alien, was not convicted of a crime requiring mandatory detention, or is otherwise not subject to mandatory detention); Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999) (setting out standards for hearing before immigration judge where alien challenges application of mandatory detention provision). Because Patel can raise his challenges to removability in immigration court, the procedural due process clause of the Constitution is not offended.