Appendix — Reno v. Flores

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No.

In the Supreme Court of the United States

OCTOBER TERM, 1991

WILLIAM P. BARR, ATTORNEY GENERAL OF THE

UNITED STATES, ET AL., PETITIONERS

Vv.

JENNY LISETTE FLORES, ET AL.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

dv KENNETH W. STARR

we Solicitor Genera!

> STUART M. GERSON

Nt Assistant Attorney General

MAUREEN E. MAHONEY

Deputy Solicitor General

RONALD J. MANN

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

GROVER JOSEPH REES, III

General Counsel

Immigration and Naturalization

Service

Washington, D.C. 20001

TABLE OF CONTENTS

Appendix A (Opinion of the court of appeals

sitting en banc dated Aug. 9, 1991) ............

Appendix B (Opinion of the court of appeals panel

dated June 20, 1990 and amended Sept. 7,

ERE er ee ee ee ee

Appendix C (Judgment of the district court entered

ee ce cece ahaa kus neteeeee

Appendix D (District Court Memorandum of

understanding re compromise of class action:

conditions of detention dated Nov. 30, 1987) ...

Attachments to district court memorandum:

Notice of funding programs ...............

Alien minors shelter care program — descrip-

tion and requirements (Apr. 28, 1987) .....

Appendix E (Statutory and regulatory provisions

ee Ne ee cee eueen ies

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Page

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70a

145a

148a

152a

168a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 88-6249

D.C. No. CV-85-4544-RJK

JENNY LISETTE FLORES, A MINOR, BY NEXT FRIEND MARIO

HUGH GAL VEZ-MALDONADO; DOMINGA HERNANDEZ-

HERNANDEZ, A MINOR, BY NEXT FRIEND JOSE SAUL MIRA;

ALMA YANIRA CRUZ-ALDAMA, A MINOR, BY NEXT FRIEND

HERMAN PERILILO TANCHEZ, PLAINTIFFS-APPELLEES

V.

Eowin Meese, IIL; IMMIGRATION & NATURALIZATION

SERVICE; HAROLD EZELL, DEFENDANTS-APPELLANTS

Appeal from the United States District Court

for the Central District of California

Robert J. Kelleher, District Judge, Presiding

Argued En Banc and Submitted April 18, 1991

Pasadena, California

Filed August 9, 1991

OPINION

Before: Wallace, Chief Judge, Tang, Schroeder, D.W.

Nelson, Canby, Norris, Wiggins, Brunetti, Thompson,

Leavy, and Rymer, Circuit Judges.

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2a

Opinion by Judge Schroeder; Concurrence by Judge

Tang; Concurrence by Judge Norris; Partial Concurrence

and Partial Dissent by Judge Rymer; Dissent by Judge

Wallace, with whom Judges Wiggins, Brunetti and Leavy

join.

OPINION

SCHROEDER, Circuit Judge:

1. INTRODUCTION

This is a class action challenging an INS policy that re-

quires governmental detention of children during the

pendency of deportation proceedings. That policy is now

codified at 8 C.F.R. § 242.24 (1988). Detention is required

unless there is an adult relative or legal guardian available

to assume custody, even where there is another responsible

adult willing and able to care for the child and able to en-

sure the child’s attendance at a deportation hearing. The

INS acknowledges that the regulation is not necessary to

ensure such attendance. It does not contend that the re-

lease of children so detained would create a threat of harm

to the children or to anyone else.

The district court held that a blanket detention policy in

such circumstances is unlawful. It entered an order that re-

quired, where feasible, release to a responsible party of

children who would otherwise have been released if a

parent or other relative had come forward. The order fur-

ther required an administrative hearing for each child to

determine whether, and under what conditions, the child

should be released.

The INS and Attorney General appealed and a divided

panel reversed the district court’s holding that the deten-

tion policy was unlawful. The panel remanded for the

district court to determine what procedural protections

3a

would be appropriate under Mathews v. Eldridge, 424

U.S. 319 (1976), to determine whether there was sufficient

cause to detain a juvenile pending further proceedings. A

majority of active judges voted to rehear the case en banc

because of the importance of the issues involved and ihe

impact of the policy on large numbers of children arrested

as illegal aliens in the Western United States. We now af-

firm the district court’s order.

il. BACKGROUND

This case concerns the treatment of children who are ar-

rested on suspicion of being illegal aliens but who have not

yet been determined to be deportable. Because the children

are persons present in the United States they must be af-

forded procedural protections in conjunction with any

deprivation of liberty. Mathews v. Diaz, 426 U.S. 67, 77

(1976).

Plenary authority to determine what categories of aliens

may lawfully reside in the United States and what cate-

gories must be deported resides in the Congress. Fiallo v

Bell, 430 U.S. 787, 792 (1977). Congress has delegated the

duties of the administration of the immigration laws to the

Attorney General, who oversees the work of the Immigra-

tion and Naturalization Service. 8 U.S.C. § 1103(a)

(granting the Attorney General authority to “establish

such regulations . . . , as he deems necessary” to admin-

ister and enforce the immigration laws).

Only one relevant statutory provision addresses the

release or detention of aliens between the time of their ar-

rest and the determination of deportability or non-deport-

ability. That statute is 8 U.S.C. § 1252(a)(1), which in all

material respects has remained the same for the last four

decades. It presently provides:

4a

Pending a determination of deportability ... [an]

alien may, upon warrant of the Attorney General, be

arrested and taken into custody. . . . [A}ny such alien

. . . May, in the discretion of the Attorney General

and pending such final determination of deportabili-

ty, (A) be continued in custody; or (B) be released

under bond. . . containing such conditions as the At-

torney General may prescribe; or (C) be released on

conditional parole.

To implement this statute, the Attorney General prom-

ulgated regulations in 1963, which are still in effect, pro-

viding that aliens arrested on the suspicion of deportability

could be released until further proceedings upon a deter-

mination that such release was appropriate, and under

conditions determined by the INS. 8 C.F.R. § 242.2(c)(2).

Upon request, an alien is entitled to a hearing before a dis-

interested officer, an immigration judge, to determine eli-

gibility for release. 8 C.F.R. § 242.2(d).

In 1984, the Western Region of the INS adopted a

separate policy for minors. That policy provided that

minors would be released only to a parent or lawful guar-

dian. In his memorandum implementing this policy,

former Western Region Commissioner Harold Ezell stated

that the limits on release were “necessary to assure that the

minor’s welfare and safety is maintained and that the

agency is protected against possible legal liability.” The

policy also provided for release to another responsible

adult “in unusual and extraordinary cases, at the dis-

cretion of a District Director or Chief Patrol Agent.” The

Regional Commissioner did not refer to any problems that

had arisen under existing regulations. He did not cite any

instances of harm which had befallen children released to

unrelated adults, nor did he make any reference to suits

that had been filed against the INS arising out of allegedly

Sa

improper releases. It has remained undisputed throughout

this proceeding that the blanket detention policy is not

necessary to ensure the attendance of children at deporta-

tion hearings.

Implementation of this policy sparked concern in a

number of quarters because the policy resulted in the

governmental detention of a large number of children who

posed no apparent risk to the community and whose pres-

ence at their respective hearings could be ensured by re-

sponsible individuals. Various individuals and groups, in-

cluding many appearing as amici in this rehearing en banc,

were among those who reacted adversely to the new

policy. These included church groups, Amnesty Interna-

tional, Lawyers’ Committee for Human Rights, Interna-

tional Human Rights Law Group and Defense for Child-

ren International.

Curing the course of this litigation, the INS codified the

regional policy into the nationally applicable regulation

now at issue. In promulgating that regulation, the INS did

not refer to any particular problem that had arisen in the

course of administering the immigration laws as they af-

fected children. Rather, it simply cited the “dramatic in-

crease in the number of juvenile aliens” found unaccom-

panied by a parent, guardian or a [sic] adult relative. 53

Fed. Reg. 17,449 (May 17, 1988). The regulation allows

release to a somewhat broader class of people than did the

' Western Region policy, i.e., a variety of adult relatives as

opposed to just parents and legal guardians, but it pro-

hibits release in cases where other responsible adults are

available to take custody of the minor. It permits release

to unrelated adults only in unusual and compelling cir-

cumstances.” 8 C.F.R. § 242.24.'

' The regulation provides in full as follows:

Detention and release of juveniles.

6a

In promulgating the regulation, the INS recognized that

the principal factor bearing on release or detention is the

(a) Juveniles. A juvenile is defined as an alien under the age

of eighteen (18) years.

(b) Release. Juveniles for whom bond has been posted, for

* whom parole has been authorized, or who have been ordered

released on recognizance, shall be released pursuant to the

following guidelines.

(1) Juveniles shall be released, in order of preference, to: (i) A

parent; (ii) legal guardian; or (iii) adult relative (brother, sister,

aunt, uncle, grandparent) who are not presently in INS detention,

unless a determination is made that the detention of such juvenile

is required to secure his timely appearance before the Service or

the immigration court or to ensure the juvenile’s safety or that of

others.

In cases where the parent, legal guardian or adult relative

resides at a location distant from where the juvenile is detained,

he or she may secure release at an INS office located near the

parent, legal guardian, or adult relative.

(2) If an individual specified in paragraph (b)(1) of this sec-

tion cannot be located to accept custody of a juvenile, and the

juvenile had identified a parent, legal guardian, or adult relative

in INS detention, simultaneous release of the juvenile and the

parent, legal guardian, or adult relative shall be evaluated on a

discretionary case-by-case basis.

(3) In cases where the parent or legal guardian is in INS

detention or outside the United States, the juvenile may be

released to such person as designated by the parent or legal guar-

dian in a sworn affidavit, executed before an immigration officer

or consular officer, as capable and willing to care for the

juvenile’s well-being. Such person must execute an agreement to

care for the juvenile and to ensure the juvenile’s presence at all

future proceedings before the Service or an immigration judge.

(4) In unusual and compelling circumstances and in the dis-

cretion of the district director or chief patrol agent, a juvenile

may te released to an adult, other than those identified in para-

graph (b)(1) of this section, who executes an agreement to care

for the juvenile’s well-being and to ensure the juvenile’s presence

at all future proceedings before the INS or an immigration judge.

Ta

likelihood of appearance at future proceedings. It also

recognized that the policy of preventing release to re-

sponsible adults was not related to the issue of flight risk

or the administration of any provision of the immigration

laws. Its principal justification for the detention rule was

the theory that unless the INS were able to do a compre-

hensive “home study” of the proposed custodian, the

child’s own interests would be better served by detention.

The INS stated:

As with adults, the decision of whether to detain or

release a juvenile depends on the likelihood that the

alien will appear for all future proceedings. However,

with respect to juveniles a determination must also be

made as to whose custody the juvenile should be re-

leased. On the one hand, the concern for the welfare

of the juvenile will not permit release to just any

adult. On the other hand, the Service has neither the

expertise nor the resources to conduct home studies

for placement of each juvenile released.

53 Fed. Reg. at 17,449.

In response to comments suggesting that release to re-

sponsible adults should be permitted on a regular basis,

the INS stated that it did not have the resources or exper-

tise necessary to make a determination, in each case,

whether release to the adult in question would be in the

child’s best interests. 53 Fed. Reg. at 17,449. The INS did

not state any basis for its assumption that home studies

would have to be conducted. Nor did the INS indicate that

it had conducted such studies before releasing children to

unrelated adults prior to the promulgation of this policy.

Commenters also complained that the regulation’s provi-

sion that release to unrelated adults could occur in

“unusual and compelling circumstances” was too vague to

provide meaningful guidance. The INS responded that

8a

such vagueness was deliberate, designed to provide “the

broadest possible discretion” to INS officials. Jd. Finally,

commenters suggested that the INS should permit in-

dividuals or organizations to act as intermediaries between

the INS and the parent or guardian of an alien child, to

allow for release where that parent or guardian is afraid to

come forward personally because of his or her own illegal

alien status. After pointing out that “[t}his proposal raises

some of the same concerns that release to any reliable

adult raises, for example, the inability of the Service to

perform “home studies,” the INS concluded that it would

“continue to consider the proposal,” but would promul-

gate the regulation without such a provision at this time.

Id. ai 17,450. The final regulation was approved on May

17, 1988.

The named plaintiffs, including named plaintiff Jenny

Flores, filed the action on July 11, 1985, challenging the

Western Region’s policy then in effect. These named plain-

tiffs represented a class of minors who do not pose a risk

of flight or harm to the community, and have responsible

third parties available to receive them, and are thus being

detained only because no adult relative or legal guardian is

available to take custody of them. Their complaint con-

tained a number of claims. In the panel majority opinion,

Judge Wallace described them as follows:

The first claim alleged that the Western Region’s

bond release condition violated the Immigration &

Nationality Act (INA), 8 U.S.C. § 1101 ef seg., the

Administrative Procedure Act (APA), 5 U.S.C. § 552

et seq., the fifth amendment’s due process clause and

equal protection guarantee, and international law.

Flores’s second claim challenged the INS’s failure to

provide (1) “prompt written notice” to the detainee

that the bond release condition had been imposed,

9a

and (2) “prompt, mandatory, neutral and detached”

review following arrest of (a) whether probable cause

to arrest existed, (b) whether imposition of the bond

condition was necessary to ensure future appearance,

and (c) whether any available adult was suitable to en-

sure the detained juvenile’s well-being and appearance

at future proceedings. The second claim alleged that

these failures violated due process and international

law. Plaintiffs’ last five claims, which challenged

various conditions of the minors’ confinement, . . .

were resolved by settlement or motion... .

Flores v. Meese, No. 88-6249, slip op. 10747, 10764-65

(9th Cir. Sept. 7, 1990) (as amended). After the policy

Originally in question was codified as a regulation, this

litigation was maintained as a challenge to that regulation.

Between the time that the complaint was filed and the

promulgation of the national regulation implementing the

Western Region policy, the district court disposed of sev-

eral motions. With respect to the limitation on release to

parents or legal guardians, the court ruled the provision

violated equal protection. It agreed with Flores that the

INS’ practice of permitting alien minors in exclusion pro-

ceedings to be released to a broader class of adults than

those in deportation proceedings was not supported by a ra-

tional justification. See 8 C.F.R. § 212.5(a)(2)(ii) (1987)

(alien minors in exclusion proceedings could be released to

adult relatives or to non-relatives). When the INS promul-

gated the regulation here at issue, it amended the regulation

regarding release of children in exclusion proceedings to in-

corporate by reference the same restrictions as those opera-

tive in the deportation context, thus mooting the district

court’s ruling on this issue. See 8 C.F.R. § 212.5(a)(2)(ii)

(1988). The court still had under advisement various mo-

tions relating to the procedural implementation of the INS’

policy when the INS promulgated the official regulation.

10a

Upon promulgation of the regulation, the district court

asked for supplemental briefs and then entered an order

granting summary judgment to the plaintiff class. The

order invalidated the blanket detention of minors where a

responsible adult could ensure attendance at the deporta-

tion hearing, and it required a hearing before a neutral and

detached official in each case to determine whether release

was appropriate and the conditions of release. The order

provided:

1. Defendants . . . shall release any minor other-

wise eligible for release on bond or recognizance to

his parents, guardian, custodian, conservator, or

other responsible adult party. Prior to any such re-

lease, the defendants may require from such persons a

written promise to bring such minor before the appro-

priate officer or court when requested by the INS.

2. Whenever a minor is released as aforesaid, the

minor shall be promptly advised in writing in a lan-

guage he understands of any restrictions imposed

upon his release.

3. Any minor taken into custody shall be forth-

with afforded an administrative hearing to determine

probable cause for his arrest and the need for any

restrictions placed upon his release. Such hearing

shall be held with or without a request by or on behalf

of the minor.

The Attorney General and INS appealed. The majority

of the panel for our court vacated the first paragraph of

the district court’s order, holding that the detention policy

did not implicate any of the plaintiffs’ fundamental rights,

and that due deference to the INS’ choices in implementing

congressional immigration policy required approval of the

INS detention policy restricting release. The majority

characterized the right claimed by the class as a substan-

lla

tive due process right “to be released to an unrelated

adult.” Slip op. at 10788. Finding that the Constitution

does not guarantee such a right, the majority applied a

highly deferential standard of review to what it saw as an

exercise of the INS’ unique expertise and authority.

In considering the procedural aspects of the district

court’s order as embodied in paragraph three, the panel

majority remanded. It rejected the appellees’ contention

that the fourth amendment requirement of review by a

neutral and detached magistrate of probable cause for ar-

rest, as the Supreme Court has enunciated in Gerstein v.

Pugh, 420 U.S. 103 (1975), was applicable in the context

of civil deportation proceedings. Rather, it chose as the

appropriate model for procedural due process evaluation

the balancing test outlined in Mathews v. Eldridge, 424

U.S. 319 (1976). That test would involve a balancing of the

children’s interest in release to a responsible adult, which

the majority viewed as not constitutionally protected,

against the governmental interests, which it viewed as en-

titled to substantial deference.

Judge Fletcher, in dissent, described the case as “among

the most disturbing I have confronted in my years on the

court.” Slip op. at 10803. She characterized the district

court’s order as a “simple, sensible, minimally intrusive

direction,” id. at 10804, to protect the fundamental liberty

interests of the plaintiffs who, in her view, should not be

denied liberty when their “only possible offense is their

alienage.” Jd. at 10803.

In their petition for rehearing en banc, plaintiffs con-

tend, inter alia, that the panel majority erred in failing to

recognize their fundamental interest in liberty. It also

erred, they argue, in holding that, under either Gerstein v.

Pugh or Mathews v. Eldridge, any procedure other than

an individual hearing before an independent officer could

provide adequate protections for the right at stake.

12a

Before us for decision are three principal sets of issues.

The first involves the detention policy itself and whether it

affects any constitutionally protected liberty interests of

the plaintiffs. The second involves the nature of the

federal governmental interest furthered by such a policy,

the justifications set forth by the agency for such a policy

and the extent to which we must defer to the agency in the

promulgation of such policies. The third is whether, after

examination of these issues, the appropriate procedural

model for the determinations at issue is the criminal model

of: Gerstein v. Pugh or the civil model of Mathews vy.

Eldridge, or indeed whether, in the context of this case, it

makes any difference whether a criminal or civil model is

chosen. Our discussion focuses on each of these areas in

turn.

Hi. DISCUSSION

Defendants maintain that the plaintiffs’ liberty interests

are limited because of their status as aliens and children.

We therefore examine in some detail the manner in which

courts and Congress deal with the questions of rights of

aliens and children.

A. Plaintiffs’ Interests as Aliens

The Constitution protects the rights of aliens to due

process and equal protection. Yick Wo v. Hopkins, 118

U.S. 356 (1886). Even illegal aliens enjoy the due process

protections of the fifth amendment. Mathews v. Diaz, 426

U.S. 67, 77 (1976). It is now well established that under

these cases any person present in the United States is en-

titled to equal justice before the law, including procedural

protections in conjunction with any deprivation of liberty,

and freedom from invidious discrimination. See C. An-

tieau, | Modern Constitutional Law §§ 9:25-9:27 (1969 &

Supp. 1991).

13a

A crucial component of the right to personal liberty is

the ability to test the legality of any direct restraint that the

government seeks to place on that liberty. This ability is

guaranteed through the availability of the writ of habeas

corpus to challenge the lawfulness of one’s imprisonment.

The right to seek such a writ has its roots in English law

that predates the formation of this nation. See Habeas

Corpus Act of 1679, 31 Car. II Ch. 2. It was incorporated

among the first rights guaranteed by the United States

Constitution. U.S. Const. art. 1, § 9. There thus can be no

question that this right is a key part of the American legal

system.

In any discussion of the constitutional guarantee of

liberty, the importance of habeas corpus must not be

understated. As one commentator has described it:

Over the centuries habeas corpus has been the

common-law world’s “freedom writ” by whose pro-

cess the courts may require the production of all pris-

oners and inquire into the legality of their incarcera-

tion, failing which they have been set free. Of the writ

of habeas corpus, the United States Supreme Court

has appropriately noted: “There is no higher duty

than to maintain it unimpaired.”

1 Modern Constitutional Law § 5:148 at 436 (quoting

Bowen v. Johnston, 306 U.S. 19, 26 (1939)). For this

reason, to assess the nature of an alien’s liberty interest, it

is appropriate to look to the extent courts have historically

recognized such an interest through habeas corpus pro-

ceedings.

It has long been accepted that alienage does not prevent

a person from testing the legality of confinement through

habeas corpus. See Wong Wing v. United States, 163 U.S.

228 (1896). Indeed, even a would-be immigrant who is pre-

vented from landing in the United States and is, in that

!4a

way, deprived of liberty “is doubtless entitled to a writ of

habeas corpus to ascertain whether the restraint is lawful.”

Nishimura Ekiu v. United States, 142 U.S. 651, 660

(1892). Thus, the status of the plaintiff class in this case as

aliens whose presence in this country might be illegal does

not affect their right to put the government to its proof

concerning the legality of their detention.

That the detention at issue here is a civil detention im-

posed in the course of administering the immigration laws

does not alter the relevance of the principles of habeas cor-

pus. Still the leading case involving a test of the legality of

detention under immigration laws is Carlson v. Landon,

342 U.S. 524 (1952). In that case, the Supreme Court dealt

with a petition for habeas corpus by aliens detained prior

to deportation under the Internal Security Act of 1950, be-

cause of their membership in the Communist Party of the

United States. Noting that “[djeportation is not a criminal

proceeding” and thus the detention at issue was admini-

strative, not punitive, 342 U.S. at 538, the Court neverthe-

less employed habeas corpus review as the appropriate

means for the individual aliens to challenge their deten-

tion.

The petitioners in Carlson challenged their pre-deporta-

tion detention on the ground that there had been no suffi-

cient showing that they presented an actual risk of flight or

harm to the community if released pending further pro-

ceedings. Rather, they were denied release on a finding

that each was an active member of the Communist party.

This finding, they argued, was not sufficient to support

detention. See 342 U.S. at 533-34.

The Court rejected this argument on the ground that the

decision to detain them based on their active membership

in the Communist party was made through an exercise of

the discretion delegated to the Attorney General under the

immigration laws. The delegated discretion was to deter-

lSa

mine which aliens pose a threat of harm to the community.

The Court held that detention based on Communist party

membership and activity was not an abuse of that discre-

tion. The Court noted that the evidence went “beyond un-

explained membership and show[ed] a degree . . . of parti-

cipation in Communist activities.” 342 U.S. at 541. Be-

cause the Court also agreed with the INS that “the doc-

trines and practices of Communism clearly enough teach

the use of force to achieve political control,” id. at 535-36,

it found that the detention of the petitioners was proper

since they posed “a menace to the public interest.” /d. at

541.

The Court was careful to observe, however, that the dis-

cretion of the Attorney General was not without bounds.

The INS policy in Carlson did not amount to blanket

detention. The Court pointed out that there was “no evi-

dence or contention that all persons arrested as deportable

. . . for Communist membership are denied bail.” /d. at

541-42. It went on to note that the evidence before it in-

deed illustrated that release pending further proceedings

was granted “in the large majority of cases.” /d. at 542.

The most recent comprehensive Supreme Court discus-

sion of an individual's interest in liberty is set in the context

of adults held in pretrial detention without regard to

citizenship. United States v. Salerno, 481 U.S. 739 (1987).

The Court there recognized “the individual’s strong interest

in liberty,” which it characterized as a “fundamental” right

with which Congress could interfere only with a “careful

delineation of the circumstances under which detention will

be permitted... .” 481 U.S. at 750-51. Detention was

justified only by clear and convincing evidence that the ar-

restee presented “an identified and articulable threat to an

individual or the community. . . .” /d. at 751. Significant-

ly, the Court drew a parallel between the detention at issue

in Carlson and that challenged in Salerno by noting that

16a

the Carlson petitioners were permissibly detained during

the pendency of deportation proceedings because they

were “potentially dangerous.” 481 U.S. at 748. It did not

in any way suggest that aliens’ liberty interests were any

less fundamental than those of citizens.

History may have passed Carlson by in some respects,

particularly in its assessment of the danger attending

political activity, but the case, in significant respects rele-

vant to this case, provides guidance. Carlson holds that

under our Constitution and an Immigration Act materially

the same as the current one, the INS cannot detain indi-

viduals without a particularized exercise of discretion

through which it determines that detention of an in-

dividual would prevent harm to the community or further

some other important governmental interest Congress has

delegated to the INS. See also C. Gordon and S. Mailman,

| Immigration Law and Procedure § 1.03{7){d] (1988)

(“the alien in deportation proceedings may be detained or

required to post bond only upon a finding that he is a

threat to the national security or likely to abscond.”).

Thus, we must hold that aliens have a fundamental right

to be tree from governmental detention unless there is a de-

termination that such detention furthers a significant gov-

ernmental interest. That right is secured by the Constitution

in its enumerated guarantee of habeas corpus to all individ-

uals, including aliens, to test the validity of their detention

through judicial scrutiny of the basis for confinement at the

hands of the government. See Salerno, 481 U.S. 739;

Carlson, 342 U.S. 524; Wong Wing, 163 U.S. 228.

B. Plaintiffs’ Interests as Children

The plaintiffs are not only aliens; they are also minors.

The INS contends that this factor materially changes the

nature of their liberty interest, thereby rendering the

17a

detention policy reasonable and appropriate. We therefore

turn to the question of what effect the juvenile status of

these plaintiffs may have on the analysis of their liberty in-

terests and the protections that must be given to those in-

terests.

The Constitution protects the rights of children to due

process of law in conjunction with any deprivation of

liberty. Jn re Gault, 387 U.S. 1 (1967). While a child ac-

cused of an offense may be subject to pretrial detention

based on a determination that release is not safe for the

child, such a determination has been held to meet the man-

dates of due process only where made by a neutral and de-

tached official, with the justifications for detention clearly

stated. Schall v. Martin, 467 U.S. 253 (1984). This holding

is in keeping with the general rule that freedom from in-

stitutional confinement should be the norm, from which

any deviation must be supported with specific reasons. As

one set of commentators has observed, a child’s “right to

be treated in the manner least restrictive to the child’s

liberty . . . has its roots in the well-settled concept that,

while constitutional rights may be restricted by the state

for legitimate purposes, the restriction must be no greater

than necessary to achieve these purposes.” R. Horowitz

and H. Davidson, Legal Rights of Children § 10.10 at 431

(1984). This proposition flows from the Supreme Court’s

general pronouncement that “even though the governmen-

tal purpose be legitimate and substantial, that purpose

cannot be pursued by means that broadly stifle funda-

mental personal liberties when the end can be more nar-

rowly achieved. The breadth of legislative abridgment

must be viewed in the light of less drastic means for

achieving the same basic purpose.” Shelton v. Tucker, 364

U.S. 479, 488 (1960) (footnotes omitted). Under these

principles, governmental confinement of a child to an in-

stitution should be a last resort.

18a

Policies constructed to deal with the confinement of

children at both the state and federal levels have recog-

nized the practical need to avoid institutional detention

where less restrictive means are available. It is the states,

rather than the federal government, which are primarily

responsible for child welfare issues. State courts have ar-

ticulated the view that institutional confinement should be

used only when another type of placement such as foster

care is not possible. See, e.g., R.P. v. State, 718 P.2d 168

(Alaska App. 1986) (state must prove by a preponderance

of the evidence that less restrictive alternatives are not

possible); In re John H., 48 A.D.2d 879, 369 N.Y.S.2d 196

(1975) (other options must first be fully explored). In addi-

tion to protecting any constitutional interests of the child-

ren, this avoidance of institutionalization is seen to serve

their best interests. See generally S. Davis, Rights of

Juveniles § 6.3 (1990) (discussing states’ attempts to ensure

that a child benefits in some way from whatever type of

placement is ultimately chosen).

Congressional policy, where relevant, also favors avoid-

ance of the institutionalization of juveniles. The federal

government does have the occasion to process juvenile of-

fenders when, for example, they violate federal laws or

commit crimes on Indian reservations. In such situations,

the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031

el seq., governs the treatment of the offenders. That Act’s

provisions regarding detention specify that it should occur

in “a foster home or community based facility” instead of

an institution, if possible. 18 U.S.C. § 5035 (regarding

pre-disposition detention); 18 U.S.C. § 5039 (regarding

detention after disposition). These provisions evidence an

understanding that the juvenile’s liberty should be cur-

tailed only by the least restrictive means necessary to

achieve the purpose at hand, and that the interests of

19a

juveniles and of society are best served by keeping such of-

fenders in homes rather than in institutions whenever

practicable.

The foregoing analysis compels the conclusion that, just

as the plaintiffs’ entitlement to liberty absent a valid, par-

ticularized basis for confinement does not diminish due to

their alienage, their minority does not materially change

the nature of that entitlement. The INS is therefore incor-

rect when it asserts that plaintiffs have no fundamental

liberty interest at stake. The INS is also incorrect in assert-

ing that to prevail, the plaintiffs must be able to find in the

Constitution itself, or law interpreting the Constitution,

an express recognition of a “substantive due process right

to be released to an unrelated adult.” Such release is not

the constitutional interest being secured. It is the remedy

the district court imposed after ruling that the defendant’s

policy unconstitutionally interfered with plaintiffs’ interest

in freedom from unjustified governmental detention.

Whether the imposition of such a remedy was appro-

priate depends upon whether the detention serves a signifi-

cant federal governmental purpose. It is to that issue that

we now turn.

C. Goverrment Purposes Involved

This case is unprecedented in that it involves post-arrest

detention of persons who have not been convicted of any

crime, do not pose a risk of flight, and who have not been

determined to present any threat of harm to themselves or

to the community. Whatever purposes detention serves,

they do not relate to punishment, to the need for attend=

ance at further proceedings, or to avoidance of an identi-

fiable risk of harm. Contrast Salerno, 481 U.S. 739;

Schall, 467 U.S. 253; Carlson, 342 U.S. 524.

20a

The INS articulates two reasons for the detention. First,

the INS suggests that the child’s interests would be better

served by detention than by release to a responsible adult

whose living environment the INS does not have the means

to investigate. Second, it asserts that the policy is neces-

sary to protect it from potential liability in the event some

harm should befall the child after release.

The INS does not articulate any legal basis for its posi-

tion that these are valid INS concerns. The first flies in the

face of the Supreme Court’s ruling in Gault that children

should be treated in a manner least restrictive of liberty. It

also expresses a view contrary to the Supreme Court’s deci-

sion in Schall, which required a foreseeable risk of harm to

justify detention. While the Supreme Court in Schall rec-

ognized that a child, because of a lack of maturity, should

have some adult custody and care, 467 U.S. at 265, it did

not remotely suggest that there may be a presumption in

favor of governmental detention as serving the best inter-

ests of the child.

The INS in essence maintains, however, that we should

not look behind their articulation of concerns because we

must defer to any such articulation. Agencies are, of

course, entitled to some deference when they make deter-

minations that relate to an area of their special expertise.

See United States v. Shimer, 367 U.S. 374, 383 (1961). In

the immigration field, then, courts owe deference to deci-

sions of the INS where its special experience and authority

in the area of alienage are called into play. See Carlson,

342 U.S. at 540-41.

The justifications asserted here, however, relate to child

welfare and the potential liability of child welfare agen-

cies. Child welfare is not an area of INS expertise and its

decisions in this area are not entitled to any deference. See

Hampton v. Mow Sun Wong, 426 U.S. 88, 114-15 (1976)

(court does not defer to agency determination in area out-

2la

side of agency’s expertise). Nor does this policy carry out

any express congressional directive. Rather, the policy is

contrary to Congress’ determination that institutional

detention of juveniles is disfavored. See 18 U.S.C.

§§ 5035; 5039. One of the very reasons the INS gives for

detaining the plaintiffs is that it does not have the exper-

tise, and Congress has not given it the resources, to do the

kind of evaluation of foster care facilities that state child

welfare agencies do on a routine basis. The INS reasons

that since it is unable to do such an evaluation, the best in-

terests of the child must lie in detention rather than in re-

lease. The Constitution requires the opposite conclusion.

See Gault, 387 U.S. 1. We therefore hold that the INS may

not determine that detention serves the best interests of

members of the plaintiff class in the absence of affirmative

evidence that release would place the particular child in

danger of some harm.

Our conclusion that the INS cannot maintain a blanket

policy of detention thus does not absolve the INS from the

responsibility of making individualized decisions concern-

ing the fate of children it has arrested. Due process re-

quires a particularized exercise of discretion in conjunc-

tion with the decision to grant or deny release to any alien.

See Carlson, 342 U.S. at 542. It is, of course, within the

purview of the INS to determine whether or not the person

available to assume custody will ensure the child’s attend-

ance at future proceedings. It is also within the purview of

the INS to determine on the basis of the particular case

whether release of the child poses a danger to the com-

munity or could result in harm to the child. The blanket

refusal to make individualized determinations in the guise

of administrative expediency, however, cannot pass con-

Stitutional muster. See, e.g., Reed v. Reed, 404 U.S. 71,

76-77 (1971) (administrative convenience does not justify a

policy that otherwise runs afoul of the Constitution).

22a

The INS’ secondary justification for its detention policy

is that if it released a child to an unrelated adult based on a

determination short of a detailed “home study,” it could

be subject to liability in the event that some harm befell

the child. The INS does not specify the source of such

liability.

We find little indication that the INS would be subject

to liability for releasing a minor to an unrelated adult

without a “home study.” Such a “study” is concededly be-

yond the expertise of the Service. The Supreme Court’s

holding in Bivens v. Six Unknown Named Agents of the

Fed. Bureau of Narcotics, 403 U.S. 388 (1971), would give

an individual a cause of aetion against the INS for a viola-

tion of constitutional rights, an action analogous to the

cause of action available through 42 U.S.C. § 1983 against

those who violate federal rights under color of state law.

The Supreme Court has recently held, however, that a

State agency, with far more expertise in child welfare than

the INS, could not be held liable under section 1983 for

allowing a child to remain in the custody of an adult —

despite clear evidence that such custody placed the child in

danger. DeShaney v. Winnebago County Dept. of Social

Services, -489 U.S. 189 (1989). The Court concluded that

the actions of a private citizen could not form a basis for

liability of the Department under section 1983. It did not

matter, the Court held, that the child had formerly been in

state custody, because “the State does not become the per-

manent guarantor of an individual’s safety by having once

offered him shelter.” /d. at 201.?

* A state wquid of course face a somewhat greater threat of liability

atter releasing a child to the custody of a responsible third party as op-

posed to the custody of a parent as in DeShaney. This is because the

state would have acted affirmatively to place the child in a home from

which the child had not originally come, as opposed to returning the

23a

Decisions before and since DeShaney, as well as

DeShaney itself, compel the conclusion that governmental

agencies face far greater exposure to liability by maintain-

ing a special custodial relationship than by releasing child-

ren from the constraints of governmental custody. See

DeShaney, 489 U.S. at 200-201 (emphasizing that absence

of duty on the part of the state to ensure child’s safety

arose from the fact that the plaintiff was not in the state’s

custody at the time of the injury); Youngberg v. Romeo,

457 U.S. 307, 316-17 (1982) (when individual is in state

custody, state may acquire constitutional duty to ensure

individual’s safe care); Lashawn A. v. Dixon, 762 F. Supp.

959, 996 (D.D.C. 1991) (under DeShaney and Youngberg,

state agency may be liable for constitutional tort where it

fails to provide adequately for the safety and weil being of

children in its custody). We reject the INS’ claim that it

must detain these children to avoid lawsuits. In so doing,

we follow the lead of the Supreme Court, which has

recently refused to uphold an argument that possible tort

liability justified a policy that violated the rights of indi-

viduals, where such liability was “remote at best.” /nter-

national Union, UAW v. Johnson Controls, Inc., 111 S.

Ct. 1196, 1208 (1991).

We therefore conclude that the first paragraph of the

district court’s order is an appropriate means to prevent in-

carceration of juveniles where such incarceration serves no

legitimate purpose of the INS. It provides that release to a

responsible adult shall occur only if the child would have

otherwise been eligible for release to a relative under the

challenged policy. It takes into account the need to secure

attendance at_immigration proceedings, and does not fore-

child to the same home and assuring placement in “no worse position

than that in which he would have been haa [the state] not acted at all.”

Id. at 201.

— — 24a

close the ability of the INS to order detention if there are

other, valid reasons for detention. In addition, by specify-

ing that where there is no relative or legal guardian avail-

able release may be made to a “responsible” party, it

allows room for the INS to make the necessary determina-

tion of whether a party who is willing to assume custody of

the child is fit to do so.

D. Procedural Due Process and Part Three of the District Court's

Order

From the beginning of this litigation the parties have

disputed whether the determination of what process is due

in conjunction with the decision to detain members of the

plaintiff class should be made pursuant to Gerstein, 420

U.S. 103, or Mathews, 424 U.S. 319. In Gerstein, the

Court determined that a “timely judicial determination”

was a mandatory prerequisite to pretrial detention in the

criminal context. 420 U.S. at 126. In Mathews, the Court

articulated a three-factor analysis designed to be appli-

cable generally to questions of due process in conjunction

with administrative actions. A reviewing court must con-

sider first the private interest that the action affects, sec-

ond the risk that the procedures currently utilized will

result in an erroneous deprivation of that interest and the

extent to which that risk could be lessened by the addition

of more safeguards, and third the government’s interest in

maintaining the current procedures. 424 U.S. at 335. The

plaintiffs have urged that Gerstein be followed, while the

INS has argued that Mathews provides the proper mode of

analysis. ad

Because we have held that the plaintiffs’ interest in free-

dom from detention requires that the decision to detain be

made only in conjunction with a neutral and detached

determination of necessity, we must affirm Part Three of

25a

the district court’s order regardless of whether we apply

Mathews or Gerstein. In so doing, we note that under cur-

rent regulations, the INS is already required to maintain

the mechanisms for providing review by an Immigration

Judge of any decision to detain an alien or of conditions

imposed on the release of such alien, if the alien requests

such a hearing. See 8 C.F.R. § 242.2(d). The only new re-

quirements that Part Three of the district court’s order

places on the INS are that, if the alien is a child, such a

hearing must be held regardless of whether the alien re-

quests it, and the determination at the hearing must in-

clude an inquiry into whether any non-relative who offers

to take custody represents a danger to the child’s well be-

ing. The first of these additional requirements is reason-

able because the members of the plaintiff class, as child-

ren, are less capable than others of understanding what

they are waiving by failing to request a hearing. The sec-

ond is reasonable in light of the private interest at stake.

We therefore conclude that Part Three of the district

court’s order provides the appropriate procedural safe-

guards for the deprivation here at issue, and accordingly

uphold it.

IV. CONCLUSION

The district court correctly held that the blanket deten-

tion policy is unlawful. The district court’s order appro-

priately requires children to be released to a responsible

adult where no relative or legal guardian is available, and

mandates a hearing before an immigration judge for the

determination of the terms and conditions of release.

The majority panel opinion is VACATED and the order

of Judge Kelleher is AFFIRMED in all respects.

26a

TANG, Circuit Judge, concurring:

| concur wholeheartedly in the majority’s judgment and

| concur in the majority opinion insofar as it goes. I write

separately to emphasize my belief that the liberty interest

at issue—freedom from governmental detention and re-

straint —is a fundamental right expressly protected by the

fifth amendment to the Constitution. Indeed, freedom

from governmental restraint is the core, the very crux of

any governmental system dedicated to preserving the in-

tegrity and inviolability of the individual. | write separate-

ly also to highlight the two distinct deprivations of liberty

occasioned by the INS’s policy.

A. The Right at Issue

The original panel opinion in this case and the current

dissent denominate the right at issue as the “right to be re-

leased to unrelated adults.” This characterization of the

children’s liberty interest stands the Constitution on its

head. It presumes the government’s right to detain and re-

quires children, who have committed no offense greater

than being suspected of being deportable, to prove their

entitlement to release. Even assuming that non-textual

rights need to be carefully articulated, there is no reason to

afford “liberty” — language right out of the Constitution’s

text —such a cramped interpretation.

I agree with the majority’s conclusion that one textual

source of the right to freedom from governmental

restraint is the Constitution’s habeas corpus guarantee.

U.S. Const. art. 1, § 9. The majority’s analysis of the con-

stitutional basis for the right at issue is not complete, how-

_ever.

Physical freedom from governmental detention and re-

Straint —liberty in its most clemental form—is a funda-

mental constitutional right guaranteed by the due process

27a

clause of the fifth amendment. This freedom from govern-

mental restraint is both a substantive right and an entitle-

ment to certain procedural protections when the govern-

ment acts to deprive a person of physical liberty.

A recent acknowledgement of the substantive due proc-

ess right to freedom from governmental restraint can be

found in DeShaney v. Winnebago County Dep’t of Social

Servs., 489 U.S. 189 (1989). In DeShaney, the Supreme

Court expressly stated:

In the substantive due process analysis, it is the State’s

affirmative act of restraining the individual’s freedom

to act on his own behalf —through incarceration, in-

stitutionalization, or other similar restraint of per-

sonal liberty— which is the “deprivation of liberty”

triggering the protections of the Due Process Clause.

Id. at 200.

The DeShaney court’s observation was not novel.

Numerous precedents already recognized the individual’s

fundamental right to freedom from restraint. See, e.g.,

United States v. Salerno, 481 U.S. 739, 749 (1987) (“Re-

spondents [invoke] . . . the ‘general rule’ of substantive

due process that the government may not detain a person

prior to a judgment of guilt in a criminal trial. Such a

‘general rule’ may freely be conceded. . . .”); Youngberg

v. Romeo, 457 U.S. 307, 309, 316, 319 (1982) (Court

recognizes “substantive right{ }] under the Due Process

Clause” to “freedom from bodily restraint” and observes

that “{iJn other contexts, the existence of such an interest is

clear in the prior decisions of this Court. Indeed, ‘[l]iberty

from bodily restraint always has been recognized as the

core of liberty protected by the Due Process Clause from

arbitrary governmental action,’ ” (queting Greenholtz v.

Inmates, Nebraska Penal & Correctional Complex, 442

U.S. 1, 18 (1979) (Powell, J., concurring in part and dis-

28a

senting in part))); Parham v. J. R., 442 U.S. 584, 600

(1979) (“It is not disputed that a child, in common with

adults, has a substantial liberty interest in not being con-

fined unnecessarily for medical treatment.”).'

These cases recognize explicitly what our constitutional

jurisprudence historically has acknowledged implicitly

through presumptions and assumptions about the rela-

tionship between government and the governed in this

country. Liberty is the norm; arrest, detention, or retraint

by the state is the exception. To operate otherwise makes a

mockery of “government of the people, by the people.”

Some of our most cherished rights—freedom of speech

and of religion, the right to vote, travel, and to be free

from unreasonable searches. and seizures— would mean

nothing if we had to live under the heavy hand of govern-

ment.

The strict burdens that the Constitution imposes on

government’s efforts to deprive individuals of their liberty

reveal that freedom from governmental restraint is a fun-

damental right and the cornerstone of democratic govern-

ment. Government may not incarcerate a person unless it

proves that person’s guilt beyond a reasonable doubt. Jn re

Winship, 397 U.S. 358, 364 (1970). Government may not

arrest and detain persons absent probabie cause to believe

a crime has been committed by them. Gerstein v. Pugh,

420 U.S. 103, 114 (1975). The brief delay in physical

freedom occasioned by a stop-and-frisk cannot be im-

posed absent a reasonable and particularized suspicion of

danger. Terry v. Ohio, 392 U.S. 1, 21 (1968). The

' Indeed, the Supreme Court’s recent opinion in Cruzan v. Director,

Missouri Dep't of Health impliciily acknowledges this substantive

right when it affirms the individual’s right, under the due process

clause of the fourteenth amendment, to refuse unwanted medical

treatmemt. U.S. ____, 110 S. Ct. 2841, 2851 (1990).

29a

operative assumption in our society is that government

may not intrude into the private sanctuary of the in-

dividual. Exceptions will be made if, and only if, the state

makes a very strong showing of necessity.

To reduce liberty, as the original panel and the dissent

suggest, to nothing more than an entitlement to certain

procedural protections and thereby to burden the children

with showing a “right to release” ignores the very

substance of the Bill of Rights. The Bill of Rights, in-

cluding the fifth amendment, is our country’s blueprint for

individual freedom. It maps out limits beyond which the

government may not step. Our conception of liberty

should thus be drawn in terms of what government may

not do (restrain) rather than in terms of what children

must do (show entitlement to release).

To see the right in strictly procedural terms fails to

recognize that the genesis of these procedures and

presumptions is our Constitution’s fundamental belief in

the sovereignty of the individual. It is this principle that

defines the substantive right to liberty, to freedom from

government restraint. The rules and presumptions man-

dated by procedural due process are not themselves “liber-

ty.” Rather, they are the indispensable guarantees and re-

quirements of the substantive right to freedom from

governmental restraint. Liberty under the due process

clause is thus both a process and a condition, and it is a

right with which the children who brought this action are

endowed.?

? The dissent and the original panel attach significant weight to

Justice Scalia’s statement in Cruzan, _. U.S. at __, 110 S. Ct. at

2859 (Scalia, J., concurring), that the due process clause “does not

protect individuals against deprivations of liberty siumpliciter. lt pro-

tects them against deprivations of liberty ‘without due process of

law."” Yet no other member of the Supreme Court joined Justice

Scalia’s straitened reading of the fifth amendment.

B. Procedural Due Process

Defining the right at issue only begins our constitutional

inquiry. That a right is fundamental does not mean that it

is inviolable. See, e.g., Youngberg, 457 U.S. at 319-20

(liberty interest protected by substantive due process is not

- absolute). Just as government may on occasion limit

speech or religious practices, so may government restrict

or deny physical liberty to some extent, upon making the

constitutionally-mandated showing of necessity. We thus

must determine whether the limitations imposed by the

INS on the children’s liberty comport with the substantive

and procedural components of the fifth amendment’s due

process clause.

Much of the unease occasioned by the INS’s policy and

the original panel’s opinion derives from the fact that the

INS imposes conditions on a child’s release before there is

even a neutral and independent review of its authority to

detain a child (and, concomitantly, to limit her release).

This puts the cart before the horse. We cannot fairly

discuss the INS’s ability to condition the children’s release

or its interest in ensuring the children’s return and safety

until the INS has established its authority to detain the

children in the first instance. Unlike the majority, | turn

therefore to the procedural due process issue before ad-

dressing the constitutionality of the release conditions.

Much of the parties’ debate focuses on whether Gerstein

v. Pugh, 420 U.S. 103, or Mathews v. Eldridge, 424 U.S.

319 (1976), prescribes the appropriate framework for the

procedural due process analysis. | agree with Judge

Rymer’s conclusion that Mathews governs. Deportation is

a civil, not a criminal, proceeding. See Carlson v. Landon,

342 U.S. 524, 537-38 (1952). The Supreme Court has

repeatedly invoked Mathews to test the constitutionality

of civil deprivations of liberty. See, e.g., Landon vy.

.

——

3la

Plasencia, 459 U.S. 21, 34 (1982) (INS exclusion pro-

ceedings); Parham, 442 U.S. at 599-600 (commitment of

children to mental health facility); Greenholtz, 442 U.S. at

14 (parole hearings); Addington v. Texas, 441 U.S. 418,

425 (1979) (involuntary commitment of children to mental

hospital); Ingraham v. Wright, 430 U.S. 651, 675 (1977)

(corporal punishment of students); see also Salerno, 481

U.S. at 746 (regulatory pretrial detention under Bail

Reform Act); accord Youngberg, 457 U.S. at 320-21 (in-

voluntarily committed patients). While the children cor-

rectly point out that the Court frequently cites Gerstein in

these cases, the opinions speak, and the analysis is con-

ducted, in the language of Mathews. Because the Supreme

Court has used Mathews to test the propriety of a variety

of civil incarcerations, including an INS proceeding, we

must apply Mathews in this instance.

In applying Mathews, we must balance (1) the private

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

risk of an erroneous deprivation of such interes! through

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

ditional or substitute procedural safeguards; and (3) the

government’s interest, including the function involved and

the fiscal and administrative burdens that the additional or

substantive procedural requirement would entail.

Mathews, 424 U.S. at 335.

The private interest at issue is, of course, the children’s

liberty from governmental detention and restraint. This

interest is substantial and compelling. “[{C]jivil commit-

ment for any purpose constitutes a significant deprivation

of liberty that requires due process protection.” Ad-

dington, 441 U.S. at 425; see also Salerno, 481 U.S. at 750

(noting the “importance and fundamental nature of this

right [to liberty]”); Schall v. Martin, 467 U.S. 253, 265

(1984).

32a

Moreover, the adverse consequences of detention are

legion, consequences exacerbated by the youth of the de-

tainees. Detention by the government stigmatizes children,

regardless of the ultimate resolution of their respective

cases. Children in INS detention centers enjoy, at best,

very limited educational and recreational opportunities.

They are away from family and friends; every aspect of

their daily life is regulated by strangers. See Plasencia, 459

U.S. at 34 (right to regain family “ranks high among the

interests of the individual”). They have very little privacy,

may be shackled and handcuffed, and lead a very regi-

mented life.

Furthermore, the risk of an erroneous deprivation of

liberty by the INS is substantial. AS Judge Fletcher

pointed out in her dissent from the original panel’s deci-

sion in this case, many persons arrested by the INS will

ultimately prove not to be deportable. Some of these

children will be found to be citizens, legal aliens, or en-

titled to political asylum.

Currently, an officer’s determination of deportability is

subject only to review by a second immigration officer,

who determines whether prima facie evidence of a viola-

tion of the immigration laws exists. 8 C.F.R. § 287.3. If

no second officer is available, the prima facie determina-

tion may be made by the original arresting officer. Jd. At

no point does an official detached from the enforcement

function test the sufficiepcy of the evidence to arrest and

detain. See id.’

* This regulation covers arrest of persons without a warrant. The is-

suance of a warrant is covered by 8 C_F.R. § 242.2(c). These arrest

warrants are issued by INS officer, not neutral third parties. Thus

even the presence of an arrest warrant does not indicate that the deci-

sion to detain has been reviewed by an official independent of the law

enforcement function.

The majority correctly notes that a child may have the propriety of

her detention or of conditions on her release reviewed by an immi-

le —

ee eee ee

33a

Our Constitution has long recognized that combining

the roles of prosecutor and adjudicator in a single entity is

a recipe for fundamentally unfair and erroneous decision

making. See, e.g., Schweiker v. McClure, 456 U.S. 188,

195 (1982) (“As this Court repeatedly has recognized, due

process demands impartiality on the part of those who

function in judicial or quasi-judicial capacities.”);

Go'dberg v. Kelly, 397 U.S. 254, 271 (1970) (“an impartial

decision maker is [an] essential” component of due proc-

ess); Tumey v. Ohio, 273 U.S. 510, 534 (1927) (“A situa-

tion in which an official perforce occupies two practically

and seriously inconsistent positions, one partisan and the

other judicial, necessarily involves a lack of due

process.”); see also Parham, 442 U.S. at 606 (civil commit-

ment of mentally ill children must be reviewed by neutral

fact finders); Gerstein, 420 U.S. at 114.

These cases recognize the importance of nedtral and

detached review as a protection against the overzealous

prosecutor or law enforcement official.

A democratic society, in which respect for the dignity

of all [persons] is central, naturally guards against the

misuse of the law enforcement process. Zeal in track-

ing down crime is not in itself an assurance of

‘

gration judge if she specifically requests such as hearing. 8 C.F.R.

§ 242.2(d). INS officers, however, are not required to inform arrested

children of this right. See 8 C.F.R. § 242.2(c)(2). This provision thus

does nothing to cure the constitutional defect in the INS’s procedures.

freedom from governmental restraint is not a right reserved exclusive-

ly tor those schooled in the intricacies of INS regulations. “No maiter

how elaborate and accurate the . . . proceedings available under the

{regulation} may be once undertaken, their protection is illusory when

a large segment of the protected class cannot realistically be expected

to set the proceedings into motion in the first place.” Doe v. Gallinos,

657 F.2d 1017, 1023 (9th Cir. 1981) (footnote omitted).

- 34a

soberness of judgment. Disinterestedness in law en-

forcement does not alone prevent disregard of

cherished liberties. Experience has therefore coun-

seled that safeguards must be provided against the

dangers of the overzealous as well as the despotic.

McNabb v. United States, 318 U.S. 332, 343 (1943); see

also Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972)

(probable cause for issuance of an arrest warrant must be

determined by an official independent of the police and

prosecution); Coolidge v. New Hamphire, 403 U.S. 443,

450 (1971) (prosecutor’s responsibility to law enforcement

is inconsistent with the constitutional role of a neutral and

detached magistrate).

The INS’s procedure does newthiiig: to pravect against the

risk of error and unfairness. Tie fveld officer's determina-

tion is, at best, reviewed hy amether jaw emilorcement of-

ficer. At worst, the arresting officer rewews his own deci-

sion. The INS cites no case, nor have any been found,

where the Supreme Court has tolerated a deprivation of

physical liberty unaccompanied by any provision for in-

dependent and neutral review of the decision to in-

carcerate. To the contrary, Statutory schemes for deten-

tion (civil or criminal) previously reviewed by the courts

have involved some measure of independent ieview of the

initial decision to detain. See, e.g., Salerno, 481 U.S. at

750 (pretrial detention predicated upon governmental

showing by clear and convincing evidence to a neutral

decisionmaker of need to detain); Schall, 467 U.S. at

269-70 (juvenile detention reviewed for probable cause by

member of judicial branch); Parham, 442 U.S. at 606-07

(commitment of children must be reviewed by a neutral

and detached trier of fact); see also In Re Gault, 387 U.S.

1, 30 (1967) (child committed to juvenile detention entitled

to hearing containing “the essentials of due process and

35a

fair treatment”). Our Circuit’s precedent similarly insist

upon the neutral review of decisions to retrain individuals

for any significant period of time. Gary H. v. Hegstrom,

831 F.2d 1430, 1433 (9th Cir. 1987) (due process hearings

for adolescents detained for criminal behavior); Doe v.

Gallinot, 657 F.2d 1017, 1023 (9th Cir. 1981) (involuntary

commitment decisions must be reviewed by independent

decisionmaker to reduce error, since consequences of

liberty deprivation are so severe).

With respect to the third Mathews factor, the INS

asserts in vague and conclusory terms that it will be

burdened by a mandate to provide prompt impartial

review of its officers’ findings of probable cause to arrest

and detain children. The INS provides no specifics,

however. Both the record and common sense, on the other

hand, reveal that the requirement need not be unduly

burdensome. A quasi-judicial scheme of administrative

judges (immigration judges) already exists within the INS

that could provide the necessary detached review. The in-

stitution of such a practice, moreover, will relieve INS law

enforcement officers of the duty to review their fellow of-

ficers’ arrests to determine whether a prima facie case for

deportability exists.

Given the substantial liberty interest involved, the

proven record and constant risk of error, and the failure

of the INS@o articulate anything more than vague and un-

substantiated objections to neutral review, I conclude that

the due process clause requires the INS promptly to afford

detained children an impartial and detached review of

their detention. At such a hearing, the burden must be on

the INS to demonstrate the propriety of detention.

Gallinot, 657 F.2d at 1023 (“It is the state, after all, which

must ultimately justify depriving a person of a protected

liberty interest... .”).

36a

(. Conditions on Release

Once the INS has demonstrated before a neutral and

detached decisionmaker a prima facie case of deportabili-

ty, the INS’s legitimate interests in ensuring that child’s

return for future hearings and, to some extent, that child’s

safety entitle it to impose conditions on the child’s release.

Those conditions, however, may not restrict the child’s

liberty any more than is necessary to achieve the INS’s

stated goals of ensuring return and safety.

1 wholeheartedly agree with the majority’s holding that

the regulation’s prohibition on release to responsible third

parties cannot survive scrutinty under the due process

clause. Where, as here, the children detained have not in-

dividually been shown to be a flight risk, a threat to the

community or to themselves, or guilty of any crime,

governmental restrictions on liberty must be narrowly

tailored to promote the government’s articulated interests.

As the majority aptly demonstrates, the INS has not

shown that precluding release to child welfare agencies,

church groups, immigration rights’ groups, and other

responsible third parties increases the risks of flight or in-

jury to the child. Unsubstantiated speculation that flies in

the face of the historic record of successful releases to

third parties cannot outweigh the children’s compelling

liberty interest. On the other hand, the tragic conse-

quences of prolonged detention are readily discernible.

Nor are the INS’s liability concerns sufficient to justify

confined detention. As the majority notes, the legal liabili-

ty accompanying prolonged detention greatly exceeds the

INS’s unproven and overblown apprehensions about legal

exposure after release to a responsible third party.

37a

CONCLUSION

While the majority and I differ to some extent in our

analyses of the constitutional issues presented, our points

of agreement are much more numerous. | believe that the

children’s fundamental right to freedom from government

detention has its roots, not only in the Constitution’s

guarantee of habeas corpus, but also in the fifth amend-

ment’s protection against deprivations of liberty without

due process. | also agree with the majority’s reasoning and

conclusions concerning the conditions on release and pro-

cedural due process. I write separately on these issues only

to emphasize that we are dealing with the constitutionality

of two distinct deprivations of liberty —the initial decision

to detain and secondly the conditions imposed upon

release after detention. Only when the initial and most

drastic deprivation of liberty has been accomplished in a

manner that comports with the Constitution can we then

address the legality of the INS’s release conditions.

Norris, Circuit Judge, concurring:

| join Judge Schroeder’s opinion for the en banc court,

but write separately to say that the INS’ policy of in-

carcerating children pending deportation hearings rather

than releasing them to the temporary custody of responsi-

ble non-relative adults, not only violates due process, but

does so flagrantly.

This case does not involve the fashioning of some “new”

substantive due process right to “be released to unre-

lated adults,” see dissenting op. at 10832 (Wallace, C.J.).

it has nothing to do with the controversy Over constitu-

tional protection of privacy interests. The dissent’s con-

cern about limiting the reach of “substantive due process”

and its reliance on such cases as Bowers v. Hardwick,

38a

478 U.S. 186 (1986), ' unnecessarily cloud the issue. If the

word “liberty” as used in the Due Process Clause means

anything, it means “liberty from bodily restraint .. .

[which] is at the heart of the liberty protected by the Due

Process Clause.” Board of Pardons v. Allen, 482 U.S. 369,

373 n.3 (1987). The Supreme Court has repeatedly said

that liberty includes freedom from bodily restraint as an

absolute minimum. See, é.g., Bolling v. Sharpe, 347 U.S.

497, 499 (1953) (“‘[L]iberty’ . . . is not confined to mere

freedom from bodily restraint.”); Meyer v. Nebraska, 262

U.S. 390, 399 (1922) (“[L]iberty . . . denotes not merely

freedom from bodily restraint .. . .”). Because the

prehearing detention of children so clearly deprives them

of their liberty, the Due Process Clause requires the INS to

Justify its policy by “sufficiently compelling governmental

interests.” United States v. Salerno, 481 U.S. 739, 748, 750

(1986).

The governmental interests asserted by the INS to

justify its policy are trivial. The INS admits that its policy

does not even serve the government’s legitimate interest in

assuring the children’s appearance at deportation hear-

ings. What the INS’ justification for its policy boils down

to Is money. It claims that it does not have the “com-

petence” or “resources” to “conduct meaningful screening

. Of the environment in which the children will live.”

Appellants’ Response to Order Dated August 20, 1990 at

6-7. It characterizes home studies as a “delicate under-

taking” that is “ordinarily carried out by skilled social

workers.” /d. Translated, this means that our government

chooses to hold children in detention facilities, despite the

INS’ lack of competence to care for them, rather than pay

' Bowers held that the Due Process Clause of the Fourteenth

Amendment does not prohibit states from criminalizing homosexual

sodomy.

39a

for the services of qualified social workers to conduct

home studies of the kind that county social service agen-

cies perform routinely. The INS makes no effort to price

such services, nor does it make any effort to show that the

cost of such services would be greater than the cost of

holding the children in the INS’ own detention facilities. It

merely throws up its bureaucratic hands and shrugs that it

has no money to pay for home studies.

The INS’ justification for its policy pales in comparison

with the governmental interests that have been held to

justify prehearing detention. These children are not

dangerous, as in Salerno, 481 U.S. at 741 (approving

detention of the head and “captain” of the Genovese crime

family when “no release conditions ‘will reasonably assure

_. . the safety of any other person and the community.’ ”)

and Schall v. Martin, 467 U.S. 253, 264 (1986) (upholding

detention of juvenile accused of hitting a youth over the

head with a loaded gun under law “designed to protect the

child and society from the potential consequences of his

criminal acts”). Neither are they a menace to the public in-

terest, as in Carlson v. Landon, 342 U.S. 524, 541 (1952)

(upholding detention of alien Communist Party members

to prevent “menace to public interest”), or a threat to the

‘national security, as in Ludecke v. Watkins, 335 U.S. 160

(1948) (approving detention during World War II of

enemy aliens found to be dangerous).

In an effort to salvage the INS policy, the dissent goes

so far as to assert that the Due Process Clause provides

less protection for the liberty of children than for the liber-

ty of adults. Liberty interests are not “weighed differently

for minors in comparison with adults.” See dissenting op.

(Wallace, C.J.) at 10833 (citing Schall). Schall stands for

the quite different proposition that a juvenile’s liberty in-

terest can “in appropriate circumstances be subordinated

to the State’s parens patriae interest in preserving and pro-

40a

moting the welfare of the child.” Schall, 467 U.S. at 265

(emphasis supplied). Here the INS has no parens patriae

interest to weigh against the juvenile’s liberty interest. The

dissent casts the INS as a parent, but I see only a jailer.

Finally, the mere incantation of Congress’ plenary

power Over immigration policy should not be the siren

song that leads us astray from applying settled due process

principles to the facts of this case. Congress’ broad power

to fashion immigration policy no more authorizes the INS

to hold people without due process than a state’s sovereign

power to pass criminal laws authorizes the imprisonment

of people without due process. By invoking Congress’

power to set standards of deportability as an excuse for the

detention of children pending hearings on their deport-

ability under those standards, the dissent blurs the distinc-

tion between the enactment of immigration laws and the

enforcement of those laws. I know of no authority for the

dissent’s boundless description of the “judiciary’s limited

judicial role” in reviewing all “immigration decisions” or

any action it can relegate to “the immigration context.”

See dissenting op. (Wallace, C.J.) at 10834-35. In applying

due process principles, we balance “interests,” not “con-

texts.”

The very cases that the dissent cites for limiting judicial

review of all “immigration decisions” recognize the crucial

distinction that the dissent ignores. “In the enforcement of

. . . [immigration policies], the Executive Branch of the

Government must respect the procedural safeguards of

due process .... [even if] the formulation of these

policies is entrusted exclusively to Congress.” Fiallo y.

Bell, 430 U.S. 787, 792 n.4, at 793 (1977), quoting Galvan

v. Press, 347 U.S. 522 (1954). Thus the cases cited by the

dissent are inapposite in a case involving the detention of

children during the process of enforcing the immigration

laws. For example, Adams y. Howerton, 673 F.2d 1036

4la

(9th Cir.), cert. denied, 458 U.S. 1111 (1982), involved

judicial deference to a congressional decision to deny im-

migration preferences to partners in same sex relation-

ships. Galvan v. Press, 347 U.S. 522, 531 (1954), and

Harisiades v. Shaughnessy, 342 U.S. 580, 589-90 (1952),

upheld statutes making Communist Party members

deportable. Finally, Fiallo v. Bell, 430 U.S. 787, 792

(1977), upheld a statute denying immigration preferences

to persons whose mothers are aliens, but whose fathers are

citizens or lawful permanent residents. None of these cases

involved the procédures followed by the INS in enforcing

the immigration laws passed by Congress. |

In sum, the deprivation of the children’s liberty is so

plain, and the government’s interest in detaining them so

trivial, that the due process violation could not be more

clear-cut.

RyMER, Circuit Judge, concurring in the judgment in part

and dissenting in part:

| agree with the majority that this case is particularly

troubling. The thought of prolonged detention of children

who have done nothing more than to be in this country il-

legally, and to be without a parent or relative willing to

come to their rescue, touches a raw nerve in us all. Even so

would we be sickened were one of these children to be

precipitously released to abuse, neglect or worse.' A con-

' Obviously amici present no such risk. Neither the district court’s

order nor the majority’s opinion, however, would limit release to

organizations of their caliber. “Responsible adult party” is left

undefined; a financially responsible adult may not be morally respon-

sible, and vice versa. Nor does the order restrict release to a legally

responsible adult, by contrast with 8 C.F.R. § 242.24(b)(4), which re-

quires an unrelated aduli to whom a juvenile may be released LO ex-

ecule an agreement to care for the juvenile’s well-being. See also

42a

stitutionally appropriate balance must therefore be struck

between the alien minors’ interest in freedom from institu-

tional restraint and the government’s responsibility for

their safety.

I write separately even though I agree with much of the

majority’s bottom line, because I believe the case can be

decided more narrowly and in a way that will safeguard

valuable rights more effectively than the district court’s

order. I part company with both the district court and the

majority to the extent they hold that the Constitution

substantively requires release to any responsible adult who

will promise to bring the minor to future hearings, and |

disagree that a probable cause hearing is constitutionally

required for juveniles held in deportation proceedings. In-

stead, I conclude that current INS procedures are constitu-

tionally insufficient to afford an alien juvenile the process

She is due when it has been determined that she may be

released from INS custody, but that she has no parent,

guardian, adult relative, or person designated by a parent

or guardian to assume custody. Without assurance of an

early determination by a_ neutral hearing officer of

whether to release the iuvenile under these circumstances,

and absent an outside limit on the length of time the

juvenile may continue to be held even though it has been

determined that she is eligible for release, the risk that the

child will be unduly detained outweighs the government’s

remaining interests in maintaining custody and assuring

well-being.

§ 242.24(b)(3) (imposing a similar requirement on a person designated

by the parent or legal guardian to take custody of a detained juvenile

in their absence). So the district court’s order also leaves open the

possibility of release to an adult who appears to be morally and finan-

cially responsible, but whose legal responsibility for care and presence

lacks teeth and is unenforceable.

43a

The Due Process Clause of the Fifth Amendment as-

sures that “No person shall. . . be deprived of life, liberty,

Or property, without due process of law....” The

Supreme Court has held that

the Due Process Clause protects individuals against

two types of government action. So-called ‘substan-

tive due process’ prevents the government from

engaging in conduct that ‘shocks the conscience,’

Rochin v. California, 342 US 165, 172, 96 L Ed 183,

72 S Ct 205, 25 ALR 1396 (1952), or interferes with

rights ‘implicit in the concept of ordered liberty,’

Palko v Connecticut, 302 US 319, 325-326, 82 L Ed

288, 58 S Ct 149 (1937). When government action

depriving a person of life, liberty, or property sur-

vives substantive due process scrutiny, it must still be

implemented in a fair manner. Mathews v Eldridge,

424 US 319, 335, 47 L Ed 2d 18, 96 S Ct 893 (1976).

This requirement has traditionally been referred to as

‘procedural’ due process.

United States v. Salerno, 481 U.S. 739, 746, 107 S. Ct.

2095, 95 L. Ed. 2d 697 (1987).

The district court’s judgment does not indicate which

component was violated. To the extent its order requires a

substantive change in the regulation — directing release to a

“custodian, conservator, or other responsible adult party”

who promises to bring the minor to future hearings, | infer

that the court believed § 242.24(b)(4) runs afoul of due

process on substantive grounds; I assume it also found the

regulation wanting on procedural due process grounds

since it ordered an administrative hearing to determine

probable cause for the minor’s arrest and need for restric-

tions on her release. |

While Flores does contend that the minors’ interest in

personal liberty is a fundamental constitutional right that

44a

substantively overrides the INS restriction on release of

children, in her brief to this court and at oral argument she

concedes that the district court’s order may be seen as

wholly procedural and could be affirmed on proceduraf

grounds. Because I agree that the INS’s regulation falters

for lack of minimum procedures comporting with due

process, I see no need to reach more broadly at this time.”

The fifth amendment protects physica! freedom by re-

quiring that the government satisfy rigorous procedural

safeguards before taking it away. Procedural fairness has

traditionally been tested under Mathews v. Eldridge, 424

* Section 242.24(b)(4) appears to assume that the INS has made no

determination that detention is required to ensure timely appearance

or safety. While release to an unrelated adult is not mandatory, as it is

{0 a parent, guardian or adult relative under § 242.24(b)(1), the

regulation itself creates a liberty interest in freedom from continued —

restraint. The dispositive question for us, therefore, is whether the

procedures by which the INS decides if it should release a juvenile to

the custody of an unrelated adult survive facial challenge.

Assuming that alien juveniles have a protected liberty interest in

freedom from institutional restraint such that their failure to be re-

leased to a “responsible adult” who promises future appearances trig-

gers substantive due process scrutiny, see Salerno, 481 U.S. at 750,

their interest “must be qualified by the recognition that juveniles,

unlike adults, are always in some form of custody,” Schall v. Martin,

467 U.S. 253, 265, 104 S. Ct. 2403, 81 L. Ed. 2d 207 (1984). Thus,

their real interest is not in freedom from restraint (detention), but in

freedom from a particular kind of limitation on the conditions under

which release will be permitted. Because the children are minors, the

government’s parens patriae responsibilities are implicated and the

juveniles’ interest in freedom from restraint is therefore less substan-

tial than an adult’s and their interest in being released to any “respon-

sible adult” is less substantial than their interest in being released to a

parent, guardian or family member with whom they enjoy a natural or

legal bond. By the same token, the government’s interests in exercising

its nearly plenary power over immigration, and discharging its obliga-

tion to protect and promote the welfare of juveniles within its custody,

are substantial.

4Sa

U.S. 319, 334-335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).

The Court restated the framework for analysis in Landon

v. Plasencia, 459 U.S. 21, 103 S. Ct. 321, 74 L. Ed. 2d 21

(1982), an immigration case, as follows:

The constitutional sufficiency of procedures pro-

vided in any situation, of course, varies with the cir-

cumstances. In evaluating the procedures in any case,

the courts must consider the interest at stake for the

individual, the risk of an erroneous deprivation of the

interest through the procedures used as well as the

probable value of additional or different procedural

safeguards, and the interest of the government in us-

ing the current procedures rather than additional or

different procedures.

Id. at 34 (citations omitted). .

The alien juveniles’ interest has considerable weight:

they stand to continue losing freedom from INS restraint

even though the INS will not have determined that they

need to be detained for reasons of flight or safety.’ On the

other hand, the government’s interests in the well-being of

minors in its custody and in assuring that these children

not be entrusted (o the care of an unqualified person are

likewise strong. In addition,

{t}he Government’s interest in efficient administra-

tion of the immigration laws at the border also is

weighty. Further, it must weigh heavily in the balance

that control over matters of immigration is a sov-

ereign prerogative, largely within the control of the

> Flores also complains of the Catch-22 the regulation creates on ac-

count of the fact that parents or adult relatives of alien juveniles may

be deterred from coming forward to the INS because they, too, may

be here illegally. While there is nothing much for it, the conundrum

does to some extent affect the juveniles’ opportunity to rejoin their

family. See Landon, 459 U.S. at 34 (right to rejoin immediate family

ranks high among the interests of the individual).

46a

executive and the legislature. The role of the judiciary

is limited to determining whether the procedures meet

the essential standard of fairness under the Due Proc-

ess Clause and does not extend to imposing pro-

cedures that merely displace congressional choices of

policy.

Id. at 34-35 (citations omitted).

Flores challenges the regulation on four scores: (1) lack

of a probable cause hearing on deportability; (2) lack of a

prompt custody hearing; (3) failure to impose a burden of

proof on the government; and (4) absence of independent

review. She urges that the district court’s order} imposing

limited procedural safeguards, be affirmed. While the INS

agrees that the record permits Flores’s procedural due

process claim to be resolved by this court without remand

for further proceedings, it argues that the claim lacks

merit because there is minimal risk of erroneous depriva-

tion of the minors’ interest. It relies on 8 U BC.

§ 1357(a)(2), which provides that an alien must be taken

for examination before an officer other than the one who

arrested her “without unnecessary delay,” and on a regula-

tion that requires the examining officer to be satisfied that

there is prima facie evidence to believe the alien is deport-

able. 8 C.F.R. § 287.3 (1990). It therefore argues that even

if Gerstein v. Pugh, 420 U.S. 103, 95S. Ct. 854, 43 L. Ed.

2d 54 (1975), applies in a civil proceeding, the district

court erred in mandating a probable cause hearing because

the INS’s standard is higher and is subject to review by an

examining officer as well as the arresting officer. For these

reasons it contends that requisite standards of fairness are

met.

Turning first to whether a probable cause hearing is re-

quired, I agree with the INS that importing Gerstein to a

civil immigration proceeding is problematic, see INS vy.

Lopez-Mendoza, 468 U.S. 1032, 104 S. Ct. 3479, 82 L.

~

47a

Ed. 2d 778 (1984) (consistent with civil nature of deporta-

tion proceeding, protections such as exclusionary rule that

apply in context of criminal trial are not applicable). No

authority suggests that a probable cause hearing before a

neutral magistrate, as distinguished from a prima facie

evidence hearing before an examining officer, is constitu-

tionally mandated in deportation proceedings. Our cases

suggest the contrary, see, é.g., Trias-Hernandez v. INS,

528 F.2d 366, 368 (9th Cir. 1975) (declining to require

Miranda warnings in deportation proceeding); Lavoie v.

INS, 418 F.2d 732, 734 (9th Cir. 1969) (sixth amendment

safeguards not applicable in deportation proceeding), cert.

denied, 400 U.S. 854, 91S. Ct. 72, 27 L. Ed. 2d 92 (1970),

and there is no call to hold otherwise. |

The INS’s argument, however, fails to come to grips

with the absence of other, well-recognized ingredients of

procedural fairness. Unlike the statutes at issue in Schall v.

Martin, 467 U.S. 253, 104 S. Ct. 2403, 81 L. Ed. 2d 207

(1984), and Salerno, which survived due process

challenges,* the INS regulations provide no opportunity

* In Salerno, 481 U.S. at 751-52, the extensive safeguards under

Bail Reform Act included: judicial evaluation of likelihood of

dangerousness; detainees had right to counsel and could testify and

present information; the judicial officer’s discretion was statutorily

guided; the government has the burden of proof by clear and convine-

ing evidence; and the judicial officer had to make findings of fact

and give reasons for a decision to detain, which was immediately

reviewable on appeal. In Schall, 467 U.S. at 257 n.3, 270, preventive

detention of juveniles suspected of a criminal offense promoted

legitimate interests of society and the juvenile and did not amount to

punishment such that u offended substantive duc process when: the

detention was limited in time; a neutral magistrate determined that

detention was necessary; the time limits seemed suited to the limited

purpose of providing the young person with a controlled environment

and separating the juvenile from improper influcnces pending a

speedy disposition of the case; and the conditions of continement

rellected regulatory purposes that were not inconsistent with parens

patriae objectives.

48a

for the reasoned consideration of an alien juvenile’s

release to the custody of a non-relative by a neutral hear-

ing officer.* Nor is there any provision for a prompt hear-

ing on a § 242.24(b)(4) release. No findings or reasons are

required. Nothing in the regulations provides the unac-

companied detainee any help, whether from counsel, a

parent or guardian, or anyone else. Similarly, the regula-

tion makes no provision for appointing a guardian if no

family member or legal guardian comes forward. There is

no analogue to a pretrial services report, however cursory.

While the INS argues that it lacks resources to conduct

home studies, there is no substantial indication that some

investigation or opportunity for independent, albeit infor-

mal consideration of the juvenile’s circumstances in rela-

tion to the adult’s agreement to care for her is impractical

or financially or administratively infeasible. Although not

entirely clear where the burden of proof resides, it has not

clearly been imposed on the government. And there is no

limit on when the deportation hearing must be held, or put

another way, how long the minor may be detained. In

short, there is no ordered structure for resolving custodial

Status when no relative steps up to the plate but an

unrelated adult is able and willing to do so.

Current procedures tend to deprive the minors of their

interest in release in at least two major respects. First,

there is no process there. While procedures provided by

the executive in immigration matters are rarely held inade-

quate, Landon, 459 U.S. at 33, some process is due. See

Carlson v. Butterfield, 342 U.S. 524, 538, 72S. Ct. 525, 96

> Subsection 242.24(b)(4) provides for a decision on release to an

adult other than a parent, guardian or relative to be made by the

district director or chief patrol agent. The INS suggests no reason why

this determination could not be made in conjunction with the prima

facie evidence hearing.

49a

L. Ed. 2d 547 (1952). Nothing in this regulation triggers

any determination at any particular time of whether an

alien juvenile who is presumptively eligible, for release,

but has no family, may be released to the custody of an

unrelated adult who will agree to her care and appearance.

Nor is there is any light at the end of the tunnel; there is no

time limit on continued detention, despite the child’s

eligibility for release. For all that appears f rom the regula-

tions, the juvenile without parent, guardian or relative is

left in procedural limbo. Second, there is no provision for

reasoned consideration by a neutral hearing officer. Time

limits and impartiality are not uncommon procedures;

both are basic safeguards against arbitrary action. See,

e.g., Salerno, 481 U.S. at 751-52; Schall, 467 U.S. 257 n.3,

270.* To omit both increases the risk that the juvenile for

whom detention is not needed and for whom there is a

prospective adult willing to assume care and assure ap-

pearance will not be released because of inattention, in-

advertence or intransigence.

With these protections in place, | see no problem with

the regulation’s failure to put the burden of proof on the

government. | do not construe § 242.24(b)(4)'s mention of

“unusual and compelling circumstances” as requiring the

child to show anything unusual about herself or about the

adult ready to care for her. | interpret the phrase to be

simply a shorthand reference to the admittedly unusual

and compelling circumstances of a juvenile who has no

parent, guardian, or adult relative to take custody upon

release, as conirasted with juveniles who have such parties

to be released to under subsection (b)(1). The INS itself

characterizes mandatory release under (b)(1) as

“routine.”’ By contrast, release to an unrelated adult

® See supra note 4.

’ Suppk mental Briet at | n.2.

50a

under subsection (b)(4) is neither mandatory nor routine,

but rather it is an “unusual and compelling” circumstance

in which discretion must be exercised so as to assure the

child’s well-being as well as appearance. So construed, the

“unusual and compelling” language does not infringe due

process because it imposes no impediment to release that is

unrelated to the juvenile’s status and the government’s in-

terest.

Because immigration is involved, the government has a

greater interest in using the procedures now in place than it

might have in other civil matters, such as commitment

proceedings, or in criminal cases. There is little question

that the INS is not in the business of social work,*® and its

disinclination to play probation officer as well as pros-

ecutor is quite understandabie. Yet the obvious value that

the Court has seen in the array of safeguards built into the

Bail Reform Act, and the New York Family Court Act

authorizing pretrial detention of accused juvenile delin-

quents, which it considered in Salerno and Schall, must

have great weight against the modest imposition that a

reasonable time limit, hearing before a neutral officer and

a level playing field would entail. An examining officer

who is obliged to be impartial is obviously available

because conduct of the prima facie evidence hearing is en-

trusted to such a person.

Moreover, apart from inconvenience and perhaps some

expense, there is no readily apparent reason why the INS

cannot discharge its parens patriae obligations by seeking

appointment of a guardian ad litem for minors in its

custody. See, e.g., Juvenile Justice and Delinquency

*CY/., e.g., Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73

L. Ed. 2d 28 (1982) (courts defer to decisions of qualified profes-

sionals, Meaning a person competent to make particular decision at

issue).

Sla

Prevention Act, § 504, codified at 18 U.S.C. § 5034 (pro-

viding that magistrate may appoint guardian ad litem if

parent or guardian of juvenile is not present, will not

cooperate, or has adverse interests to the juvenile); Schall,

467 U.S. at 276 n.25 (noting that under § 320.3 of the New

York Family Court Act, if juvenile’s parent or guardian

fails to appear after reasonable and substantial efforts

have been made to notify such person, court must appoint

a law guardian for the child). The probable value of such a

procedure would be appreciable, in that the otherwise

unassisted juvenile would have some legally responsible

adult to assist in making placement decisions—and the

INS would correspondingly be relieved of the task of in-

dividualized decisionmaking that it does not want in any

event. While it would be inappropriate for a court to im-

pose such a procedure on the INS just because it makes

sense to a judge, it is appropriate to consider the availabili-

ty and practicality of different procedures in determining

whether current procedures comport with minimum re-

quirements of due process. See Landon, 459 U.S. at 35.

Considering current procedures and alternatives in light

of the juveniles’ interest in freedom from continued

restraint and the government’s in their well-being and ap-

pearance leads me to conclude that the balance tips against

constitutional sufficiency of the process used by the INS

in determining whether to release a_ child ‘under

§ 242.24(b)(4). At a minimum, the juvenile who is

presumptively eligible for release but has no parent or

relative should be afforded an early hearing before a neu-

tral officer. Unlike the majority or the district court, |

would not remove the hearing officer’s discretion, but that

discretion should be informed by the government’s in-

terests in appearance and well-being and the juvenile’s in

release to a fully responsible adult.

52a

Accordingly, | would affirm the district court’s grant of

summary judgment for Flores because the INS regulations

fail to meet minimum requirements of procedural due

process. I would strike those parts of the district court’s

judgment that rewrite § 242.24(b)(4) to require release to a

“responsible adult party” who promises to bring the minor

to future hearings and that mandate a probable cause

hearing in place of the prima facie evidence hearing. |

believe subsection (b)(4) as written affords greater flexi-

bility and protection to minors in this respect than the

order, because it permits release to any adult so long as

that adult agrees to care for the child’s well-being and to

assure her presence. I would also strike the requirement of

an administrative hearing to determine need for detention,

and I would modify the order to require a prompt hearing

before a neutral hearing officer to determine whether the

minor should be released under § 242.24(b)(4) construed

consistently with the constraints of due process.

WALLACE, Chief Judge, with whom Circuit Judges Wic-

GINS, BRUNETTI, and LEAvy join, dissenting:

The facts were adequately summarized in the majority

panel opinion. See Flores v. Meese, No. 88-6249, slip op.

10747, 10761-68 (9th Cir. Sept. 7, 1990) (Flores). I have no

quarrel with the majority’s assertion that alien children

allegedly in this country illegally are impacted by the

regulation at issue and have a right to challenge their

detention. See Maj. op. at 10790-93. But I find much of

the majority’s discussion, such as that regarding habeas

corpus review, irrelevant to the crucial issues in this case,

and other portions of the opinion lacking in support. |

believe that the majority errs in implicitly defining the

right at issue here as a blanket denial of liberty, thereby

S3a

graniing it a fundamental character, and in ignoring the

deference that courts have traditionally paid to immigra-

tion laws and regulations. Primarily for these reasons, |

respectfully dissent.

My first disagreement with the majority is over the liber-

ty right at issue. At oral argument, the alien children ar-

gued that the regulation impinged on their right to be free

from physical restraint—a right to liberty which they

allege is fundamental. The Immigration and Naturaliza-

tion Service (INS), on the other hand, contended that the

right at issue is a nonfundamental right to be released to

unrelated adults. Without discussion, the majority adopts

the former characterization, a characterization with which

I disagree.

Perhaps the insistence on viewing the right at issue as a

general “right to liberty” comes from the majority’s mis-

taken characterization of the regulation as a “blanket

detention policy.” Maj. op. at 10781. As the facts demon-

strate, however, the regulation results in no such blanket

denial. The regulation does not bar the release of all alien

juveniles, but merely those who do not have an identi-

fiable parent, legal guardian or adult relative who can ac-

cept custody or designate an appropriate custodian. See 8

C.F.R. § 242.24 (1991). Even children whose release is not

mandated under the regulation can, in the discretion of the

INS, be released to other responsible adults. See id.

§ 242.24(b)(4). Thus, alien children awaiting deportation

proceedings are eligible for release to a number of care-

givers; the only liberty right denied them is the right to be

released to unrelated adults without INS approval.

Given the limited scope of the regulation, I believe the

majority errs by concluding that this case involves a

S4a

“fundamental right to be free from government

detention.” Maj. op. at 10794. This broad characterization

of the right involved conflicts with the Supreme Court’s

warning that rights and interests should be defined nar-

rowly for the purposes of substantive due process balanc-

ing. See Bowers v. Hardwick, 478 U.S. 186 (1986)

(Bowers) (defining the right at issue as the right to engage

in homosexual sodomy, rather than as the more general

“right to be let alone”); Michael H. v. Gerald D., 491 U.S.

l 10, 121-27 & n.6 (1989) (plurality opinion). The majority

fails to heed this warning in holding, without persuasive

analysis, that the right implicated by the regulation is a

general right to liberty.

The need to define the right narrowly is further sup-

ported by policy and precedent. No case has been cited to

us (and I have found none) in which a court has ever

recognized a fundamental substantive due process right to

physical liberty. Instead, procedural due process analysis

has traditionally provided adequate protection against any

unwarranted deprivations of physical liberty. As Justice

Scalia recently stated, “[t}he text of the Due Process

Clause does not protect individuals against deprivations of

liberty simpliciter. It protects them against deprivations of

liberty ‘without due process of law.’ ” Cruzan v. Director

Missouri Department of Health, 110 S. Ct. 2841, 2859

(1990) (Scalia, J., concurring). To hold otherwise, would

subject all physical detentions—in both the immigration

context and criminal context—to judicial review under

= scrutiny to insure that their fundamental substantive

ue process “right to li ing infri

reaper Raya gece was not being infringed.

None of the cases cited by the majority support its novel

holding that this case involves a “fundamental right to be

free from government detention.” Maj. op. at 10794. For

example, the majority cites a number of habeas corpus

5Sa

cases to establish the unremarkable proposition that aliens

may challenge a detention through a habeas corpus pro-

ceedings. See, e.g., Wing Wong v. United States, 163 U.S.

228, 233-38 (1896) (sentence of one year of hard labor for

all deportable aliens may be challenged through habeas

corpus petition). However, the existence of a forum is

quite separate from the definition or analysis of the right

at issue, and these cases provide no support for the majori-

ty’s application of heightened scrutiny to invalidate the

INS regulation. Compare id. at 235 (“[w]e think it clear

that detention or temporary confinement, as part of the

means necessary to give effect to the provisions for the ex-

clusion or expulsion of aliens would be valid”).

The majority also relies heavily on Carlson v. Landon,

342 U.S. 524 (1952) (Carlson), and United States v. Saler-

no, 481 U.S. 739 (1987) (Salerno), for the proposition that

this case implicates the “fundamental right” to be free

from detention. However, in both of the cited cases, the

Supreme Court upheld, rather than struck down, a chal-

lenged detention. In addition, neither support the conclu-

sion that the limited detention policy at issue here need

satisfy any form of heightened scrutiny.

In Carlson, the Supreme Court held that INS detention

based on Communist party membership did not violate

due process. To reach this conclusion, the Court first held

that Congress had authorized the Attorney General to

make discretionary decisions concerning detention pend-

ing deportation. 342 U.S. at 540. Relying on the legislative

history of the statute, the Court stated that “Congress [in-

tended] to make the Attorney General’s exercise of discre-

tfon presumptively correct and unassailable except for

abuse.” Jd. Applying this test, the Court concluded that

the discretion was “certainly broad enough” to justify the

challenged detention. /d. at 541.

56a

The majority argues that Carlson holds that “the INS

cannot detain individuals without a particularized exercise

of discretion through which it determines that detention of

an individual would prevent harm to the community or

further some other important governmental interest.”

Maj. op. at 10794. But such an inference is unsupported

by either the reasoning, or the result in the case. As stated

earlier, Carlson did not strike down the regulation, it

found it well within the INS’s discretion. In discussing the

factors that supported the INS’s exercise of discretion, the

Court explicitly stated that such discretion “(could] only

be overriden where it is clearly shown that it ‘was without a

reasonable foundation.’ ” Carlson, 342 U.S. at 541; see

also id. (detention need not be justified by “specific acts”

performed by detained individual). Thus, Carlson actually

undermines, rather than supports, the majority’s broad

characterization of the right at issue in this case and conse-

quent application of heightened scrutiny to invalidate the

INS regulation.

The majority also cites Salerno in support of its holding

that the INS must come forward with “significant” reasons

to justify its limited detention policy. But Salerno, which

upheld pretrial detention under the Bail Reform Act of

1984, 18 U.S.C. § 3141 ef seqg., is not on point. First,

Salerno involved a blanket detention of certain dangerous

felons—the regulation at issue in this case is much nar-

rower as it only prohibits release of alien minors to un-

related adults without INS approval. Compare 18 U.S.C.

§ 3142 with 8 C.F.R. § 242.24 (1991). Second, the Court’s

due process analysis in Salerno was geared primarily

toward the rights of adult citizens facing detention in the

criminal context. See Salerno, 481 U.S. at 747-52. The

situation before us in this case involves the rights of

juvenile aliens facing detention in the civil context, whose

rights are not necessarily coextensive with those of adults.

S7a

See infra, sec. Il. In addition, Salerno did not squarely

hold that freedom from pretrial detention was a funda-

mental right. Instead, the Court stated that “we cannot

categorically state that pretrial detention offends some

principle of justice so rooted in the traditions and con-

science of our people as to be ranked as fundamental.” 481

U.S. at 751 (quotations and citations omitted). Thus,

Salerno also does not support the majority’s assumption

that the detention policy implicates a “fundamental right”

to liberty.

' The additional cases cited by the two separate concurrences also

do not support the majority’s application of heightened scrutiny to in-

validate the INS regulation. For example, DeShaney v. Winnebago

City Social Services Department, 489 U.S. 189 (1989), only makes

passing reference to “restraint(s] of physical liberty,” when discussing

situations where the state’s affirmative exercise of power gives rise to a

duty to protect. /d. at 199-200, citing Youngberg v. Romero, 457 U.S.

307 (1982) (state has duty to provide safe conditions to involuntarily

committed mental patients). DeShaney cannot be read as establishing

any general right to liberty; indeed, its holding only addresses the issue

of whether the government's failure to confer aid violates due process.

Id. at 202. Board of Pardons vy. Allen, 482 U.S. 369 (1987), is a'so not

on point, because it deals with procedural due process issues that arise

after a statute has created a liberty interest. /d. at 372-73. Allen does

not address any constitutionally-based substantive due process

challenge. Other cases cited by the concurrences are similarly inap-

plicable here. See Parham v. J.R., 442 U.S. 584, 600 (1979) (rejecting

children’s procedural due process challenge to state’s procedures for

involuntary commitment); Greenholtz v. Inmates, Nebraska Penal &

Correctional Complex, 442 U.S. 1 (1979) (rejecting procedural due

process challenge to parole release hearings). °

One case cited by the concurrences does address an issue similar to

the one before this court. In Youngberg, the Court articulated a stand-

ard for evaluating deprivations of liberty that occur during the course

of an involuntary commument. After holding that the liberty interest

asserted by the inmate was protected by the due process clause, the

Court stated that the challenged physical resiraints would be upheld as

long as the actions of the mental health therapists were reasonable.

58a

‘ The majority finally justifies its rejection of the INS’s

_ characterization of the right at issue by arguing that “the

right to be released to unrelated adults” is merely the

remedy the district court imposed in striking down the

regulation. Maj. op. at 10796-97. But the majority misses

the point of its remedy analysis. The district court imposed

the remedy of release to unrelated adults only because it

concluded that a right was being denied, the right to be

released to such adults. I believe it makes more sense to

view the right and consequent remedy as coexistent; if the

right at issue was broader, the remedy imposed by the

district court to correct for its denial would necessarily

have been broader.

In light of these considerations, I analyze the regulation

as resulting in a denial of the nonfundamental right to be

released to unrelated adults unless the INS grants permis-

sion. See Bowers, 478 U.S. at 194-95 (warning against the

expansion of the list of fundamental rights). Because no

fundamental right is involved, we must apply minimal

scrutiny to the regulation, and consider whether it is ra-

tionally related to any legitimate end of government.

Christy v. Hodel, 857 F.2d 1324, 1329 (9th Cir. 1988),

cert. denied, 490 U.S. 1114 (1989). Both the INS’s desire to

protect the safety of the detained children, as well as its

concern for potential liability for harm that could befall a

released child, are legitimate ends to which the regulation

is rationally related. See Flores, slip op. at 10793-95; see

also infra, sec. Il. | therefore disagree with the majority’s

457 U.S. at 316, 322. The Court stated: “the Constitution only re-

quires that the courts make certain that professional judgment in fact

was exercised ... this standard is lower than the ‘compelling’ or

‘substantial’ necessity tests the Court of Appeals would require.” /d. at

321-22 (quotations omitted). Thus, Youngberg actually undermines

the position of the concurrences by demonstrating that deprivations of

liberty need not be evaluated using heightened scrutiny.

59a

conclusion that the INS regulation violates substantive due

process.

Aside from its characterization of the right at issue as

the fundamental right to liberty, | am further troubled by

the majority’s failure to recognize the special circum-

stances of this case. Two factors should influence our

analysis of the constitutionality of the challenged regula-

tion. First, the court’s analysis should focus on the im-

migration context of this case, where judicial review is ex-

tremely limited. Second, the court must deal with the ac-

cepted principle that liberty interest is weighed differently

for minors in comparison with adults.

A.

Flores’s constitutional claims arise in the unique context

of our immigration laws. The power over immigration is

political in nature and therefore vested in the political

branches. Mathews v. Diaz, 426 U.S. 67, 81-82 (1976)

(Diaz); Jean v. Nelson, 727 F.2d 957, 965 (11th Cir. 1984)

(en banc) (Jean), affd on other grounds 472 U.S. 846

(1985). Although the executive and legislative branches in

theory possess concurrent authority over immigration,

“{iJn practice . . . the comprehensive character of the INA

vastly restricts the area of potential executive freedom of

action, and the courts have repeatedly emphasized that the

responsibility for regulating the admission of aliens resides

in the first instance with Congress.” Jean, 727 F.2d at 965;

see also United States ex rel. Knauff v. Shaughnessy, 338

U.S. 537, 543 (1950).

The Supreme Court has long recognized Congress’s

paramount power to control matters of immigration.

Fiallo v. Bell, 430 U.S. 787, 792 (1977) (Fiallo); Galvan v.

60a

Press, 347 U.S. 522, 531 (1954); Carlson, 342 U.S. at 534;

| Harisiades v. Shaughnessy, 342 U.S. 580, 589-90 (1952).

Congressional power in this area is plenary; the Court has

repeatedly stressed that “ ‘over no conceivable subject is

the legislative power of Congress more complete than it is

over’ the admission of aliens.” Fiallo, 430 U.S. at 792,

quoting Oceanic Navigation Co. v. Stranahan, 214 U.S.

320, 339 (1909). In exercising its broad power over immi-

gration and naturalization, “ ‘Congress regularly makes

rules that would be unacceptable if applied to citizens.’ ”

Id., quoting Diaz, 426 U.S. at 80. Because Congress’s

power Over immigration is plenary and political in nature,

the exercise of that power is subject “ ‘only to narrow

judicial review.’” Jd., quoting Hampton v. Mow Sun

Wong, 426 U.S. 88, 101 n.21 (1976) (Hampton); Diaz, 426

U.S. at 81-82.

The plenary power of Congress and the narrowness of

judicial review in the immigration context is reflected in

the Supreme Court’s teaching that any substantive due

process rights aliens might have are extremely limited. For

example, in Harisiades, the Court upheld the deportation,

under the Alien Registration Act of 1940, of legally resi-

dent aliens who had been members of the Communist Par-

ty before passage of the Act. While acknowledging that

the Act “stands out as an extreme application of the expul-

sion power,” the Court rejected the aliens’ argument that

the Congress’s power to deport was “so unreasonably and

harshly exercised” that the Act violated the due process

clause. 342 U.S. at 588. Similarly, in Galvan, the Court

upheld a statute that authorized deportation of legally

resident aliens on the grounds that they had once been

members of the Communist party, stating that “[w]e can-

not say that this classification by Congress is so baseless as

to be violative of due process.” 347 U.S. at 529. In sub-

sequent cases dealing with both equal protection and sub-

6la

stantive due process challenges under the fifth amend-

ment, the Supreme Court reaffirmed the limited judicial

role in reviewing immigration decisions. Fiallo, 430 U.S.

at 792-93 & n.4; Hampton, 426 U.S. 99-103.

As a result of the judiciary’s limited role in the immi-

gration context, we have held that even if the right at issue

is fundamental in character, the court should not apply

strict scrutiny review to an immigration regulation. In

Adams v. Howerton, 673 F.2d 1036 (9th Cir.), cert.

denied, 458 U.S. 1111 (1982), we considered the argument

that substantive due process required the application of

strict scrutiny to an immigration statute dealing with

spouses. The homosexual plaintiffs argued that, as inter-

preted to apply only to heterosexual marriages, the statute

violated their right to same-sex marriage, a right they con-

tended was fundamental. We stated that “[wje need not

.. reach the question of the nature of the claimed right

or whether such a right is implicated in this case. Even if if

were, we would not apply a strict scrutiny standard ot

review to the statute. [In the immigration area] the deci-

sions of Congress are subject only to limited judicial

review.” Id. at 1041 (emphasis added and footnote omit-

ted). Therefore, following Adams, and the extensive

Supreme Court precedent in this area, even ‘f | were to

agree with the majority that this case involves a funda-

mental right, | would still apply rational review to the

evaluate the regulation.

The majority’s failure to defer to the INS is also demon-

strated by its ready conclusion that neither of the INS’s ar-

ticulated reasons are “significant” enough to support the

regulation. The majority first rejects the INS’s belief that

the regulation serves to protect the safety of the detained

children. It assumes that release of the children to unre-

lated adults will be far preferable to detainment by the

INS. Maj. op. at 10798-99. But the majority fails to cite

62a

any evidence in the record to support its factual assump-

_ tion. Indeed, there is none. More important, the INS

thinks otherwise, and in keeping with prior precedent |

would defer to its estimation of the risks involved. No one

on this court can be sure there is no evil awaiting an unsus-

pecting alien minor in the custody of an unrelated adult. A

concern about that possibility is not unreasonable. Simply

put, the majority contends that it owes no deference to the

INS’s views on child safety because “{cJhild welfare is not

an area of INS expertise.” Maj. op. at 10798. This is a far

too limited view of the deference owed to the INS, one

that conflicts with the Supreme Court’s statement that

“[aj]ny policy toward aliens is vitally and intricately inter-

woven” with matters that have “been committed to the

political branches of the Federal Government.” Diaz, 426

U.S. at 81 & n.17; see also Carlson, 342 U.S. at 538 (point-

ing Out that “[djetention is necessarily a part of [the]

deportation procedure”).

The majority ignores the fact that any judicial branch

intrusion, even if explained by a belief that the INS has no

special expertise, severely undermines congressional power

over immigration. The majority’s citation to Hampton,

fails to support this intrusion, because that case dealt with

the federal Civil Service Commission, not the INS. See 426

U.S. at 101 (recognizing political character of power over

immigration, but rejecting argument that deference ex-

tends to “any agency of the National government”). |

therefore disagree with the majority’s casual conclusion

that the INS must put forth affirmative evidence to dem-

onstrate “that detention serves the best interests of

members of the plaintiff class.” Maj. op. at 10799. I would

not strike down so easily the INS’s efforts to protect the

detained children, and would consider those efforts sig-

nificant enough to support the regulation.

63a

The majority also casually dismisses the INS’s claim that

releasing children to unrelated adults could result in tort

liability. While acknowledging that the minors would have

a cause of action against the INS for a violation of their

rights, the majority finds the chance of tort liability “re-

mote at best.” Maj. op. at 10801, quoting International

Union, UAW v. Johnson Controls, Inc., 111 S. Ct. 1196,

1208 (1991). The sole support for this assertion is

DeShaney v. Winnebago City Social Services Department,

489 U.S. 189 (1989) (DeShaney), where the Supreme Court

held that “a State’s failure to protect an individual age ast

private violence simply does not constitute a violation of

the Due Process Clause.” /d. at 197.

A careful reading of DeShaney reveals that the case has

no bearing on the possibility that the INS will be held

liable for releasing alien minors to unrelated adults. In

holding that DeShaney had could not recover against the

state welfare agency for its failure to remove him from an

abusive home environment, the Court repeatedly empha-

sized that “the State played no part in creating [the

danger}” and was not liable merely for its failure to confer

aid. Jd. at 196-97, 201. However, the Court was careful to

distinguish DeShaney’s case from one where the dangerous

situation was created by the State action. In the latter

situation, the Court was unwilling to foreclose liability,

and instead stated that “{hjad the State by the affirmative

exercise of its power removed Joshua [DeShaney] from

free society and placed him in a foster home operated by

its agents, we might have a situation [that would] give rise

to an affirmative duty to protect.” /d. at 201 n.9. Thus,

DeShaney clearly does not foreclose the possibility of INS

liability for injury to a released child, when the harm oc-

curred after the INS placed him or her in the care of an

unrelated adult. See id.

64a

, The majority’s assertion that the INS is unlikely to suf-

_ fer any liability also seems odd in light of its holding that

the INS must release minors to unrelated adults only after

“mak[ing] the necessary determination of whether a party

who is willing to assume custody is fit to do so.” Maj. op.

at 10800-01. In light of the majority’s apparent acceptance

of the INS’s claim that it lacks the resources or expertise to

conduct these studies, maj. op. at 10799, its imposition of

a duty to do so seems likely to result in liability. At any

rate, given our deferential review, | would defer to the

INS’s rationale for the policy rather than seeking out

reasons to discredit it.

In addition to failing to give required deference to the

INS regulation, the majority accords no significance to the

fact that this case involves detention of children, rather

than adults. Because the INS’s reasons for the policy relate

directly to their responsibility to protect minors, I believe

that the Supreme Court’s teachings regarding the constitu-

tional rights of minors are relevant to our analysis.

As the majority correctly points out, there is iv doubt

that children are “ ‘persons’ under our Constitution” who

possess “fundamental rights which the State must respect.”

Tinker v. Des Moines Independent Community School

District, 393 U.S. 503, 511 (1969); In re Gault, 387 U.S. 1,

13 (1967) (“whatever may be their precise impact, neither

the Fourteenth Amendment nor the Bill of Rights is for

adults alone”). However, the majority fails to include in its

analysis the Supreme Court’s often stated teaching that

constitutional rights of children are not coextensive with

those of adults. See, e.g., Schall v. Martin, 467 U.S. 253,

263-66 (1984) (Schall); Bellotti v. Baird, 443 U.S. 622,

633-39 (1979) (plurality opinion) (Bellotti); McKeiver vy.

Pennsylvania, 403 U.S. 528 (1978).

_.

6Sa

The Court has specifically recognized the narrower

scope of juveniles’ liberty interest. In Schall, the Court

held that the state may restrict a child’s liberty interest in

order to secure that child’s welfare. In upholding the con-

stitutionality of a New York statute authorizing the pre-

trial detention of certain juveniles, the Court stated:

The juvenile’s . . . interest in freedom from institu-

tional restraints, even for the brief time involved here,

is undoubtedly substantial. . . . But that interest must

be qualified by the recognition that juveniles, unlike

adults, are always in some form of custody. Children,

by definition, are not assumed to have the capacity to

take care of themselves. They are assumed to be sub-

ject to the control of their parents, and if parental

control falters, the State must play its part as parens

patriae. In this respect, the juvenile’s liberty interest

may, in appropriate circumstances, be subordinated

to the State’s “parens patriae interest in preserving

and promoting the welfare of the child.”

467 U.S. at 265 (citations omitted), quoting Santosky v.

Kramer, 455 U.S. 745, 766 (1982); see also Bellotti, 443

U.S. at 634 (stating three reasons why “the constitutional

rights of children cannot be equated with those of adults,”

including “the peculiar vulnerability of children”).

In my view, the teachings of Schall and Bellotti are par-

ticularly relevant to the facts of this case. The INS’s regu-

lation governing the detention of minors is based at least

in part upon a concern for the “peculiar vulnerability” of

alien minors. See Bellotti, 443 U.S. at 635 (“the State is en-

titled to adjust its legal system to account for children’s

vulnerability . . .”). Thus, the INS’s regulation is an exer-

cise of governmental power which takes into account the

need to provide for children “{when] parental control

falters.” Schall, 467 U.S. at 265.

66a

The majority ignores these cases, and instead relies on

In re Gault, for the proposition that “children should be

treated in a manner least restrictive of liberty.” Maj. op. at

10798. In re Gault dealt with a procedural, rather than

substantive, due process challenge, and I am at a loss to

find any categorical statement concerning the liberty rights

of children in the text of the opinion. Compare In re

Gault, 387 U.S. at 13 (stating that bill of rights does not

apply in same manner to children as adults). Moreover,

since In re Gault was decided, the Supreme Court has

made it clear that childrens’ liberty interests are not iden-

tical to those of adults. Schall, 467 U.S. at 26S.

The majority also relies heavily on federal and state

policies which, it claims, “favor[{ ] avoidance of institu-

tionalization of juveniles.” Maj. op. at 10796. However,

even assuming the existence of such policies, they are ir-

relevant to our analysis. The question presented here is

what the Constitution requires, not what federal and state

governments favor. See DeShaney, 489 U.S. at 202-03

(drawing distinction between duties imposed by state leg-

islature and duties embodied in the Constitution). I there-

fore fail to see how legislative policy “compels the conclu-

sion that” the plaintiffs’ status as minors is irrelevant to

Our assessment of their constitutional rights. Maj. op. at

10796.

Thus, I believe that the Supreme Court’s rulings regard-

ing the diminished liberty interests of minors should be

factored into our constitutional analysis. The majority

therefore errs in asserting that there is “no legal basis” for

the INS’s professed concern for the best interests of alien

minors. Maj. op. at 10797. Because the INS’s statement of

reasons for the limited detention policy are concerns that

the Supreme Court has already found legitimate, this is

additional evidence that the challenged regulation is

reasonable.

67a

In the final section of the opinion, the majority upholds

the district judge’s ruling that a minor taken into custody

must be given “an administrative hearing to determine

probable cause for his arrest and the need for any restric-

tions placed upon his release.” Although the district

judge’s ruling apparently rested on the procedural due pro-

cess test embodied in Gerstein v. Pugh, 420 U.S. 103

(1975), see Flores, slip op. at 10798, the majority sees no

need to determine whether Gerstein applies in this case. In-

stead, the majority concludes that the new procedural re-

quirements are logically connected to its holding that the

INS may not detain minors solely on the ground that there

is no adult or legal guardian to care for the child. Ma). op.

at 10801-02. . '

The majority states that requiring detention hearings

does not materially alter existing INS regulations. Maj.

op. at 10802. In reaching this conclusion, the majority

holds that the district judge’s order only imposes two addi-

tional requirements on the. INS. First, the order makes

detention hearings mandatory, when the hearings were

previously only available at the request of the minor. /d.;

see 8 C.F.R. § 242.2(c) & (d) (1991). Second, the order re-

quires that the hearing include an inquiry into whether a

nonrelative may be appropriate to take custody of the

shild. Maj. op. at 10802. .

~~ an ie 1 do not agree that the INS regulation

at issue here violates substantive due process. I therefore

cannot join in the majority’s imposition of these new pro-

cedural requirements. However, the majority's analysis is

problematic for a second reason — it fails to acknowledge,

much less analyze, the possible broader implications of the

judge’s order. This issue needs to be clarified.

68a

The district judge held that “[aJny minor taken into

custody” shall be given “an administrative hearing to

determine probable cause for his arrest.” Under current

INS procedures, minors arrested without a warrant are en-

titled to have probable cause reviewed by an immigration

official “without unnecessary delay.” See 8 U.S.C.

§1357(a)(2). Because this procedure existed prior to the

Flores litigation, the panel speculated that the district

judge intended to impose an additional requirement that

the probable cause hearing take place before an immigra-

tion judge. Otherwise, the majority pointed out that “the

injunction [would be] deprive[d] of much practical effect.”

Flores, slip op. at 10798.

By holding that the judge’s order will not materially af-

fect INS procedures, the majority implicitly rejects the

panel’s original assumption and holds instead that the cur-

rent arrest and probable cause requirements satisfy the

judge’s order. Any other interpretation of the order is in-

consistent with the majority’s refusal to engage in any due

process analysis. Therefore, despite the broad language of

the judge’s order, the majority’s affirmance of that order

should not be read to require any change in these pro-

cedures.

I also do not read the majority’s opinion as imposing

any additional requirements on the INS in terms of timing

and execution of the detention hearings. The majority

references the current hearing procedures as adequate to

safeguard the interests of the minors. See maj. op. at

10802. Therefore, with the exception of the new require-

ment that such hearings be held automatically, the majori-

ty Opinion does not entail any alteration in current INS

procedure.

The procedural component of the district judge’s order

is potentially quite sweeping. For this reason, I adhere to

69a

my original position, as stated in the panel majority opin-

ion, that we should remand the case fora determination of

what procedures are constitutionally required under

Mathews v. Eldridge, 424 U.S. 319 (1976). See Flores, slip

op. at 10797-802 (discussing appropriate test for pro-

cedural due process analysis).

70a

APPENDIX B

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

No. 88-6249

JENNY LISETTE FLORES, A MINOR, BY NEXT FRIEND MARIO

HUGH GALVEZ-MALDONADO; DOMINGA HERNANDEZ-

HERNANDEZ, A MINOR, BY NEXT FRIEND JOSE SAUL MIRA;

ALMA YANIRA CRUZ-ALDAMA, A MINOR, BY NEXT FRIEND

HERMAN PERILILO TANCHEZ, PLAINTIFFS-APPELLEES

V.

EDWIN MEEgSE, III; IMMIGRATION & NATURALIZATION

SERVICE; HAROLD EZELL, DEFENDANTS-APPELLANTS

Argued and Submitted April 5, 1989

Decided June 20, 1990

As Amended Sept. 7, 1990

Class of alien minors brought suit challenging Immigra-

tion and Naturalization Service (INS) regulation govern-

ing release of detained alien minors. The United States

District Court for the Central District of California,

Robert J. Kelleher, J., granted summary judgment to

aliens, holding that regulation violated substantive due

process, and ordered modifications to the regulation. At-

torney General and INS appealed. The Court of Appeals,

Wallace, Circuit Judge, held that: (1) INS did not exceed

its authority in issuing regulation; (2) regulation did not

Tla

violate substantive due process; and (3) Supreme Court’s

Gerstein decision holding that Fourth Amendment re-

quired review, by neutral and detached magistrate, of

probable cause for arrest prior to any extended restraint of

liberty following arrest did not apply.

Reversed and remanded.

Fletcher, Circuit Judge, filed dissenting opinion.

See also 681 F.Supp. 665.

Opinion, 913 F.2d 1315, superseded.

lan Fan, Asst. U.S. Atty., Los Angeles, Cal., for de-

fendants-appellants.

Carlos Holguin, Nat. Center for Immigrants’ Rights,

Inc., Los Angeles, Cal., for plaintiffs-appellees.

Appeal from the United States District Court for the

Central District of California.

Before WALLACE and FLETCHER, Circuit Judges, and

Lioyp D. GeorGce,* District Judge.

WaLLace, Circuit Judge:

The Attorney General and Immigration and Naturaliza-

tion Service (INS) appeal the district court’s summary

judgment to a plaintiff class of alien minors whose named

representative is Jenny Flores (Flores). The district court

held that an INS regulation governing the release of de-

tained alien minors violates substantive due process, and

ordered modifications to the regulation. The district court

also held that INS procedures fell short of the require-

ments of procedural due process, and therefore ordered

the INS “forthwith” to provide to any minor in custody an

“administrative hearing to determine probable cause for

* Honorable Lloyd D. George, United States District Judge,

District of Nevada, sitting by designation.

72a

his arrest and the need for any restrictions placed upon his

release.” On appeal, the INS challenges both of the district

court’s holdings. The district court had jurisdiction under

28 U.S.C. § 1331. We have jurisdiction over this timely

appeal pursuant to 28 U.S.C. § 1291. We reverse and re-

mand.

The case arises out of the INS’s efforts to deal with the

growing number of alien children entering the United

States by themselves or without their parents (unaccom-

panied alien minors). Pursuant to 8 U.S.C. §§ 1357(a)(2)

and 1252(a)(1), INS agents may arrest and detain aliens,

including alien minors, whom they suspect may be deport-

able. Section 1252(a)(1) provides that

any such alien taken into custody may, in the discre-

tion of the Attorney General and pending . . . final

determination of deportability, (A) be continued in

custody; or (B) be released under bond in the amount

of not less than $500 with security approved by the

Attorney General, containing such conditions as the

Attorney General may prescribe; or (C) be released on

conditional parole.

8 U.S.C. § 1252(a)(1) (emphasis added). Section

1252(a)(1) also authorizes the Attorney General, “in his

discretion” and “at any time,” to revoke an alien’s bond or

parole. Plaintiffs are a class of alien minors who are being

detained without bail by the INS pending deportation pro-

ceedings. The conditions of the plaintiffs’ confinement are

not at issue in this case. The issue is whether, and in what

manner, the plaintiffs may be detained.

Section 1252 applies to deportable aliens only. Under

our immigration laws, there is a fundamental distinction

between “excludable” and “deportable” aliens and a

73a

corresponding distinction between exclusion and deporta-

tion proceedings. See | C. Gordon & S. Mailman, /m-

migration Law and Procedure § 1.03{7] (rev. ed. 1989).

Compare 8 U.S.C. §§ 1221-1230 (provisions relating to

entry and exclusion) with id. §§ 1251-54 (provisions

relating to deportation). Excludable aliens are those who

have not “entered” the United States as that term is used in

the immigration laws. See Leng May Ma v. Barber, 357

U.S. 185, 187-90, 78 S.Ct. 1072, 1073-75, 2 L.Ed.2d 1246

(1958); 8 U.S.C. § 1101(a)(13). By contrast, deportable

aliens are those who have entered the United States but

whose presence violates the immigration laws. At issue in

this case are the statutory provisions governing, and the

rights of, deportable aliens only.

Under the statutory framework governing detention of

deportable aliens, an alien detained pending deportation

proceedings may obtain judicial review of a detention or

bond release decision “upon a conclusive showing in

habeas corpus proceedings that the Attorney General is

not proceeding with such reasonable dispatch as may be

warranted by the particular facts and circumstances in the

case of any alien to determine deportability.” 8 U.S.C.

§ 1252(a)(1). Because this provision “deals only with com-

plaints about delays in determining deportability in in-

dividual cases,” it does not foreclose a challenge to an INS

regulation brought under 28 U.S.C. § 1331 rather than in

habeas corpus proceedings. National Center for Im-

migrants Rights, Inc. v. INS, 743 F.2d 1365, 1368-69 (9th

Cir.1984). After an order of deportation against an alien

has been made final, the Attorney General is authorized to

detain that alien for up to six months. 8 U.S.C. § 1252(c).

After the six months has elapsed, the Attorney General

must release the deportable alien but may thereafter super-

vise him. 8 U.S.C. § 1252(d).

74a

The Attorney General is authorized by Congress to

establish regulations which are necessary to carry out his

authority under the immigration laws. 8 U.S.C. § 1103(a).

The Attorney General may delegate his responsibilities to

other executive officers and indeed has delegated much of

his authority over immigration to the Commissioner of the

INS, who in turn has authorized the Deputy Commis-

sioner to exercise the same degree of power, 8 U.S.C.

§ 1103(a); 8 C.F.R. § 100.2(1988); see also Patel v. INS,

638 F.2d 1199, 1201 & n. 1 (9th Cir.1980).

Under 8 U.S.C. § 1252(a)(1), the Attorney General may

continue a deportable alien in custody and prescribe bond

release conditions. Prior to 1984, no national policy ex-

isted regarding when an alien minor in deportation pro-

ceedings could be released on bail. By contrast, regula-

tions did exist governing the release of alien minors who

were in exclusion proceedings. See 8 C.F.R.

§ 212.5(a)(2ii) (1987).

In 1984, the INS’s Western Region adopted a policy

governing release of detained alien minors in deportation

proceedings. The policy provided that

{njo minor shall be released except to a parent or

lawful guardian. This is necessary to assure that the

minor’s welfare and safety is [sic] maintained and that

the agency is protected against possible legal liability.

District Directors and Chief Patrol Agents are

authorized, in unusual and extraordinary cases, to

release a minor to a responsible individual who agrees

to provide care and be responsible for the welfare and

well being of the child. Release shall not be permitted

if any doubt exists that the child will be properly pro-

tected.

Four plaintiffs, including named plaintiff Flores, filed

this class action on July 11, 1985. The district court subse-

7Sa

quently certified a class of alien minors comprising

{ajll persons under the age of eighteen (18) years who

have been, are, or will be arrested and detained pur-

suant to 8 U.S.C. § 1252 by the [INS] within the INS’

Western Region and who have been, are, or will be

denied release from INS custody because a parent or

legal guardian fails to personally appear to take cus-

tody of them.

Flores’s complaint contained seven claims, only the first

two of which are relevant to this appeal. The first claim

alleged that the Western Region’s bond release condition

violated the Immigration & Nationality Act (INA), 8

U.S.C. § 1101 ef seg., the Administrative Procedure Act

(APA), 5 U.S.C. § 552 et seq., the fifth amendment’s due

process clause and equal protection guarantee, and inter-

national law. Flores’s second claim challenged the INS’s

failure to provide (1) “prompt written notice” to the de-

tainee that the bond release condition had been imposed,

and (2) “prompt, mandatory, neutral and detached”

review following arrest of (a) whether probable cause to

arrest existed, (b) whether imposition of the bond condi-

tion was necessary to ensure future appearance, and (c)

whether any available adult was suitable to ensure the de-

tained juvenile’s well-being and appearance at future pro-

ceedings. The second claim alleged that these failures

violated due process and international law. Plaintiffs’ last

five claims, which challenged various conditions of the

minors’ confinement, including the INS’s provision for

education, recreation, and visitation, were resolved by set-

tlement or motion and are not issues in this appeal.

The INS moved for partial summary judgment, and the

district court held that the bond release condition did not

violate the INA, APA, or international law, but deferred

decision on the due process and equal protection claims

until further discovery had been conducted.

76a

Flores subsequently moved for summary judgment on

various grounds, and the district court ruled that the bond

release condition embodied in the Western Region’s policy

violated equal protection since no rational reason existed

for treating alien minors in exclusion proceedings dif-

ferently from alien minors in deportation proceedings.

Unde: 8 C.F.R. § 212.5(a)(2)ii) (1987), alien minors in ex-

clusion proceedings could be paroled to persons other than

parents or legal guardians, including relatives such as

sisters or brothers as well as non-relatives. Pointing to the

fact that the INS had no uniform policy governing the

release of alien minors, the district court ordered the INS

to treat minors in deportation under the exclusion

standards.

Thereafter, on October 15, 1987, the INS published in

the Federal Register a proposed rule “to codify Service

policy regarding detention and release of juvenile aliens

and to provide a single policy for juveniles in both depor-

tation and exclusion proceedings.” 52 Fed.Reg. 38,245

(proposed Oct. 15, 1987). Comments upon the proposed

regulation were requested. /d.

Flores moved for summary judgment on the due process

issues, which the INS opposed and cross-filed for sum-

mary judgment. At the hearing on the motions, the district

court was advised that the INS was in the process of

publishing the final version of the alien minor detention

regulation, and the district court ordered that a copy of

the new regulation be filed. The final regulation was

published in the Federal Register on May 17, 1988, and a

copy of it was filed with the district court on the same

date. Detention and Release of Juveniles, 53 Fed.Reg.

17,449 (1988). The regulation is now codified at 8 C.F.R.

§ 242.24 (1989).

77a

The final regulation,' which differs only slightly from

the proposed regulations, governs release of alien “juve-

' The final regulation provides in part:

§ 242.24 Detention and release of juveniles.

(a) Juveniles. A juvenile is defined as an alien under the age

of eighteen (18) years.

(b) Release. Juveniles for whom bond has been posted, for

whom parole has been authorized, or who have been ordered

released on recognizance, shall be released pursuant to the

tollowing guidelines:

(1) Juveniles shall be released, in order of preference, to: (i) A

parent; (ii) legal guardian; or (iii) adult relative (brother, sister,

aumt, uncle, grandparent) who are not presently in INS detention,

unless a determination is made that the detention of such juvenile

is required to secure his timely appearance before the Service or the

immigration court or to ensure the juvenile’s safety or that of

others. In cases where the parent, legal guardian or adult relative

resides at a location distant from where the juvenile is detained, he

or she may secure release at an INS office located near the parent,

legal guardian, or adult relative.

(2) If an individual specified in paragraph (b)(1) of this sec-

tion cannot be located to accept custody of a juvenile, and the

juvenile had identified a parent, legal guardian, or adult relative

in INS detention, simultaneous release of the juvenile and the

parent, legal guardian, or adult relative shall be evaluated on a

discretionary case-by-case basis.

(3) In cases where the parent or legal guardian is in INS

detention or outside the United States, the juvenile may be

released to such person as designated by the parent or legal guar-

dian in a sworn affidavit, executed before an immigration officer

or consular officer, as capable and willing to care for the

juvenile’s well-being. Such person must execute an agreement to

care for the juvenile and to ensure the juvenile’s presence at all

future proceedings before the Service or an immigration judge.

(4) In unusual and compelling circumstances and in the dis-

cretion of the district director or chief patrol agent, a juvenile

may be released to an adult, other than those identified in para-

graph (b)(1) of this section, who executes an agreement to care

for the juvenile’s well-being and to ensure the juvenile’s presence

at all future proceedings before the INS or an immigration judge.

8 C.F.R. § 242.24 (1989).

78a

niles,” defined as aliens under the age of 18. 8 C.F.R.

§ 242.24 (1988). It provides that an alien minor “for whom

bond has been posted . . . or who ha[s} been ordered re-

leased on recognizance” would be released, in order of

preference, to a parent, legal guardian, or adult relative

(brother, sister, aunt, uncle, grandparent), provided such

person is not in INS detention. Jd. However, even if such a

person is available to accept custody, release will not take

place if “a determination is made that the detention of

such juvenile is required to secure his timely appearance

before the Service or the immigration court or to ensure

the juvenile’s safety or that of others.” Jd. The INS retains

discretion in “unusual and compelling circumstances” to

release a juvenile to an adult who is not a parent, legal

guardian or adult relative, so long as the adult “executes

an agreement to care for the juvenile’s well-being and to

ensure the juvenile’s presence at all future proceedings

before the INS or an immigration judge.” /d.

The supplementary information section of the final

regulation explained that “the decision of whether to de-

tain or release a juvenile depends on the likelihood that the

alien will appear for all future proceedings.” 53 Fed.Reg.

17,449. It cautioned, however, that

with respect to juveniles a determination must also

be made as to whose custody the juvenile should

be released. On the one hand, the concern for the

welfare of the juvenile will not permit release to

just any adult. On the other hand, the Service has

neither the expertise nor the resources to conduct

home studies for placement of each juvenile released.

This rule strikes a balance by providing a list of

appropriate custodians while maintaining the discre-

tion of the District Director or the Chief Patrol Agent

to release a juvenile to an adult other than those

79a

listed individuals in unusual and compelling cir-

cumstances.

Id. The supplementary information section also sum-

marized various comments on the regulation which had

been accepted or rejected. It stated that the INS had re-

jected the suggestion of several commentators that the list

of custodians be expanded to include “any responsible

adult.” /d. It explained that the INS “has attempted to

provide for release to those individuals considered respon-

sible for the juvenile’s welfare. Release to others. . . ona

routine basis, would require the performance of home

studies for which the Service is neither adequately funded

nor qualified.” Jd.

The parties filed supplemental briefs on the effect of

the new regulation, and the district court, in a brief, one

and one-half page order, granted summary judgment to

Flores on her first and second claims “on due process

grounds.”

We review the entry of summary judgment de novo.

United Steelworkers of America v. Phelps Dodge Corp.,

865 F.2d 1539, 1540 (9th Cir.1989) (en banc). Our review

is governed by the same standard used by the trial court

under Federal Rule of Civil Procedure 56(c). /d. Summary

judgment is appropriate only if “the pleadings, deposi-

tions, 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 judgment as a matter of law.”

Fed.R.Civ.P. 56(c). We must view the evidence in the light

most favorable to the nonmoving party. Matter of Bishop,

Baldwin, Rewald, Dillingham & Wong, Inc., 856 F.2d 78,

80 (9th Cir. 1988).

80a

Flores first urges us to affirm the district court’s modifi-

cation of section 242.24 on nonconstitutional grounds. In

Jean v. Nelson, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d

664 (1985), the Supreme Court cautioned that “ ‘[p]rior to

reaching any constitutional questions, federal courts must

consider nonconstitutional grounds for decision.’ ” /d. at

854, 105 S.Ct. at 2997, quoting Gulf Oil Co. v. Bernard,

452 U.S. 89, 99, 101 S.Ct. 2193, 2199, 68 L.Ed.2d 693

(1981). The Court characterized this as a “ ‘fundamental

rule of judicial restraint.’ ” Jd., quoting Three Affiliated

Tribes of Berthold Reservation v. Wold Engineering, 467

U.S. 138, 104 S.Ct. 2267, 81 L.Ed.2d 113 (1984). The INS

concedes that we may consider the nonconstitutional argu-

ment in this appeal.

Arguing that the INS lacks statutory authority to issue

the minor detention regulation, Flores seeks to invoke our

prior decision in National Center for Immigrants’ Rights

v. INS, 791 F.2d 1351 (9th Cir. 1986) (National Center),

cert. granted and vacated, 481 U.S. 1009, 1009-10, 107

S.Ct. 1881, 1882, 95 L.Ed.2d 489 (vacating and remanding

for reconsideration in light of Immigration Reform and

Control Act of 1986), on remand, 818 F.2d 869 (9th Cir.

1987) (remanding to district court). In National Center, we

held that the INS exceeded its statutory authority in pro-

muigating a blanket “no-work” bond condition for aliens

in deportation proceedings. Despite broad authorization

in the statute, we relied on legislative history in holding

that the Attorney General’s authority “is limited to the im-

position of bond conditions which tend to insure the

alien’s appearance at future deportation proceedings.” 791

F.2d at 1356. Flores argues that because the INS regula-

tion at issue in this case does not insure the alien’s appear-

ance at deportation proceedings, the INS exceeded its

authority in issuing this reguiation.

8la

Because the Supreme Court vacated our decision in Na-

tional Center, that decision no longer has any legal effect.

“The effect of vacating the judgment below is to take away

from it any precedential effect.” Troy State University v.

Dickey, 402 F.2d 515, 516 (Sth Cir.1968); see also United

States v. Munsingwear, Inc., 340 U.S. 36, 41, 71 S.Ct.

104, 107, 95 L.Ed. 36 (1950) (stating that motion to vacate

judgment “is commonly utilized . . . to prevent a judg-

ment, unreviewable because of mootness, from spawning

any legal consequences”) (emphasis added). Thus, we may

not rely on National Centers precedential value as a basis

for affirming the district court.

Congress has delegated exceptionally broad rulemaking

and enforcement powers to the Attorney General under

the immigration laws. See Bilbao-Bastida v. INS, 409 F.2d

820, 822 (9th Cir.), cert. dismissed, 396 U.S. 802, 90 S.Ct.

21, 24 L.Ed.2d 59 (1969); Hotel & Restaurant Employees

Union, Local 25 v. Smith, 846 F.2d 1499, 1500

(D.C.Cir.1988) (en banc); Amanullah v. Nelson, 811 F.2d

1, 4-5. (ist Cir.1987). Under section 1103(a), the Attorney

General is authorized to “establish such regulations . . . as

he deems necessary for carrying out his authority” under

chapter 12 of title 8 of the United States Code, 8 U.S.C.

§§ 1101-1503. See also H.R.Rep. No. 1365, 82d Cong., 2d

Sess., reprinted in 1952 U.S.Code Cong. & Admin.News

1653, 1687.

In Mourning v. Family Publications Service, Inc., 411

U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973), the

Supreme Court set forth the standard for evaluating the

validity of an agency regulation “[w]here the empowering

provision of a statute states simply that the agency may

‘make . . . such rules and regulations as may be necessary

to carry out the provisions of this Act.’ ” Jd. at 369, 93

~ S.Ct. at 1660. The Court concluded that “the validity of a

regulation promulgated thereunder will be sustained so

82a

long as it is ‘reasonably related to the purposes of the

enabling legislation.’ ” Jd. (footnote omitted), quoting

Thorpe v. Housing Authority of Durham, 393 U.S. 268,

280-81, 89 S.Ct. 518, 526; 21 L.Ed.2d 474 (1969); see also

Holy Cross Hospital-Mission Hills v. Heckler, 749 F.2d

1340, 1344 (9th Cir. 1984). In Sam Andrews’ Sons v.

Mitchell, 457 F.2d 745 (9th Cir.1972) (Sam Andrews’

Sons), we articulated a similar standard of review for

regulations promulgated in the area of immigration —an

area where the Executive Branch possesses residual con-

stitutional authority because of its foreign affairs powers.

See Jean v. Nelson, 727 F.2d 957, 965 (11th Cir.1984) (en

banc) (Jean), aff'd on other grounds, 472 U.S. 846, 105

S.Ct. 2992, 86 L.Ed.2d 664 (1985). In Sam Andrews’ Sons,

we stated that the Attorney General’s regulations pro-

mulgated under the INA “must be upheld if they are

founded ‘on considerations rationally related to the statute

he is administering.’ ” 457 F.2d at 748, quoting Fook Hong

Mak v. INS, 435 F.2d 728, 730 (2d Cir. 1970) (Fook Hong

Mak); see also Narenji v. Civiletti, 617 F.2d 745, 747

(D.C.Cir. 1979) (Narenji) (same), cert. denied, 446 U.S.

957, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980). Thus, we need

only inquire as to whether the considerations underlying

the INS’s regulation are rationally related to the statute.

In arguing that section 242.24 does not exceed his rule-

making authority, the Attorney General does not rely

upon the general rulemaking authority granted by section

1103(a) alone. Instead, he argues that the detention regula-

tion is one “he deems necessary for carrying out his

authority” specifically granted by 8 U.S.C. § 1252(a)(1),

which empowers him “in his discretion” to “continue[ } in

custody” an alien arrested under warrant, or to release

such alien “under bond in the amount of not less than $500

with security approved by the Attorney General, contain-

ing such conditions as the Attorney General may pre-

83a

scribe.” 8 U.S.C § 1252(a)(1). Flores counters by arguing

that section 1252(a)(1) authorizes only those bond release

conditions which serve the sole purpose of ensuring the

alien’s future appearance at deportation proceedings.

While both parties characterize the INS regulation as

imposing a “bond release condition” on alien juveniles, we

conclude that the INS regulation actually is closer to a

condition of bail or a condition for release, at least as ap-

plied to the plaintiff class. That is, the regulation does not

impose a condition upon plaintiffs which restricts their ac-

tivities after release; instead, it bars such release in the first

place. See Matter of Toscano-Rivas, 14 1 & N Dec. 523,

527 (B.1.A.1972), on reconsideration, 141 & N Dec. 538,

539-41 (B.I.A. 1973), affd on other grounds, 141 & N

Dec. 550, 555 (A.G.1974) (Toscano-Rivas) (distinguishing

between detention and bond release conditions). Thus, in

contrast to the regulation analyzed in National Center, the

regulation at issue in this case derives primarily from the

Attorney General’s detention power rather than from his

power to prescribe bond conditions. However, since the

Attorney General’s detention and bond release condition

powers are interrelated, and their statutory evolution in-

tertwined, we will examine them together.

Our review of both the language and legislative history

of section 1252(a)(1) discloses no intent to limit the At-

torney General’s power to detain arrested aliens pending

deportation proceedings to those situations where deten-

tion is necessary to ensure the alien’s future appearance.

We begin with the language of section 1252(a)(1). The

language is extremely broad in authorizing the detention

‘and release on bond of aliens pending deportation pro-

ceedings. It provides that “any ... alien taken into

custody may, in the discretion of the Attorney General

and pending . . . final determination of deportability, (A)

be continued in custody; or (B) be released under bond in

the amount of not less than $500 with security approved

84a

by the Attorney General, containing such conditions as the

Attorney General may prescribe.” 8 U.S.C. § 1252(a)(1)

(emphasis added). This language discloses no limitation on

the Attorney General’s detention powers before an order

of deportation is made final, except perhaps that implied

by the word “discretion.” See Carlson v. Landon, 342 U.S.

$24, 540-41, 72 S.Ct. 525, 534, 96 L.Ed. 547 (1952)

(Carlson) (Attorney General’s exercise of discretion “can

only be overridden where it is clearly shown that it ‘was

without a reasonable foundation.’ ”); Rubinstein v.

Brownell, 206 F.2d 449, 455 (D.C.Cir.1953), aff'd per

curiam by an equally divided court, 346 U.S. 929, 74S.Ct.

319, 98 L.Ed. 421 (1954). Section 1252(a)(1)’s language

certainly does not explicitly or implicitly limit the Attorney

General’s power to detain to situations where it Is

necessary to ensure the alien’s future appearance.

While section 1252(a)(1) specifically authorizes the Al-

torney General to prescribe bond release conditions, it

does not authorize him to prescribe conditions for release.

Instead, the Attorney General is simply authorized, in his

discretion, to continue aliens in custody, that is, to deny

release pending deportation proceedings. We do not view

this as an obstacle to the regulation’s validity, however. As

mentioned above, section 1103(a) generally authorizes the

Attorney General to make regulations which “he deems

necessary” to carry out his authority under the immigra-

tion laws. 8 U.S.C § 1103(a). In light of the broad man-

date of section 1103(a), “[t}he statute need not specifically

authorize each a

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