Amicus Curiae Brief — Reno v. Flores

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No? 91-905

LLL E Hee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

WILLIAM P. Barr,

Attorney General of the United States, et al.,

JENNY LISETTE FLORES, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICI CURIAE

CHILD WELFARE LEAGUE OF AMERICA AND

DEFENSE FOR CHILDREN INTERNATIONAL—USA

IN SUPPORT OF RESPONDENTS

JOHN R. HEISSsE, II J. MICHAEL KLISE *

PETIT & MARTIN CLIFTON S. ELGARTEN

101 California Street SHARON A. SNYDER

85th Floor CROWELL & MORING

San Francisco, CA 94111 1001 Pennsylvania Ave., N.W.

(415) 434-4000 Washington, D.C. 20004-2595

(202) 624-2629

Attorneys for

Child Welfare League of

America and Defense for

Children International-USA

June 29, 1992 * Counsel of Record

Witson - Eres Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

‘BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the Immigration and Naturalization Qeryice

may inearcerate and detain a child pending a deportation

hearing, without a prompt, individualized determination

that detention is in the child’s best interests, including

the determination that it is not in the child’s interest to

release the child to a responsible adult other than a close

relative or legal guardian?

TABLE OF CONTENTS

QUESTION PRESENTED 00000.0o00.0.......ccccccccccecesceeeeeeees

TABLE OF AUTHORITIES 20000.0000.0.....cccccccccececeeeeeeee

INTEREST OF AMICI CURIAE 00000000000 00occcoccccccsese

EES

SUMMARY OF ARGUMENT ...0W0 eee

aes cercecennsnsasscscccenscosons

I. CHILDREN HAVE A FUNDAMENTAL SUB-

STANTIVE RIGHT TO FREEDOM FROM

GOVERNMENTAL INCARCERATION AND

CC EE

A. This Case Involves A Deprivation Of Physi-

Il.

cal Freedom, A Liberty Protected By The

Due Process Clause 2220.00.00. cccccecececeeeeee

The Government Has A Legitimate Interest

As Parens Patriae In Seeking To Act In

The Child’s Best Interest 0.0000.

Due Process Requires That Any Deprivation

Of Physical Liberty Be Supported By An

Individualized Determination ............. .........

. The Prohibition On Release To Responsible

Adults Other Than Close Relatives Or Legal

Guardians Unduly Circumscribes The In-

dividualized Inquiry Which The Due Process

Clamme Requires ....................ccccccccccccccceeeeeeeeees

Administrative Convenience Cannot Justify

These Blanket Deprivations Of Liberty...

INS’S DETENTION POLICY BOES NOT

CLOSELY PARALLEL A_ LEGITIMATE

GOVERNMENT GOAL 00.00.00 ccccecccccneeneeeens

(iii)

TABLE OF CONTENTS—Continued

A. INS’s Detention Policy Is Not Reasonably

Related To A Legitimate Governmental In-

terest In The Welfare Of Children...

B. The INS Denies Release To Adults Widely

Recognized As Suitable To Care For Chil-

A TREE Re SELLER IIE SS ITE CE Bande oR

C. Incarceration And Detention Subject Chil-

dren To Substantial Physical, Psychological,

ee Te ES vcicccnnccissisenntiemetieniianintsaies

Ill. INS’S INCARCERATION AND DETENTION

OF CHILDREN WITHOUT A HEARING VIO-

LATES THEIR RIGHT TO PROCEDURAL

ES CED cecccsessanseemenenscenenenninneen

EID csrtsnrcescuieninieneninisinnsnmimnamdnnemniniodets

Page

TABLE OF AUTHORITIES

Cases: Page

Addington v. Texas, 441 U.S. 418 (1979)... 12, 13

Bagonzi v. Miller, 401 A.2d 1086 (N.H. 1979)... 25

Bellotti v. Baird, 443 U.S. 622 (1979)... ae 15

Board of Pardons v. Allen, 482 U.S. 369 (1987)... 9

Carlson v. Landon, 342 U.S. 524 (1952) ...... ———e 16

Collins v. City of Harker Heights, 112 S. Ct. 1061

ECR SE Pees an eee 9

Daniels v. Williams, 474 U.S. 327 (1986) . 9

DeShaney v. Winnebago County Social ‘Servs.

Dep’t, 489 U.S. 189 (1989) .................................. 10

Eddings v. Oklahoma, 455 U.S. 104 (1982) —...... 15

Flores v. Meese, 942 F.2d 1352 (9th Cir. 1991)

ORD IED cccccnintiinneidiieessittninbidttiantinniamnaeel passim

Flores v. Meese, 934 F.2d 991 (9th Cir. 1990) 10

Foucha v. Louisiana, 112 §. Ct. 1780 (1992). ...-—s-« 9, 10

Gary W. v. Louisiana, 437 F. Supp. 1209 (E.D. La.

SUITED -sensieeinsidpeseenieaidihaliasipnestadssanstiiedbinbeinsnenetiiahaiidaiiaiasdlindiaameaies 28

Glenda Kay S. v. Nevada, 732 P.2d 1356 (Nev.

Ses ee Se 27

INS v. National Ctr. for Immigrants’ — 112

FE RR Se eae ea ne eT 13

In re Gault, 387 U.S. 1 (1967) acini 20

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

EES Seite ae ae 27

In re Robin M., 579 P.2d 1 (Cal. 1978) —...... 26

In re William M., 473 P.2d 737 (Cal. 1970) _.......... 27

In the Matter of the Guardianship of Doe, 786

ES 25

Jones v. Maryland, 535 A.2d 471 (Md. 1988) Sta 27

Kent v. United States, 383 U.S. 541 (1966) _...... 20, 29

Korematsu v. United States, 323 U.S. 214 (1944). 4,16

Leland v. Oregon, 343 U.S. 790 (1952) 23

Lollis v. New York State Dep’t of Social Servs.,

322 F. Supp. 478 (S.D.N.Y. 1970) —.......... 26

Ludecke v. Watkins, 335 U.S. 160 (1948) ._.......... 16

Matter of Patel, 15 I&N Dec. 666 (BIA 1976)... 13

McKeiver v. Pennsylvania, 408 U.S. 528 (1971)... 19, 27

Michael H. v. Gerald D., 109 S. Ct. 2333 (1989)... 19

TABLE OF AUTHORITIES—Continued

Page

Morgan v. Sproat, 432 F. Supp. 1130 (S.D. Miss.

REESE See reese sce we er ee 27

Morris v. D’Amario, 416 A.2d 137 (R.1. 1980)... 27

Moyer v. Peabody, 212 U.S. 78 (1909) 0... 4, 16

O’ Rourke v. Warden, Metropolitan Correction Ctr.,

539 F. Supp. 1131 (S.D.N.Y. 1982) —.................. 13

Plyler v. Doe, 457 U.S. 202 (1982) 0.00... 15

R.P. v. Alaska, 718 P.2d 168 (Alaska App. 1986). 27

Schall v. Martin, 467 U.S. 253 (1984) _......... 11, 15, 20, 23

Snyder v. Massachusetts, 291 U.S. 97 (1934)........ 23, 25

Stanley v. Illinois, 405 U.S. 645 (1972) 00... 19

United States v. Salerno, 481 U.S. 739 (1987)... 11,16

Youngberg v. Romeo, 457 U.S. 307 (1982) .......... 9, 25

Zinermon v. Burch, 494 U.S. 113 (1990)... 11

Constitution, Statutes, Regulatory Material, and Model

Acts:

fee satiated ee: cree i)

U.S. Const. amend. XTV § 1 ...... RTOS ee AR Ee 9

Immigration and Nationality Act §242(a), 8

Ee 14

eee ott 22

Ala. Code § 12-15-62 (1975) _.........0..-0...ee eee... 23

Ala. Code § 26-2A-73(a) (1991) .......0000000000000000..... 24

Ariz. Rev. Stat. Ann. § 14-5204 (1975)... 24

Cal. Welf. & Inst. Code § 626 (West 1992)... 23

Conn. Gen. Stat. § 46b-133 (1986)... a 23

D.C. Code Ann. § 16-2310 (1981) 23

Idaho Code § 16-1811.1(c) (1991) —0000000000........ 23

lowa Code § 232.19(2) (West 1985) 23

Ky. Rev. Stat. Ann. § 610.200 (Michie 1990) 23

Mass. Gen. Laws Ann. c. 119, § 67 (1969)... ities 23

Md. Cts. & Jud. Proc. Code Ann. § 3-814 (1989) . 23

Me. Rev. Stat. Ann. tit. 15 § 3203-A (West 1991). 23

Minn. Stat. Ann. § 260.171 (West 1982)... Seo 24

Miss. Code Ann. § 43-21-301 (1981)... 24

Neb. Rev. Stat. § 43-253 (1988) nn. 24

Nev. Rev. Stat. Ann. § 62.170 (Michie 1986) ........... 24

vii

TABLE OF AUTHORITIES—Continued

N.H. Rev. Stat. Ann. § 169.B:14 (1990)

N.J. Stat. Ann. § 2A:4A-32 (West 1987)...

N.M. Stat. Ann. § 32-1-58(A) (Michie 1989)

S.C. Code Ann. § 20-7-560 (Law. Co-op. 1984)...

S.D. Codified Laws Ann. § 26-8-23 (1990)...

Tex. Fam. Code Ann. § 52.02 (West 1992)...

Utah Code Ann. § 78-3a-29 (1992)...

RL eT

52 Fed. Reg. 15,569 (1987)...

Model Juvenile Court Act § 14 (1985)

Unif. Guardianship and Protective Proceedings

ge EER

Other Authorities:

Aubry, The Nature, Scope and Significance of Pre-

Trial Detention of Juveniles in California, 1

I a a

California Legislature, Joint Committee on Ref-

ugee Resettlement, International Migration and

Cooperative Development, Joint Interim Hear-

ing on Impact of INS Policies and Reforms

Child Welfare League of America, Standards for

Residential Centers for Children (1982).

J. Goldstein et al., Beyond the Best Interests of

SOU EPI CEI cachsenssnitisnntidasinesitestinsicineuboniipaitaittenies 15,

Governor’s Special Study Commission on Juvenile

Justice, Part 1—Recommendations for Changes

in California's Juvenile Court Law (1960) _.

National Council on Crime and Delinquency,

Standards and Guides for the Detention of Chil-

North American Council on 1 Adoptable Chihiren,

Research Brief 1, Challenges to Child Welfare:

Countering the Call for a Return to Orphanages

FALLS Ae ae LET IRGREL Ons Ale koe

Northwest Research Associates, Active and Rea-

sonable Efforts to Preserve Families (1986).

26, 28

25, 26

viii

TABLE OF AUTHORITIES—Continued

N. Rodriguez & X. Urrutia-Rojas, Undocumented

and Unaccompanied: A Mental-Health Study of

Unaccompanied, Immigrant Children from

Central America (1990) ..............00.-cccccoe seers

M. Soler et al., Stubborn and Rebellious Children:

Liability of Publie Officials for Detention of

Children in Jails, B.Y.U. L. Rev. 1 (1980)........

U.S. Department of Justice, National Advisory

Committee for Juvenile Justice and Delinquency

Prevention, Standards for Administration of

Juvenile Justice (1980) 20.00...

C. Vidal, Godparenting Among Hispanic Ameri-

cans, 67 Child Welfare 453 (1988) 0...

M. Wald et al., Protecting Abused /Neglected

Children: A Comparison of Home and Foster

Placement (Stanford Center for the Study of

Youth Development 1985) ............... pa Soe

Page

5,14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-905

WILLIAM P. Barr,

Attorney General of the United States, et al.,

Petitioners,

JENNY LISETTE FLORES, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICI CURIAE

CHILD WELFARE LEAGUE OF AMERICA AND

DEFENSE FOR CHILDREN INTERNATIONAL—USA

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI CURIAE

The Child Welfare League of America (“CWLA”) is

a 70-year-old organization comprising over 630 child wel-

fare agencies from across the United States. Together

with the 150,000 staff members from its member agen-

cies, CWLA works to ensure quality services for over

two million |: neglected, homeless, and otherwise

troubled children, youth, and families. Although not op-

posed to all institutional placements of children, CWLA

believes that the detention of children under the cireum-

stances of this case is inconsistent with the interests of

the children and sound child welfare policy.

Defense for Children International-USA (“DCI-USA”),

the U.S. section of Defense for Children International

(“DCI”), is a not-for-profit corporation engaged in the

promotion of children’s fundamental human rights, as

recognized in the Convention on the Rights of the Child

and the World Declaration on the Survival, Protection

and Development of Children. DCI has national member

sections in approximately 35 countries and has consulta-

tive status with the United Nations Economie and Social

Council and with the United Nations International Chil-

dren’s Emergency Fund. National sections of DCI are

charged with attending to the particular situation of

immigration and refugee children in their own countries.

As part of its activity in this area, DCI-USA has partici-

pated in the Working Group that has met regularly with

representatives of the Department of Justice and the

Immigration and Naturalization Service (“INS”) regard-

ing the problem of detention of undocumented, unaccom-

panied children entering the United States.

CWLA and DCI-USA both have a compelling interest

in ensuring that children, such as those represented here,

are not institutionalized in the absence of an individual-

ized determination that detention is in their interest—

and that release to a willing and responsible adult is not.*

STATEMENT

Amici adopt Respondents’ Statement of the Case and

seek to emphasize only a few points which will help to

clarify the legal issues before the Court and the factual

record upon which the Court’s determination must be

based.

1. This case involves incarceration and confinement of

children. Although the government tries to characterize

the detention it imposes on these children as somehow

beneficial, there is no mistaking the fundamental differ-

ence between incarceration and physical freedom. Incar-

ceration involves the loss of the most basic freedoms. For

* The parties’ letters of consent have been filed with the Clerk.

the child it may have a devastating psychological effect.

And beyond the physical loss of freedom, and the attend-

ant psychological and emotional effects of confinement,

even the most idealistic institutionalization plan poses

additional problems. Where the government attempts to

administer the institution, subject to budgetary and bu-

reaucratic limitations (and where the inmates are mem-

bers of a disfavored class), the potential for good inten-

tions to evolve into inadequate facilities, indifference to

inmate needs, neglect, and even abuse, is great. The rec-

ord developed in this case demonstrates the point.’

2. The government does not here try to advance the

general proposition that children who are not in the

custody of a parent or legal guardian ought to be, absent

compelling circumstances, rounded up and granted the

“benefits” of institutionalization of the kind which the

INS provides these alien children. No serious contention

has or could be made that as a general rule children not

1 As shown in Respondents’ Brief, the record demonstrates that

these children have been kept by the INS in facilities with unrelated

adults where they must share sleeping quarters, bathrooms and

other common areas with adult prisoners, without the provision of

adequate educational and recreational facilities and equipment, often

in facilities secured by barbed wire, security fences and automatic

locks, where the major form of activity is TV watching and stand-

ing in line to make collect telephone calls.

For the portrait of detention it seeks to paint, the government

relies largely on the terms of a settlement agreement it entered into

at an early stage of this very litigation. Pet. Br. at 11-12. But if

the history of institutional litigation in this country teaches any-

thing, it teaches that the reality of institutionalization rarely lives

up to the promise of any regulatory scheme. That is one reason

why freedom, rather than institutionalization, should be the rule.

Public record materials presented to the court of appeals below

documented well that current conditions remain harmful to children.

Children are still being held in handcuffs and shackles, receiving

inadequate food, and subject to arbitrary punishment. See Cali-

fornia Legislature, Joint Committee on Refugee Resettlement, In-

ternational Migration and Cooperative Development, Joint Interim

Hearing on Impact of INS Policies and Reforms (July 19, 1990).

in the custody of a close relative or guardian, but in the

care of some other responsible adult, are better off being

institutionalized in the manner at issue here.

3. These children have been arrested, in essence, on

suspicion of being deportable, but not yet adjudged de-

portable. And as the Respondents make clear, the record

is undisputed that many of them will remain in confine

ment for up to a year before any final determination is

made. Many of them will never be deported at all; some

of them will be found to be citizens.. In the interim, as

the court below found and as the INS Regional Director

admitted, the class of children before the Court pose no

risk of flight before their deportation hearings, no threat

to the community or themselves, and have not been

charged with any criminal conduct or wrongdoing. Flores

v. Meese, 942 F.2d 1352, 1354 (Sth Cir. 1991) (en banc).

Put most simply, in the eyes of the law these children are

innocent and could not be held under any rationale pre-

viously recognized by this or any other court for main-

taining an individual in custody pending trial.

4. So far as the recent cases of this Court reflect, no

extended-or serious deprivation of physical liberty has

ever been permitted absent an individualized determina-

tion? that such a deprivation is necessary to further a

particularized and important interest of the government.

This case involves the refusal of the government to make

such an individualized determination.

5. Instead of weighing the best interests of the par-

ticular child in an individualized way, the government

2 Indeed, the only cases in which this Court has tolerated a class-

based deprivation of liberty, without an individualized and particu-

larized showing that the loss of liberty was necessary to further

an important state interest, were in time of war. In the Japanese

internment cases, a class-based detention was upheld as a permis-

sible exercise of the government’s war power. Korematsu v. United

States, 323 U.S. 214 (1944). See also Moyer v. Peabody, 212 U.S.

78, 84-85 (1909).

has declared ipse divit that where there is no parent,

close relative, or legal guardian available, the child may

not be freed. The government asserts that its parens

patriae authority allows it to declare that institutionaliza-

tion is in the child’s best interest. No serious contention

is made, however, that this is true, as a matter of fact,

with respect to most, let alone all of the children. The

record established in the court below shows beyond per-

adventure that it is not true with respect to many of the

children who are detained, who by the government’s own

admission come from diverse countries and backgrounds

and may suffer from a variety of jfhysical deprivations

and psychological and emotional disabilities. Thus, de-

Spite the assertion by the government that this depriva-

tion of liberty is in the children’s best interest, in a sub-

stantial number of cases, indeed most cases, the children

who are confined by the government would be far better

off if released to responsible adults.

6. The government’s ultimate justification, therefore,

takes the form of an assertion of administrative conven-

ience. It couples this interest with the anomalous asser-

tion that its parens patriae authority allows it to elevate

its own administrative convenience over the individual

child’s best interest. The number of children involved,

which the government claims justifies this administrative

convenience rationale, only serves to emphasize how much

harm is done by the current rule.‘ Moreover, while it is

% A study cited by Petitioners (Pet. Br. at 8 n.12: 12 n.16) and

lodged with the Court found that many of these children are physi-

cally or emotionally scarred by civil strife in their home countries,

and have seen family members and friends killed, threatened or

sexually assaulted, and homes and schools damaged or destroyed.

Nestor P. Rodriguez & Ximena Urrutia-Rojas, Undocumented and

Unaccompanied: A Mental-Health Study of Unaccompanied, Immi-

grant Children from Central America 1-4, 27-34 (1990) (Monograph,

University of Houston) (“Undocumented Children Study’).

*The government states in its brief that the INS took custody

of 8542 children pending hearings on their deportability in 1990.

While the government did not then keep records as to the number

undoubtedly in some sense easier to detain these children

indefinitely, rather than look to their particular circum-

stances, it is certainly no more costly to give them a

hearing than it is to institutionalize them for months on

end. Perhaps more to the point, this Court has never

authorized a substantial loss of physical liberty on the

basis of a claim that affording a modicum of due process

protection would be troublesome or inconvenient to the

government.

7. Although the government is at pains to paint the

decision below as aberrational, the court below did noth-

ing more than recognize that if the government seeks to

justify a detention as in the child’s best interest, then that

detention may not be imposed without specific considera-

tion of that interest—including attention to the pro-

priety of release to a qualified adult willing to assume

responsibility for the child. The court explained that al-

though the INS may “determine on the basis of the par-

ticular case whether release of the child poses a danger

to the community or could result in harm to the child,

the blanket refusal to make individualized determinations

in the guise of administrative expediency cannot pass

constitutional muster.” Flores, 942 F.2d at 1363. Thus,

the only new requirement placed on the INS was that it

determine whether release of the child to a responsible

adult who offers to take custody would represent a dan-

ger to the child’s well-being. /d. at 1364.

of children who were unaccompanied by relatives, records from the

Southern Region indicate that 73% of the 1259 children detained

in South Texas in 1989 were unaccompanied. Pet. Br. at 8-9. Before

1984, the INS, like every other federal agency, was willing to

release children to responsible adults, even if not closely related.

INS changed its policy, not based on any enlightenment it received

about the best interest of the children but as a direct result of

what it perceived as a surge in alien children entering the country

without their parents. Pet. Br. at 8-9.

SUMMARY OF ARGUMENT

Freedom from physical confinement is the core of con-

stitutionally protected liberty. The most basic notions of

due process rest on the premise that if the government is

to imprison a person, the government must show that

there is some compelling reason for the imprisonment.

The government may incarcerate an individual only

where it has made a determination that the incarceration

of that individual serves a compelling government in-

terest. If a class of persons is to be detained, then the

government must show that it has an interest in incar-

cerating each and every member of that class. Generali-

ties will not suffice.

Each of these children has a presumptive right to be

free unless the government presents some sound reason

why he or she should not be free. The burden is always

on the government to justify incarceration. The issue in

this case is whether the government has established pro-

cedures which ensure that it has met its burden in each

case of showing that some reason actually exists for

denying these children their basic freedom.

It is well-established that aliens may be detained pend-

ing deportation proceedings if it is determined that they

pose a risk of harm to national security, a danger to the

community, or a risk of flight. None of these interests

is asserted as justification for the detention in this case.

Instead, the government asserts a parens patriae interest

in protecting the welfare of these children. But under

the circumstances here, due process requires that the

government demonstrate, on an individualized basis, how

that interest is served by the institutionalization of the

child.

INS has attempted to replace the required individual-

ized determination about the interests of the child with

a blanket—and factually insupportable—generalization

about the persons to whom release would be appropriate

and in the child’s best interest. Even assuming that it

is permissible in some cases to incarcerate by generaliza-

tion, that generalization must, as a factual matter, reflect

and closely parallel whatever the government asserts in

the first instance as its rationale for incarcerating that

individual.

In fact, the rule that the government has adopted here

incarcerates children when it is not in their best interest

not just in some cases, but in the vast majority of cases.

There is quite literally no evidence to support INS’s in-

tuition that release of a minor to a responsible adult will

result in harm to the child. To the contrary, there is true

consensus that children should be detained only upon a

reasoned determination that confinement is necessary.

Release to the custody of responsible adults is virtually

always preferable to institutionalization. Unnecessary

detention, imposed with no determination of the individual

child’s needs, can cause substantial physical, psychological,

and emotional! harm.

Given the government's asserted rationale for main-

taining these children in custody, the court below did no

more than hold that these children were entitled to an

individualized determination that maintaining them in

custody was, in fact, in their best interest—and releasing

them to competent adults, willing to assume responsibility

for them, was not. The procedures prescribed by the

court below required nothing more than that the children

not be deprived of their fundamental liberty without

consideration of that issue.

ARGUMENT

I. CHILDREN HAVE A FUNDAMENTAL SUBSTAN-

TIVE RIGHT TO FREEDOM FROM GOVERNMEN-

TAL INCARCERATION AND DETENTION.

A. This Case Involves A Deprivation Of Physical

Freedom, A Liberty Protected By The Due Process

Clause.

This Court has long held that due process under law

contains a “substantive component . . . that protects in-

dividual liberty against ‘certain government actions re-

gardiess of the fairness of the procedures used to imple-

ment them.’”’ Collins v. City of Harker Heights, 112 S.

Ct. 1061, 1068 (1992) (quoting Daniels v. Williams, 474

U.S. 327, 331 (1986)). Although there is room for de-

bate at the margins, there is no doubt that freedom from

physical restraint is one of the core interests protected

by the terms of the Due Process Clauses of the Fifth and

Fourteenth Amendments. The government here professes

some confusion about the nature of the substantive right

at stake. Yet that right is the most basic and funda-

mental of all: the individual's strong interest in physical

liberty, which was central to the Framers’ design. “Free-

dom from bodily restraint has always been at the core

of the liberty protected by the Due Process Clause from

arbitrary governmental action.” Foucha v. Louisiana,

112 S. Ct. 1780, 1785 (1992) ‘citing Youngberg v. Romeo,

457 U.S. 307, 316 (1982)). Accord Board of Pardons v.

Allen, 482 U.S. 369, 373 n.3 (1987) (“liberty from bodily

restraint is at the heart of the liberty protected by the

Due Process Clause” ).°

5 Although the government notes that this Court has cautioned

against an expansive view of the rights protected under the heading

of substantive due process, the government does not dispute that

such rights exist and that freedom from physical restraint is close

to its core. Nor could the government argue that “due process is

merely procedural.” If a law were passed giving some government

The initial court of appeals panel that considered this

case made a fundamental mistake when it attempted to

redefine the claim of the children here as one seeking

recognition of a “fundamental right” “to be released to

an unrelated adult,” Flores v. Meese, 934 F.2d 991, 1006

(9th Cir. 1990), and thus concluded that any rule with a

rational relationship to a legitimate government interest

would suffice to justify incarceration. The Due Process

Clause focuses on whether there has been a deprivation of

“life, liberty or property without due process of law.” *

Here, basic liberty is at stake—a right to freedom that

is itself “fundamental.” It is not the individual’s burden

to show that he or she should be released. Rather, it is

always the government’s burden to show that there is a

good and sufficient reason for the individual to be confined.

B. The Government Has A Legitimate Interest As

Parens Patriae In Seeking To Act In The Child's

Best Interest.

The constitutional protection against physical constraint

is, of course, not absolute. Indeed, it is perhaps better

phrased as a right to be free from confinement absent

the demonstration by the government of good and suffi-

cient reasons for the confinement. Thus, in support of

official the power to imprison those who were undesirable—albeit

only after a full adversarial hearing—there would be no question

but that such a law could not be sustained, notwithstanding the

procedural protections. Substantive due process means that the gov-

ernment cannot deprive an individual of physical liberty without

good reason actually found in the case before it.

* As this Court recently explained :

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

tive act of restraining the individual's freedom to act on his

own behalf—through incarceration, institutionalization, or

other similar restraint of personal liberty-——which is the “dep-

rivation of liberty” triggering the protections of the Due

Process Clause.

DeShaney v. Winnebago County Social Servs. Dep't, 489 U.S. 189,

200 (1989).

certain well-recognized interests, the government may

indeed physically constrain the liberty of an individual.

To choose the most obvious example, a finding that an

individual is guilty of violating the criminal laws has

always been recognized as providing a basis for incar-

ceration. In addition. the Court has recognized that pre-

trial detention can be justified in certain circumstances,

such as when necessary to ensure the presence of the

defendant at trial, upon a specific finding relating to

that determination—the bail hearing. Similarly, this

Court has allowed the detention of individuals “who are

found after an adversary hearing to pose a threat to the

safety of individuals or to the community which no con-

dition of release can dispel.” United States v. Salerno,

481 U.S. 739, 755 (1987). See also Schall v. Martin, 467

U.S. 253 (1984) (post-arrest detention of juveniles who

present a danger to the community).

Despite these recognized exceptions, the fact remains

that in “our society liberty is the norm, and detention

prior to trial or without trial is the carefully limited

exception.” Salerno, 481 U.S. at 755. If a deprivation

of physical liberty is not justified by a “compelling gov-

ernmental interest,” id. at 748, 750, then it is forbidden

“regardless of the fairness of the procedures used to im-

plement [it].” Fouweha, 112 8. Ct. at 1781 ‘quoting Zin-

ermon v. Burch, 494 U.S. 113, 125 (1990)). Only where

the government demonstrates a compelling interest in con-

tinued detention does the interest of the individual in

continued liberty give way.

This case involves none of the concerns that have here-

tofore been thought to justify continued detention pend-

ing trial. The class of children granted relief here are

not dangerous and would be found, if released, to appear

at any required hearing. See Flores, 942 F.2d at 1357.

Thus, the government seeks to justify the detention of

these children citing a rationale that has never been

used, without more, to justify pre-trial detention. The

government asserts that the detention is in the best inter-

est of the children themselves and that it has so deter-

mined under its authority parens patriae.

Neither amici, nor the court below, have questioned the

legitimacy of the government’s interest in the welfare

of these children or the notion that on a given set of

facts, that interest might be viewed as compelling. And

indeed, in a variety of contexts it has been recognized

that the State may justify the detention of an individual!

for that individual's own good. But the government’s

invocation of the child’s interest as its own only begins

the inquiry, for it merely identifies the basis on which the

government seeks to justify confinement. It remains the

burden of the government in every case to show on the

facts of every case how the interest it asserts is actually

served by depriving an individual of his or her basic

freedom from confinement.

(. Due Process Requires That Any Deprivation Of

Physical Liberty Be Supported By An Individual-

ized Determination.

If the rationale for continued confinement is that it

serves the child’s best interest—as the government as-

serts here—then it is the government’s responsibility to

make that determination with respect to each child whom

it would confine and afford each child the opportunity

to refute it. That is because confinement which has nof

been justified is a deprivation of due process. See Ad-

dington v. Texas, 441 U.S. 418, 426 (1979) ‘(State has

parens patriae interest in caring for the mentally ill

but “no interest in confining individuals involuntarily if

they are not mentally ill or if they do not pose some

danger to themselves or others”) (emphasis added).

This principle—that the government can justify physi-

cal confinement only by demonstrating that the com-

pelling interests which the government asserts would, in

fact, be furthered by the confinement—is implicit in each

of the cases described above addressing pre-trial deten-

tion. Where the justification for detention asserted by

the government is “dangerousness.” then the dangerous-

ness of the individual must be shown; where it is “flight,”

then the likelihood of flight on the part of the individual

must be shown, as in a bail hearing; where it is danger-

ousness to himself, as in the case of a mental patient,

then that dangerousness must be shown in the individual

case. Thus, for example, a person cannot be involun-

tarily committed to a psychiatric institution absent a

specific showing, on an enhanced burden of proof, that he

is dangerous to himself or others. Addington, 441 U.S.

at 425-27. And in immigration cases, the government

must make “some level of individualized determination”

before it imposes conditions on release bonds pending the

alien’s deportation hearing, /NS v. National Ctr. for

Immigrants’ Rights, 112 8. Ct. 551, 558-59 (1991), and

can detain an alien only upon a showing that he is a

“threat to national security or is a poor bail risk.”

Matter of Patel, 15 I&N Dee. 666 (BIA 1976), cited in

O’ Rourke v. Warden, Metropolitan Correction Ctr., 539

F. Supp. 1131, 1135 (S.D.N.Y. 1982). A deprivation of

an individual’s liberty must rest on a sound factual

basis specific to the person whose liberty is to be taken,

and not on mere generalizations about a class of persons.

The decision of the court below does nothing more than

assure that such an individualized determination is made

in every case.

The facts that must be found in each case are the facts

that would support the government’s interest in continu-

ing detention. If the government, in asserting that it was

acting in the best interests of the children involved, was

willing in fact to make the determination that confine-

ment was in the individual child’s best interests, the

result below would have been different. But while assert-

ing its parens patriae interest generally, and invoking

the welfare of children generally, the INS declined to

make such an inquiry, substituting in its stead a rule of

administrative convenience that has as its consequence

the continued incarceration of many children when such

incarceration is patently not in the child’s best interest.’

D. The Prohibition On Release To Responsible Adults

Other Than Close Relatives Or Legal Guardians

Unduly Circumscribes The Individualized Inquiry

Which The Due Process Clause Requires.

The INS’s detention policy lacks “fundamental fair-

ness” in a fundamental way: it predicates detention not

on an inquiry about the individual child’s best interests,

but on a generality about his or her supposed interest.

The rule the INS has adopted predicates release on the

availability of an adult custodian who either (1) falls

within INS’s narrowly drawn class of per se acceptable

relatives or (2) successfully negotiates the local require-

ments for legal guardianship (8 C.F.R. § 242.24(b) (1)).

That rule could be, at most, a surrogate for—an approxi-

mation of—the particular child’s best interest. In fact,

it is not even that.

The government is apparently of the view that in

some cases the child’s best interest will not be served by

release to a nonrelative who is willing to take responsi-

bility for the child. But in truth, in a large number of

cases, such release is, in fact, in the child’s best interest.

The effect of the government’s rule is that in every such

7 Indeed, the government's brief undercuts its blanket policy by

admitting that the interests vary from child to child. As a study

that INS cites makes clear, the children differ widely in age, na-

tionality, and psychological condition, all of which can bear on

determining whether a given child’s welfare is better served by

release or detention. Pet. Br. at 8 n.12; 12 n.16 (discussing Undocu-

mented Children Study). It may be, as INS suggests (Pet. Br. at

11), that the interests of some of these children will best be served

by detention, if it conforms to the standards established by the

Alien Minors Shelter Care Program of the Community Relations

Service, U.S. Department of Justice, 52 Fed. Reg. 15,569 (1987),

reprinted in Pet. App. at 152a-167a. But even on the government's

terms, it does not follow that all will benefit from it.

case, a child is kept incarcerated wrongfully, where there

exists no legitimate government interest in restricting

the child’s freedom.

The need for individualized determinations applies

with particular force to children, because they enjoy a

“unique” status under the law. Bellotti v. Baird, 443

U.S. 622, 633 (1979). As this Court has recognized,

childhood “is a time and condition of life when a person

may be most susceptible to influence and to psychological

damage.” Eddings v. Oklahoma, 455 U.S. 104, 115

(1982). Therefore, the government's duty must be deter-

mined with “sensitivity and flexibility,” out of concern

for children’s “peculiar vulnerability” during their forma-

tive years. Bellotti, 443 U.S. at 634." Given the possibil-

ity that Respondents, who are merely suspected of being

deportable, will remain here permanently, the govern-

ment has a long-term stake in protecting them against

the physical, emotional, and psychological consequences of

unnecessary detention.”

In asserting its parens patriae authority in support of

its current rule, INS effectively seeks to exploit the chil-

dren’s special status under the law. The rule and prac-

* Whereas adults might be capable of rationalizing their own

detention, children typically “respond to any threat to their emo-

tional security with fantastic anxieties, denial, or distortion of

reality, reversal or displacement of feelings—reactions which are

no help for coping, but rather put them at the mercy of events.”

Joseph Goldstein et al., Beyond the Best Interests of the Child 12

(1973). They “come to see society at large as hostile and oppres-

sive and to regard themselves as irremediably ‘delinquent.’ Schall,

467 U.S. at 291 (Marshall, J., dissenting) (citing Aubry, Tie

Nature, Scope and Significance of Pre-Trial Detention of Juveniles

in California, 1 Black L. J. 160, 164 (1971)).

*Cf. Plyler v. Doe, 457 U.S. 202, 226 (1982) (“a State cannot

realistically determine that any particular undocumented alien child

will in fact be deported until after deportation proceedings have

been completed. It would of course be most difficult for the State

to justify a denial of education to a child enjoying an inchoate

federal permission to remain.”’).

tice the INS has adopted forec!oses inquiry into the very

heart of the matter to be determined, the specific factual

basis for depriving this individual of his liberty.

Generalities—even well-founded generalities, which the

one at issue here is not—ought to have little role in con-

nection with government decisions about imprisonment or

detention. If a person is to be detained for a lengthy

period because he or she is a member of a class, then the

government must have an interest in detaining each and

every member of that class.” But even if there is some

room for administrative rules and factual presumptions

in connection with the imposition of physical confinement,

the role of such presumptions must be limited. They

make sense only where they approximate very closely the

government interest that would justify confinement.”

10 The government’s suggestion (Pet. Br. at 25 n.26) that the

catalogue of cases in Salerno, 481 U.S. at 748-49, justifies detention

here is without merit. Only one of the catalogued cases permitted

detention absent some form of individualized determination, and

that was over 80 years ago in the extreme circumstance of a gover-

nor’s declaration of insurrection arising out of labor unrest, when

the Court found that “[pjublic danger warrant[ed] the substitution

of executive process for judicial process.” Moyer v. Peabody, 212

U.S. 78, 84-85 (1909).

It might be-argued that somewhat greater scope for generaliza-

tions as a predicate for confinement are allowed in time of war, or

in matters affecting national security. Nonetheless, individualized

factual determinations have been the rule. See, ¢.g., Ludecke v.

Watkins, 335 U.S. 160 (1948) (determination that the individual is

an “enemy alien”); Carlson v. Landon, 342 U.S. 524, 537-42 (1952)

(denial of bail pending deportation hearing where evidence demon-

strated aliens were members of Communist party, based on legisla-

tive determination that members posed a threat to nation’s secu-

rity). But see Korematsu, 323 U.S. at 218-19.

11 For example, as noted above, the State might justify the con-

finement of a mentally ill person on the basis of a finding that such

a person is a danger to himself. In aid of that particularized de-

termination a state might adopt a rule that said, for example, that

a person who is specifically found to have attempted suicide may be

confined for 30 days for their own protection, absent a compelling

The reason why such a close fit is required is that any

misfit will likely result in the incarceration of persons

who, under the government’s own rationale, ought not

be incarcerated. To choose an example close to this case,

the government might arguably adopt a rule that an alien

child should presumptively not be released to a convicted

felon, absent good cause. In such a circumstance, pre-

venting the child’s exposure to criminal influences would

be viewed either (1) in and of itself to be a compelling

government interest; or (2) to very closely parallel the

interest the government has in protecting the child.

The difficulty with the rule that the government has

adopted here is (1) that the government has no interest,

compelling or otherwise, in keeping a child from being

temporarily supervised by an unrelated, but nonetheless

responsible adult; and (2) as shown below, the rule does

not stand as an acceptable surrogate for an individual-

ized factual determination about the child’s best interest.

Indeed, the rule results in wrongful deprivations of lib-

erty—i.e. deprivations of liberty that are not in the best

interest of the child—not only in some cases, but in most

cases. See infra part II.

Thus, in defending its policy and practice, the govern-

ment focuses largely on the wrong question. It argues at

length that it has a right to make decisions about the

welfare of these children. Pet. Br. at 25-28. But no one

has disputed that proposition. The due process problem

presented here is that the government has attempted to

make such determinations by adopting a general rule

that—as the government ultimately concedes—is justified

by nothing more than administrative convenience.'? /d.

reason for release earlier. In such a circumstance, the close parallel

between the finding of suicide may be allowed to create a presump-

tion that persons are a danger to themselves, provided each in-

dividual is offered the opportunity to show why that presumption

ought not be applied in an individual case.

12 The INS’s policy appears to vest some discretion in local officials

to release children to responsible adults not appearing on the agen-

at 27. Rather than focus on supporting the interest that

it claims to uphold—the interest of the child—it disclaims

the ability to make that determination, choosing instead

to spend its money on maintaining the children in custody

at a substantially greater cost.

E. Administrative Convenience Cannot Justify These

Blanket Deprivations Of Liberty.

So far as amici can tell, administrative convenience

has never been allowed to support the confinement of a

large class of individuals who otherwise have done noth-

ing to warrant their being confined by the State. Consist-

ent with principles of due process and recognition of

children’s “peculiar vulnerability,” the INS cannot sup-

plant constitutionally protected rights with administra-

tive convenience :

The establishment of prompt efficacious procedures

to achieve legitimate state ends is a proper state

interest worthy of cognizance in constitutional ad-

judication. But the Constitution recognizes higher

values than speed and efficiency. Indeed, one might

fairly say of the Bill of Rights in general, and the

Due Process Clause in particular, that they were

designed to protect the fragile values of a vulnerable

citizenry from the overbearing concern for efficiency

and efficacy that may characterize praiseworthy gov-

cy’s list of eligibles, where “unusual and extraordinary” circum-

stances exist. In practice—as noted in Respondents’ brief—those

circumstances are never found except when the minor requires

medical care. Thus, the standard set forth in the rule does not

operate as a mere presumption. But even if it did, it would not be

tolerable because it does not reflect the reality. In order to reflect

the reality, the presumption ought to run the other way: upon the

finding that there is a responsible adult willing to care for the

child, the child ought to be released to that adult absent some reason

not to release the child. That formulation, which mirrors the stand-

ard prescribed by the court below, parallels the facts with respect

to the best interest of the child.

ernment officials no less, and perhaps more, than

mediocre ones.

Stanley v. Illinois, 405 U.S. 645, 656 (1972)."* In Stanley,

the Court held unconstitutional an Illinois statute under

which children of unwed parents, upon the death of the

mother, were declared wards of the State without any

hearing on the father’s fitness for custody. The Court

held that even if the State’s general presumption about

the unfitness of unwed fathers was correct, not all

fathers fell into that category, and that each father

should, therefore, have an opportunity to make his case:

Procedure by presumption is always cheaper and

easier than individualized determination. But when,

as here, the procedure forecloses the determinative

issues of competence and care, when it explicitly dis-

dains present realities in deference to past formal-

ities, it needlessly risks running roughshod over the

important interests of both parent and child. It

therefore cannot stand.

Id. at 656-57. The form of procedure by presumption

which the INS applies here is no more protective of core

liberty interests than that found invalid in Stanley. See

generally Michael H. v. Gerald D., 109 S. Ct. 2333, 2340-

41 (1989).

The government nonetheless seems to argue that its

presumption is justifiable because children are “always

in some form of custody,” and it is entitled to subordinate

the child’s interest to the government’s parens patriae

13 INS’s creation of a procedure to “deal with” the recent influx

of alien children (Pet. Br. at 8-9) bears unfortunate resemblance

to another body of procedures that this Court has criticized, the

juvenile justice system, which

frequently does nothing more nor less than deprive a child of

liberty without due process of law—knowing not what else to

do and needing, whether admittedly or not, to act in the com-

munity’s interest even more imperatively than the child’s.

McKeiver v. Pennsylvania, 403 U.S. 528, 544 n.5 (1971).

interest. Pet. Br. at 26-27. But this convenience-driven

argument turns parens patriae on its head. Parens patriae

gives the government the authority to act in a given

field—here, for example, to assert the best interest of the

child as a rationale for its actions—but it does not im-

munize irrational actions.'"* Neither does it give the gov-

ernment license to subordinate the child’s interest to Its

own. Yet that is what the government has done here,

inveking parens patriae as the justification for adopting

an “accommodation” under which it need not be put to

the trouble and expense of making individual determina-

tions that its actions actually serve the child’s interests.

Parens patriae is a grant of authority to preserve and

promote the welfare of a child (see Schall, 467 U.S. at

265), net to disregard the child’s interest in favor of

the government’s.

II. INS’S DETENTION POLICY DOES NOT CLOSELY

PARALLEL A LEGITIMATE GOVERNMENT GOAL.

By any ordinary factual measure, the government’s

attempt to justify its rule as in the best interest of the

child must fail.’®

14 See, e.g., In re Gault, 387 U.S. 1, 16 (1967) (“The Latin phrase

proved to be of great help to those who sought to rationalize the

exclusion of juveniles from the constitutional scheme ; but its mean-

ing is murky and its historic credentials are of dubious relevance. ;

Kent v. United States, 383 U.S. 541, 554-55 (1966) (“The State 1s

parens patriae rather than prosecuting attorney and judge. But the

admonition to function in a ‘parental’ relationship is not an invita-

tion to procedural arbitrariness.” ).

15 Amici do not condemn all forms of detention or other types of

residential care for children in a group setting. Amicus CWLA, for

example, recognizes that residential care which combines a thera-

peutic environment with integrated treatment, educational, health

care and other specialized services can be the most appropriate

option for children with special social, psychological, developmental,

and or health problems. CWLA, Standards for Residential Cente rs

for Children 15-16 (1982). Further, detention under conditions

where there is a demonstrated need for safety and security, and

A. INS’s Detention Policy Is Not Reasonably Related

To A Legitimate Governmental Interest In The

Welfare Of Children.

Despite the government’s broad assertion that its rule

is intended to benefit the affected children, the govern-

ment has disdained any offer of factual support for its

notion that the detention it provides, and which it de-

scribes in near glowing terms (Pet. Br. at 11-13), is

actually beneficial, or that release to unrelated but re-

sponsible adults is harmful. To the contrary, the genesis

of the rule shows that it was made, at most, on the basis

of an INS intuition about what was appropriate, rather

than any serious consideration of the important issues

involved. See J.A. at 9-12.

Indeed, if the government were serious in its view that

this type of detention were beneficial to children gener-

ally, then one would wonder why all children who are not

currently in the care of a close relative or legal guardian

are not being brought to similar detention centers. The

government’s practice of affording the benefits of incar-

ceration only to alien children is woefully underinclusive.

B. The INS Denies Release To Adults Widely Recog-

nized As Suitable To Care For Children.

The INS allows release of the child to parents, legal

guardians, grandparents, brothers, sisters, aunts, and

uncles, but not to other responsible adults who are avail-

able to serve as custodians. The INS standard thus ignores

the value of the extended family in providing care and

where quality individualized care is provided, can also be an ac-

ceptable alternative. However, CWLA disfavors the routine deten-

tion imposed by the INS when the needs of the child ean best be

met through a substitute family or similar community alternative

and when the child does not pose a danger to himself or the

community.

support for children,” placing this admittedly inexpert

agency at odds with model standards and federal and

state statutes developed on the basis of more informed

investigation and study.”

For example, the Law Enforcement Assistance Admin-

istration Standards on Adjudication limit shelter facility

placement to instances in which the juvenile is in danger

of imminent bodily harm with no available alternative

to reduce the risk, or in which there is “no person willing

and able to provide supervision and care” for the juvenile.

U.S. Department of Justice, National Advisory Commit-

tee for Juvenile Justice and Delinquency Prevention,

Standards for Administration of Juvenile Justice, Com-

mentary to Standard 3.153 (1980). These standards au-

thorize release to a “suitable person willing and able to

provide supervision and care.” Jd. at 3.153. Similarly, the

National Council on Crime and Delinquency (“NCCD”)

Standards and Guides for the Detention of Children and

Youth require a search for persons who would accept re-

sponsibility for a child in custody, when parents cannot

be located. NCCD 17 A (1961).

The INS’s practice is also out of step with the federal

statutory standard, 18 U.S.C. § 5034, which requires a

16 The INS policy fails to recognize the importance of godparents

and other nonbiological “family” as responsible adults. In Hispanic

family culture, godparents (“padrinos”) are nonrelative adults who

play a prominent role in the growth of the child, including providing

a home for the child in the event of the parents’ inability to provide

care. Carlos Vidal, Godparenting Among Hispanic Americans, 67

Child Welfare 453, 457 (1988). Similarly, the policy fails to allow

for assistance from religious organizations, to which many detained

children would commonly turn for support. See Northwest Research

Associates, Active and Reasonable Efforts to Preserve Families 28

(1986).

17TINS Reyvional Commissioner Ezell admitted having no experi-

ence in juvenile justice or detention, and also admitted never con-

sulting federal judicial policies, state juvenile authorities, or anyone

with expertise in the field, before implementing the policy. J.A. at

12.

magistrate to release a juvenile offender to “his parents,

guardian, custodian, or other responsible party” (em-

phasis added) upon their promise to ensure the youth’s

appearance at scheduled hearings, and with other model

standards.'* And the statutes of many states, including

California’s, require the use of the least restrictive alter-

native for a child taken into custody, and release to

responsible adults or community organizations when no

parent or guardian is available. Cal. Welf. & Inst. Code

S 626/a), (b) (West 1992).

* See Model Juvenile Court Act § 14 (1985) (child shall not be

subject to prehearing detention except to protect person or property

of others or child or to prevent flight, or because there is “no

parent, guardian, or custodian or other person able to provide

supervision and care”) (emphasis added) ; id. at emt. (§ 14 is “con-

sistent with not only current juvenile court acts but the modern

trend not to hold persons in confinement unless necessary to assure

their appearance in court”).

The states are assuredly more familiar with these issues. State

law is “plainly worth considering in determining whether the

practice ‘offends some principle of justice so rooted in the traditions

and conscience of our people as to be ranked as fundamental.’ ”

Schall, 467 U.S. at 268 (quoting Leland v. Oregon, 343 U.S. 790,

798 (1952) and Snyder v. Massachusetts, 291 U-S. 97, 105 (1934) ).

State law provides clear direction here: Ala. Code § 12-15-62

(1975) (allowing release to custody of “a parent, guardian, cus-

todian or any other person who the court deems proper’) ; Conn.

Gen. Stat. § 46b-133 (1986) (allowing release to “parent or parents,

guardian or some other suitable person or agency”); D.C. Code

Ann. § 16-2310 (1981) (allowing release to “parent, guardian,

custodian, or other person or agency able to provide supervision and

care for him”) ; Idaho Code § 16-1811.1(c) (1991) (allowing release

to custody of “parent or other responsible adult”): Iowa Code

§ 232.1912) (West 1985) (release to “parent, guardian, custodian,

responsible adult relative, or other adult approved by the court”) ;

Ky. Rev. Stat. Ann. § 610.200 (Michie 1990) (release to custody of

“relative, guardian, person exercising custodial control or super-

vision or other responsible person”): Me. Rev. Stat. Ann. tit. 15,

§ 3203-A (West 1991) (release to “legal custodian or other suitable

_ person”); Md. Cts. & Jud. Proc. Code Ann., § 3-814 (1989) (release

to “parents, guardian, or custodian or to any other person des-

ignated by the court”); Mass. Gen. Laws Ann. ch. 119, § 67 (1969)

INS permits release to unrelated adults only if they are

legal guardians of the child. 8 C.F.R. § 242.24/(a) (1) (ii).

The government asserts that release is inappropriate if

the adult is “unwilling or unable to take steps necessary

to become legal guardians.” Pet. Br. at 18. Again, how-

ever, the government’s focus is wrong. The only legiti-

mate justification for detention is that it serve the child’s

best interests, not that the custodian has failed to prove

his mettle by obtaining guardianship. In any event,

guardianship is more akin to permanent custody than to

the temporary custody which these children require in the

interim between their arrest and their deportation hear-

ings.”” Because of the permanent consequences of the

guardianship determination, it can take weeks to obtain—

weeks which, but for INS’s blanket rule, a child could

spend under the care and custody of a responsible, con-

(release to “parent, guardian or any other reputable person”) ; Miss.

Code Ann. § 43-21-301 (1981) (release to “any person or agency”) ;

Minn. Stat. § 260.171 (West 1982) (release to “parent, guardian,

custodian, or other suitable person”); Neb. Rev. Stat. § 43-253

(1988) (release to “parent, guardian, relative, or other responsible

person”) ; Nev. Rev. Stat. Ann. § 62.170 (Michie 1986) (release to

“parent or other responsible adult”); N.H. Rev. Stat. Ann.

§ 169.B:14 (1990) (release to relative, friend, foster home, group

home. crisis home, or shelter-care facility); NJ. Stat. Ann.

§ 24 :4A-32 (West 1987) (release to relative); S.D. Codified Laws

Ann. § 26-8-23 (1984) (release to probation officer or “any other

suitable person appointed by the court”) ; S.C. Code Ann. § 20-7-560

(Law. Co-op. 1984) (release to “parent, a responsible adult, a

responsible agency of a court-approved foster home, group home,

facility, or program”); Tex. Fam. Code Ann. § 52.02 (West 1992)

(release to “parent, guardian, custodian, or other responsible

adult”); Utah Code Ann. § 78-3a-29 (1992) (release to “parent or

other responsible adult”).

2° See, e.g., Unif. Guardianship and Protective Proceedings Act,

§ 2-104(a) (1982) (court may appoint guardian if all parental

rights have been terminated or suspended by circumstances) ; Ala.

Code § 26-2A-73(a) (1991) (same); Ariz. Rev. Stat. Ann. § 14-5204

(1975) (same): N.M. Stat. Ann. §32-1-58(A) (Michie 1989)

(permanent guardianship vests in the guardian all rights and re-

sponsibilities of a parent).

cerned adult. Moreover, because many of the adults who

come forward to care for these children may be recent

immigrants themselves, unfamiliar with our language and

customs, it simply is not realistic to expect them to run

a bureaucratic gauntlet and acquire legal guardianship to

prove their willingness to care for the child.*"

Cc. Incarceration And Detention Subject Children To

Substantial] Physical, Psychological, And Emotional

Detention is detrimental and should be a last resort,

not the disposition of choice. Five decades of research

have confirmed that “long term institutionalization in

early childhood leads to recurrent problems in inter-

personal relationships, high rates of personality disorders,

and severe parenting difficulties later in life.”** North

American Council on Adoptable Children, Research Brief

1, Challenges to Child Welfare: Countering the Call for

a Return to Orphanages 2 (1990).

The duration of detention can correlate with other

long-term effects upon children’s ability to form close

“ Nor is a temporary guardianship a viable alternative. At the

expiration of the “temporary” period, the guardianship may auto-

matically expire, with no assurance of extension. See, e.g., In the

Matter of the Guardianship of Doe, 786 P.2d 519 (Haw. 1990)

(temporary guardianship may not last longer than ninety days);

Bagonzi v. Miller, 401 A.2d 1086 (N.H. 1979) (temporary guardian-

ship may not exceed sixty days). There are other state quirks as

well. In this very case, for example, the Los Angeles Superior

Court declared children in INS detention ineligible for temporary

guardians.

* Where, as here, a government entity has exceeded the limits

of its administrative expertise, courts determining the reasonable-

ness of a policy “must show deference to the judgment exercised

by a qualified professional.” Youngberg, 457 U.S. at 322. Such

deference does not constitute judicial policymaking, as INS claims

(Pet. Br. at 19), but rather is part and parcel of the need to deter-

mine whether the challenged practice violated a “fundamental”

right. See Snyder, 291 U.S. at 105.

personal relationships, their social maturity, their per-

formance on intelligence and developmental tests, and

their ability to function in noninstitutionalized settings.

Id. at 8-12. Deprivation of a secure attachment relation-

ship with a primary caretaker may permanently impair

a child’s ability to form attachments, has been linked

with poor school performance and delinquency, and may

impair the child’s intellectual curiosity, personality de-

velopment, and ability to get along with peers. Michael

S. Wald et al., Protecting Abused Neglected Children: A

Comparison of Home and Foster Placement 10 (Stanford

Center for the Study of Youth Development 1985). Thus,

detention can significantiy interfere with a child’s ability

to develop as a normal functioning adult.”

Detention also diminishes children’s image of their own

self-worth. Juvenile justice experts have testified that

children are far more vulnerable to emotional pressure

than are mature adults. See Lollis v. New York State

Dep't of Social Servs., 322 F. Supp. 473, 481 (S.D.N-Y.

1970) ‘expert testimony). An adult who has not been

through the experience has difficulty appreciating “the

terror that engulfs a youngster the first time he loses

23 Detention distorts a child’s sense of time. Children may not

appreciate the purpose and duration of their detention. “The lack

of sensory stimuli, extended periods of absolute silence or outbreaks

of hostility, foul odors and public commodes, as well as inactivity

and empty time constitute an intolerable environment for a child.”

Mark Soler et al., Stubborn and Rebellious Children: Liability of

Public Officials for Detention of Children in Jails, B.Y.U. L. Rev. 1,

6 (1980). Decisions bearing on their detention “should never ex-

ceed the time that the child to-be-placed can endure loss and uncer-

tainty.” Goldstein, supra, at 42. Children have a built-in time sense

based on the urgency of their instinctual and emotional needs, id.

at 40, prompting one court to find it “difficult to reconcile the prac-

tice of detaining a child one to six months prior to the juvenile

court hearing with the protective philosophy of the juvenile court.”

In re Robin M., 579 P.2d 1, 3 (Cal. 1978) (quoting Governor's

Special Study Commission on Juvenile Justice, Part ]— Recommen-

dations for Changes in California’s Juvenile Court Law 28 (1960) ).

his liberty and has to spend the night or several days or

weeks in a cold impersonal cell or room away from home

or family.” In re William M., 473 P.2d 737, 747 n.25

(Cal. 1970) (quoting expert testimony). The experience

tells the minor that he is “no good” and that society has

rejected him, and he responds accordingly, living down

to society’s seemingly diminished expectations. /d. The

lack of privacy inherent in detention further communi-

cates to the children that they are “not. trustworthy, .. .

not responsible, . . . not deserving of being treated with

basic dignity . . . and when we communicate to some-

body that he is untrustworthy, or not to be trusted, he

will engage in untrustworthy behavior.” Morgan v.

Sproat, 432 F. Supp. 1130, 1149 n.40 (S.D. Miss. 1977)

(quoting expert testimony). Summing up the problem in

the context of the failures of the juvenile justice system,

this Court noted that although the system in theory had

noble goals, “{i]n fact there is increasing reason to be-

lieve that its intervention reinforces the juvenile’s unlaw-

ful impulses.” McKeiver, 403 U.S. at 544 n.5.%*

Besides impairing a child’s emotional development and

denigrating his image of self-worth, detention also fails

to address a child’s need for “family.” Children, unlike

adults, have no psychological concept of relationship by

blood tie until late in their development. Instead, “{w]hat

*4 INS’s practice conflicts with state judicial recognition of the

need for individualized determination to foreclose resort to unnec-

essary detention. See, e.g., Jones v. Maryland, 535 A.2d 471 (Md.

1988) (expressing preference for releasing child to parents, guard-

ian, or other persons instead of detaining him); Glenda Kay S. v.

Nevada, 732 P.2d 1356 (Nev. 1987) (placement of 13-year-old in

training center because of minor offense violated preference for

home placement) ; R.P. v. Alaska, 718 P.2d 168 (Alaska App. 1986)

(state bears burden of proving that less restrictive alternatives are

unavailable) ; Morris v. D’Amario, 416 A.2d 137 (R.1. 1980) (state’s

placement of arrested child is subject to strict scrutiny to deter-

mine whether least restrictive placement used); In re John H.,

48 A.D.2d 879, 369 N.Y.S.2d 196 (1975) (state must fully explore

options other than detention).

registers in their minds are the day-to-day interchanges

with the adults who take care of them and who, on the

strength of these, become the parent figures to whom they

are attached.” Goldstein, supra, at 12-13. Unless “family,

natural or of the heart, is involved in the treatment and

life of the child, it is impossible or at best difficult for

the child to be reintegrated into home and community.”

Gary W. v. Louisiana, 487 F. Supp. 1209, 1215 (E.D. La.

1976). Thus, it is important that the law identify “who,

among presently available adults, is or has the capacity to

become a psychological parent and thus will enable a

child to feel wanted.” Goldstein, supra, at 51 (emphasis

in text).

III. INS’S INCARCERATION AND DETENTION OF

CHILDREN WITHOUT A HEARING VIOLATES

THEIR RIGHT TO PROCEDURAL DUE PROCESS.

Because, as we have explained, INS’s blanket detention

policy without an individualized hearing deprives these

children of a substantive due process right, it necessarily

follows that the policy denies their right to procedural

due process as well.** If the child has a substantive right

to be released absent a determination that detention is in

the child’s best interest, then a hearing addressing that

2% The INS claims that it lacks the administrative resources and

expertise to conduct “the home visits necessary to make reliable

guardianship determinations.” Pet. Br. at 27-28. But the court

below did not require INS to engage in a full-scale custodia! in-

quiry, but merely to inquire “whether any non-relative who offers

to take custody represents a danger to the child’s well-being.”

Flores, 942 F.2d at 1364. The INS offers no explanation why funds

currently being used to maintain the detention facilities could not

just as readily be used for referral of the children to other persons

or agencies, such as licensed youth-serving agencies or recognized

church groups, which have the expertise to screen potential cus-

todians. Further, conducting hearings would not impose a new

kind of administrative burden. The agency already must make

allowance fcr hearings, because even absent the court order, it must

hold a hearing if the child requests one. See Pet. Br. at 36.

interest must be afforded shortly after the detention is

commenced. See Flores, 942 F.2d at 1364.

The government protests, of course, that the child

already has an opportunity for a hearing. But as a prac-

tical matter, these children have no such opportunity,

because obtaining the hearing depends on each child’s

exercise of mature judgment—precisely the trait whose

absence, according to INS, justifies the agency’s interven-

tion parens patriae. As the INS tortuously puts it:

'T|he juvenile can choose to forego such a hearing

only by declining to check a box that expressly

states: “{I] do request a redetermination by an

Immigration Judge of the custody decision.” }

Pet. Br. at 36. In other words, the child waives the hear-

ing unless he specifically requests it, an arrangement that

stands the law on its head.

It is the government’s burden to justify the depriva-

tion of liberty, not the child’s to check the “right” box

on a piece of paper and thus preserve his right to free-

dom. A child’s waiver of a fundamental right must occur

through an uncoerced, affirmative, informed decision,

Kent, 383 U.S. at 556-57, not through mere omission.

The likelihood of invalid waiver is especially high given

the circumstances in which it is typically executed: the

child will have just been taken into custody in a strange

country, probably knows little if any English, may well

be illiterate in his native language, and will be highly

susceptible to doing whatever he thinks will please his

captors, rather than making an informed decision in his

own best interests. In prescribing that the issue of the

suitability of release to a responsible adult affirmatively

be addressed by the INS in every case, the court below

did nothing more than prescribe the constitutional mini-

mum necessary to protect the child’s interest.

CONCLUSION

The judgment of the United States Court of Appeals

for the Ninth Circuit should be affirmed.

JOHN R. HEISSE, II

PETIT & MARTIN

101 California Street

35th Floor

San Francisco, CA 94111

(415) 434-4000

June 29, 1992

Respectfully submitted,

J. MICHAEL KLISE *

CLIFTON S. ELGARTEN

SHARON A. SNYDER

CROWELL & MORING

1001 Pennsylvania Ave., N.W.

Washington, D.C. 20004-2595

(202) 624-2629

Attorneys for

Child Welfare League of

America and Defense for

Children International-USA

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.