OCTOBER TERM, 1992
Syllabus
RENO, ATTORNEY GENERAL, ET AL.
v. FLORES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 91-905. Argued October 13, 1992-Decided March 23,1993
Respondents are a class of alien juveniles arrested by the
Immigration and Naturalization Service (INS) on suspicion of being
deportable, and then detained pending deportation hearings pursuant
to a regulation, promulgated in 1988 and codified at 8 CFR §
242.24, which provides for the release of detained minors only to
their parents, close relatives, or legal guardians, except in
unusual and compelling circumstances. An immigration judge will
review the initial deportability and custody determinations upon
request by the juvenile. § 242.2(d). Pursuant to a consent decree
entered earlier in the litigation, juveniles who are not released
must be placed in juvenile care facilities that meet or exceed
state licensing requirements for the provision of services to
dependent children. Respondents contend that they have a right
under the Constitution and immigration laws to be routinely
released into the custody of other "responsible adults." The
District Court invalidated the regulatory scheme on unspecified due
process grounds, ordering that "responsible adult part[ies]" be
added to the list of persons to whom a juvenile must be released
and requiring that a hearing before an immigration judge be held
automatically, whether or not the juvenile requests it. The Court
of Appeals, en banc, affirmed.
Held:
1. Because this is a facial challenge to the regulation,
respondents must establish that no set of circumstances exists
under which the regulation would be valid.
United States v.
Salerno, 481
U. S. 739, 745. Pp.300-301.
2. Regulation 242.24, on its face, does not violate the Due
Process Clause. Pp.301-309.
(a) The regulation does not deprive respondents of "substantive
due process." The substantive right asserted by respondents is
properly described as the right of a child who has no available
parent, close relative, or legal guardian, and for whom the
government is responsible, to be placed in the custody of a private
custodian rather than of a government-operated or
government-selected child-care institution. That novel claim cannot
be considered "'so rooted in the traditions and conscience of our
people as to be ranked as fundamental.'"
United
293
States v.
Salerno, supra, at 751. It is therefore
sufficient that the regulation is rationally connected to the
government's interest in preserving and promoting the welfare of
detained juveniles, and is not punitive since it is not excessive
in relation to that valid purpose. Nor does each unaccompanied
juvenile have a substantive right to an individualized hearing on
whether private placement would be in his "best interests."
Governmental custody must meet minimum standards, as the consent
decree indicates it does here, but the decision to exceed those
standards is a policy judgment, not a constitutional imperative.
Any remaining constitutional doubts are eliminated by the fact that
almost all respondents are aliens suspected of being deportable, a
class that can be detained, and over which Congress has granted the
Attorney General broad discretion regarding detention. 8 U. S. C. §
1252(a)(1). Pp. 301-306.
(b) Existing INS procedures provide alien juveniles with
"procedural due process." Respondents' demand for an individualized
custody hearing for each detained alien juvenile is merely the
"substantive due process" argument recast in procedural terms. Nor
are the procedures faulty because they do not require automatic
review by an immigration judge of initial deportability and custody
determinations. In the context of this facial challenge, providing
the
right to review suffices. It has not been shown that all
of the juveniles detained are too young or ignorant to exercise
that right; any waiver of a hearing is revocable; and there is no
evidence of excessive delay in holding hearings when requested. Pp.
306-309.
3. The regulation does not exceed the scope of the Attorney
General's discretion to continue custody over arrested aliens under
8 U. S. C. § 1252(a)(1). It rationally pursues a purpose that is
lawful for the INS to seek, striking a balance between the INS's
concern that the juveniles' welfare will not permit their release
to just any adult and the INS's assessment that it has neither the
expertise nor the resources to conduct home studies for
individualized placements. The list of approved custodians reflects
the traditional view that parents and close relatives are competent
custodians, and otherwise defers to the States' proficiency in the
field of child custody. The regulation is not motivated by
administrative convenience; its use of presumptions and generic
rules is reasonable; and the period of detention that may result is
limited by the pending deportation hearing, which must be concluded
with reasonable dispatch to avoid habeas corpus. Pp. 309-315.
942 F.2d
1352, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, O'CONNOR, KENNEDY, SOUTER, and THOMAS,
JJ.,
294
joined. O'CONNOR, J., filed a concurring opinion, in which
SOUTER, J., joined,
post, p. 315. STEVENS, J., filed a
dissenting opinion, in which BLACKMUN, J., joined,
post, p.
320.
Deputy Solicitor General Mahoney argued the cause for
petitioners. With her on the briefs were Solicitor General Starr,
Assistant Attorney General Gerson, Ronald J. Mann, Michael Jay
Singer, and John C. Hoyle.
Carlos Holguin argued the cause for respondents. With him on the
brief were Peter A. Schey, Paul Hoffman, Mark Rosenbaum, James
Morales, Alice Bussiere, Lucas Guttentag, and John A. Powell. *
JUSTICE SCALIA delivered the opinion of the Court.
Over the past decade, the Immigration and N aturalization
Service (INS or Service) has arrested increasing numbers of alien
juveniles who are not accompanied by their parents or other related
adults. Respondents, a class of alien juveniles so arrested and
held in INS custody pending their deportation hearings, contend
that the Constitution and immigration laws require them to be
released into the custody of "responsible adults."
I
Congress has given the Attorney General broad discretion to
determine whether, and on what terms, an alien arrested on
suspicion of being deportable should be released pending
*Briefs of
amici curiae urging affirmance were filed for
the American Bar Association by
Talbot D'Alemberte, Andrew
S.
Krulwich, and
Christopher D. Cerf; for Amnesty
International U. S. A. by
Clara A. Pope; for the Child
Welfare League of America et al. by J.
Michael Klise,
Clifton S.
Elgarten, and
John R. Heisse II; for
the Southwest Refugee Rights Project et al. by
Antonia
Hernandez, Richard Larson, Susan M. Lydon, and
Bill Ong
Hing; and for the United States Catholic Conference et al. by
William F.
Abrams.
295
the deportation hearing.1 The Board of Immigration Appeals has
stated that "[a]n alien generally ... should not be detained or
required to post bond except on a finding that he is a threat to
the national security ... or that he is a poor bail risk."
Matter of Patel, 15 1. & N. Dec. 666 (1976); cf.
INS v.
National Center for Immigrants' Rights, Inc.
(NCIR), 502 U. S.
183 (1991) (upholding INS regulation imposing conditions upon
release). In the case of arrested alien
juveniles, however,
the INS cannot simply send them off into the night on bond or
recognizance. The parties to the present suit agree that the
Service must assure itself that someone will care for those minors
pending resolution of their deportation proceedings. That is easily
done when the juvenile's parents have also been detained and the
family can be released together; it becomes complicated when the
juvenile is arrested alone, i.
e., unaccompanied by a
parent, guardian, or other related adult. This problem is a serious
one, since the INS arrests thousands of alien juveniles each year
(more than 8,500 in 1990 alone)-as many as 70% of them
unaccompanied. Brief for Petitioners 8. Most of these minors are
boys in their midteens, but perhaps 15% are girls and the same
percentage 14 years of age or younger. See id., at 9, n. 12; App.
to Pet. for Cert. 177a.
For a number of years the problem was apparently dealt with on a
regional and ad hoc basis, with some INS offices releasing
unaccompanied alien juveniles not only to their parents but also to
a range of other adults and organizations.
ITitle 8 U. S. C. §1252(a)(1), 66 Stat. 208, as amended,
provides: "[A]ny such alien taken into custody may, in the
discretion of the Attorney General and pending such final
determination of deportability, (A) be continued in custody; or (B)
be released under bond ... containing such conditions as the
Attorney General may prescribe; or (C) be released on conditional
parole. But such bond or parole ... may be revoked at any time by
the Attorney General, in his discretion ... " The Attorney
General's discretion to release aliens convicted of aggravated
felonies is narrower. See 8 U. S. C. § 1252(a)(2) (1988 ed., Supp.
III).
296
In 1984, responding to the increased flow of unaccompanied
juvenile aliens into California, the INS Western Regional Office
adopted a policy of limiting the release of detained minors to "'a
parent or lawful guardian,'" except in "'unusual and extraordinary
cases,'" when the juvenile could be released to "'a responsible
individual who agrees to provide care and be responsible for the
welfare and well being of the child.'" See
Flores v.
Meese, 934 F.2d
991, 994 (CA9 1990) (quoting policy), vacated,
942 F.2d
1352 (CA9 1991) (en bane).
In July of the following year, the four respondents filed an
action in the District Court for the Central District of California
on behalf of a class, later certified by the court, consisting of
all aliens under the age of 18 who are detained by the INS Western
Region because "a parent or legal guardian fails to personally
appear to take custody of them." App. 29. The complaint raised
seven claims, the first two challenging the Western Region release
policy (on constitutional, statutory, and international law
grounds), and the final five challenging the conditions of the
juveniles' detention.
The District Court granted the INS partial summary judgment on
the statutory and international law challenges to the release
policy, and in late 1987 approved a consent decree that settled all
claims regarding the detention conditions. The court then turned to
the constitutional challenges to the release policy, and granted
respondents partial summary judgment on their equal protection
claim that the INS had no rational basis for treating alien minors
in deportation proceedings differently from alien minors in
exclusion proceedings 2 (whom INS regulations permitted to be
paroled, in some circumstances, to persons other than parents and
legal guardians, including other relatives and "friends," see 8 CFR
§ 212.5(a)(2)(ii) (1987)). This prompted the INS to initiate
2 Exclusion proceedings, which are not at issue in the present
case, involve aliens apprehended before "entering" the United
States, as that term is used in the immigration laws. See
Leng
May Ma v.
Barber, 357 U. S. 185, 187 (1958).
297
notice-and-comment rulemaking "to codify Service policy
regarding detention and release of juvenile aliens and to provide a
single policy for juveniles in both deportation and exclusion
proceedings." 52 Fed. Reg. 38245 (1987). The District Court agreed
to defer consideration of respondents' due process claims until the
regulation was promulgated.
The uniform deportation-exclusion rule finally adopted,
published on May 17, 1988, see Detention and Release of Juveniles,
53 Fed. Reg. 17449 (codified as to deportation at 8 CFR § 242.24
(1992)), expanded the possibilities for release somewhat beyond the
Western Region policy, but not as far as many commenters had
suggested. It provides that alien juveniles "shall be released, in
order of preference, to: (i) a parent; (ii) a legal guardian; or
(iii) an adult relative (brother, sister, aunt, uncle, grandparent)
who are [sic] not presently in INS detention," unless the INS
determines 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." 8 CFR
§ 242.24(b)(1) (1992). If the only listed individuals are in INS
detention, the Service will consider simultaneous release of the
juvenile and custodian "on a discretionary caseby-case basis." §
242.24(b)(2). A parent or legal guardian who is in INS custody or
outside the United States may also, by sworn affidavit, designate
another person as capable and willing to care for the child,
provided that person "execute[s] an agreement to care for the
juvenile and to ensure the juvenile's presence at all future
proceedings." § 242.24(b)(3). Finally, in "unusual and compelling
circumstances and in the discretion of the [INS] district director
or chief patrol agent," juveniles may be released to other adults
who execute a care and attendance agreement. § 242.24(b)(4).
If the juvenile is not released under the foregoing provision,
the regulation requires a designated INS official, the "Juvenile
Coordinator," to locate "suitable placement ... in a facility
designated for the occupancy of juveniles."
298
§ 242.24(c). The Service may briefly hold the minor in an "INS
detention facility having separate accommodations for juveniles," §
242.24(d), but under the terms of the consent decree resolving
respondents' conditions-of-detention claims, the INS must within 72
hours of arrest place alien juveniles in a facility that meets or
exceeds the standards established by the Alien Minors Care Program
of the Community Relations Service (CRS), Department of Justice, 52
Fed. Reg. 15569 (1987). See Memorandum of Understanding Re
Compromise of Class Action: Conditions of Detention,
Flores
v.
Meese, No. 85-4544-RJK (Px) (CD Cal., Nov. 30, 1987)
(incorporating the CRS notice and program description), reprinted
in App. to Pet. for Cert. 148a-205a (hereinafter Juvenile Care
Agreement).
Juveniles placed in these facilities are deemed to be in INS
detention "because of issues of payment and authorization of
medical care." 53 Fed. Reg., at 17449. "Legal custody" rather than
"detention" more accurately describes the reality of the
arrangement, however, since these are not correctional institutions
but facilities that meet "state licensing requirements for the
provision of shelter care, foster care, group care, and related
services to dependent children," Juvenile Care Agreement 176a, and
are operated "in an open type of setting without a need for
extraordinary security measures," id., at 173a. The facilities must
provide, in accordance with "applicable state child welfare
statutes and generally accepted child welfare standards, practices,
principles and procedures," id., at 157a, an extensive list of
services, including physical care and maintenance, individual and
group counseling, education, recreation and leisure-time
activities, family reunification services, and access to religious
services, visitors, and legal assistance, id., at 159a,
178a-185a.
Although the regulation replaced the Western Region release
policy that had been the focus of respondents' constitutional
claims, respondents decided to maintain the litigation as a
challenge to the new rule. Just a week after the regula-
299
tion took effect, in a brief, unpublished order that referred
only to unspecified "due process grounds," the District Court
granted summary judgment to respondents and invalidated the
regulatory scheme in three important respects.
Flores v.
Meese, No. CV 85-4544-RJK (Px) (CD Cal., May 25,1988), App.
to Pet. for Cert. 146a. First, the court ordered the INS to release
"any minor otherwise eligible for release ... to his parents,
guardian, custodian, conservator,
or other responsible adult
party." Ibid. (emphasis added). Second, the order dispensed
with the regulation's requirement that unrelated custodians
formally agree to
care for the juvenile, 8 CFR §§
242.24(b)(3) and (4) (1992), in addition to ensuring his attendance
at future proceedings. Finally, the District Court rewrote the
related INS regulations that provide for an initial determination
of prima facie deportability and release conditions before an INS
examiner, see § 287.3, with review by an immigration judge upon the
alien's request, see § 242.2(d). It decreed instead that an
immigration-judge hearing on probable cause and release
restrictions should be provided "forthwith" after arrest, whether
or not the juvenile requests it. App. to Pet. for Cert. 146a.
A divided panel of the Court of Appeals reversed.
Flores
v.
Meese, 934 F.2d
991 (CA9 1990). The Ninth Circuit voted to rehear the case and
selected an ll-judge en banc court. See Ninth Circuit Rule 35-3.
That court vacated the panel opinion and affirmed the District
Court order "in all respects."
Flores v.
Meese,
942 F.2d
1352, 1365 (1991). One judge dissented in part, see id., at
1372-1377 (opinion of Rymer, J.), and four
in toto, see
id., at 1377-1385 (opinion of Wallace, C. J.). We granted
certiorari. 503 U. S. 905 (1992).
II
Respondents make three principal attacks upon INS regulation
242.24. First, they assert that alien juveniles suspected of being
deportable have a "fundamental" right to "freedom from physical
restraint," Brief for Respondents 16,
300
and it is therefore a denial of "substantive due process" to
detain them, since the Service cannot prove that it is pursuing an
important governmental interest in a manner narrowly tailored to
minimize the restraint on liberty. Second, respondents argue that
the regulation violates "procedural due process," because it does
not require the Service to determine, with regard to
each
individual detained juvenile who lacks an approved custodian,
whether his best interests lie in remaining in INS custody or in
release to some other "responsible adult." Finally, respondents
contend that even if the INS regulation infringes no constitutional
rights, it exceeds the Attorney General's authority under 8 U. S.
C. § 1252(a)(1). We find it economic to discuss the objections in
that order, though we of course reach the constitutional issues
only because we conclude that the respondents' statutory argument
fails.3
Before proceeding further, however, we make two important
observations. First, this is a facial challenge to INS regulation
242.24. Respondents do not challenge its application in a
particular instance; it had not yet been applied in a particular
instance-because it was not yet in existencewhen their suit was
brought (directed at the 1984 Western Region release policy), and
it had been in effect only a week when the District Court issued
the judgment invalidating it. We have before us no findings of
fact, indeed no record, concerning the INS's interpretation of the
regulation or the
3 The District Court and all three judges on the Court of
Appeals panel held in favor of the INS on this statutory claim, see
Flores v.
Meese, 934 F. 2d 991, 995, 997-1002 (CA9
1991); id., at 1015 (Fletcher, J., dissenting); the en banc court
(curiously) did not address the claim, proceeding immediately to
find the rule unconstitutional. Although respondents did not
cross-petition for certiorari on the statutory issue, they may
legitimately defend their judgment on any ground properly raised
below. See
Washington v.
Confederated Bands and Tribes of
Yakima Nation, 439 U. S. 463, 476, n. 20
(1979). The INS does not object to our considering the issue, and
we do so in order to avoid deciding constitutional questions
unnecessarily. See
Jean v.
Nelson, 472 U. S. 846, 854
(1985).
301
history of its enforcement. We have only the regulation itself
and the statement of basis and purpose that accompanied its
promulgation. To prevail in such a facial challenge, respondents
"must establish that no set of circumstances exists under which the
[regulation] would be valid."
United States v.
Salerno, 481
U. S. 739, 745 (1987). That is true as to both the
constitutional challenges, see
Schall v.
Martin,
467 U. S. 253,
268, n. 18 (1984), and the statutory challenge, see
NCIR,
502 U. S., at 188.
The second point is related. Respondents spend much time, and
their
amici even more, condemning the conditions under which
some alien juveniles are held, alleging that the conditions are so
severe as to belie the Service's stated reasons for retaining
custody-leading, presumably, to the conclusion that the retention
of custody is an unconstitutional infliction of punishment without
trial. See
Salerno, supra, at 746-748;
Wong Wing v.
United States, 163 U. S. 228, 237
(1896). But whatever those conditions might have been when this
litigation began, they are now (at least in the Western Region,
where all members of the respondents' class are held) presumably in
compliance with the extensive requirements set forth in the
Juvenile Care Agreement that settled respondents' claims regarding
detention conditions, see
supra, at 298. The settlement
agreement entitles respondents to enforce compliance with those
requirements in the District Court, see Juvenile Care Agreement
148a-149a, which they acknowledge they have not done, Tr. of Oral
Arg. 43. We will disregard the effort to reopen those settled
claims by alleging, for purposes of the challenges to the
regulation, that the detention conditions are other than what the
consent decree says they must be.
III
Respondents' "substantive due process" claim relies upon our
line of cases which interprets the Fifth and Fourteenth Amendments'
guarantee of "due process of law" to include
302
a substantive component, which forbids the government to
infringe certain "fundamental" liberty interests
at all, no
matter what process is provided, unless the infringement is
narrowly tailored to serve a compelling state interest. See,
e.
g., Collins v.
Harker Heights, 503 U. S. 115, 125
(1992);
Salerno, supra, at 746;
Bowers v.
Hardwick, 478
U. S. 186, 191 (1986). "Substantive due process" analysis must
begin with a careful description of the asserted right, for "[t]he
doctrine of judicial self-restraint requires us to exercise the
utmost care whenever we are asked to break new ground in this
field."
Collins, supra, at 125; see
Bowers v.
Hardwick, supra, at 194-195. The "freedom from physical
restraint" invoked by respondents is not at issue in this case.
Surely not in the sense of shackles, chains, or barred cells, given
the Juvenile Care Agreement. Nor even in the sense of a right to
come and go at will, since, as we have said elsewhere, "juveniles,
unlike adults, are always in some form of custody,"
Schall,
467 U. S., at 265, and where the custody of the parent or legal
guardian fails, the government may (indeed, we have said
must) either exercise custody itself or appoint someone else
to do so.
Ibid. Nor is the right asserted the right of a
child to be released from all other custody into the custody of its
parents, legal guardian, or even close relatives:
The challenged regulation requires such release when it is
sought. Rather, the right at issue is the alleged right of a child
who has no available parent, close relative, or legal guardian, and
for whom the government is responsible, to be placed in the custody
of a willing-and-able private custodian rather than of a
government-operated or governmentselected child-care
institution.
If there exists a fundamental right to be released into what
respondents inaccurately call a "non-custodial setting," Brief for
Respondents 18, we see no reason why it would apply only in the
context of government custody incidentally acquired in the course
of law enforcement. It would presumably apply to state custody over
orphans and abandoned
303
children as well, giving federal law and federal courts a major
new role in the management of state orphanages and other child-care
institutions. Cf.
Ankenbrandt v.
Richards, 504 U. S. 689, 703-704
(1992). We are unaware, however, that any court-aside from the
courts below-has ever held that a child has a constitutional right
not to be placed in a decent and humane custodial institution if
there is available a responsible person unwilling to become the
child's legal guardian but willing to undertake temporary legal
custody. The mere novelty of such a claim is reason enough to doubt
that "substantive due process" sustains it; the alleged right
certainly cannot be considered "'so rooted in the traditions and
conscience of our people as to be ranked as fundamental.' "
Salerno, supra, at 751 (quoting
Snyder v.
Massachusetts, 291 U. S. 97, 105 (1934)).
Where a juvenile has no available parent, close relative, or legal
guardian, where the government does not intend to punish the child,
and where the conditions of governmental custody are decent and
humane, such custody surely does not violate the Constitution. It
is rationally connected to a governmental interest in "preserving
and promoting the welfare of the child,"
Santosky v.
Kramer, 455 U.
S. 745, 766 (1982), and is not punitive since it is not
excessive in relation to that valid purpose. See
Schall,
supra, at 269.
Although respondents generally argue for the categorical right
of private placement discussed above, at some points they assert a
somewhat more limited constitutional right: the right to an
individualized hearing on whether private placement would be in the
child's "best interests" -followed by private placement if the
answer is in the affirmative. It seems to us, however, that if
institutional custody (despite the availability of responsible
private custodians) is not unconstitutional in itself, it does not
become so simply because it is shown to be less desirable than some
other arrangement for the particular child. "The best interests of
the child," a venerable phrase familiar from divorce proceedings,
is a
304
proper and feasible criterion for making the decision as to
which of two parents will be accorded custody. But it is not
traditionally the sole criterion-much less the sole
constitutional criterion-for other, less narrowly channeled
judgments involving children, where their interests conflict in
varying degrees with the interests of others. Even if it were
shown, for example, that a particular couple desirous of adopting a
child would
best provide for the child's welfare, the child
would nonetheless not be removed from the custody of its parents so
long as they were providing for the child
adequately. See
Quilloin v.
Walcott, 434 U. S. 246, 255
(1978). Similarly, "the best interests of the child" is not the
legal standard that governs parents' or guardians' exercise of
their custody: So long as certain minimum requirements of child
care are met, the interests of the child may be subordinated to the
interests of other children, or indeed even to the interests of the
parents or guardians themselves. See,
e. g., R. C. N. v.
State, 141 Ga. App. 490, 491, 233 S. E. 2d 866, 867
(1977).
"The best interests of the child" is likewise not an absolute
and exclusive constitutional criterion for the government's
exercise of the custodial responsibilities that it undertakes,
which must be reconciled with many other responsibilities. Thus,
child-care institutions operated by the State in the exercise of
its
parens patriae authority, see
Schall, supra, at
265, are not constitutionally required to be funded at such a level
as to provide the
best schooling or the
best health
care available; nor does the Constitution require them to
substitute, wherever possible, private nonadoptive custody for
institutional care. And the same principle applies, we think, to
the governmental responsibility at issue here, that of retaining or
transferring custody over a child who has come within the Federal
Government's control, when the parents or guardians of that child
are nonexistent or unavailable. Minimum standards must be met, and
the child's fundamental rights must not be impaired; but the
decision to go be-
305
yond those requirements-to give one or another of the child's
additional interests priority over other concerns that compete for
public funds and administrative attention-is a policy judgment
rather than a constitutional imperative.
Respondents' "best interests" argument is, in essence, a demand
that the INS program be narrowly tailored to minimize the denial of
release into private custody. But narrow tailoring is required only
when fundamental rights are involved. The impairment of a lesser
interest (here, the alleged interest in being released into the
custody of strangers) demands no more than a "reasonable fit"
between governmental purpose (here, protecting the welfare of the
juveniles who have come into the Government's custody) and the
means chosen to advance that purpose. This leaves ample room for an
agency to decide, as the INS has, that administrative factors such
as lack of child-placement expertise favor using one means rather
than another. There is, in short, no constitutional need for a
hearing to determine whether private placement would be better, so
long as institutional custody is (as we readily find it to be,
assuming compliance with the requirements of the consent decree)
good enough.
If we harbored any doubts as to the constitutionality of
institutional custody over unaccompanied juveniles, they would
surely be eliminated as to those juveniles (concededly the
overwhelming majority of all involved here) who are aliens. "For
reasons long recognized as valid, the responsibility for regulating
the relationship between the United States and our alien visitors
has been committed to the political branches of the Federal
Government."
Mathews v.
Diaz, 426 U. S. 67, 81 (1976).
"'[O]ver no conceivable subject is the legislative power of
Congress more complete.'"
Fiallo v.
Bell, 430 U. S. 787, 792 (1977)
(quoting
Oceanic Steam Navigation Co. v.
Stranahan,
214 U. S. 320,
339 (1909)). Thus, "in the exercise of its broad power over
immigration and naturalization, 'Congress regularly makes
306
rules that would be unacceptable if applied to citizens.'" 430
U. S., at 792 (quoting
Mathews v.
Diaz, supra, at
79-80). Respondents do not dispute that Congress has the authority
to detain aliens suspected of entering the country illegally
pending their deportation hearings, see
Carlson v.
Landon, 342 U.
S. 524, 538 (1952);
Wong Wing v.
United States,
163 U. S., at 235. And in enacting the precursor to 8 U. S. C.
§ 1252(a), Congress eliminated any presumption of release pending
deportation, committing that determination to the discretion of the
Attorney General. See
Carlson v.
Landon, supra, at
538-540. Of course, the INS regulation must still meet the
(unexacting) standard of rationally advancing some legitimate
governmental purpose-which it does, as we shall discuss later in
connection with the statutory challenge.
Respondents also argue, in a footnote, that the INS release
policy violates the "equal protection guarantee" of the Fifth
Amendment because of the disparate treatment evident in (1)
releasing alien juveniles with close relatives or legal guardians
but detaining those without, and (2) releasing to unrelated adults
juveniles detained pending federal delinquency proceedings, see 18
U. S. C. § 5034, but detaining unaccompanied alien juveniles
pending deportation proceedings. The tradition of reposing custody
in close relatives and legal guardians is in our view sufficient to
support the former distinction; and the difference between citizens
and aliens is adequate to support the latter.
IV
We turn now from the claim that the INS cannot deprive
respondents of their asserted liberty interest
at all, to
the "procedural due process" claim that the Service cannot do so on
the basis of the procedures it provides. It is well established
that the Fifth Amendment entitles aliens to due process of law in
deportation proceedings. See
The Japanese Immigrant Case,
189 U. S.
86,100-101 (1903). To determine whether these alien juveniles
have received it here, we must
307
first review in some detail the procedures the INS has
employed.
Though a procedure for obtaining warrants to arrest named
individuals is available, see 8 U. S. C. § 1252(a)(1); 8 CFR §
242.2(c)(1) (1992), the deportation process ordinarily begins with
a warrantless arrest by an INS officer who has reason to believe
that the arrestee "is in the United States in violation of any
[immigration] law or regulation and is likely to escape before a
warrant can be obtained," 8 U. S. C. § 1357(a)(2). Arrested aliens
are almost always offered the choice of departing the country
voluntarily, 8 U. S. C. § 1252(b) (1988 ed., Supp. III); 8 CFR §
242.5 (1992), and as many as 98% of them take that course. See
INS v.
LopezMendoza, 468 U. S. 1032, 1044
(1984). Before the Service seeks execution of a voluntary departure
form by a
juvenile, however, the juvenile "must in fact
communicate with either a parent, adult relative, friend, or with
an organization found on the free legal services list." 8 CFR §
242.24(g) (1992).4 If the juvenile does not seek voluntary
departure, he must be brought before an INS examining officer
within 24 hours of his arrest. § 287.3; see 8 U. S. C. §
1357(a)(2). The examining officer is a member of the Service's
enforcement staff, but must be someone other than the arresting
officer (unless no other qualified examiner is readily available).
8 CFR § 287.3 (1992). If the examiner determines that "there is
prima facie evidence establishing that the arrested alien is in the
United States in violation of the immigration laws,"
ibid.,
a formal deportation proceeding is initiated through the issuance
of an order to show cause, § 242.1, and within 24 hours the
decision is made whether to continue the alien juvenile in custody
or release him, § 287.3.
4 Alien juveniles from Canada and Mexico must be offered the
opportunity to make a telephone call but need not in fact do so,
see 8 CFR § 242.24(g) (1992); the United States has treaty
obligations to notify diplomatic or consular officers of those
countries whenever their nationals are detained, see §
242.2(g).
308
The INS notifies the alien of the commencement of a deportation
proceeding and of the decision as to custody by serving him with a
Form 1-221S (reprinted in App. to Brief for Petitioners 7a-8a)
which, pursuant to the Immigration Act of 1990, 8 U. S. C. §
1252b(a)(3)(A) (1988 ed., Supp. III), must be in English and
Spanish. The front of this form notifies the alien of the
allegations against him and the date of his deportation hearing.
The back contains a section entitled "NOTICE OF CUSTODY
DETERMINATION," in which the INS officer checks a box indicating
whether the alien will be detained in the custody of the Service,
released on recognizance, or released under bond. Beneath these
boxes, the form states: "You may request the Immigration Judge to
redetermine this decision." See 8 CFR § 242.2(c)(2) (1992). (The
immigration judge is a quasijudicial officer in the Executive
Office for Immigration Review, a division separated from the
Service's enforcement staff. § 3.10.) The alien must check either a
box stating "I do" or a box stating "[I] do not request a
redetermination by an Immigration Judge of the custody decision,"
and must then sign and date this section of the form. If the alien
requests a hearing and is dissatisfied with the outcome, he may
obtain further review by the Board of Immigration Appeals, §
242.2(d); § 3.1(b)(7), and by the federal courts, see,
e.
g.,
Carlson v.
Landon, supra, at 529, 531.
Respondents contend that this procedural system is
unconstitutional because it does not require the Service to
determine in the case of each individual alien juvenile that
detention in INS custody would better serve his interests than
release to some other "responsible adult." This is just the
"substantive due process" argument recast in "procedural due
process" terms, and we reject it for the same reasons.
The District Court and the en banc Court of Appeals concluded
that the INS procedures are faulty because they do not provide for
automatic review by an immigration judge of the initial
deportability and custody determinations. See
309
942 F. 2d, at 1364. We disagree. At least insofar as this facial
challenge is concerned, due process is satisfied by giving the
detained alien juveniles the
right to a hearing before an
immigration judge. It has not been shown that all of them are too
young or too ignorant to exercise that right when the form asking
them to assert or waive it is presented. Most are 16 or 17 years
old and will have been in telephone contact with a responsible
adult outside the INS-sometimes a legal services attorney. The
waiver, moreover, is revocable: The alien may request a judicial
redetermination at any time later in the deportation process. See 8
CFR § 242.2(d)
(1992); Matter of Uluocha, Interim Dec. 3124
(BIA 1989). We have held that juveniles are capable of "knowingly
and intelligently" waiving their right against self-incrimination
in criminal cases. See
Fare v.
Michael c.,
442 U. S. 707, 724-727
(1979); see also
United States v.
Saucedo-Velasquez,
843 F.2d
832, 835 (CA5 1988) (applying
Fare to alien juvenile).
The alleged right to redetermination of prehearing custody status
in deportation cases is surely no more significant.
Respondents point out that the regulations do not set a time
period within which the immigration-judge hearing, if requested,
must be held. But we will not assume, on this facial challenge,
that an excessive delay will invariably ensue-particularly since
there is no evidence of such delay, even in isolated instances. Cf.
Matter of Chirinos, 16 1. & N. Dec. 276 (BIA 1977).
v
Respondents contend that the regulation goes beyond the scope of
the Attorney General's discretion to continue custody over arrested
aliens under 8 U. S. C. § 1252(a)(1). That contention must be
rejected if the regulation has a " 'reasonable foundation,'"
Carlson v.
Landon, 342 U. S., at 541, that is, if it
rationally pursues a purpose that it is lawful for the INS to seek.
See also
NCIR, 502 U. S., at 194. We think that it does.
310
The statement of basis and purpose accompanying promulgation of
regulation 242.24, in addressing the question "as to whose custody
the juvenile should be released," began with the dual propositions
that "concern for the welfare of the juvenile will not permit
release to just any adult" and that "the Service has neither the
expertise nor the resources to conduct home studies for placement
of each juvenile released." Detention and Release of Juveniles, 53
Fed. Reg. 17449 (1988). The INS decided to "strik[e] a balance" by
defining a list of presumptively appropriate custodians while
maintaining the discretion of local INS directors to release
detained minors to other custodians in "unusual and compelling
circumstances."
Ibid. The list begins with parents, whom our
society and this Court's jurisprudence have always presumed to be
the preferred and primary custodians of their minor children. See
Parham v. J.
R., 442 U. S. 584, 602-603
(1979). The list extends to other close blood relatives, whose
protective relationship with children our society has also
traditionally respected. See
Moore v.
East Cleveland,
431 U. S. 494
(1977); cf.
Village of Belle Terre v.
Boraas,
416 U. S. 1 (1974).
And finally, the list includes persons given legal guardianship by
the States, which we have said possess "special proficiency" in the
field of domestic relations, including child custody.
Ankenbrandt v.
Richards, 504 U. S., at 704. When
neither parent, close relative, or state-appointed guardian is
immediately available,5 the INS will normally keep legal custody of
the juvenile, place him in a government-supervised and
state-licensed shelter-care
5 The regulation also provides for release to any person
designated by a juvenile's parent or guardian as "capable and
willing to care for the juvenile's well-being." 8 CFR §
242.24(b)(3) (1992). "[To] ensur[e] that the INS is actually
receiving the wishes of the parent or guardian," 53 Fed. Reg. 17450
(1988), the designation must be in the form of a sworn affidavit
executed before an immigration or consular officer.
311
facility, and continue searching for a relative or guardian,
although release to others is possible in unusual cases.6
Respondents object that this scheme is motivated purely by
"administrative convenience," a charge echoed by the dissent, see,
e. g., post, at 320. This fails to grasp the distinction
between administrative convenience (or, to speak less pejoratively,
administrative efficiency) as the
purpose of a policy-for
example, a policy of not considering late-filed objections-and
administrative efficiency as the reason for selecting one means of
achieving a purpose over another. Only the latter is at issue here.
The requisite statement of basis and purpose published by the INS
upon promulgation of regulation 242.24 declares that the purpose of
the rule is to protect "the welfare of the juvenile," 53 Fed. Reg.
17449 (1988), and there is no basis for calling that false.
(Respondents' contention that the real purpose was to save money
imputes not merely mendacity but irrationality, since respondents
point out that detention in shelter-care facilities is more
expensive than release.) Because the regulation involves no
deprivation of a "fundamental" right, the Service was not compelled
to ignore the costs and difficulty of alternative means of
advancing its declared goal. Cf.
Stanley v.
6 The dissent maintains that, in making custody decisions, the
INS cannot rely on "[c]ategorical distinctions between cousins and
uncles, or between relatives and godparents or other responsible
persons," because "[d]ue process demands more, far more."
Post, at 343. Acceptance of such a proposition would
revolutionize much of our family law. Categorical distinctions
between relatives and nonrelatives, and between relatives of
varying degree of affinity, have always played a predominant role
in determining child custody and in innumerable other aspects of
domestic relations. The dissent asserts, however, that it would
prohibit such distinctions only for the purpose of "prefer[ring]
detention [by which it means institutional detention] to
release," and accuses us of "mischaracteriz[ing] the issue"
in suggesting otherwise.
Post, at 343, n. 29. It seems to us
that the dissent mischaracterizes the issue. The INS uses the
categorical distinction between relatives and nonrelatives not to
deny release, but to determine which potential custodians will be
accepted without the safeguard of state-decreed guardianship.
312
Illinois, 405 U. S. 645, 656-657
(1972). It is impossible to contradict the Service's assessment
that it lacks the "expertise," and is not "qualified," to do
individualized childplacement studies, 53 Fed. Reg. 17449 (1988),
and the right alleged here provides no basis for this Court to
impose upon what is essentially a law enforcement agency the
obligation to expend its limited resources in developing such
expertise and qualification.7 That reordering of priorities is for
Congress-which has shown, we may say, no inclination to shrink from
the task. See,
e. g., 8 U. S. C. § 1154(c) (requiring INS to
determine if applicants for immigration are involved in "sham"
marriages). We do not hold, as the dissent contends, that
"minimizing administrative costs" is adequate justification for the
Service's detention of juveniles,
post, at 320; but we do
hold that a detention program justified by the need to protect the
welfare of juveniles is not constitutionally required to give
custody to strangers if that entails the expenditure of
administrative effort and resources that the Service is unwilling
to commit.8
7 By referring unrelated persons seeking custody to state
guardianship procedures, the INS is essentially drawing upon
resources and expertise that are already in place. Respondents'
objection to this is puzzling, in light of their assertion that the
States generally view unrelated adults as appropriate custodians.
See
post, at 325-326, n. 7 (STEVENS, J., dissenting)
(collecting state statutes). If that is so, one wonders why the
individuals and organizations respondents allege are eager to
accept custody do not rush to state court, have themselves
appointed legal guardians (temporary or permanent, the States have
procedures for both), and then obtain the juveniles' release under
the terms of the regulation. Respondents and their
amici do
maintain that becoming a guardian can be difficult, but the
problems they identify-delays in processing, the need to ensure
that existing parental rights are not infringed, the "bureaucratic
gauntlet"would be no less significant were the INS to duplicate
existing state procedures.
8We certainly agree with the dissent that this case must be
decided in accordance with "indications of congressional policy,"
post, at 334. The most pertinent indication, however, is
not, as the dissent believes, the federal statute governing
detention of juveniles pending delinquency
313
Respondents also contend that the INS regulation violates the
statute because it relies upon a "blanket" presumption of the
unsuitability of custodians other than parents, close relatives,
and guardians. We have stated that, at least in certain contexts,
the Attorney General's exercise of discretion under § 1252(a)(1)
requires "some level of individualized determination."
NCIR,
502 U. S., at 194; see also
Carlson v.
Landon, 342 U.
S., at 538. But as
NCIR itself demonstrates, this does not
mean that the Service must forswear use of reasonable presumptions
and generic rules. See 502 U. S., at 196, n. 11; cf.
Heckler
v.
Campbell, 461 U. S. 458, 467
(1983). In the case of each detained alien juvenile, the INS makes
those determinations that are specific to the individual and
necessary to accurate application of the regulation: Is there
reason to believe the alien deportable? Is the alien under 18 years
of age? Does the alien have an avail-
proceedings, 18 U. S. C. § 5034, but the statute under which the
Attorney General is here acting, 8 U. S. C. § 1252(a)(I). That
grants the Attorney General
discretion to determine when
temporary detention pending deportation proceedings is appropriate,
and makes his exercise of that discretion "presumptively correct
and unassailable except for abuse."
Carlson v.
Landon, 342 U.
S. 524, 540 (1952). We assuredly cannot say that the decision
to rely on universally accepted presumptions as to the custodial
competence of parents and close relatives, and to defer to the
expertise of the States regarding the capabilities of other
potential custodians, is an abuse of this broad discretion simply
because it does not track policies applicable outside the
immigration field. See
NCIR, 502 U. S. 183, 193194
(1991). Moreover, reliance upon the States to determine
guardianship is quite in accord with what Congress has directed in
other immigration contexts. See 8 U. S. C. § 1154(d) (INS may not
approve immigration petition for an alien juvenile orphan being
adopted unless "a valid home-study has been favorably recommended
by an agency of the State of the child's proposed residence, or by
an agency authorized by that State to conduct such a study"); §
1522(d)(2)(B)(ii) (for refugee children unaccompanied by parents or
close relatives, INS shall "attempt to arrange ... placement under
the laws of the States"); see also 45 CFR § 400.113 (1992)
(providing support payments under § 1522 until the refugee juvenile
is placed with a parent or with another adult "to whom legal
custody and/or guardianship is granted under State law").
314
able adult relative or legal guardian? Is the alien's case so
exceptional as to require consideration of release to someone else?
The particularization and individuation need go no further than
this.9
Finally, respondents claim that the regulation is an abuse of
discretion because it permits the INS, once having determined that
an alien juvenile lacks an available relative or legal guardian, to
hold the juvenile in detention indefinitely. That is not so. The
period of custody is inherently limited by the pending deportation
hearing, which must be concluded with "reasonable dispatch" to
avoid habeas corpus. 8 U. S. C. § 1252(a)(1); cf.
United
States v.
Salerno, 481 U. S., at 747 (noting time limits
placed on pretrial detention by the Speedy Trial Act). It is
expected that alien juveniles will remain in INS custody an average
of only 30 days. See Juvenile Care Agreement 178a. There is no
evidence that alien juveniles are being held for undue periods
pursuant to regulation 242.24, or that habeas corpus is
insufficient to remedy particular abuses.1o And the reasonableness
of the
9 The dissent would mandate fully individualized custody
determinations for two reasons. First, because it reads
Carlson v.
Landon, supra, as holding that the
Attorney General may not employ "mere presumptions" in exercising
his discretion.
Post, at 337. But it was only the
dissenters in
Carlson who took such a restrictive
view. See 342 U. S., at 558-559, 563-564, 568 (Frankfurter, J.,
dissenting). Second, because it believes that § 1252(a) must be
interpreted to require individualized hearings in order to avoid
'''constitutional doubts.'''
Post, at 334 (quoting
United
States v.
Witkovich, 353 U. S. 194, 199
(1957)); see
post, at 339-340. The "constitutional doubts"
argument has been the last refuge of many an interpretive lost
cause. Statutes should be interpreted to avoid
serious
constitutional doubts,
Witkovich, supra, at 202, not to
eliminate all possible contentions that the statute
might be
unconstitutional. We entertain no serious doubt that the
Constitution does not require any more individuation than the
regulation provides, see
supra, at 303-305, 309, and thus
find no need to supplement the text of § 1252(a).
10 The dissent's citation of a single deposition from 1986,
post, at 323, and n. 6, is hardly proof that "excessive
delay" will result in the "typical" case,
post, at 324,
under regulation 242.24, which was not promulgated until
mid-1988.
315
Service's negative assessment of putative custodians who fail to
obtain legal guardianship would seem, if anything, to increase as
time goes by.
***
We think the INS policy now in place is a reasonable response to
the difficult problems presented when the Service arrests
unaccompanied alien juveniles. It may well be that other policies
would be even better, but "we are [not] a legislature charged with
formulating public policy."
Schall v.
Martin, 467 U.
S., at 281. On its face, INS regulation 242.24 accords with both
the Constitution and the relevant statute.
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE O'CONNOR, with whom JUSTICE SOUTER joins,
concurring.
I join the Court's opinion and write separately simply to
clarify that in my view these children have a constitutionally
protected interest in freedom from institutional confinement. That
interest lies within the core of the Due Process Clause, and the
Court today does not hold otherwise. Rather, we reverse the
decision of the Court of Appeals because the INS program challenged
here, on its face, complies with the requirements of due
process.
"Freedom 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, 504 U. S.
71, 80 (1992). "Freedom from bodily restraint" means more than
freedom from handcuffs, straitjackets, or detention cells. A
person's core liberty interest is also implicated when she is
confined in a prison, a mental hospital, or some other form of
custodial institution, even if the conditions of confinement are
liberal. This is clear beyond cavil, at least
316
where adults are concerned. "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, institutionalization, or other similar restraint of
personal liberty-which is the 'deprivation of liberty' triggering
the protections of the Due Process Clause .... "
DeShaney v.
Winnebago County Dept. of Social Services, 489 U. S. 189,
200 (1989). The institutionalization of an adult by the government
triggers heightened, substantive due process scrutiny. There must
be a "sufficiently compelling" governmental interest to justify
such action, usually a punitive interest in imprisoning the
convicted criminal or a regulatory interest in forestalling danger
to the community.
United States v.
Salerno, 481 U. S. 739, 748
(1987); see
Foucha, supra, at 80-81.
Children, too, have a core liberty interest in remaining free
from institutional confinement. In this respect, a child's
constitutional "[f]reedom from bodily restraint" is no narrower
than an adult's. Beginning with
In re Gault, 387 U. S. 1 (1967), we
consistently have rejected the assertion that "a child, unlike an
adult, has a right 'not to liberty but to custody.'"
Id., at
17.
Gault held that a child in delinquency proceedings must
be provided various procedural due process protections (notice of
charges, right to counsel, right of confrontation and
cross-examination, privilege against self-incrimination) when those
proceedings may result in the child's institutional confinement. As
we explained:
"Ultimately, however, we confront the reality of ... the
Juvenile Court process .... A boy is charged with misconduct. The
boy is committed to an institution where he may be restrained
ofliberty for years. It is of no constitutional consequence-and of
limited practical meaning-that the institution to which he is
committed is called an Industrial School. The fact of the matter is
that, however euphemistic the title, a 'receiving home'
317
or an 'industrial school' for juveniles is an institution of
confinement in which the child is incarcerated for a greater or
lesser time. His world becomes a building with whitewashed walls,
regimented routine and institutional hours. Instead of mother and
father and sisters and brothers and friends and classmates, his
world is peopled by guards, custodians, [and] state employees ....
" Id., at 27 (footnote and internal quotation marks
omitted).
See also
In re Winship, 397 U. S. 358 (1970)
(proof-beyondreasonable-doubt standard applies to delinquency
proceedings);
Breed v.
Jones, 421 U. S. 519 (1975)
(double jeopardy protection applies to delinquency proceedings);
Parham v. J.
R., 442 U. S. 584 (1979)
(proceedings to commit child to mental hospital must satisfy
procedural due process).
Our decision in
Schall v.
Martin, 467 U. S. 253 (1984),
makes clear that children have a protected liberty interest in
"freedom from institutional restraints," id., at 265, even absent
the stigma of being labeled "delinquent," see
Breed, supra,
at 529, or "mentally ill," see
Parham, supra, at 600601. In
Schall, we upheld a New York statute authorizing pretrial
detention of dangerous juveniles, but only after analyzing the
statute at length to ensure that it complied with substantive and
procedural due process. We recognized that children "are assumed to
be subject to the control of their parents, and if parental control
falters, the State must play its part as
parens patriae."
467 U. S., at 265. But this
parens patriae purpose was seen
simply as a plausible
justification for state action
implicating the child's protected liberty interest, not as a
limitation on the scope of due process protection. See
ibid.
Significantly,
Schall was essentially a facial challenge, as
is this case, and New York's policy was to detain some juveniles in
"open facilit[ies] in the community ... without locks, bars, or
security officers where the child receives schooling and counseling
and has access to recreational facilities."
Id., at 271.
A
318
child's placement in this kind of governmental institution is
hardly the same as handcuffing her, or confining her to a cell, yet
it must still satisfy heightened constitutional scrutiny.
It may seem odd that institutional placement as such, even where
conditions are decent and humane and where the child has no less
authority to make personal choices than she would have in a family
setting, nonetheless implicates the Due Process Clause. The answer,
I think, is this. Institutionalization is a decisive and unusual
event. "The consequences of an erroneous commitment decision are
more tragic where children are involved. [C]hildhood is a
particularly vulnerable time of life and children erroneously
institutionalized during their formative years may bear the scars
for the rest of their lives."
Parham, supra, at 627-628
(footnotes omitted) (opinion of Brennan, J.). Just as it is true
that "[i]n our society liberty [for adults] is the norm, and
detention prior to trial or without trial is the carefully limited
exception,"
Salerno, supra, at 755, so too, in our society,
children normally grow up in families, not in governmental
institutions. To be sure, government's failure to take custody of a
child whose family is unable to care for her may also effect harm.
But the purpose of heightened scrutiny is not to prevent government
from placing children in an institutional setting, where necessary.
Rather, judicial review ensures that government acts in this
sensitive area with the requisite care.
In sum, this case does not concern the scope of the Due Process
Clause. We are not deciding whether the constitutional concept of
"liberty" extends to some hitherto unprotected aspect of personal
well-being, see,
e. g., Collins v.
Harker Heights,
503 U. S. 115
(1992);
Michael H. v.
Gerald D., 491 U. S. 110 (1989);
Bowers v.
Hardwick, 478 U. S. 186 (1986), but
rather whether a governmental decision implicating a squarely
protected liberty interest comports with substantive and procedural
due process. See
ante, at 301-306
319
(substantive due process scrutiny);
ante, at 306-309
(procedural due process scrutiny). Specifically, the absence of
available parents, close relatives, or legal guardians to care for
respondents does not vitiate their constitutional interest in
freedom from institutional confinement. It does not place that
interest outside the core of the Due Process Clause. Rather,
combined with the Juvenile Care Agreement, the fact that the normal
forms of custody have faltered explains why the INS program
facially challenged here survives heightened, substantive due
process scrutiny. "Where a juvenile has no available parent, close
relative, or legal guardian, where the government does not intend
to punish the child, and where the conditions of governmental
custody are decent and humane, such custody surely does not violate
the Constitution. It is rationally connected to a governmental
interest in 'preserving and promoting the welfare of the child,'
Santosky v.
Kramer, 455 U. S. 745, 766
(1982), and is not punitive since it is not excessive in relation
to that valid purpose."
Ante, at 303. Because this is a
facial challenge, the Court rightly focuses on the Juvenile Care
Agreement. It is proper to presume that the conditions of
confinement are no longer "'most disturbing,'"
Flores v.
Meese, 942 F.2d
1352, 1358 (CA9 1991) (en bane) (quoting
Flores v.
Meese, 934 F.2d
991, 1014 (CA9 1990) (Fletcher, J., dissenting)), and that the
purposes of confinement are no longer the troublesome ones of lack
of resources and expertise published in the Federal Register, see
53 Fed. Reg. 17449 (1988), but rather the plainly legitimate
purposes associated with the Government's concern for the welfare
of the minors. With those presumptions in place, "the terms and
conditions of confinement ... are in fact compatible with
[legitimate] purposes,"
Schall, supra, at 269, and the Court
finds that the INS program conforms with the Due Process Clause. On
this understanding, I join the opinion of the Court.
320
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins,
dissenting.
The Court devotes considerable attention to debunking the notion
that "the best interests of the child" is an "absolute and
exclusive" criterion for the Government's exercise of the custodial
responsibilities that it undertakes.
Ante, at 304. The Court
reasons that as long as the conditions of detention are "good
enough,"
ante, at 305, the Immigration and Naturalization
Service (INS or Agency) is perfectly justified in declining to
expend administrative effort and resources to minimize such
detention.
Ante, at 305, 311-312.
As I will explain, I disagree with that proposition, for in my
view, an agency's interest in minimizing administrative costs is a
patently inadequate justification for the detention of harmless
children, even when the conditions of detention are "good enough."
1 What is most curious about the Court's analysis, however, is that
the INS
itself vigorously denies that its policy is
motivated even in part by a desire to avoid the administrative
burden of placing these children in the care of "other responsible
adults." Reply Brief for Petitioners 4. That is, while the Court
goes out of its way to attack "the best interest of the child" as a
criterion for judging the INS detention policy, it is precisely
that interest that the INS invokes as the sole basis for its
refusal to release these children to "other responsible
adults":
"[T]he articulated basis for the detention is that it furthers
the government's interest in ensuring the welfare of the juveniles
in its custody ....
"[Respondents] argu[e] that INS's interest in furthering
juvenile welfare does not in fact support the policy
1 Though the concurring JUSTICES join the Court's opinion, they
too seem to reject the notion that the fact that "other concerns
... compete for public funds and administrative attention,"
ante, at 305, is a sufficient justification for the INS'
policy of refusing to make individualized determinations as to
whether these juveniles should be detained.
Ante, at 319
(concurring opinion).
321
because INS has a 'blanket' policy that requires detention
without any factual showing that detention is necessary to ensure
respondents' welfare .... That argument, however, represents
nothing more than a policy disagreement, because it criticizes INS
for failing to pursue a view of juvenile welfare that INS has not
adopted, namely the view held by respondent: that it is better for
alien juveniles to be released to unrelated adults than to be cared
for in suitable, government-monitored juvenilecare facilities,
except in those cases where the government has knowledge that the
particular adult seeking custody is unfit. The policy adopted by
INS, reflecting the traditional view of our polity that parents and
guardians are the most reliable custodians for juveniles, is that
it is inappropriate to release alien juveniles-whose troubled
background and lack of familiarity with our society and culture,
give them particularized needs not commonly shared by domestic
juveniles-to adults who are not their parents or guardians."
Id., at 4-5 (internal citations, emphasis, and quotation
marks omitted).
Possibly because of the implausibility of the INS' claim that it
has made a reasonable judgment that detention in
government-controlled or government-sponsored facilities is
"better" or more "appropriate" for these children than release to
independent
responsible adults, the Court reaches out to
justify the INS policy on a ground not only not argued, but
expressly disavowed by the INS, that is, the tug of "other concerns
that compete for public funds and administrative attention,"
ante, at 305. I cannot share my colleagues' eagerness for
that aggressive tack in a case involving a substantial deprivation
of liberty. Instead, I will begin where the INS asks us to begin,
with its assertion that its policy is justified by its interest in
protecting the welfare of these children. As I will explain, the
INS' decision to detain these juveniles despite the existence of
responsible
322
adults willing and able to assume custody of them is contrary to
federal policy, is belied by years of experience with both citizen
and alien juveniles, and finds no support whatsoever in the
administrative proceedings that led to the promulgation of the
Agency's regulation. I will then turn to the Court's statutory and
constitutional analysis and explain why this ill-conceived and
ill-considered regulation is neither authorized by § 242(a) of the
Immigration and Nationality Act nor consistent with fundamental
notions of due process of law.
At the outset, it is important to emphasize two critical points.
First, this case involves the institutional detention of juveniles
who pose no risk of flight and no threat of harm to themselves or
to others. They are children who have responsible third parties
available to receive and care for them; many, perhaps most, of them
will never be deported.2 It makes little difference that juveniles,
unlike adults, are always in some form of custody, for detention in
an institution pursuant to the regulation is vastly different from
release to a responsible person-whether a cousin,3 a godparent, a
friend, or a charitable organization-willing to assume
responsibility for the juvenile for the time the child would
otherwise be detained.4 In many ways the difference is
2 See Tr. of Oral Arg. 55 (statement by counsel for
petitioners).
3 The Court assumes that the rule allows release to any "close
relative,"
ante, at 302. The assumption is incorrect for two
reasons: The close character of a family relationship is determined
by much more than the degree of affinity; moreover, contrary to the
traditional view expressed in
Moore
4 The difference is readily apparent even from the face of the
allegedly benign Memorandum of Understanding Re Compromise of Class
Action:
Conditions of Detention, reprinted in App. to Pet. for Cert.
148a205a (Juvenile Care Agreement), upon which the Court so heavily
relies to sustain this regulation. To say that a juvenile care
facility under the agreement is to be operated "'in an open type of
setting without a need for
extraordinary security
measures,'"
ante, at 298 (quoting Juvenile Care Agreement
173a) (emphasis added), suggests that the facility has some
standard level of security designed to ensure that children
do not
323
comparable to the difference between imprisonment and probation
or parole. Both conditions can be described as "legal custody," but
the constitutional dimensions of individual "liberty" identify the
great divide that separates the two. See
Morrissey v.
Brewer, 408 U.
S. 471, 482 (1972). The same is true regarding the allegedly
improved conditions of confinement-a proposition, incidentally,
that is disputed by several
amici curiae.5 The fact that the
present conditions may satisfy standards appropriate for
incarcerated juvenile offenders does not detract in the slightest
from the basic proposition that this is a case about the wholesale
detention of children who do not pose a risk of flight, and who are
not a threat to either themselves or the community.
Second, the period of detention is indefinite, and has, on
occasion, approached one year. 6 In its statement of policy
leave. That notion is reinforced by the very next sentence in
the agreement: "However, [r]ecipients are required to design
programs and strategies to discourage runaways and prevent the
unauthorized absence of minors in care."
Ibid.
Indeed, the very definition of the word "detention" in the
American Bar Association's Juvenile Justice Standards reflects the
fact that it still constitutes detention even if a juvenile is
placed in a facility that is "decent and humane,"
ante, at
303:
"The definition of detention in this standard includes every
facility used by the state to house juveniles during the interim
period. Whether it gives the appearance of the worst sort of jail,
or a comfortable and pleasant home, the facility is classified as
'detention' if it is not the juvenile's usual place of abode."
Institute of Judicial Administration, American Bar Association,
Juvenile Justice Standards: Standards Relating to Interim Status 45
(1980) (citing Wald, "Pretrial Detention for Juveniles," in
Pursuing Justice for the Child 119, 120 (Rosenheim ed. 1976)).
The point cannot be overemphasized. The legal formalism that
children are always in someone else's custody should not obscure
the fact that "[i]nstitutionalization," as JUSTICE O'CONNOR
explains, "is a decisive and unusual event."
Ante, at 318
(concurring opinion).
5 See Brief for Southwest Refugee Rights Project et al. as
Amici Curiae 20-33.
6 See Deposition of Kim Carter Hedrick, INS Detention Center
Director-Manager (CD Cal., June 27, 1986), p. 68.
324
governing proposed contracts with private institutions that may
assume physical (though not legal) custody of these minors, the INS
stated that the duration of the confinement "is anticipated to be
approximately thirty (30) days; however, due to the variables and
uncertainties inherent in each case, [r]ecipients must design
programs which are able to provide a combination of short term and
long term care." Juvenile Care Agreement 178a. The INS rule itself
imposes no time limit on the period of detention. The only limit is
the statutory right to seek a writ of habeas corpus on the basis of
a "conclusive showing" that the Attorney General is not processing
the deportation proceeding "with such reasonable dispatch as may be
warranted by the particular facts and circumstances in the case
.... " 8 U. S. C. § 1252(a)(1). Because examples of protracted
deportation proceedings are so common, the potential for a lengthy
period of confinement is always present. The fact that an excessive
delay may not "invariably ensue,"
ante, at 309, provides
small comfort to the typical detainee.
I
The Court glosses over the history of this litigation, but that
history speaks mountains about the bona fides of the Government's
asserted justification for its regulation, and demonstrates the
complete lack of support, in either evidence or experience, for the
Government's contention that detaining alien juveniles when there
are "other responsible parties" willing to assume care somehow
protects the interests of these children.
The case was filed as a class action in response to a policy
change adopted in 1984 by the Western Regional Office of the INS.
Prior to that change, the relevant policy in the Western Region had
conformed to the practice followed by the INS in the rest of the
country, and also followed by federal magistrates throughout the
country in the administration of § 504 of the Juvenile Justice and
Delinquency Preven-
325
tion Act of 1974. Consistently with the consensus expressed in a
number of recommended standards for the treatment of juveniles,7
that statute authorizes the release of a juvenile
7 See,
e. g., U. S. Dept. of Health, Education, and
Welfare, Model Acts for Family Courts and State-Local Children's
Programs 24 (1975) ("[W]ith all possible speed" the child should be
released to "parents, guardian, custodian, or other suitable person
able and willing to provide supervision and care"); U. S. Dept. of
Justice, National Advisory Committee for Juvenile Justice and
Delinquency Prevention, Standards for the Administration of
Juvenile Justice 299 (1980) (a juvenile subject to the jurisdiction
of the family court "should be placed in a foster home or shelter
facility only when ... there is no person willing and able to
provide supervision and care"); National Advisory Commission on
Criminal Justice Standards and Goals, Corrections 267 (1973)
("Detention should be used only where the juvenile has no parent,
guardian, custodian, or other person able to provide supervision
and care"); Institute of Judicial Administration, American Bar
Association, Standards Relating to Noncriminal Misbehavior 41,42
(1982) ("If the juvenile consents," he should be released "to the
parent, custodian, relative, or other responsible person as soon as
practicable").
State law from across the country regarding the disposition of
juveniles who come into state custody is consistent with these
standards. See,
e. g., Ala. Code § 12-15-62 (1986) (allowing
release to custody of "a parent, guardian, custodian 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. § 162310 (1989)
(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) (Supp. 1992) (allowing release to custody of
"parent or other responsible adult"); Iowa Code § 232.19(2) (1987)
(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 supervision or
other responsible person"); Me. Rev. Stat. Ann., Tit. 15, § 3203-A
(Supp. 1992) (release to "legal custodian or other suitable
person"); Md. Cts. & Jud. Proc. Code Ann. § 3-814(b)(I) (1989)
(release to "parents, guardian, or custodian or to any other person
designated by the court"); Mass. Gen. Laws § 119:67 (1969) (release
to "parent, guardian or any other reputable person"); Minn. Stat.
§260.171 (1992) (release to "parent, guardian, custodian, or other
suitable person"); Miss. Code Ann. §43-21-301(4) (Supp. 1992)
(release to "any person or agency"); Neb. Rev. Stat. §43-253 (1988)
(release to "parent, guardian, relative, or other responsible
person");
326
charged with an offense "to his parents, guardian, custodian, or
other responsible party (including, but not limited to, the
director of a shelter-care facility) upon their promise to
bring such juvenile before the appropriate court when requested by
such court unless the magistrate determines, after hearing, at
which the juvenile is represented by counsel, that the detention of
such juvenile is required to secure his timely appearance before
the appropriate court or to insure his safety or that of others."
18 U. S. C. § 5034 (emphasis added).8 There is no evidence in the
record of this litigation that any release by the INS, or by a
federal magistrate, to an "other responsible party" ever resulted
in any harm to a juvenile. Thus, nationwide experience prior to
1984 discloses no evidence of any demonstrated need for a change in
INS policy.
Nevertheless, in 1984 the Western Region of the INS adopted a
separate policy for minors in deportation proceedings, but not for
exclusion proceedings. The policy provided that minors would be
released only to a parent or lawful guardian, except" 'in unusual
and extraordinary cases, at the
Nev. Rev. Stat. § 62.170 (1991) (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); S. C. Code Ann. §20-7-600 (Supp. 1992)
(release to "parent, a responsible adult, a responsible agent of a
court-approved foster home, group home, facility, or program"); S.
D. Codified Laws §26-7A-89 (1992) (release to probation officer or
any other suitable person appointed by the court); Tex. Fam. Code
Ann. § 52.02 (Supp. 1993) (release to "parent, guardian, custodian
of the child, or other responsible adult"); Utah Code Ann. §
78-3a-29(3)(a) (1992) (release to "parent or other responsible
adult").
8 As enacted in 1938, the Federal Juvenile Delinquency Act
authorized a committing magistrate to release a juvenile "upon his
own recognizance or that of some responsible person .... Such
juvenile shall not be committed to a jail or other similar
institution, unless in the opinion of the marshal it appears that
such commitment is necessary to secure the custody of the juvenile
or to insure his safety or that of others." § 5, 52 Stat. 765. The
"responsible person" alternative has been a part of our law ever
since.
327
discretion of a District Director or Chief Patrol Agent.'"
Flores v.
Messe, 942 F.2d
1352, 1355 (CA9 1991). The regional Commissioner explained that
the policy was "'necessary to assure that the minor's welfare and
safety is [sic] maintained and that the agency is protected against
possible legal liability.'"
Flores v.
Meese,
934 F.2d
991, 994 (CA9 1990), vacated,
942 F.2d
1352 (CA9 1991) (en bane). As the Court of Appeals noted, the
Commissioner "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 improper releases." 942 F. 2d, at 1355.9
The complete absence of evidence of any need for the policy
change is not the only reason for questioning the bona fides of the
Commissioner's expressed interest in the welfare of alien minors as
an explanation for his new policy. It is equally significant that
at the time the new policy was adopted the conditions of
confinement were admittedly "deplorable." 10 How a responsible
administrator could possibly
9 The court added: "It has remained undisputed throughout this
proceeding that the blanket detention policy is not necessary to
ensure the attendance of children at deportation hearings." 942 F.
2d, at 1355. Although the Commissioner's expressed concern about
possible legal liability may well have been genuine, in view of the
fact that the policy change occurred prior to our decision in
DeShaney v.
Winnebago County Dept. of Social
Services, 489 U.
S. 189 (1989), the Court of Appeals was surely correct in
observing that "governmental agencies face far greater exposure to
liability by maintaining a special custodial relationship than by
releasing children from the constraints of governmental custody."
942 F. 2d, at 1363. Even if that were not true, the Agency's
selfish interest in avoiding potentialliability would be manifestly
insufficient to justify its wholesale deprivation of a core liberty
interest. In this Court, petitioners have prudently avoided any
reliance on what may have been the true explanation for the genesis
of this litigation.
10 In response to respondents' argument in their brief in
opposition to the petition for certiorari that the unsatisfactory
character of the INS detention facilities justified the injunction
entered by the District Court, the INS asserted that "these
deplorable conditions were addressed and
328
conclude that the practice of commingling harmless children with
adults of the opposite sex 11 in detention centers protected by
barbed-wire fences,12 without providing them with education,
recreation, or visitation,13 while subjecting them to arbitrary
strip searches,14 would be in their best interests is most
difficult to comprehend.
The evidence relating to the period after 1984 only increases
the doubt concerning the true motive for the policy adopted in the
Western Region. First, as had been true before 1984, the absence of
any indication of a need for such a policy in any other part of the
country persisted. Moreover, there is evidence in the record that
in the Western Region when undocumented parents came to claim their
children, they were immediately arrested and deportation
proceedings were instituted against them. 934 F. 2d, at 1023
(Fletcher, J., dissenting). Even if the detention of children
might
remedied during earlier proceedings in this case .... " Reply to
Brief in Opposition 3. If the deplorable conditions prevailed when
the litigation began, we must assume that the Western Regional
Commissioner was familiar with them when he adopted his allegedly
benevolent policy.
11 See Deposition of Kim Carter Hedrick, supra n. 6, at 13.
12 See Declaration of Paul DeMuro, Consultant, U. S. Dept. of
Justice, Office of Juvenile Justice and Delinquency Prevention (CD
Cal., Apr. 11, 1987), p. 7. After inspecting a number of detention
facilities, Mr. DeMuro declared:
"[I]t is clear as one approaches each facility that each
facility is a locked, secure, detention facility. The Inglewood
facility actually has two concentric perimeter fences in the part
of the facility where children enter.
"The EI Centro facility is a converted migrant farm workers'
barracks which has been secured through the use of fences and
barbed wire. The San Diego facility is the most jail-like. At this
facility each barracks is secured through the use of fences, barbed
wire, automatic locks, observation areas, etc. In addition the
entire residential complex is secured through the use of a high
security fence (16-18'), barbed wire, and supervised by uniformed
guards."
Ibid.
13 See id., at 8.
14 See Defendants' Response to Requests for Admissions (CD Cal.,
Nov. 22, 1985), pp. 3-4.
329
serve a rational enforcement purpose that played a part in the
original decisional process, that possibility can only add to the
Government's burden of trying to establish its legitimacy.
After this litigation was commenced, the District Court enjoined
the enforcement of the new policy because there was no rational
basis for the disparate treatment of juveniles in deportation and
exclusion proceedings. That injunction prompted the INS to
promulgate the nationwide rule that is now at issue.15
Significantly, however, in neither the rulemaking proceedings nor
this litigation did the INS offer any evidence that compliance with
that injunction caused any harm to juveniles or imposed any
administrative burdens on the Agency.
The Agency's explanation for its new rule relied on four factual
assertions. First, the rule "provides a single policy for juveniles
in both deportation and exclusion proceedings." 53 Fed. Reg. 17449
(1988). It thus removed the basis for the outstanding injunction.
Second, the INS had "witnessed a dramatic increase in the number of
juvenile aliens it encounters," most of whom were "not accompanied
by a parent, legal guardian, or other adult relative."
Ibid.
There is no mention, however, of either the actual or the
approximate number of juveniles encountered, or the much smaller
number that do not elect voluntary departure.16 Third, the
15 The rule differs from the regional policy in three respects:
(1) it applies to the entire country, rather than just the Western
Region; (2) it applies to exclusion as well as deportation
proceedings; and (3) it authorizes release to adult brothers,
sisters, aunts, uncles, and grandparents as well as parents and
legal guardians.
16 In its brief in this Court petitioners' attempt to describe
the magnitude of the problem addressed by the rule is based on
material that is not in the record-an independent study of a sample
of juveniles detained in Texas in 1989, see Brief for Petitioners
8, n. 12, and the Court in turn relies on the assertions made in
the brief for petitioners about the problem in 1990. See
ante, at 295. Since all of those figures relate to a period
well after the rule was proposed in 1987 and promulgated in 1988,
they obvi-
330
Agency stated that "concern for the welfare of the juvenile will
not permit release to
just any adult." Ibid. (emphasis
added).17 There is no mention, however, of the obvious distinction
between "just any adult" and the broad spectrum of responsible
parties that can assume care of these children, such as extended
family members, godparents, friends, and private charitable
organizations. Fourth, "the Service has neither the expertise nor
the resources to conduct home studies for placement of each
juvenile released."
Ibid. Again, however, there is no
explanation of why any more elaborate or expensive "home study"
would be necessary to evaluate the qualifications of apparently
responsible persons than had been conducted in the past. There is a
strange irony in both the fact that the INS suddenly decided that
temporary releases that had been made routinely to responsible
persons in the past now must be preceded by a "home study," and the
fact that the scarcity of its "resources" provides the explanation
for spending far more money on detention than would be necessary to
perform its newly discovered home study obligation.18
ously tell us nothing about the "dramatic increase" mentioned by
the INS. 53 Fed. Reg. 17449 (1988). Indeed, the study cited by the
Government also has nothing to say about any
increase in the
number of encounters with juvenile aliens. In all events, the fact
that both the Government and this Court deem it appropriate to rely
on a
post hoc, nonrecord exposition of the dimensions of the
problem that supposedly led to a dramatic change in INS policy
merely highlights the casual character of the Agency's deliberative
process. One can only speculate about whether the "dramatic
increase in the number of juvenile aliens it encounters," ibid., or
the District Court's injunction was the more important cause of the
new rule.
17 This statement may be the source of the Court's similar
comment that "the INS cannot simply send them off into the night on
bond or recognizance."
Ante, at 295. There is, of course, no
evidence that the INS had ever followed such an irresponsible
practice, or that there was any danger that it would do so in the
future.
18 The record indicates that the cost of detention may amount to
as much as $100 per day per juvenile. Deposition of Robert J.
Schmidt, Immigration and Naturalization Service (July 31, 1986), p.
76. Even the sort of
331
What the Agency failed to explain may be even more significant
than what it did say. It made no comment at all on the uniform body
of professional opinion that recognizes the harmful consequences of
the detention of juveniles.19 It made no comment on the period of
detention that would be required for the completion of deportation
proceedings, or the reasons why the rule places no limit on the
duration of the detention. Moreover, there is no explanation for
the absence of any specified procedure for either the consideration
or the review of a request for release to an apparently responsible
person.20 It is difficult to understand why an
elaborate home study that might be appropriate as a predicate to
the adoption of a newborn baby should not cost as much as a few
days of detention. Moreover, it is perfectly obvious that the
qualifications of most responsible persons can readily be
determined by a hearing officer, and that in any doubtful case
release should be denied. The respondents have never argued that
there is a duty to release juveniles to "just any adult." 53 Fed.
Reg. 17449 (1988).
19 Consistent with the standards developed by the American Bar
Association and other organizations and agencies, see n. 7,
supra, the United States Department of Justice's own
Standards for the Administration of Juvenile Justice describe "the
harsh impact that even brief detention may have on a juvenile,
especially when he/she is placed in a secure facility, and the
corresponding need to assure as quickly as possible that such
detention is necessary." U. S. Dept. of Justice, Standards for the
Administration of Juvenile Justice,
supra n. 7, at 304.
20 As Judge Rymer pointed out in her separate opinion in the
Court of Appeals: "Unlike the statutes at issue in
Schall v.
Martin, 467 U.
S. 253 ... (1984), and
[United States v.]
Salerno, [
481
U. S. 739 (1987),] which survived due process challenges, the
INS regulations provide no opportunity for the reasoned
consideration of an alien juvenile's release to the custody of a
non-relative by a neutral hearing officer. Nor is there any
provision for a prompt hearing on a §242.24(b)(4) release. No
findings or reasons are required. Nothing in the regulations
provides the unaccompanied detainee any help, whether from counsel,
a parent or guardian, or anyone else. Similarly, the regulation
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 independ-
332
agency purportedly motivated by the best interests of detained
juveniles would have so little to say about obvious objections to
its rule.
The promulgation of the nationwide rule did not, of course, put
an end to the pending litigation. The District Court again enjoined
its enforcement, this time on the ground that it deprived the
members of the respondent class of their liberty without the due
process of law required by the Fifth Amendment. For the period of
over four years subsequent to the entry of that injunction, the INS
presumably has continued to release juveniles to responsible
persons in the Western Region without either performing any home
studies or causing any harm to alien juveniles. If any evidence
confirming the supposed need for the rule had developed in recent
years, it is certain that petitioners would have called it to our
attention, since the INS did not hesitate to provide us with
off-the-record factual material on a less significant point. See n.
16,
supra.
The fact that the rule appears to be an ill-considered response
to an adverse court ruling, rather than the product of the kind of
careful deliberation that should precede a policy change that has
an undeniably important impact on individual liberty, is not, I
suppose, a sufficient reason for concluding that it is invalid.21
It does, however, shed light
ent, albeit informal consideration of the juvenile's
circumstances in relation 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."
Flores v.
Meese, 942 F. 2d, 1352, 1374-1375
(CA9 1991) (opinion concurring in judgment in part and
dissenting in part) (footnotes omitted).
21 That fact may, however, support a claim that the INS'
issuance of the regulation was arbitrary and capricious within the
meaning of the Administrative Procedure Act (APA), 5 U. S. C. §
706. See
Motor Vehicle
333
on the question whether the INS has legitimately exercised the
discretion that the relevant statute has granted to the Attorney
General. In order to avoid the constitutional question, I believe
we should first address that statutory issue. In the alternative,
as I shall explain, I would hold that a rule providing for the
wholesale detention of juveniles for an indeterminate period
without individual hearings is unconstitutional.
II
Section 242(a) of the Immigration and Nationality Act provides
that any "alien taken into custody may, in the discretion of the
Attorney General and pending [a] final determination of
deportability, (A) be continued in custody; or (B) be released
under bond ... containing such conditions as the Attorney General
may prescribe; or (C) be released on conditional parole." 8 U. S.
C. § 1252(a)(1). Despite the exceedingly broad language of §
242(a), the Court has recognized that "once the tyranny of
literalness is rejected, all relevant considerations for giving a
rational content to the words become operative."
United
States v.
Witkovich, 353
Mfrs. Assn. of United States, Inc. v.
State Farm Mut.
Automobile Ins. Co.,
463 U. S. 29, 43 (1983)
("[A]n agency rule would be arbitrary and capricious if the agency
has relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter
to the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product of
agency expertise"). Respondents brought such a claim in the
District Court, but do not renew that line of argument in this
Court. In any event, even if the INS has managed to stay within the
bounds of the APA, there is nonetheless a disturbing parallel
between the Court's ready conclusion that no individualized hearing
need precede the deprivation of liberty of an undocumented alien so
long as the conditions of institutional custody are "good enough,"
ante, at 305, and similar
post hoc justifications for
discrimination that is more probably explained as nothing more than
"the accidental byproduct of a traditional way of thinking about"
the disfavored class, see
Califano v.
Goldfarb, 430
U. S. 199, 223 (1977) (STEVENS, J., concurring in judgment).
334
u. S. 194, 199 (1957). See also INS v. National Center for
Immigrants' Rights, Inc.,
502 U. S. 183 (1991)
(NCIR).
Our cases interpreting § 242(a) suggest that two such
"considerations" are paramount: indications of congressional
policy, and the principle that "a restrictive meaning must be given
if a broader meaning would generate constitutional doubts."
Witkovich, 353 U. S., at 199. Thus, in
Carlson v.
Landon, 342 U.
S. 524 (1952), we upheld the Attorney General's detention of
deportable members of the Communist Party, relying heavily on the
fact that Congress had enacted legislation, the Internal Security
Act of 1950, based on its judgment that Communist subversion
threatened the N ation.
Id., at 538. The Attorney General's
discretionary decision to detain certain alien Communists was thus
"wholly consistent with Congress' intent,"
NCIR, 502 U. S.,
at 194 (summarizing Court's analysis in
Carlson). Just last
Term, we faced the question whether the Attorney General acted
within his authority in requiring that release bonds issued
pursuant to § 242(a) contain a condition forbidding unauthorized
employment pending determination of deportability. See
NCIR,
supra. Relying on related statutes and the "often recognized"
principle that "a primary purpose in restricting immigration is to
preserve jobs for American workers," id., at 194, and n. 8
(internal quotation marks omitted), we held that the regulation was
"wholly consistent with this established concern of immigration law
and thus squarely within the scope of the Attorney General's
statutory authority."
Ibid. Finally, in
Witkovich,
the Court construed a provision of the Immigration and Nationality
Act which made it a criminal offense for an alien subject to
deportation to willfully fail to provide to the Attorney General
"'information ... as to his nationality, circumstances, habits,
associations, and activities, and such other information ... as the
Attorney General may deem fit and proper.'" 353 U. S., at 195.
Noting that "issues touching liberties that the Constitution
safeguards, even for an alien 'person,' would fairly be
335
raised on the Government's [broad] view of the statute," we held
that the statute merely authorized inquiries calculated to
determine the continued availability for departure of aliens whose
deportation was overdue.
Id., at 201-202.
The majority holds that it was within the Attorney General's
authority to determine that parents, guardians, and certain
relatives are "presumptively appropriate custodians" for the
juveniles that come into the INS' custody,
ante, at 310, and
therefore to detain indefinitely those juveniles who are without
one of the "approved" custodians.22 In my view, however, the
guiding principles articulated in
Carlson, NCIR, and
Witkovich compel the opposite conclusion.
Congress has spoken quite clearly on the question of the plight
of juveniles that come into federal custody. As explained above, §
504 of the Juvenile Justice and Delinquency Prevention Act of 1974
demonstrates Congress' clear preference for release, as opposed to
detention. See S. Rep. No.
22 While the regulation provides that release can be granted to
a broader class of custodians in "unusual and compelling
circumstances," the practice in the Western Region after the 1984
order, but before the issuance of the injunction, was to exercise
that discretion only in the event of medical emergency. See Federal
Defendants' Responses to Plaintiffs' Second Set of Interrogatories
(CD Cal., Jan. 30, 1986), pp. 11-12. At oral argument, counsel for
petitioners suggested that "extraordinary and compelling
circumstances" might include the situation where a godfather has
lived and cared for the child, has a kind of family relationship
with the child, and is in the process of navigating the state
bureaucracy in order to be appointed a guardian under state law.
Tr. of Oral Arg. 54. Regardless of the precise contours of the
exception to the INS' sweeping ban on discretion, it seems fair to
conclude that it is meant to be extremely narrow.
There is nothing at all "puzzling,"
ante, at 312, n. 7,
in respondents' objection to the INS' requirement that would-be
custodians apply for and become guardians in order to assume
temporary care of the juveniles in INS custody. Formal state
guardianship proceedings, regardless of how appropriate they may be
for determinations relating to
permanent custody, would
unnecessarily prolong the detention of these children. What
is puzzling is that the Court acknowledges, see
ibid., but then ignores the fact that were these children in
state custody, they would be released to "other responsible
adults" as a matter of course. See n. 7,
supra.
336
93-1011, p. 56 (1974) ("[Section 504] establishes a presumption
for release of the juvenile").23 And, most significantly for this
case, it demonstrates that Congress has rejected the very
presumption that the INS has made in this case; for under the Act
juveniles are not to be detained when there is a "responsible
party," 18 U. S. C. § 5034, willing and able to assume care for the
child.24 It is no retort that § 504 is directed at citizens,
whereas the INS' regulation is directed at aliens,
ante, at
305-306, 312-313, n. 8; Reply Brief for Peti-
23 As I have already noted, the 1938 Federal Juvenile
Delinquency Act authorized the magistrate to release an arrested
juvenile "upon his own recognizance or that of
some responsible
person," § 5,52 Stat. 765 (emphasis added). This language was
retained in the 1948 Act, see 62 Stat. 858, and amended to its
present form in 1974. The Senate Report on the 1974 bill stated
that it "also amends the Federal Juvenile Delinquency Act,
virtually unchanged for the past thirty-five years, to provide
basic procedural rights for juveniles who come under Federal
jurisdiction and to bring Federal procedures up to the standards
set by various model acts, many state codes and court decisions."
S. Rep. No. 93-1011, p. 19 (1974). Juveniles arrested by the INS
are, of course, within the category of "juveniles who come under
Federal jurisdiction."
24 I find this evidence of congressional intent and
congressional policy far more significant than the fact that
Congress has made the unexceptional determination that state human
service agencies should playa role in the permanent resettlement of
refugee children,
ante, at 313, n. 8 (citing 8 U. S. C. §
1522(d)(2)(B)), and orphans adopted abroad by United States
citizens,
ante, at 313, n. 8 (citing 8 U. S. C. § 1154(d)).
This case is not about the
permanent settlement of alien
children, or the establishment or
permanent legal custody
over alien children. It is about the
temporary detention of
children that come into federal custody, which is precisely the
focus of § 504 of the Juvenile Justice and Delinquency Prevention
Act of 1974.
Furthermore, the Court is simply wrong in asserting that the
INS' policy is rooted in the "universally accepted presumptio[n] as
to the custodial competence of parents and close relatives,"
ante, at 313, n. 8. The flaw in the INS' policy is not that
it prefers parents and close relatives over unrelated adults, but
that it prefers government detention over release to responsible
adults. It is that presumption-that detention is better or more
appropriate for these children than release to unrelated
responsible adults-that is contrary to congressional policy.
337
tioners 5, n. 4. As explained above, the INS justifies its
policy as serving the best interests of the juveniles that come
into its custody. In seeking to dismiss the force of the Juvenile
Justice and Delinquency Act as a source of congressional policy,
the INS is reduced to the absurdity of contending that Congress has
authorized the Attorney General to treat allegedly illegal aliens
better than American citizens. In my view, Congress has
spoken on the detention of juveniles, and has rejected the very
presumption upon which the INS relies.
There is a deeper problem with the regulation, however, one that
goes beyond the use of the
particular presumption at issue
in this case. Section 242(a) grants to the Attorney General the
discretion to detain individuals pending deportation. As we
explained in
Carlson, a "purpose to injure [the United
States] could not be imputed generally to all aliens subject to
deportation, so discretion was placed by the 1950 Act in the
Attorney General to detain aliens without bail .... " 342 U. S., at
538. In my view, Congress has not authorized the INS to rely on
mere presumptions as a substitute for the exercise of that
discretion.
The Court's analysis in
Carlson makes that point clear.
If ever there were a factual predicate for a "reasonable
presumptio[n],"
ante, at 313, it was in that case, because
Congress had expressly found that communism posed a "clear and
present danger to the security of the United States," and that mere
membership in the Communist Party was a sufficient basis for
deportation.25 Yet, in affirming the Attorney
25 The Internal Security Act of 1950 was based on explicit
findings regarding the nature of the supposed threat posed by the
worldwide Communist conspiracy. The Communist Party in the United
States, Congress found, "'is an organization numbering thousands of
adherents, rigidly and ruthlessly disciplined ... [a]waiting and
seeking to advance a moment when the United States may be so far
extended by foreign engagements, so far divided in counsel, or so
far in industrial or financial straits, that overthrow of the
Government of the United States by force and violence may seem
possible of achievement ... .''' 342 U. S., at 535, n. 21 (quoting
§ 2(15) of the Internal Security Act of 1950).
338
General's detention of four alien Communists, the Court was
careful to note that the Attorney General had not merely relied on
a presumption that alien Communists posed a risk to the United
States, and that therefore they should be detained, but that the
detention order was grounded in "evidence of membership
plus
personal activity in supporting and extending the Party's
philosophy concerning violence," 342 U. S., at 541 (emphasis
added). In fact, the Court expressly noted that "[t]here is no
evidence or contention that all persons arrested as deportable
under the ... Internal Security Act for Communist membership are
denied bail," and that bail is allowed "in the large majority of
cases."
Id., at 541-542.
By the same reasoning, the Attorney General is not authorized,
in my view, to rely on a presumption regarding the suitability of
potential custodians as a substitute for determining whether there
is, in fact, any reason that a
particular juvenile should be
detained. Just as a "purpose to injure could not be imputed
generally to all aliens," id., at 538, the unsuitability of certain
unrelated adults cannot be imputed generally to all adults so as to
lengthen the detention to which these children are subjected. The
particular circumstances facing these juveniles are too diverse,
and the right to be free from government detention too precious, to
permit the INS to base the crucial determinations regarding
detention upon a mere presumption regarding "appropriate
custodians,"
ante, at 310. I do not believe that Congress
intended to authorize such a policy.26
26 Neither
NCIR, 502 U. S. 183 (1991), nor
Heckler v.
Campbell, 461 U. S. 458, 467
(1983), upon which the majority relies for the proposition that the
INS can rely on "reasonable presumptions" and "generic rules,"
ante, at 313, are to the contrary. The Court mentioned the
word "presumption" in a footnote in the
NCIR case, 502 U.
S., at 196, n. 11, merely in noting that the regulation at issue-a
broad rule requiring that all release bonds contain a condition
forbidding unauthorized employment-seemed to presume that
undocumented aliens taken into INS custody were not, in fact,
author-
339
And finally, even if it were not clear to me that the Attorney
General has exceeded her authority under § 242(a), I would still
hold that § 242(a) requires an individualized deter-
ized to work. We said that such a
de facto presumption
was reasonable because the vast majority of aliens that come into
INS custody do not have such authorization, and because the
presumption was easily rebutted.
Ibid. To the extent that
case has any bearing on the INS' use of presumptions, it merely
says that the INS may use some easily rebuttable presumptions in
identifying the class of individuals subject to its regulations-in
that case, aliens lacking authorization to work. Once that class is
properly identified, however, the issue becomes whether the INS can
use mere presumptions as a basis for making fundamental decisions
about detention and freedom. On
that question,
NCIR
is silent; for the regulation at issue there was not based on a
presumption at all. It simply provided that an alien who violates
American law by engaging in unauthorized employment also violates
the terms of his release from INS custody.
Id., at 185.
Heckler v.
Campbell, 461 U. S. 458 (1983),
presents a closer analog to what the INS has done in this case, but
only as a matter of logic, for the factual differences between the
governmental action approved in
Heckler and the INS' policy
in this case renders the former a woefully inadequate precedent to
support the latter. In
Heckler, the Court approved the use
of pre-established medical-vocational guidelines for determining
Social Security disability benefits, stating:
"The Court has recognized that even where an agency's enabling
statute expressly requires it to hold a hearing, the agency may
rely on its rulemaking authority to determine issues that do not
require case-by-case consideration. A contrary holding would
require the agency continually to relitigate issues that may be
established fairly and efficiently in a single rulemaking."
Id., at 467 (citations omitted).
Suffice it to say that the determination as to the suitability
of a temporary guardian for a juvenile, unlike the determination as
to the nature and type of jobs available for an injured worker,
is an inquiry that requires case-by-case consideration, and
is not one that may be established fairly and efficiently in
a single rulemaking. More importantly, the determination as to
whether a child should be released to the custody of a friend,
godparent, or cousin, as opposed to being detained in a government
institution, implicates far more fundamental concerns than whether
an individual will receive a particular government benefit. In my
view, the Court's reliance on
Heckler v.
Campbell
cuts that case from its administrative law
340
mination as to whether detention is necessary when a juvenile
does not have an INS-preferred custodian available to assume
temporary custody. "'When the validity of an act of the Congress is
drawn in question, and even if a serious doubt of constitutionality
is raised, it is a cardinal principle that this Court will first
ascertain whether a construction of the statute is fairly possible
by which the question may be avoided.'"
Witkovich, 353 U.
S., at 201-202 (quoting
Crowell v.
Benson, 285 U. S. 22, 62 (1932)).
The detention of juveniles on the basis of a general presumption as
to the suitability of particular custodians without an
individualized determination as to whether that presumption bears
any relationship at all to the facts of a particular case
implicates an interest at the very core of the Due Process Clause,
the constitutionally protected interest in freedom from bodily
restraint. As such, it raises even more serious constitutional
concerns than the INS policy invalidated in
Witkovich.
Legislative grants of discretionary authority should be construed
to avoid constitutional issues and harsh consequences that were
almost certainly not contemplated or intended by Congress. Unlike
my colleagues, I would hold that the Attorney General's actions in
this case are not authorized by § 242(a).
III
I agree with JUSTICE O'CONNOR that respondents "have a
constitutionally protected interest in freedom from institutional
confinement ... [that] lies within the core of the Due Process
Clause."
Ante, at 315 (concurring opinion). Indeed, we said
as much just last Term. See
Foucha v.
Louisiana,
504 U. S. 71, 80
(1992) ("Freedom from bodily restraint has always been at the core
of liberty protected by the Due Process Clause from arbitrary
governmental action").
Ibid.
moorings. I simply do not believe that Congress authorized the
INS to determine, by rulemaking, that children are better off in
government detention facilities than in the care of responsible
friends, cousins, godparents, or other responsible parties.
341
("We have always been careful not to 'minimize the importance
and fundamental nature' of the individual's right to liberty")
(quoting
United States v.
Salerno, 481 U. S. 739, 750
(1987)).
I am not as convinced as she, however, that "the Court today
does not hold otherwise."
Ante, at 315 (concurring opinion).
For the children at issue in this case
are being confined in
government-operated or government-selected institutions, their
liberty
has been curtailed, and yet the Court defines the
right at issue as merely the "alleged right of a child who has no
available parent, close relative, or legal guardian, and for whom
the government is responsible, to be placed in the custody of a
willing-and-able private custodian rather than of a
government-operated or governmentselected child-care institution."
Ante, at 302. Finding such a claimed constitutional right to
be "nove[l],"
ante, at 303, and certainly not "fundamental,"
ante, at 305, 311, the Court concludes that these juveniles'
alleged "right" to be released to "other responsible adults" is
easily trumped by the government's interest in protecting the
welfare of these children and, most significantly, by the INS'
interest in avoiding the administrative inconvenience and expense
of releasing them to a broader class of custodians.
Ante, at
305, 311-312.
In my view, the only "novelty" in this case is the Court's
analysis. The right at stake in this case is not the right of
detained juveniles to be
released to one particular
custodian rather than another, but the right not to be
detained in the first place. "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. It
is the government's burden to prove that detention is necessary,
not the individual's burden to prove that release is justified.
And, as JUSTICE O'CONNOR explains, that burden is not easily met,
for when government action infringes on this most fundamental of
rights, we have scrutinized such conduct to ensure that the
detention serves both "legitimate and com-
342
pelling" interests, id., at 749, and, in addition, is
implemented in a manner that is "carefully limited" and "narrowly
focused."
Foucha, 504 U. S., at 81.27
27 A comparison of the detention regimes upheld in
Salerno and struck down in
Foucha is illustrative. In
Salerno, we upheld against due process attack provisions of
the Bail Reform Act of 1984 which allow a federal court to detain
an arrestee before trial if the Government can demonstrate that no
release conditions will "'reasonably assure ... the safety of any
other person and the community.'''
Salerno, 481 U. S., at
741. As we explained in
Foucha:
"The statute carefully limited the circumstances under which
detention could be sought to those involving the most serious of
crimes ... , and was narrowly focused on a particularly acute
problem in which the government interests are overwhelming. In
addition to first demonstrating probable cause, the Government was
required, in a full-blown adversary hearing, to convince a neutral
decisionmaker by clear and convincing evidence that no conditions
of release can reasonably assure the safety of the community or any
person .... Furthermore, the duration of confinement under the Act
was strictly limited. The arrestee was entitled to a prompt
detention hearing and the maximum length of pretrial detention was
limited by the stringent limitations of the Speedy Trial Act." 504
U. S., at 81 (citations and internal quotation marks omitted).
By contrast, the detention statute we struck down in
Foucha was anything but narrowly focused or carefully
limited. Under Louisiana law, criminal defendants acquitted by
reason of insanity were automatically committed to state
psychiatric institutions, regardless of whether they were then
insane, and held until they could prove that they were no longer
dangerous.
Id., at 73. We struck down the law as a violation
of the substantive component of the Due Process Clause of the
Fourteenth Amendment:
"Unlike the sharply focused scheme at issue in
Salerno,
the Louisiana scheme of confinement is not carefully limited. Under
the state statute, Foucha is not now entitled to an adversary
hearing at which the State must prove by clear and convincing
evidence that he is demonstrably dangerous to the community.
Indeed, the State need prove nothing to justify continued
detention, for the statute places the burden on the detainee to
prove that he is not dangerous ....
"It was emphasized in
Salerno that the detention we found
constitutionally permissible was strictly limited in duration.
Here, in contrast,
343
On its face, the INS' regulation at issue in this case cannot
withstand such scrutiny.28 The United States no doubt has a
substantial and legitimate interest in protecting the welfare of
juveniles that come into its custody.
Schall v.
Martin,
467 U.
S. 253, 266 (1984). However, a blanket rule that simply
presumes that detention is more appropriate than release to
responsible adults is not narrowly focused on serving that
interest. Categorical distinctions between cousins and uncles, or
between relatives and godparents or other responsible persons, are
much too blunt instruments to justify wholesale deprivations of
liberty. Due process demands more, far more.29 If the Government is
going to detain juveniles in order to protect their welfare, due
process requires that it demonstrate,
on an individual
basis, that detention in fact serves that interest. That is the
clear command of our cases. See,
e. g., Foucha, 504 U. S.,
at 81 (finding due process violation when individual who is
detained on grounds
the State asserts that ... [Foucha] may be held indefinitely."
Id., at 81-82.
As explained in the text, the INS' regulation at issue in this
case falls well on the
Foucha side of the
SalernolFoucha divide.
28 Because this is a facial challenge, the Court asserts that
respondents cannot prevail unless there is "'no set of
circumstances ... under which the [regulation] would be valid.'''
Ante, at 301. This is a rather puzzling pronouncement. Would
a facial challenge to a statute providing for imprisonment of all
alien children without a hearing fail simply because there is a set
of circumstances in which at least one such alien should be
detained? Is the Court saying that this challenge fails because the
categorical deprivation of liberty to the members of the respondent
class may turn out to be beneficial to some? Whatever the Court's
rhetoric may signify, it seems clear to me, as I explain in the
text, that detention for an insufficient reason without adequate
procedural safeguards is a deprivation of liberty without due
process of law.
29 In objecting to this statement, see
ante, at 311, n.
6, the majority once again mischaracterizes the issue presented in
this case. As explained above, see n. 24,
supra, the INS can
of course favor release of a juvenile to a parent or close relative
over release to an unrelated adult. What the INS cannot do, in my
view, is prefer
detention over
release to a
responsible adult, a proposition that hardly "revolutionize[s]" our
family law.
344
of "dangerousness" is denied right to adversary hearing in
"which the State must prove by clear and convincing evidence that
he is demonstrably dangerous to the community");
Salerno,
481 U. S., at 742 (finding no due process violation when detention
follows hearing to determine whether detention is necessary to
prevent flight or danger to community);
Schall v.
Martin, 467 U. S., at 263 (same; hearing to determine
whether there is "serious risk" that if released juvenile will
commit a crime);
Gerstein v.
Pugh, 420 U. S. 103, 126 (1975)
(holding that Fourth Amendment requires judicial determination of
probable cause as prerequisite to detention);
Greenwood v.
United States, 350 U. S. 366, 367 (1956)
(upholding statute in which individuals charged with or convicted
of federal crimes may be committed to the custody of the Attorney
General after judicial determination of incompetency);
Carlson v.
Landon, 342 U. S., at 541 (approving
Attorney General's discretionary decision to detain four alien
Communists based on their membership and activity in Communist
Party);
Ludecke v.
Watkins, 335 U. S. 160, 163, n. 5
(1948) (upholding Attorney General's detention and deportation of
alien under the Alien Enemy Act; finding of "dangerousness" based
on evidence adduced at administrative hearings). See also
Stanley v.
Illinois, 405 U. S. 645, 657-658
(1972) (State cannot rely on presumption of unsuitability of unwed
fathers; State must make individualized determinations of parental
fitness);
Carrington v.
Rash, 380 U. S. 89, 95-96 (1965)
(striking down blanket exclusion depriving all servicemen stationed
in State of right to vote when interest in limiting franchise to
bona fide residents could have been achieved by assessing a
serviceman's claim to residency on an individual basis).30
30 There is, of course, one notable exception to this long line
of cases:
Korematsu v.
United States, 323 U. S. 214 (1944), in
which the Court upheld the exclusion from particular "military
areas" of all persons of Japanese ancestry without a determination
as to whether any particular individual actually posed a threat of
sabotage or espionage.
Id., at 215-
345
If, in fact, the Due Process Clause establishes a powerful
presumption against unnecessary official detention that is not
based on an individualized evaluation of its justification, why has
the INS refused to make such determinations? As emphasized above,
the argument that detention is more appropriate for these children
than release to responsible adults is utterly lacking in support,
in either the history of this litigation, or expert opinion.
Presumably because of the improbability of the INS' asserted
justification for its policy, the Court does not rely on it as the
basis for upholding the regulation. Instead, the Court holds that
even if detention is not really
better for these juveniles
than release to responsible adults, so long as it is "good enough,"
ante, at 305, the INS need not spend the time and money that
would be necessary to actually serve the "best interests" of these
children.
Ante, at 304-305. In other words, so long as its
cages are gilded, the INS need not expend its administrative
resources on a program that would better serve its asserted
interests and that would not need to employ cages at all.
The linchpin in the Court's analysis, of course, is its narrow
reading of the right at stake in this case. By characterizing it as
some insubstantial and nonfundamental right to be re-
216. The Court today does not cite that case, but the Court's
holding in
Korematsu obviously supports the majority's
analysis, for the Court approved a serious infringement of
individual liberty without requiring a case-by-case determination
as to whether such an infringement was in fact necessary to effect
the Government's compelling interest in national security. I
understand the majority's reluctance to rely on
Korematsu.
The exigencies of war that were thought to justify that categorical
deprivation of liberty are not, of course, implicated in this case.
More importantly, the recent congressional decision to pay
reparations to the Japanese-Americans who were detained during that
period, see Restitution for World War II Internment of Japanese
Americans and Aleuts, 102 Stat. 903, suggests that the Court should
proceed with extreme caution when asked to permit the detention of
juveniles when the Government has failed to inquire whether, in any
given case, detention actually serves the Government's interest in
protecting the interests of the children in its custody.
346
leased to an unrelated adult, the Court is able to escape the
clear holding of our cases that "administrative convenience" is a
thoroughly inadequate basis for the deprivation of core
constitutional rights.
Ante, at 311 (citing, for comparison,
Stanley v.
Illinois, 405 U. S. 645 (1972)). As
explained above, however, the right at issue in this case is not
the right to be released to an unrelated adult; it is the right to
be free from Government confinement that is the very essence of the
liberty protected by the Due Process Clause. It is a right that
cannot be defeated by a claim of a lack of expertise or a lack of
resources. In my view, then,
Stanley v.
Illinois is
not a case to look to for comparison, but one from which to derive
controlling law. For in
Stanley, we flatly rejected the
premise underlying the Court's holding today.
In that case, we entertained a due process challenge to a
statute under which children of unwed parents, upon the death of
the mother, were declared wards of the State without any hearing as
to the father's fitness for custody. In striking down the statute,
we rejected the argument that a State's interest in conserving
administrative resources was a sufficient basis for refusing to
hold a hearing as to a father's fitness to care for his
children:
"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 disdains present realities in deference to past
formalities, it needlessly risks running roughshod over the
important interests of both parent and child. I t therefore cannot
stand.
"Bell v. Burson[, 402 U. S. 535 (1971),]
held that the State could not, while purporting to be concerned
with fault in suspending a driver's license, deprive a citizen of
his license without a hearing that would assess fault. Absent
fault, the State's declared interest was so attenuated that
administrative convenience was insufficient to excuse a hearing
where evidence of fault could be con-
347
sidered. That drivers involved in accidents, as a statistical
matter, might be very likely to have been wholly or partially at
fault did not foreclose hearing and proof on specific cases before
licenses were suspended.
"We think the Due Process Clause mandates a similar result here.
The State's interest in caring for Stanley's children is de
minimis if Stanley is shown to be a fit father. It insists on
presuming rather than proving Stanley's unfitness solely because it
is more convenient to presume than to prove. Under the Due Process
Clause that advantage is insufficient to justify refusing a father
a hearing when the issue at stake is the dismemberment of his
family." Id., at 656-658.
Just as the State of Illinois could not rely on the
administrative convenience derived from denying fathers a hearing,
the INS may not rely on the fact that "other concerns ... compete
for public funds and administrative attention,"
ante, at
305, as an excuse to keep from doing what due process commands:
determining, on an individual basis, whether the detention of a
child in a government-operated or governmentsponsored institution
actually serves the INS' asserted interest in protecting the
welfare of that child.31
Ultimately, the Court is simply wrong when it asserts that
"freedom from physical restraint" is not at issue in this case.
That is precisely what is at issue. The Court's assumption that the
detention facilities used by the INS conform to the
310f course, even as a factual matter the INS' reliance on its
asserted inability to conduct home studies because of a lack of
resources or expertise as a justification for its wholesale
detention policy is unpersuasive. It is perfectly clear that the
costs of detention far exceed the cost of the kinds of inquiry that
are necessary or appropriate for temporary release determinations.
See n. 18, supra. Moreover, it is nothing less than perverse that
the Attorney General releases juvenile
citizens to the
custody of "other responsible adults" without the elaborate "home
studies" allegedly necessary to safeguard the juvenile's interests
but deems such studies necessary before releasing
noncitizens to the custody of "other responsible
adults."
348
standards set forth in the partial settlement in this case has
nothing to do with the fact that the juveniles who are not released
to relatives or responsible adults are held in detention
facilities. They do not have the "freedom from physical restraint"
that those who are released do have. That is what this case is all
about. That is why the respondent class continues to litigate.
These juveniles do not want to be committed to institutions that
the INS and the Court believe are "good enough" for aliens simply
because they conform to standards that are adequate for the
incarceration of juvenile delinquents. They want the same kind of
liberty that the Constitution guarantees similarly situated
citizens. And as I read our precedents, the omission of any
provision for individualized consideration of the best interests of
the juvenile in a rule authorizing an indefinite period of
detention of presumptively innocent and harmless children denies
them precisely that liberty.
I respectfully dissent.
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