Justia Federal District Court Opinions

This is a class action challenging an INS policy that requires governmental detention of children during the pendency of deportation proceedings. That policy is now codified at 8 C.F.R. § 242.24 (1988). Detention is required unless there is an adult relative or legal guardian available to assume custody, even where there is another responsible adult willing and able to care for the child and able to ensure the child's attendance at a deportation hearing. The INS acknowledges that the regulation is not necessary to ensure such attendance. It does not contend that the release of children so detained would create a threat of harm to the children or to anyone else.

The district court held that a blanket detention policy in such circumstances is unlawful. It entered an order that required, where feasible, release to a responsible party of children who would otherwise have been released if a parent or other relative had come forward. The order further required an administrative hearing for each child to determine whether, and under what conditions, the child should be released.

The INS and Attorney General appealed and a divided panel reversed the district court's holding that the detention policy was unlawful. The panel remanded for the district court to determine what procedural protections would be appropriate under Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to determine whether there was sufficient cause to detain a juvenile pending further proceedings. A majority of active judges voted to rehear the case en banc because of the importance of the issues involved and the impact of the policy on large numbers of children arrested as illegal aliens in the Western United States. We now affirm the district court's order.

This case concerns the treatment of children who are arrested on suspicion of being illegal aliens but who have not yet been determined to be deportable. Because the children are persons present in the United States they must be afforded procedural protections in conjunction with any deprivation of liberty. Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976).

Plenary authority to determine what categories of aliens may lawfully reside in the United States and what categories must be deported resides in the Congress. Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477, 52 L.Ed.2d 50 (1977). Congress has delegated the duties of the administration of the immigration laws to the Attorney General, who oversees the work of the Immigration and Naturalization Service. 8 U.S.C. § 1103(a) (granting the Attorney General authority to "establish such regulations ... as he deems necessary" to administer and enforce the immigration laws).

Only one relevant statutory provision addresses the release or detention of aliens between the time of their arrest and the determination of deportability or non-deportability. That statute is 8 U.S.C. § 1252(a)(1), which in all material respects has remained the same for the last four decades. It presently provides:

Pending a determination of deportability ... [an] alien may, upon warrant of the Attorney General, be arrested and taken into custody.... [A]ny such alien ... may, in the discretion of the Attorney General and pending such final determination of 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.

To implement this statute, the Attorney General promulgated regulations in 1963, which are still in effect, providing that aliens arrested on the suspicion of deportability could be released until further proceedings upon a determination that such release was appropriate, and under conditions determined by the INS. 8 C.F.R. § 242.2(c)(2). Upon request, an alien is entitled to a hearing before a disinterested officer, an immigration judge, to determine eligibility for release. 8 C.F.R. § 242.2(d).

In 1984, the Western Region of the INS adopted a separate policy for minors. That policy provided that minors would be released only to a parent or lawful guardian. In his memorandum implementing this policy, former Western Region Commissioner Harold Ezell stated that the limits on release were "necessary to assure that the minor's welfare and safety is maintained and that the agency is protected against possible legal liability." The policy also provided for release to another responsible adult "in unusual and extraordinary cases, at the discretion of a District Director or Chief Patrol Agent." The Regional Commissioner did not refer to any problems that had arisen under existing regulations. He did not cite any instances of harm which had befallen children released to unrelated adults, nor did he make any reference to suits that had been filed against the INS arising out of allegedly improper releases. It has remained undisputed throughout this proceeding that the blanket detention policy is not necessary to ensure the attendance of children at deportation hearings.

Implementation of this policy sparked concern in a number of quarters because the policy resulted in the governmental detention of a large number of children who posed no apparent risk to the community and whose presence at their respective hearings could be ensured by responsible individuals. Various individuals and groups, including many appearing as amici in this rehearing en banc, were among those who reacted adversely to the new policy. These included church groups, Amnesty International, Lawyers' Committee for Human Rights, International Human Rights Law Group and Defense for Children International.

During the course of this litigation, the INS codified the regional policy into the nationally applicable regulation now at issue. In promulgating that regulation, the INS did not refer to any particular problem that had arisen in the course of administering the immigration laws as they affected children. Rather, it simply cited the "dramatic increase in the number of juvenile aliens" found unaccompanied by a parent, guardian or a adult relative. 53 Fed.Reg. 17,449 (May 17, 1988). The regulation allows release to a somewhat broader class of people than did the Western Region policy, i.e., a variety of adult relatives as opposed to just parents and legal guardians, but it prohibits release in cases where other responsible adults are available to take custody of the minor. It permits release to unrelated adults only in "unusual and compelling circumstances." 8 C.F.R. § 242.24.¹

In promulgating the regulation, the INS recognized that the principal factor bearing on release or detention is the likelihood of appearance at future proceedings. It also recognized that the policy of preventing release to responsible adults was not related to the issue of flight risk or the administration of any provision of the immigration laws. Its principal justification for the detention rule was the theory that unless the INS were able to do a comprehensive "home study" of the proposed custodian, the child's own interests would be better served by detention. The INS stated:

As with adults, the decision of whether to detain or release a juvenile depends on the likelihood that the alien will appear for all future proceedings. However, with respect to juveniles a determination must also be made as to whose custody the juvenile should be released. On the one hand, the concern for the welfare of the juvenile will not permit release to just any adult. On the other hand, the Service has neither the expertise nor the resources to conduct home studies for placement of each juvenile released.

53 Fed.Reg. at 17,449.

In response to comments suggesting that release to responsible adults should be permitted on a regular basis, the INS stated that it did not have the resources or expertise necessary to make a determination, in each case, whether release to the adult in question would be in the child's best interests. 53 Fed.Reg. at 17,449. The INS did not state any basis for its assumption that home studies would have to be conducted. Nor did the INS indicate that it had conducted such studies before releasing children to unrelated adults prior to the promulgation of this policy. Commenters also complained that the regulation's provision that release to unrelated adults could occur in "unusual and compelling circumstances" was too vague to provide meaningful guidance. The INS responded that such vagueness was deliberate, designed to provide "the broadest possible discretion" to INS officials. Id. Finally, commenters suggested that the INS should permit individuals or organizations to act as intermediaries between the INS and the parent or guardian of an alien child, to allow for release where that parent or guardian is afraid to come forward personally because of his or her own illegal alien status. After pointing out that "[t]his proposal raises some of the same concerns that release to any reliable adult raises, for example, the inability of the Service to perform home studies," the INS concluded that it would "continue to consider the proposal," but would promulgate the regulation without such a provision at this time. Id. at 17,450. The final regulation was approved on May 17, 1988.

The named plaintiffs, including named plaintiff Jenny Flores, filed the action on July 11, 1985, challenging the Western Region's policy then in effect. These named plaintiffs represented a class of minors who do not pose a risk of flight or harm to the community, and have responsible third parties available to receive them, and are thus being detained only because no adult relative or legal guardian is available to take custody of them. Their complaint contained a number of claims. In the panel majority opinion, Judge Wallace described them as follows:

The first claim alleged that the Western Region's bond release condition violated the Immigration & Nationality Act (INA), 8 U.S.C. § 1101 et seq., the Administrative Procedure Act (APA), 5 U.S.C. § 552 et seq., the fifth amendment's due process clause and equal protection guarantee, and international law. Flores's second claim challenged the INS's failure to provide (1) "prompt written notice" to the detainee that the bond release condition had been imposed, and (2) "prompt, mandatory, neutral and detached" review following arrest of (a) whether probable cause to arrest existed, (b) whether imposition of the bond condition was necessary to ensure future appearance, and (c) whether any available adult was suitable to ensure the detained juvenile's well-being and appearance at future proceedings. The second claim alleged that these failures violated due process and international law. Plaintiffs' last five claims, which challenged various conditions of the minors' confinement, ... were resolved by settlement or motion....

Flores v. Meese, 934 F.2d 991, 995 (9th Cir.1990) (as amended). After the policy originally in question was codified as a regulation, this litigation was maintained as a challenge to that regulation.

Between the time that the complaint was filed and the promulgation of the national regulation implementing the Western Region policy, the district court disposed of several motions. With respect to the limitation on release to parents or legal guardians, the court ruled the provision violated equal protection. It agreed with Flores that the INS' practice of permitting alien minors in exclusion proceedings to be released to a broader class of adults than those in deportation proceedings was not supported by a rational justification. See 8 C.F.R. § 212.5(a)(2)(ii) (1987) (alien minors in exclusion proceedings could be released to adult relatives or to non-relatives). When the INS promulgated the regulation here at issue, it amended the regulation regarding release of children in exclusion proceedings to incorporate by reference the same restrictions as those operative in the deportation context, thus mooting the district court's ruling on this issue. See 8 C.F.R. § 212.5(a)(2)(ii) (1988). The court still had under advisement various motions relating to the procedural implementation of the INS' policy when the INS promulgated the official regulation.

Upon promulgation of the regulation, the district court asked for supplemental briefs and then entered an order granting summary judgment to the plaintiff class. The order invalidated the blanket detention of minors where a responsible adult could ensure attendance at the deportation hearing, and it required a hearing before a neutral and detached official in each case to determine whether release was appropriate and the conditions of release. The order provided:

1. Defendants ... shall release any minor otherwise eligible for release on bond or recognizance to his parents, guardian, custodian, conservator, or other responsible adult party. Prior to any such release, the defendants may require from such persons a written promise to bring such minor before the appropriate officer or court when requested by the INS.

2. Whenever a minor is released as aforesaid, the minor shall be promptly advised in writing in a language he understands of any restrictions imposed upon his release.

3. Any minor taken into custody shall be forthwith afforded an administrative hearing to determine probable cause for his arrest and the need for any restrictions placed upon his release. Such hearing shall be held with or without a request by or on behalf of the minor.

The Attorney General and INS appealed. The majority of the panel for our court vacated the first paragraph of the district court's order, holding that the detention policy did not implicate any of the plaintiffs' fundamental rights, and that due deference to the INS' choices in implementing congressional immigration policy required approval of the INS detention policy restricting release. The majority characterized the right claimed by the class as a substantive due process right "to be released to an unrelated adult." Slip op. at 10788. Finding that the Constitution does not guarantee such a right, the majority applied a highly deferential standard of review to what it saw as an exercise of the INS' unique expertise and authority.

In considering the procedural aspects of the district court's order as embodied in paragraph three, the panel majority remanded. It rejected the appellees' contention that the fourth amendment requirement of review by a neutral and detached magistrate of probable cause for arrest, as the Supreme Court has enunciated in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), was applicable in the context of civil deportation proceedings. Rather, it chose as the appropriate model for procedural due process evaluation the balancing test outlined in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). That test would involve a balancing of the children's interest in release to a responsible adult, which the majority viewed as not constitutionally protected, against the governmental interests, which it viewed as entitled to substantial deference.

Judge Fletcher, in dissent, described the case as "among the most disturbing I have confronted in my years on the court." 934 F.2d at 1013. She characterized the district court's order as a "simple, sensible, minimally intrusive direction," id. at 1014, to protect the fundamental liberty interests of the plaintiffs who, in her view, should not be denied liberty when their "only possible offense is their alienage." Id. at 1013.

In their petition for rehearing en banc, plaintiffs contend, inter alia, that the panel majority erred in failing to recognize their fundamental interest in liberty. It also erred, they argue, in holding that, under either Gerstein v. Pugh or Mathews v. Eldridge, any procedure other than an individual hearing before an independent officer could provide adequate protections for the right at stake.

Before us for decision are three principal sets of issues. The first involves the detention policy itself and whether it affects any constitutionally protected liberty interests of the plaintiffs. The second involves the nature of the federal governmental interest furthered by such a policy, the justifications set forth by the agency for such a policy and the extent to which we must defer to the agency in the promulgation of such policies. The third is whether, after examination of these issues, the appropriate procedural model for the determinations at issue is the criminal model of Gerstein v. Pugh or the civil model of Mathews v. Eldridge, or indeed whether, in the context of this case, it makes any difference whether a criminal or civil model is chosen. Our discussion focuses on each of these areas in turn.

Defendants maintain that the plaintiffs' liberty interests are limited because of their status as aliens and children. We therefore examine in some detail the manner in which courts and Congress deal with the questions of rights of aliens and children.

The Constitution protects the rights of aliens to due process and equal protection. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Even illegal aliens enjoy the due process protections of the fifth amendment. Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976). It is now well established that under these cases any person present in the United States is entitled to equal justice before the law, including procedural protections in conjunction with any deprivation of liberty, and freedom from invidious discrimination. See C. Antieau, 1 Modern Constitutional Law §§ 9:25-9:27 (1969 & Supp.1991).

A crucial component of the right to personal liberty is the ability to test the legality of any direct restraint that the government seeks to place on that liberty. This ability is guaranteed through the availability of the writ of habeas corpus to challenge the lawfulness of one's imprisonment. The right to seek such a writ has its roots in English law that predates the formation of this nation. See Habeas Corpus Act of 1679, 31 Car. II Ch. 2. It was incorporated among the first rights guaranteed by the United States Constitution. U.S. Const. art. I, § 9. There thus can be no question that this right is a key part of the American legal system.

In any discussion of the constitutional guarantee of liberty, the importance of habeas corpus must not be understated. As one commentator has described it:

Over the centuries habeas corpus has been the common-law world's "freedom writ" by whose process the courts may require the production of all prisoners and inquire into the legality of their incarceration, failing which they have been set free. Of the writ of habeas corpus, the United States Supreme Court has appropriately noted: "There is no higher duty than to maintain it unimpaired."

1 Modern Constitutional Law § 5:148 at 436 (quoting Bowen v. Johnston, 306 U.S. 19, 26, 59 S.Ct. 442, 446, 83 L.Ed. 455 (1939)). For this reason, to assess the nature of an alien's liberty interest, it is appropriate to look to the extent courts have historically recognized such an interest through habeas corpus proceedings.

It has long been accepted that alienage does not prevent a person from testing the legality of confinement through habeas corpus. See Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140 (1896). Indeed, even a would-be immigrant who is prevented from landing in the United States and is, in that way, deprived of liberty "is doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful." Nishimura Ekiu v. United States, 142 U.S. 651, 660, 12 S.Ct. 336, 338, 35 L.Ed. 1146 (1892). Thus, the status of the plaintiff class in this case as aliens whose presence in this country might be illegal does not affect their right to put the government to its proof concerning the legality of their detention.

That the detention at issue here is a civil detention imposed in the course of administering the immigration laws does not alter the relevance of the principles of habeas corpus. Still the leading case involving a test of the legality of detention under immigration laws is Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952). In that case, the Supreme Court dealt with a petition for habeas corpus by aliens detained prior to deportation under the Internal Security Act of 1950, because of their membership in the Communist Party of the United States. Noting that "[d]eportation is not a criminal proceeding" and thus the detention at issue was administrative, not punitive, 342 U.S. at 538, 72 S.Ct. at 533, the Court nevertheless employed habeas corpus review as the appropriate means for the individual aliens to challenge their detention.

The petitioners in Carlson challenged their pre-deportation detention on the ground that there had been no sufficient showing that they presented an actual risk of flight or harm to the community if released pending further proceedings. Rather, they were denied release on a finding that each was an active member of the Communist party. This finding, they argued, was not sufficient to support detention. See 342 U.S. at 533-34, 72 S.Ct. at 530-31.

The Court rejected this argument on the ground that the decision to detain them based on their active membership in the Communist party was made through an exercise of the discretion delegated to the Attorney General under the immigration laws. The delegated discretion was to determine which aliens pose a threat of harm to the community. The Court held that detention based on Communist party membership and activity was not an abuse of that discretion. The Court noted that the evidence went "beyond unexplained membership and show[ed] a degree ... of participation in Communist activities." 342 U.S. at 541, 72 S.Ct. at 534. Because the Court also agreed with the INS that "the doctrines and practices of Communism clearly enough teach the use of force to achieve political control," id. at 535-36, 72 S.Ct. at 532, it found that the detention of the petitioners was proper since they posed "a menace to the public interest." Id. at 541, 72 S.Ct. at 535.

The Court was careful to observe, however, that the discretion of the Attorney General was not without bounds. The INS policy in Carlson did not amount to blanket detention. The Court pointed out that there was "no evidence or contention that all persons arrested as deportable ... for Communist membership are denied bail." Id. at 541-42, 72 S.Ct. at 535. It went on to note that the evidence before it indeed illustrated that release pending further proceedings was granted "in the large majority of cases." Id. at 542, 72 S.Ct. at 535.

The most recent comprehensive Supreme Court discussion of an individual's interest in liberty is set in the context of adults held in pretrial detention without regard to citizenship. United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The Court there recognized "the individual's strong interest in liberty," which it characterized as a "fundamental" right with which Congress could interfere only with a "careful delineation of the circumstances under which detention will be permitted...." 481 U.S. at 750-51, 107 S.Ct. at 2103. Detention was justified only by clear and convincing evidence that the arrestee presented "an identified and articulable threat to an individual or the community...." Id. at 751, 107 S.Ct. at 2103. Significantly, the Court drew a parallel between the detention at issue in Carlson and that challenged in Salerno by noting that the Carlson petitioners were permissibly detained during the pendency of deportation proceedings because they were "potentially dangerous." 481 U.S. at 748, 107 S.Ct. at 2102. It did not in any way suggest that aliens' liberty interests were any less fundamental than those of citizens.

History may have passed Carlson by in some respects, particularly in its assessment of the danger attending political activity, but the case, in significant respects relevant to this case, provides guidance. Carlson holds that under our Constitution and an Immigration Act materially the same as the current one, the INS cannot detain individuals without a particularized exercise of discretion through which it determines that detention of an individual would prevent harm to the community or further some other important governmental interest Congress has delegated to the INS. See also C. Gordon and S. Mailman, 1 Immigration Law and Procedure § 1.03[d] (1988) ("the alien in deportation proceedings may be detained or required to post bond only upon a finding that he is a threat to the national security or likely to abscond.").

Thus, we must hold that aliens have a fundamental right to be free from governmental detention unless there is a determination that such detention furthers a significant governmental interest. That right is secured by the Constitution in its enumerated guarantee of habeas corpus to all individuals, including aliens, to test the validity of their detention through judicial scrutiny of the basis for confinement at the hands of the government. See Salerno, 481 U.S. 739, 107 S.Ct. 2095; Carlson, 342 U.S. 524, 72 S.Ct. 525; Wong Wing, 163 U.S. 228, 16 S.Ct. 977.

The plaintiffs are not only aliens; they are also minors. The INS contends that this factor materially changes the nature of their liberty interest, thereby rendering the detention policy reasonable and appropriate. We therefore turn to the question of what effect the juvenile status of these plaintiffs may have on the analysis of their liberty interests and the protections that must be given to those interests.

The Constitution protects the rights of children to due process of law in conjunction with any deprivation of liberty. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). While a child accused of an offense may be subject to pretrial detention based on a determination that release is not safe for the child, such a determination has been held to meet the mandates of due process only where made by a neutral and detached official, with the justifications for detention clearly stated. Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984). This holding is in keeping with the general rule that freedom from institutional confinement should be the norm, from which any deviation must be supported with specific reasons. As one set of commentators has observed, a child's "right to be treated in the manner least restrictive to the child's liberty ... has its roots in the well-settled concept that, while constitutional rights may be restricted by the state for legitimate purposes, the restriction must be no greater than necessary to achieve these purposes." R. Horowitz and H. Davidson, Legal Rights of Children § 10.10 at 431 (1984). This proposition flows from the Supreme Court's general pronouncement that "even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose." Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960) (footnotes omitted). Under these principles, governmental confinement of a child to an institution should be a last resort.

Policies constructed to deal with the confinement of children at both the state and federal levels have recognized the practical need to avoid institutional detention where less restrictive means are available. It is the states, rather than the federal government, which are primarily responsible for child welfare issues. State courts have articulated the view that institutional confinement should be used only when another type of placement such as foster care is not possible. See, e.g., R.P. v. State, 718 P.2d 168 (Alaska App.1986) (state must prove by a preponderance of the evidence that less restrictive alternatives are not possible); In re John H., 48 A.D.2d 879, 369 N.Y.S.2d 196 (1975) (other options must first be fully explored). In addition to protecting any constitutional interests of the children, this avoidance of institutionalization is seen to serve their best interests. See generally S. Davis, Rights of Juveniles § 6.3 (1990) (discussing states' attempts to ensure that a child benefits in some way from whatever type of placement is ultimately chosen).

Congressional policy, where relevant, also favors avoidance of the institutionalization of juveniles. The federal government does have the occasion to process juvenile offenders when, for example, they violate federal laws or commit crimes on Indian reservations. In such situations, the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031 et seq., governs the treatment of the offenders. That Act's provisions regarding detention specify that it should occur in "a foster home or community based facility" instead of an institution, if possible. 18 U.S.C. § 5035 (regarding pre-disposition detention); 18 U.S.C. § 5039 (regarding detention after disposition). These provisions evidence an understanding that the juvenile's liberty should be curtailed only by the least restrictive means necessary to achieve the purpose at hand, and that the interests of juveniles and of society are best served by keeping such offenders in homes rather than in institutions whenever practicable.

The foregoing analysis compels the conclusion that, just as the plaintiffs' entitlement to liberty absent a valid, particularized basis for confinement does not diminish due to their alienage, their minority does not materially change the nature of that entitlement. The INS is therefore incorrect when it asserts that plaintiffs have no fundamental liberty interest at stake. The INS is also incorrect in asserting that to prevail, the plaintiffs must be able to find in the Constitution itself, or law interpreting the Constitution, an express recognition of a "substantive due process right to be released to an unrelated adult." Such release is not the constitutional interest being secured. It is the remedy the district court imposed after ruling that the defendant's policy unconstitutionally interfered with plaintiffs' interest in freedom from unjustified governmental detention.

Whether the imposition of such a remedy was appropriate depends upon whether the detention serves a significant federal governmental purpose. It is to that issue that we now turn.

This case is unprecedented in that it involves post-arrest detention of persons who have not been convicted of any crime, do not pose a risk of flight, and who have not been determined to present any threat of harm to themselves or to the community. Whatever purposes detention serves, they do not relate to punishment, to the need for attendance at further proceedings, or to avoidance of an identifiable risk of harm. Contrast Salerno, 481 U.S. 739, 107 S.Ct. 2095; Schall, 467 U.S. 253, 104 S.Ct. 2403; Carlson, 342 U.S. 524, 72 S.Ct. 525.

The INS articulates two reasons for the detention. First, the INS suggests that the child's interests would be better served by detention than by release to a responsible adult whose living environment the INS does not have the means to investigate. Second, it asserts that the policy is necessary to protect it from potential liability in the event some harm should befall the child after release.

The INS does not articulate any legal basis for its position that these are valid INS concerns. The first flies in the face of the Supreme Court's ruling in Gault that children should be treated in a manner least restrictive of liberty. It also expresses a view contrary to the Supreme Court's decision in Schall, which required a foreseeable risk of harm to justify detention. While the Supreme Court in Schall recognized that a child, because of a lack of maturity, should have some adult custody and care, 467 U.S. at 265, 104 S.Ct. at 2410, it did not remotely suggest that there may be a presumption in favor of governmental detention as serving the best interests of the child.

The INS in essence maintains, however, that we should not look behind their articulation of concerns because we must defer to any such articulation. Agencies are, of course, entitled to some deference when they make determinations that relate to an area of their special expertise. See United States v. Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961). In the immigration field, then, courts owe deference to decisions of the INS where its special experience and authority in the area of alienage are called into play. See Carlson, 342 U.S. at 540-41, 72 S.Ct. at 534-35.

The justifications asserted here, however, relate to child welfare and the potential liability of child welfare agencies. Child welfare is not an area of INS expertise and its decisions in this area are not entitled to any deference. See Hampton v. Mow Sun Wong, 426 U.S. 88, 114-15, 96 S.Ct. 1895, 1910-11, 48 L.Ed.2d 495 (1976) (court does not defer to agency determination in area outside of agency's expertise). Nor does this policy carry out any express congressional directive. Rather, the policy is contrary to Congress' determination that institutional detention of juveniles is disfavored. See 18 U.S.C. §§ 5035; 5039. One of the very reasons the INS gives for detaining the plaintiffs is that it does not have the expertise, and Congress has not given it the resources, to do the kind of evaluation of foster care facilities that state child welfare agencies do on a routine basis. The INS reasons that since it is unable to do such an evaluation, the best interests of the child must lie in detention rather than in release. The Constitution requires the opposite conclusion. See Gault, 387 U.S. 1, 87 S.Ct. 1428. We therefore hold that the INS may not determine that detention serves the best interests of members of the plaintiff class in the absence of affirmative evidence that release would place the particular child in danger of some harm.

Our conclusion that the INS cannot maintain a blanket policy of detention thus does not absolve the INS from the responsibility of making individualized decisions concerning the fate of children it has arrested. Due process requires a particularized exercise of discretion in conjunction with the decision to grant or deny release to any alien. See Carlson, 342 U.S. at 542, 72 S.Ct. at 535. It is, of course, within the purview of the INS to determine whether or not the person available to assume custody will ensure the child's attendance at future proceedings. It is also within the purview of the INS to determine on the basis of the particular case whether release of the child poses a danger to the community or could result in harm to the child. The blanket refusal to make individualized determinations in the guise of administrative expediency, however, cannot pass constitutional muster. See, e.g., Reed v. Reed, 404 U.S. 71, 76-77, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971) (administrative convenience does not justify a policy that otherwise runs afoul of the Constitution).

The INS' secondary justification for its detention policy is that if it released a child to an unrelated adult based on a determination short of a detailed "home study," it could be subject to liability in the event that some harm befell the child. The INS does not specify the source of such liability.

We find little indication that the INS would be subject to liability for releasing a minor to an unrelated adult without a "home study." Such a "study" is concededly beyond the expertise of the Service. The Supreme Court's holding in Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), would give an individual a cause of action against the INS for a violation of constitutional rights, an action analogous to the cause of action available through 42 U.S.C. § 1983 against those who violate federal rights under color of state law. The Supreme Court has recently held, however, that a state agency, with far more expertise in child welfare than the INS, could not be held liable under section 1983 for allowing a child to remain in the custody of an adult despite clear evidence that such custody placed the child in danger. DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). The Court concluded that the actions of a private citizen could not form a basis for liability of the Department under section 1983. It did not matter, the Court held, that the child had formerly been in state custody, because "the State does not become the permanent guarantor of an individual's safety by having once offered him shelter." Id. at 201, 109 S.Ct. at 1006.²

Decisions before and since DeShaney, as well as DeShaney itself, compel the conclusion 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. See DeShaney, 489 U.S. at 200-201, 109 S.Ct. at 1005-06 (emphasizing that absence of duty on the part of the state to ensure child's safety arose from the fact that the plaintiff was not in the state's custody at the time of the injury); Youngberg v. Romeo, 457 U.S. 307, 316-17, 102 S.Ct. 2452, 2458-59, 73 L.Ed.2d 28 (1982) (when individual is in state custody, state may acquire constitutional duty to ensure individual's safe care); Lashawn A. v. Dixon, 762 F.Supp. 959, 996 (D.D.C.1991) (under DeShaney and Youngberg, state agency may be liable for constitutional tort where it fails to provide adequately for the safety and well being of children in its custody). We reject the INS' claim that it must detain these children to avoid lawsuits. In so doing, we follow the lead of the Supreme Court, which has recently refused to uphold an argument that possible tort liability justified a policy that violated the rights of individuals, where such liability was "remote at best." International Union, UAW v. Johnson Controls, Inc., --- U.S. ----, 111 S.Ct. 1196, 1208, 113 L.Ed.2d 158 (1991).

We therefore conclude that the first paragraph of the district court's order is an appropriate means to prevent incarceration of juveniles where such incarceration serves no legitimate purpose of the INS. It provides that release to a responsible adult shall occur only if the child would have otherwise been eligible for release to a relative under the challenged policy. It takes into account the need to secure attendance at immigration proceedings, and does not foreclose the ability of the INS to order detention if there are other, valid reasons for detention. In addition, by specifying that where there is no relative or legal guardian available release may be made to a "responsible" party, it allows room for the INS to make the necessary determination of whether a party who is willing to assume custody of the child is fit to do so.

D. Procedural Due Process and Part Three of the District

Court's Order

From the beginning of this litigation the parties have disputed whether the determination of what process is due in conjunction with the decision to detain members of the plaintiff class should be made pursuant to Gerstein, 420 U.S. 103, 95 S.Ct. 854, or Mathews, 424 U.S. 319, 96 S.Ct. 893. In Gerstein, the Court determined that a "timely judicial determination" was a mandatory prerequisite to pretrial detention in the criminal context. 420 U.S. at 126, 95 S.Ct. at 869. In Mathews, the Court articulated a three-factor analysis designed to be applicable generally to questions of due process in conjunction with administrative actions. A reviewing court must consider first the private interest that the action affects, second the risk that the procedures currently utilized will result in an erroneous deprivation of that interest and the extent to which that risk could be lessened by the addition of more safeguards, and third the government's interest in maintaining the current procedures. 424 U.S. at 335, 96 S.Ct. at 903. The plaintiffs have urged that Gerstein be followed, while the INS has argued that Mathews provides the proper mode of analysis.

Because we have held that the plaintiffs' interest in freedom from detention requires that the decision to detain be made only in conjunction with a neutral and detached determination of necessity, we must affirm Part Three of the district court's order regardless of whether we apply Mathews or Gerstein. In so doing, we note that under current regulations, the INS is already required to maintain the mechanisms for providing review by an Immigration Judge of any decision to detain an alien or of conditions imposed on the release of such alien, if the alien requests such a hearing. See 8 C.F.R. § 242.2(d). The only new requirements that Part Three of the district court's order places on the INS are that, if the alien is a child, such a hearing must be held regardless of whether the alien requests it, and the determination at the hearing must include an inquiry into whether any non-relative who offers to take custody represents a danger to the child's well being. The first of these additional requirements is reasonable because the members of the plaintiff class, as children, are less capable than others of understanding what they are waiving by failing to request a hearing. The second is reasonable in light of the private interest at stake. We therefore conclude that Part Three of the district court's order provides the appropriate procedural safeguards for the deprivation here at issue, and accordingly uphold it.

The district court correctly held that the blanket detention policy is unlawful. The district court's order appropriately requires children to be released to a responsible adult where no relative or legal guardian is available, and mandates a hearing before an immigration judge for the determination of the terms and conditions of release.

The majority panel opinion is VACATED and the order of Judge Kelleher is AFFIRMED in all respects.

TANG, Circuit Judge, concurring:

I concur wholeheartedly in the majority's judgment and I concur in the majority opinion insofar as it goes. I write separately to emphasize my belief that the liberty interest at issue--freedom from governmental detention and restraint--is a fundamental right expressly protected by the fifth amendment to the Constitution. Indeed, freedom from governmental restraint is the core, the very crux of any governmental system dedicated to preserving the integrity and inviolability of the individual. I write separately also to highlight the two distinct deprivations of liberty occasioned by the INS's policy.

The original panel opinion in this case and the current dissent denominate the right at issue as the "right to be released to unrelated adults." This characterization of the children's liberty interest stands the Constitution on its head. It presumes the government's right to detain and requires children, who have committed no offense greater than being suspected of being deportable, to prove their entitlement to release. Even assuming that non-textual rights need to be carefully articulated, there is no reason to afford "liberty"--language right out of the Constitution's text--such a cramped interpretation.

I agree with the majority's conclusion that one textual source of the right to freedom from governmental restraint is the Constitution's habeas corpus guarantee. U.S. Const. art. I, § 9. The majority's analysis of the constitutional basis for the right at issue is not complete, however.

Physical freedom from governmental detention and restraint--liberty in its most elemental form--is a fundamental constitutional right guaranteed by the due process clause of the fifth amendment. This freedom from governmental restraint is both a substantive right and an entitlement to certain procedural protections when the government acts to deprive a person of physical liberty.

A recent acknowledgment of the substantive due process right to freedom from governmental restraint can be found in DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). In DeShaney, the Supreme Court expressly stated:

In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf--through incarceration, institutionalization, or other similar restraint of personal liberty--which is the "deprivation of liberty" triggering the protections of the Due Process Clause.

Id. at 200, 109 S.Ct. at 1006.

The DeShaney court's observation was not novel. Numerous precedents already recognized the individual's fundamental right to freedom from restraint. See, e.g., United States v. Salerno, 481 U.S. 739, 749, 107 S.Ct. 2095, 2102, 95 L.Ed.2d 697 (1987) ("Respondents [invoke] ... the 'general rule' of substantive due process that the government may not detain a person prior to a judgment of guilt in a criminal trial. Such a 'general rule' may freely be conceded...."); Youngberg v. Romeo, 457 U.S. 307, 309, 316, 319, 102 S.Ct. 2452, 2454, 2458, 73 L.Ed.2d 28 (1982) (Court recognizes "substantive right[ ] under the Due Process Clause" to "freedom from bodily restraint" and observes that "[i]n other contexts, the existence of such an interest is clear in the prior decisions of this Court. Indeed, '[l]iberty from bodily restraint always has been recognized as the core of liberty protected by the Due Process Clause from arbitrary governmental action,' " (quoting Greenholtz v. Inmates, Nebraska Penal & Correctional Complex, 442 U.S. 1, 18, 99 S.Ct. 2100, 2109, 60 L.Ed.2d 668 (1979) (Powell, J., concurring in part and dissenting in part))); Parham v. J.R., 442 U.S. 584, 600, 99 S.Ct. 2493, 2503, 61 L.Ed.2d 101 (1979) ("It is not disputed that a child, in common with adults, has a substantial liberty interest in not being confined unnecessarily for medical treatment.").1

These cases recognize explicitly what our constitutional jurisprudence historically has acknowledged implicitly through presumptions and assumptions about the relationship between government and the governed in this country. Liberty is the norm; arrest, detention, or restraint by the state is the exception. To operate otherwise makes a mockery of "government of the people, by the people." Some of our most cherished rights--freedom of speech and of religion, the right to vote, travel, and to be free from unreasonable searches and seizures--would mean nothing if we had to live under the heavy hand of government.

The strict burdens that the Constitution imposes on government's efforts to deprive individuals of their liberty reveal that freedom from governmental restraint is a fundamental right and the cornerstone of democratic government. Government may not incarcerate a person unless it proves that person's guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). Government may not arrest and detain persons absent probable cause to believe a crime has been committed by them. Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975). The brief delay in physical freedom occasioned by a stop-and-frisk cannot be imposed absent a reasonable and particularized suspicion of danger. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). The operative assumption in our society is that government may not intrude into the private sanctuary of the individual. Exceptions will be made if, and only if, the state makes a very strong showing of necessity.

To reduce liberty, as the original panel and the dissent suggest, to nothing more than an entitlement to certain procedural protections and thereby to burden the children with showing a "right to release" ignores the very substance of the Bill of Rights. The Bill of Rights, including the fifth amendment, is our country's blueprint for individual freedom. It maps out limits beyond which the government may not step. Our conception of liberty should thus be drawn in terms of what government may not do (restrain) rather than in terms of what children must do (show entitlement to release).

To see the right in strictly procedural terms fails to recognize that the genesis of these procedures and presumptions is our Constitution's fundamental belief in the sovereignty of the individual. It is this principle that defines the substantive right to liberty, to freedom from governmental restraint. The rules and presumptions mandated by procedural due process are not themselves "liberty." Rather, they are the indispensable guarantees and requirements of the substantive right to freedom from governmental restraint. Liberty under the due process clause is thus both a process and a condition, and it is a right with which the children who brought this action are endowed.2B. Procedural Due Process

Defining the right at issue only begins our constitutional inquiry. That a right is fundamental does not mean that it is inviolable. See, e.g., Youngberg, 457 U.S. at 319-20, 102 S.Ct. at 2459-60 (liberty interest protected by substantive due process is not absolute). Just as government may on occasion limit speech or religious practices, so may government restrict or deny physical liberty to some extent, upon making the constitutionally-mandated showing of necessity. We thus must determine whether the limitations imposed by the INS on the children's liberty comport with the substantive and procedural components of the fifth amendment's due process clause.

Much of the unease occasioned by the INS's policy and the original panel's opinion derives from the fact that the INS imposes conditions on a child's release before there is even a neutral and independent review of its authority to detain a child (and, concomitantly, to limit her release). This puts the cart before the horse. We cannot fairly discuss the INS's ability to condition the children's release or its interest in ensuring the children's return and safety until the INS has established its authority to detain the children in the first instance. Unlike the majority, I turn therefore to the procedural due process issue before addressing the constitutionality of the release conditions.

Much of the parties' debate focuses on whether Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54, or Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), prescribes the appropriate framework for the procedural due process analysis. I agree with Judge Rymer's conclusion that Mathews governs. Deportation is a civil, not a criminal, proceeding. See Carlson v. Landon, 342 U.S. 524, 537-38, 72 S.Ct. 525, 532-33, 96 L.Ed. 547 (1952). The Supreme Court has repeatedly invoked Mathews to test the constitutionality of civil deprivations of liberty. See, e.g., Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 330, 74 L.Ed.2d 21 (1982) (INS exclusion proceedings); Parham, 442 U.S. at 599-600, 99 S.Ct. at 2502-03 (commitment of children to mental health facility); Greenholtz, 442 U.S. at 14, 99 S.Ct. at 2109 (parole hearings); Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979) (involuntary commitment of children to mental hospital); Ingraham v. Wright, 430 U.S. 651, 675, 97 S.Ct. 1401, 1414, 51 L.Ed.2d 711 (1977) (corporal punishment of students); see also Salerno, 481 U.S. at 746, 107 S.Ct. at 2101 (regulatory pretrial detention under Bail Reform Act); accord Youngberg, 457 U.S. at 320-21, 102 S.Ct. at 2460-61 (involuntarily committed patients). While the children correctly point out that the Court frequently cites Gerstein in these cases, the opinions speak, and the analysis is conducted, in the language of Mathews. Because the Supreme Court has used Mathews to test the propriety of a variety of civil incarcerations, including an INS proceeding, we must apply Mathews in this instance.

In applying Mathews, we must balance (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substantive procedural requirement would entail. Mathews, 424 U.S. at 335, 96 S.Ct. at 903.

The private interest at issue is, of course, the children's liberty from governmental detention and restraint. This interest is substantial and compelling. "[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Addington, 441 U.S. at 425, 99 S.Ct. at 1809; see also Salerno, 481 U.S. at 750, 107 S.Ct. at 2103 (noting the "importance and fundamental nature of this right [to liberty]"); Schall v. Martin, 467 U.S. 253, 265, 104 S.Ct. 2403, 2410, 81 L.Ed.2d 207 (1984).

Moreover, the adverse consequences of detention are legion, consequences exacerbated by the youth of the detainees. Detention by the government stigmatizes children, regardless of the ultimate resolution of their respective cases. Children in INS detention centers enjoy, at best, very limited educational and recreational opportunities. They are away from family and friends; every aspect of their daily life is regulated by strangers. See Plasencia, 459 U.S. at 34, 103 S.Ct. at 330 (right to regain family "ranks high among the interests of the individual"). They have very little privacy, may be shackled and handcuffed, and lead a very regimented life.

Furthermore, the risk of an erroneous deprivation of liberty by the INS is substantial. As Judge Fletcher pointed out in her dissent from the original panel's decision in this case, many persons arrested by the INS will ultimately prove not to be deportable. Some of these children will be found to be citizens, legal aliens, or entitled to political asylum.

Currently, an officer's determination of deportability is subject only to review by a second immigration officer, who determines whether prima facie evidence of a violation of the immigration laws exists. 8 C.F.R. § 287.3. If no second officer is available, the prima facie determination may be made by the original arresting officer. Id. At no point does an official detached from the enforcement function test the sufficiency of the evidence to arrest and detain. See id.³

Our Constitution has long recognized that combining the roles of prosecutor and adjudicator in a single entity is a recipe for fundamentally unfair and erroneous decision making. See, e.g., Schweiker v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, 1669, 72 L.Ed.2d 1 (1982) ("As this Court repeatedly has recognized, due process demands impartiality on the part of those who function in judicial or quasi-judicial capacities."); Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287 (1970) ("an impartial decision maker is [an] essential" component of due process); Tumey v. Ohio, 273 U.S. 510, 534, 47 S.Ct. 437, 445, 71 L.Ed. 749 (1927) ("A situation in which an official perforce occupies two practically and seriously inconsistent positions, one partisan and the other judicial, necessarily involves a lack of due process."); see also Parham, 442 U.S. at 606, 99 S.Ct. at 2506 (civil commitment of mentally ill children must be reviewed by neutral fact finders); Gerstein, 420 U.S. at 114, 95 S.Ct. at 863.

These cases recognize the importance of neutral and detached review as a protection against the overzealous prosecutor or law enforcement official.

A democratic society, in which respect for the dignity of all [persons] is central, naturally guards against the misuse of the law enforcement process. Zeal in tracking down crime is not in itself an assurance of soberness of judgment. Disinterestedness in law enforcement does not alone prevent disregard of cherished liberties. Experience has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic.

McNabb v. United States, 318 U.S. 332, 343, 63 S.Ct. 608, 614, 87 L.Ed. 819 (1943); see also Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 2122, 32 L.Ed.2d 783 (1972) (probable cause for issuance of an arrest warrant must be determined by an official independent of the police and prosecution); Coolidge v. New Hampshire, 403 U.S. 443, 450, 91 S.Ct. 2022, 2029, 29 L.Ed.2d 564 (1971) (prosecutor's responsibility to law enforcement is inconsistent with the constitutional role of a neutral and detached magistrate).

The INS's procedure does nothing to protect against the risk of error and unfairness. The field officer's determination is, at best, reviewed by another law enforcement officer. At worst, the arresting officer reviews his own decision. The INS cites no case, nor have any been found, where the Supreme Court has tolerated a deprivation of physical liberty unaccompanied by any provision for independent and neutral review of the decision to incarcerate. To the contrary, statutory schemes for detention (civil or criminal) previously reviewed by the courts have involved some measure of independent review of the initial decision to detain. See, e.g., Salerno, 481 U.S. at 750, 107 S.Ct. at 2103 (pretrial detention predicated upon governmental showing by clear and convincing evidence to a neutral decisionmaker of need to detain); Schall, 467 U.S. at 269-70, 104 S.Ct. at 2412-13 (juvenile detention reviewed for probable cause by member of judicial branch); Parham, 442 U.S. at 606-07, 99 S.Ct. at 2506-07 (commitment of children must be reviewed by a neutral and detached trier of fact); see also In Re Gault, 387 U.S. 1, 30, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527 (1967) (child committed to juvenile detention entitled to hearing containing "the essentials of due process and fair treatment"). Our Circuit's precedent similarly insist upon the neutral review of decisions to restrain individuals for any significant period of time. Gary H. v. Hegstrom, 831 F.2d 1430, 1433 (9th Cir.1987) (due process hearings for adolescents detained for criminal behavior); Doe v. Gallinot, 657 F.2d 1017, 1023 (9th Cir.1981) (involuntary commitment decisions must be reviewed by independent decisionmaker to reduce error, since consequences of liberty deprivation are so severe).

With respect to the third Mathews factor, the INS asserts in vague and conclusory terms that it will be burdened by a mandate to provide prompt impartial review of its officers' findings of probable cause to arrest and detain children. The INS provides no specifics, however. Both the record and common sense, on the other hand, reveal that the requirement need not be unduly burdensome. A quasi-judicial scheme of administrative judges (immigration judges) already exists within the INS that could provide the necessary detached review. The institution of such a practice, moreover, will relieve INS law enforcement officers of the duty to review their fellow officers' arrests to determine whether a prima facie case for deportability exists.

Given the substantial liberty interest involved, the proven record and constant risk of error, and the failure of the INS to articulate anything more than vague and unsubstantiated objections to neutral review, I conclude that the due process clause requires the INS promptly to afford detained children an impartial and detached review of their detention. At such a hearing, the burden must be on the INS to demonstrate the propriety of detention. Gallinot, 657 F.2d at 1023 ("It is the state, after all, which must ultimately justify depriving a person of a protected liberty interest....").

Once the INS has demonstrated before a neutral and detached decisionmaker a prima facie case of deportability, the INS's legitimate interests in ensuring that child's return for future hearings and, to some extent, that child's safety entitle it to impose conditions on the child's release. Those conditions, however, may not restrict the child's liberty any more than is necessary to achieve the INS's stated goals of ensuring return and safety.

I wholeheartedly agree with the majority's holding that the regulation's prohibition on release to responsible third parties cannot survive scrutiny under the due process clause. Where, as here, the children detained have not individually been shown to be a flight risk, a threat to the community or to themselves, or guilty of any crime, governmental restrictions on liberty must be narrowly tailored to promote the government's articulated interests.

As the majority aptly demonstrates, the INS has not shown that precluding release to child welfare agencies, church groups, immigration rights' groups, and other responsible third parties increases the risks of flight or injury to the child. Unsubstantiated speculation that flies in the face of the historic record of successful releases to third parties cannot outweigh the children's compelling liberty interest. On the other hand, the tragic consequences of prolonged detention are readily discernible. Nor are the INS's liability concerns sufficient to justify confined detention. As the majority notes, the legal liability accompanying prolonged detention greatly exceeds the INS's unproven and overblown apprehensions about legal exposure after release to a responsible third party.

CONCLUSION

While the majority and I differ to some extent in our analyses of the constitutional issues presented, our points of agreement are much more numerous. I believe that the children's fundamental right to freedom from government detention has its roots, not only in the Constitution's guarantee of habeas corpus, but also in the fifth amendment's protection against deprivations of liberty without due process. I also agree with the majority's reasoning and conclusions concerning the conditions on release and procedural due process. I write separately on these issues only to emphasize that we are dealing with the constitutionality of two distinct deprivations of liberty--the initial decision to detain and secondly the conditions imposed upon release after detention. Only when the initial and most drastic deprivation of liberty has been accomplished in a manner that comports with the Constitution can we then address the legality of the INS's release conditions.

WILLIAM A. NORRIS, Circuit Judge, concurring:

I join Judge Schroeder's opinion for the en banc court, but write separately to say that the INS' policy of incarcerating children pending deportation hearings rather than releasing them to the temporary custody of responsible non-relative adults, not only violates due process, but does so flagrantly.

This case does not involve the fashioning of some "new" substantive due process right to "be released to unrelated adults," see dissenting op. at 1379 (Wallace, C.J.). It has nothing to do with the controversy over constitutional protection of privacy interests. The dissent's concern about limiting the reach of "substantive due process" and its reliance on such cases as Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986),1 unnecessarily cloud the issue. If the word "liberty" as used in the Due Process Clause means anything, it means "liberty from bodily restraint ... [which] is at the heart of the liberty protected by the Due Process Clause." Board of Pardons v. Allen, 482 U.S. 369, 373 n. 3, 107 S.Ct. 2415, 2418 n. 3, 96 L.Ed.2d 303 (1987). The Supreme Court has repeatedly said that liberty includes freedom from bodily restraint as an absolute minimum. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1953) (" '[L]iberty' ... is not confined to mere freedom from bodily restraint."); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1922) ("[L]iberty.... denotes not merely freedom from bodily restraint...."). Because the prehearing detention of children so clearly deprives them of their liberty, the Due Process Clause requires the INS to justify its policy by "sufficiently compelling governmental interests." United States v. Salerno, 481 U.S. 739, 748, 750, 107 S.Ct. 2095, 2102, 2103, 95 L.Ed.2d 697 (1986).

The governmental interests asserted by the INS to justify its policy are trivial. The INS admits that its policy does not even serve the government's legitimate interest in assuring the children's appearance at deportation hearings. What the INS' justification for its policy boils down to is money. It claims that it does not have the "competence" or "resources" to "conduct meaningful screening ... of the environment in which the children will live". Appellants' Response to Order Dated August 20, 1990 at 6-7. It characterizes home studies as a "delicate undertaking" that is "ordinarily carried out by skilled social workers." Id. Translated, this means that our government chooses to hold children in detention facilities, despite the INS' lack of competence to care for them, rather than pay for the services of qualified social workers to conduct home studies of the kind that county social service agencies perform routinely. The INS makes no effort to price such services, nor does it make any effort to show that the cost of such services would be greater than the cost of holding the children in the INS' own detention facilities. It merely throws up its bureaucratic hands and shrugs that it has no money to pay for home studies.

The INS' justification for its policy pales in comparison with the governmental interests that have been held to justify prehearing detention. These children are not dangerous, as in Salerno, 481 U.S. at 741, 107 S.Ct. at 2098 (approving detention of the head and "captain" of the Genovese crime family when "no release conditions 'will reasonably assure ... the safety of any other person and the community.' ") and Schall v. Martin, 467 U.S. 253, 264, 104 S.Ct. 2403, 2409, 81 L.Ed.2d 207 (1984) (upholding detention of juvenile accused of hitting a youth over the head with a loaded gun under law "designed to protect the child and society from the potential consequences of his criminal acts"). Neither are they a menace to the public interest, as in Carlson v. Landon, 342 U.S. 524, 541, 72 S.Ct. 525, 534, 96 L.Ed. 547 (1952) (upholding detention of alien Communist Party members to prevent "menace to public interest"), or a threat to the national security, as in Ludecke v. Watkins, 335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 1881 (1948) (approving detention during World War II of enemy aliens found to be dangerous).

In an effort to salvage the INS policy, the dissent goes so far as to assert that the Due Process Clause provides less protection for the liberty of children than for the liberty of adults. Liberty interests are not "weighed differently for minors in comparison with adults, as the dissent suggests." See dissenting op. (Wallace, C.J.) at 1380 (citing Schall ). Schall stands for the quite different proposition that a juvenile's liberty interest can "in appropriate circumstances be subordinated to the State's parens patriae interest in preserving and promoting the welfare of the child." Schall, 467 U.S. at 265, 104 S.Ct. at 2410 (emphasis supplied). Here the INS has no parens patriae interest to weigh against the juvenile's liberty interest. The dissent casts the INS as a parent, but I see only a jailer.

Finally, the mere incantation of Congress' plenary power over immigration policy should not be the siren song that leads us astray from applying settled due process principles to the facts of this case. Congress' broad power to fashion immigration policy no more authorizes the INS to hold people without due process than a state's sovereign power to pass criminal laws authorizes the imprisonment of people without due process. By invoking Congress' power to set standards of deportability as an excuse for the detention of children pending hearings on their deportability under those standards, the dissent blurs the distinction between the enactment of immigration laws and the enforcement of those laws. I know of no authority for the dissent's boundless description of the "judiciary's limited judicial role" in reviewing all "immigration decisions" or any action it can relegate to "the immigration context." See dissenting op. (Wallace, C.J.) at 1380-1381. In applying due process principles, we balance "interests," not "contexts."

The very cases that the dissent cites for limiting judicial review of all "immigration decisions" recognize the crucial distinction that the dissent ignores. "In the enforcement of ... [immigration policies], the Executive Branch of the Government must respect the procedural safeguards of due process.... [even if] the formulation of these policies is entrusted exclusively to Congress." Fiallo v. Bell, 430 U.S. 787, 792 n. 4, at 793, 97 S.Ct. 1473, 1478 n. 4, at 1479, 52 L.Ed.2d 50 (1977), quoting Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954). Thus, the cases cited by the dissent are inapposite in a case involving the detention of children during the process of enforcing the immigration laws. For example, Adams v. Howerton, 673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111, 102 S.Ct. 3494, 73 L.Ed.2d 1373 (1982), involved judicial deference to a congressional decision to deny immigration preferences to partners in same sex relationships. Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 742, 98 L.Ed. 911 (1954), and Harisiades v. Shaughnessy, 342 U.S. 580, 589-90, 72 S.Ct. 512, 519, 96 L.Ed. 586 (1952), upheld statutes making Communist Party members deportable. Finally, Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477, 52 L.Ed.2d 50 (1977), upheld a statute denying immigration preferences to illegitimate children whose mothers are aliens, but whose fathers are citizens or lawful permanent residents. None of these cases involved the procedures followed by the INS in enforcing the immigration laws passed by Congress.

In sum, the deprivation of the children's liberty is so plain, and the government's interest in detaining them so trivial, that the due process violation could not be more clear-cut.

RYMER, Circuit Judge, concurring in the judgment in part and dissenting in part:

I agree with the majority that this case is particularly troubling. The thought of prolonged detention of children who have done nothing more than to be in this country illegally, and to be without a parent or relative willing to come to their rescue, touches a raw nerve in us all. Even so would we be sickened were one of these children to be precipitously released to abuse, neglect or worse.1 A constitutionally appropriate balance must therefore be struck between the alien minors' interest in freedom from institutional restraint and the government's responsibility for their safety.

I write separately even though I agree with much of the majority's bottom line, because I believe the case can be decided more narrowly and in a way that will safeguard valuable rights more effectively than the district court's order. I part company with both the district court and the majority to the extent they hold that the Constitution substantively requires release to any responsible adult who will promise to bring the minor to future hearings, and I disagree that a probable cause hearing is constitutionally required for juveniles held in deportation proceedings. Instead, I conclude that current INS procedures are constitutionally insufficient to afford an alien juvenile the process she is due when it has been determined that she may be released from INS custody, but that she has no parent, guardian, adult relative, or person designated by a parent or guardian to assume custody. Without assurance of an early determination by a neutral hearing officer of whether to release the juvenile under these circumstances, and absent an outside limit on the length of time the juvenile may continue to be held even though it has been determined that she is eligible for release, the risk that the child will be unduly detained outweighs the government's remaining interests in maintaining custody and assuring well-being.

The Due Process Clause of the Fifth Amendment assures that "No person shall ... be deprived of life, liberty, or property, without due process of law...." The Supreme Court has held that

the Due Process Clause protects individuals against two types of government action. So-called 'substantive due process' prevents the government from engaging in conduct that 'shocks the conscience,' Rochin v California, 342 US 165, 172, 96 L Ed 183, 72 S Ct 205 , 25 ALR 1396 (1952), or interferes with rights 'implicit in the concept of ordered liberty,' Palko v Connecticut, 302 US 319, 325-326, 82 L Ed 288, 58 S Ct 149 (1937). When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner. Mathews v Eldridge, 424 US 319, 335, 47 L Ed 2d 18, 96 S Ct 893 (1976). This requirement has traditionally been referred to as 'procedural' due process.

United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987).

The district court's judgment does not indicate which component was violated. To the extent its order requires a substantive change in the regulation--directing release to a "custodian, conservator, or other responsible adult party" who promises to bring the minor to future hearings, I infer that the court believed § 242.24(b)(4) runs afoul of due process on substantive grounds; I assume it also found the regulation wanting on procedural due process grounds since it ordered an administrative hearing to determine probable cause for the minor's arrest and need for restrictions on her release.

While Flores does contend that the minors' interest in personal liberty is a fundamental constitutional right that substantively overrides the INS restriction on release of children, in her brief to this court and at oral argument she concedes that the district court's order may be seen as wholly procedural and could be affirmed on procedural grounds. Because I agree that the INS's regulation falters for lack of minimum procedures comporting with due process, I see no need to reach more broadly at this time.2

The fifth amendment protects physical freedom by requiring that the government satisfy rigorous procedural safeguards before taking it away. Procedural fairness has traditionally been tested under Mathews v. Eldridge, 424 U.S. 319, 334-335, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976). The Court restated the framework for analysis in Landon v. Plasencia, 459 U.S. 21, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982), an immigration case, as follows:

The constitutional sufficiency of procedures provided in any situation, of course, varies with the circumstances. In evaluating the procedures in any case, the courts must consider the interest at stake for the individual, the risk of an erroneous deprivation of the interest through the procedures used as well as the probable value of additional or different procedural safeguards, and the interest of the government in using the current procedures rather than additional or different procedures.

Id. at 34, 103 S.Ct. at 330 (citations omitted).

The alien juveniles' interest has considerable weight: they stand to continue losing freedom from INS restraint even though the INS will not have determined that they need to be detained for reasons of flight or safety.3 On the other hand, the government's interests in the well-being of minors in its custody and in assuring that these children not be entrusted to the care of an unqualified person are likewise strong. In addition,

[t]he Government's interest in efficient administration of the immigration laws at the border also is weighty. Further, it must weigh heavily in the balance that control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature. The role of the judiciary is limited to determining whether the procedures meet the essential standard of fairness under the Due Process Clause and does not extend to imposing procedures that merely displace congressional choices of policy.

Id. at 34-35, 103 S.Ct. at 330 (citations omitted).

Flores challenges the regulation on four scores: (1) lack of a probable cause hearing on deportability; (2) lack of a prompt custody hearing; (3) failure to impose a burden of proof on the government; and (4) absence of independent review. She urges that the district court's order, imposing limited procedural safeguards, be affirmed. While the INS agrees that the record permits Flores's procedural due process claim to be resolved by this court without remand for further proceedings, it argues that the claim lacks merit because there is minimal risk of erroneous deprivation of the minors' interest. It relies on 8 U.S.C. § 1357(a)(2), which provides that an alien must be taken for examination before an officer other than the one who arrested her "without unnecessary delay," and on a regulation that requires the examining officer to be satisfied that there is prima facie evidence to believe the alien is deportable. 8 C.F.R. § 287.3 (1990). It therefore argues that even if Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), applies in a civil proceeding, the district court erred in mandating a probable cause hearing because the INS's standard is higher and is subject to review by an examining officer as well as the arresting officer. For these reasons it contends that requisite standards of fairness are met.

Turning first to whether a probable cause hearing is required, I agree with the INS that importing Gerstein to a civil immigration proceeding is problematic, see INS v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984) (consistent with civil nature of deportation proceeding, protections such as exclusionary rule that apply in context of criminal trial are not applicable). No authority suggests that a probable cause hearing before a neutral magistrate, as distinguished from a prima facie evidence hearing before an examining officer, is constitutionally mandated in deportation proceedings. Our cases suggest the contrary, see, e.g., Trias-Hernandez v. INS, 528 F.2d 366, 368 (9th Cir.1975) (declining to require Miranda warnings in deportation proceeding); Lavoie v. INS, 418 F.2d 732, 734 (9th Cir.1969) (sixth amendment safeguards not applicable in deportation proceeding), cert. denied, 400 U.S. 854, 91 S.Ct. 72, 27 L.Ed.2d 92 (1970), and there is no call to hold otherwise.

The INS's argument, however, fails to come to grips with the absence of other, well-recognized ingredients of procedural fairness. Unlike the statutes at issue in Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984), and Salerno, which survived due process challenges,⁴ 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.⁵ 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