home
***
CD-ROM
|
disk
|
FTP
|
other
***
search
/
The Supreme Court
/
The Supreme Court.iso
/
pc
/
wordperf
/
1991
/
91_905a
/
91_905a.zd
< prev
next >
Wrap
Text File
|
1993-03-22
|
83KB
|
1,567 lines
SUPREME COURT OF THE UNITED STATES
--------
No. 91-905
--------
JANET RENO, ATTORNEY GENERAL, ET AL.,
PETITIONERS v. JENNY LISETTE FLORES ET ____
AL.
ON WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
[March 23, 1993]
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 10-12. The Court reasons that as long as the conditions of detention____
are "good enough," ante, at 12, the Immigration and Naturalization Service (INS) _____
is perfectly justified in declining to expend administrative effort and
resources to minimize such detention. Ante, at 12, 18-20. _____
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." (Ftnote. 1) What is most curious about the (Ftnote. 1)
Court's analysis, however, is that the INS itself vigorously denies that its ______
policy is motivated even in part
____________________
1) Though the concurring JUSTICES join the Court's opinion, they too seem 1)
to reject the notion that the fact that "other concerns . . . compete for public
funds and administrative attention," ante, at 12, is a sufficient justification ____
for the INS' policy of refusing to make individualized determinations as to
whether these juveniles should be detained. Ante, at 5 (concurring opinion). ____ 91-905 - DISSENT
2 RENO v. FLORES ____
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' interest in furthering juvenile welfare
does not in fact support the policy 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 juvenile-care 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 our guardians." Id., at 4-6 (internal citations, ___
emphasis, and quotation marks omitted).
Possibly because of the implausibility of the INS' claim 91-905 - DISSENT
RENO v. FLORES 3 ____
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 12. 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 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 S242(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. (Ftnote. 2) It makes little (Ftnote. 2)
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
____________________
2) See Tr. of Oral Arg. 55 (statement by counsel for petitioners). 2) 91-905 - DISSENT
4 RENO v. FLORES ____
cousin, (Ftnote. 3) a godparent, a friend or a charitable organization - willing (Ftnote. 3)
to assume responsibility for the juvenile for the time the child would otherwise
be detained. (Ftnote. 4) In many ways the difference is comparable to the (Ftnote. 4)
difference between imprisonment and probation or parole. Both
____________________
3) The Court assumes that the rule allows release to any "close relative," 3)
ante, at 9. 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 v. East Cleveland, _____ ______________
431 U. S. 494, 504 (1977), the INS rule excludes cousins.
4) The difference is readily apparent even from the face of the allegedly 4)
benign Memorandum of Understanding Re Compromise of Class Action: Conditions of
Detention, reprinted in App. to Pet. for Cert. 148a-205a (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 5 (quoting Juvenile Care Agreement 173a) (emphasis added), suggests____
that the facility has some standard level of security designed to ensure that ________
children do not 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 10: ____
"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 4 (concurring opinion). ____ 91-905 - DISSENT
RENO v. FLORES 5 ____
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. (Ftnote. 5) The fact (Ftnote. 5) ____________
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. (Ftnote. 6) In its statement of policy governing proposed (Ftnote. 6)
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 circum-stances in the case . . . ." 8
U. S. C. S1252(a)(1). Because examples of protracted deportation proceedings
are so common, the potential for a lengthy period of confine-
____________________
5) See Brief for Southwest Refugee Rights Project et al. as Amici Curiae 5) ____________
20-33.
6) See Deposition of Kim Carter Hedrick, INS Detention Center Director- 6)
Manager (June 27, 1986, CD Cal.), p. 68. 91-905 - DISSENT
6 RENO v. FLORES ____
ment is always present. The fact that an excessive delay may not "invariably
ensue," ante, at 16, 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 S504 of the Juvenile Justice and
Delinquency Prevention Act of 1974. Consistently with the consensus expressed
in a number of recommended standards for the treatment of
juveniles, (Ftnote. 7) (Ftnote. 7)
____________________
7) See, e.g., U. S. Dept. of Health, Education, and Welfare, Model Acts for 7) ____ _
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 S12-15-62 (1986) (allowing release to custody of "a parent, guardian,
custodian or any other person who the court deems proper"); Conn. Gen. Stat.
S46b-133 (1986) (allowing release to "parent or parents, guardian or some other
suitable person or agency"); D. C. Code Ann. S16-2310 (1989) (allowing release
to "parent, guardian, custodian, or other person or agency able to provide
supervision and care for him"); Idaho Code S16-1811.1(c) (Supp. 1992) (allowing
release to custody of "parent or other responsible adult"); Iowa Code S232.19(2)
(1987) (release to "parent, guardian, custodian, responsible adult relative, or
other adult approved by the court"); Ky. Rev. Stat. Ann. S610.200 (Michie 1990)
(release to custody of "relative, guardian, person exercising custodial control
or supervision or other responsible person"); Me. Rev. Stat. Ann., Tit. 15,
S3203-A (Supp. 1992) (release to "legal custodian or other suitable person");
Md. Cts. & Jud. Proc. Code Ann. S3-814(b)(1) (1989) (release to "parents,
guardian, or custodian or to any other person designated by the court"); Mass.
Gen. Laws S119:67 (1969) (release to "parent, guardian or any other reputable
person"); Miss. Code Ann. S43-21-301(4) (Supp. 1992) (release to "any person or
agency"); Minn. Stat. S260.171 (1992) (release to "parent, guardian, custodian, 91-905 - DISSENT
RENO v. FLORES 7 ____
that statute authorizes the release of a juvenile 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,
____________________
or other suitable person"); Neb. Rev. Stat. S43-253 (1988) (release to "parent,
guardian, relative, or other responsible person"); Nev. Rev. Stat. S62.170
(1991) (release to "parent or other responsible adult"); N. H. Rev. Stat. Ann.
S169-B:14 (1990) (release to relative, friend, foster home, group home, crisis
home, or shelter-care facility); S. D. Codified Laws S26-7A-89 (1992) (release
to probation officer or any other suitable person appointed by the court); S. C.
Code Ann. S20-7-600 (Supp. 1992) (release to "parent, a responsible adult, a
responsible agent of a court-approved foster home, group home, facility, or
program"); Tex. Fam. Code Ann. S52.02 (Supp. 1993) (release to "parent,
guardian, custodian of the child, or other responsible adult"); Utah Code Ann.
S78-3a-29(3)(a) (1992) (release to "parent or other responsible adult"). 91-905 - DISSENT
8 RENO v. FLORES ____
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.
S5034 (emphasis added). (Ftnote. 8) There is no evidence in the record of this (Ftnote. 8)
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, nation-wide
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 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______
banc). 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. (Ftnote. 9) (Ftnote. 9)
____________________
8) As enacted in 1938, the Federal Juvenile Delinquency Act authorized a 8)
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." S5, 52 Stat. 765. The "responsible
person" alternative has been a part of our law ever since.
9) The Court added: "It has remained undisputed throughout this proceeding 9)
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 potential liability 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. 91-905 - DISSENT
RENO v. FLORES 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." (Ftnote. 10) How a responsible administrator could possibly (Ftnote. 10)
conclude that the practice of commingling harmless children with adults of the
opposite sex (Ftnote. 11) in detention centers protected by barbed-wire (Ftnote. 11)
fences, (Ftnote. 12) (Ftnote. 12)
____________________
10) In response to respondents' argument in their brief in opposition to 10)
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 remedied
during earlier proceedings in this case . . . ." Reply Brief for Petitioners 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. 11) _____
12) See Declaration of Paul DeMuro, Consultant, U. S. Dept. of Justice, 12)
Office of Juvenile Justice and Delinquency Prevention (Apr. 11, 1987, CD Cal.),
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 El 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._____ 91-905 - DISSENT
10 RENO v. FLORES ____
without providing them with education, recreation, or
visitation, (Ftnote. 13) while subjecting them to arbitrary strip (Ftnote. 13)
searches, (Ftnote. 14) would be in their best interests is most difficult to (Ftnote. 14)
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 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 nation-wide rule that is now at
issue. (Ftnote. 15) Significantly, however, (Ftnote. 15)
____________________
13) See id., at 8. 13) ___
14) See Defendants' Response to Requests for Admissions (Nov. 22, 1985, CD 14)
Cal.), pp. 3-4.
15) The rule differs from the regional policy in three respects: (1) it 15)
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. 91-905 - DISSENT
RENO v. FLORES 11 ____
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. (Ftnote. 16) Third, the Agency stated that "concern for the welfare (Ftnote. 16)
of the juvenile will not permit release to just ____
____________________
16) In its brief in this Court petitioners' attempt to describe the magni- 16)
tude 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 2. Since all of those figures relate to a period well after the rule____
was proposed in 1987 and promulgated in 1988, they obviously 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 Court deem it appropriate to rely on a post ____
hoc, non- record 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," id., at ____
17449, or the District Court's injunction was the more important cause of the
new rule. 91-905 - DISSENT
12 RENO v. FLORES ____
any adult." Ibid. (emphasis added). (Ftnote. 17) There is no mention, however, (Ftnote. 17)_________ _____
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, how-ever, 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. (Ftnote. 18) (Ftnote. 18)
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
____________________
17) This statement may be the source of the Court's similar comment that 17)
"the INS cannot simply send them off into the night on bond or recognizance."
Ante, at 2. 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 18)
as $100 per day per juvenile. Deposition of Robert J. Schmidt, Immigration and
Naturalization Service (July 31, 1986), p. 76. Even the sort of 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). 91-905 - DISSENT
RENO v. FLORES 13 ____
recognizes the harmful consequences of the detention of
juveniles. (Ftnote. 19) It made no comment on the period of detention that (Ftnote. 19)
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. (Ftnote. 20) (Ftnote. 20)
____________________
19) Consistent with the Standards developed by the American Bar Association 19)
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." United
States 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 20)
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 S242.24(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 independent, 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 (CA 9 1991) (opinion concur- ______ _____
ring in judgment in part and dissenting in part) (footnotes omitted). 91-905 - DISSENT
14 RENO v. FLORES ____
It is difficult to understand why an 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. (Ftnote. 21) It does, how- (Ftnote. 21)
____________________
21) That fact may, however, support a claim that the INS' issuance of the 21)
regulation was arbitrary and capricious within the meaning of the Administrative
Procedure Act (APA), 5 U.S.C. S706. See Motor Vehicle Mfrs. Assn. 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 12, 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). 91-905 - DISSENT
RENO v. FLORES 15 ____
ever, shed light 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. S1252(a)(1).
Despite the exceedingly broad language of S242(a), the Court has recognized that
"once the tyranny of literalness is rejected, all relevant considerations for
giving rational content to the words become operative." United States v. _____________
Witkovich, 353 U. S. 194, 199 (1957). See also INS v. National Center for_________ ___ ___________________
Immigrants' Rights, Inc., 503 U. S. ___ (1991) (NCIR)._________________________
Our cases interpreting S242(a) suggest that two such "considerations" are
paramount: indications of congres- 91-905 - DISSENT
16 RENO v. FLORES ____
sional 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
Nation. Id., at 538. The Attorney General's discretionary decision to detain __
certain alien Communists was thus "wholly consistent with Congress' intent,"
NCIR, 503 U. S., at ___ (slip op., at 10) (summarizing Court's analysis in_____
Carlson). Just last Term, we faced the question whether the Attorney Gen-eral_______
acted within his authority in requiring that release bonds issued pursuant to
S242(a) contain a condition forbidding unauthorized employment pending
determination of deportability. See NCIR. 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 ___ (slip op., at 11, 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 _________
Naturalization 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.'" Id., at 195. Noting that "issues touching liberties that ___
the Constitution safeguards, even for an alien `person,' would fairly be raised
on the Government's [broad] view of the statute," we held that the statute
merely authorized inquiries calculated to determine the continued availability 91-905 - DISSENT
RENO v. FLORES 17 ____
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 17, and therefore to detain indefinitely those juveniles who are without one
of the "approved" custodians. (Ftnote. 22) In my view, however, the guiding (Ftnote. 22)
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, S504 of the Juvenile
Justice and Delinquency Prevention Act of 1974 demonstrates Congress'
____________________
22) While the regulation provides that release can be granted to a broader 22)
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 (Jan. 30, 1986, CD Cal.), pp. 11-12. At oral argument, counsel
for petitioners suggested that "extraordinary and compelling circumstances"
might include the situation where a god father 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 19, 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 unecessarily 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. _____ 91-905 - DISSENT
18 RENO v. FLORES ____
clear preference for release, as opposed to detention. See S. Rep. No. 93-1011,
p. 56 (1974) ("[Section 504] establishes a presumption for release of the
juvenile"). (Ftnote. 23) And, most significantly for this case, it demonstrates (Ftnote. 23)
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. S5034, willing and able to assume care for the
child. (Ftnote. 24) It is no retort that S504 is directed at citizens, whereas (Ftnote. 24)
the INS' regulation is directed at aliens, ante, at ____
____________________
23) As I have already noted, the 1938 Federal Juvenile Delinquency Act 23)
authorized the magistrate to release an arrested juvenile "upon his own
recognizance or that of some responsible person," S5, 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 24)
for more significant than the fact that Congress has made the unexceptional
determination that state human service agencies should play a role in the
permanent resettlement of refugee children, ante, at 20, n. 8 (citing 8 U. S. C. ____
S1522(d)(2)(B), and orphans adopted abroad by United States citizens, ibid. ____
(citing 8 U. S. C. S1154(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 S504 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," ibid. 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. 91-905 - DISSENT
RENO v. FLORES 19 ____
12-13, 20, n. 8; Reply Brief for Petitioners 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 im-puted generally to all aliens subject to deportation, so
discretion was placed by the 1950 Act in the Attorney General to detains 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 Carslon makes that point clear. If ever there were a _______
factual predicate for a "reasonable presumptio[n]," ante at 21, it was in that ____
case, because Congress had expressly found that the 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. (Ftnote. 25) Yet, in (Ftnote. 25)
____________________
25) The Internal Security Act of 1950 was based on explicit findings 25)
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 S2(15) of the Internal Security Act
of 1950). 91-905 - DISSENT
20 RENO v. FLORES ____
affirming the Attorney 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 17. I do not believe that Congress intended to authorize such a____
policy. (Ftnote. 26) (Ftnote. 26)
____________________
26) Neither NCIR, 503 U. S. ___ (1991), nor Heckler v. Campbell, 461 U. S. 26) ____ _______ ________
458, 467 (1983), upon which the majority relies for the proposition that the INS
can rely on "reasonable presumptions" and "generic rules," ante, at 21, are to ____
the contrary. The Court mentioned the word "presumption" in a footnote in the
NCIR case, 503 U. S., at ___ (slip op., at 12-13, 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, authorized 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. Id., at ___ (slip op., at ___
12-13, n. 11). 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 ___ (slip. op., at 3). ___
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 91-905 - DISSENT
RENO v. FLORES 21 ____
____________________
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 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. 91-905 - DISSENT
22 RENO v. FLORES ____
And finally, even if it were not clear to me that the Attorney General has
exceeded his authority under S242(a), I would still hold that S242(a) requires
an individualized determination 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 Congress is drawn in question, and
even if a serious doubt of constitutionality is raised, it is a cardinal princi-
ple 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 S242(a).
III
I agree with JUSTICE O'CONNOR that respondents "have 91-905 - DISSENT
RENO v. FLORES 23 ____
a constitutionally protected interest in freedom from institutional confinement
. . . [that] lies within the core of the Due Process Clause." Ante, at 1 ____
(concurring opinion). Indeed, we said as much just last Term. See Foucha v. ______
Louisiana, 504 U. S. ___, ___ (1992) (slip op., at 8) ("Freedom from bodily_________
restraint has always been at the core of liberty protected by the Due Process
Clause from arbitrary governmental action"). Ibid. ("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 1 (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 government-selected child-care
institution." Ante, at 9. Finding such a claimed constitutional right to be ____
"nove[l]," ante, at 10, and certainly not "fundamental," ante, at 12, 19, 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 12, 18-20. ____
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 ________ 91-905 - DISSENT
24 RENO v. FLORES ____
norm, and detention prior to trial or without trial is the carefully limited
exception." Salerno, 481 U. S., at 755 (1987). 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 compelling" interests, id., at 749, and, in addition, is ___
implemented in a manner that is "carefully limited" and "narrowly focused."
Foucha, 504 U. S., at ___ (slip op., at 9). (Ftnote. 27) (Ftnote. 27)______
____________________
27) A comparison of the detention regimes upheld in Salerno and struck down 27) _______
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 or 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 ___ (slip op., at 9) (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. Foucha, supra, at ______ _____
___ (slip op., at 1). 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 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, the State
asserts that . . . [Foucha] may be held indefinitely." Id., at ___, (slip op., ___
at 10-11).
As explained in the text, the INS' regulation at issue in this case falls well
on the Foucha side of the Salerno/Foucha divide. ______ _______ ______ 91-905 - DISSENT
RENO v. FLORES 25 ____
On its face, the INS' regulation at issue in this case cannot withstand such
scrutiny. (Ftnote. 28) The United States no doubt has a substantial and (Ftnote. 28)
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 depriva-
____________________
28) Because this is a facial challenge, the Court asserts that respondents 28)
cannot prevail unless there is "no set of circumstances . . . under which the
[regulation] would be valid." Ante, at 8. 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. 91-905 - DISSENT
26 RENO v. FLORES ____
tions of liberty. Due process demands more, far more. (Ftnote. 29) If the (Ftnote. 29)
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 ___ (slip op., at 10) (finding due process violation when______
individual who is detained on grounds 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 incompe-
tency); 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
____________________
29) In objecting to this statement, see ante, at 18, n. 6, the majority 29) ____
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. 91-905 - DISSENT
RENO v. FLORES 27 ____
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). (Ftnote. 30) (Ftnote. 30)
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
____________________
30) There is, of course, one notable exception to this long line of cases: 30)
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 215-216. 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. 91-905 - DISSENT
28 RENO v. FLORES ____
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 12, the ____
INS need not spend the time and money that would be necessary to actually serve
the "best interests" of these children. Id., at 11-12. 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 released 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 19 (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 re- 91-905 - DISSENT
RENO v. FLORES 29 ____
sources 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. It 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 considered. 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." 405 U. S., 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 atten- 91-905 - DISSENT
30 RENO v. FLORES ____
tion," ante, at 12, 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 government-sponsored institution actually serves the INS'
asserted interest in protecting the welfare of that
child. (Ftnote. 31) (Ftnote. 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 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
____________________
31) Of course, even as a factual matter the INS' reliance on its asserted 31)
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."___________ 91-905 - DISSENT
RENO v. FLORES 31 ____
detention of presumptively innocent and harmless children denies them precisely
that liberty.
I respectfully dissent.