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NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports. Readers are
requested to notify the Reporter of Decisions, Supreme Court of the
United States, Washington, D.C. 20543, of any typographical or other
formal errors, in order that corrections may be made before the
preliminary print goes to press.
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 SCALIA delivered the opinion of the Court.
Over the past decade, the Immigration and Naturalization Service (INS) has
arrested increasing numbers of alien juveniles who are not accompanied by their
parents or other related adults. Respondents, a class of alien juveniles so
arrested and held in INS custody pending their deportation hearings, contend
that the Constitution and immigration laws require them to be released into the
custody of "responsible adults."
I
Congress has given the Attorney General broad discretion to determine whether
and on what terms an alien arrested on suspicion of being deportable should be
released pending the deportation hearing. (Ftnote. 1) The Board of (Ftnote. 1)
____________________
1) Title 8 U. S. C. 1252(a)(1), 66 Stat. 208, as amended, provides: 1)
"[A]ny such alien taken into custody may, in the discretion of the Attorney
General and pending such final determination of deportability, (A) be continued
in custody; or (B) be released under bond . . . containing such conditions as
the Attorney General may prescribe; or (C) be released on conditional parole.
But such bond or parole . . . may be revoked at any time by the Attorney
General, in his discretion . . . ."
The Attorney General's discretion to release aliens convicted of aggravated
felonies is narrower. See 8 U. S. C. S1252(a)(2) (1988 ed., Supp. III). 91-905 - OPINION
2 RENO v. FLORES ____
Immigration Appeals has stated that "[a]n alien generally . . . should not be
detained or required to post bond except on a finding that he is a threat to the
national security . . . or that he is a poor bail risk." Matter of Patel, 15 I. _______________
& N. Dec. 666 (1976); cf. INS v. National Center for Immigrants' Rights (NCIR), ___ ______________________________________ ____
502 U. S. ___ (1991) (upholding INS regulation imposing conditions upon
release). In the case of arrested alien juveniles, however, the INS cannot _________
simply send them off into the night on bond or recognizance. The parties to the
present suit agree that the Service must assure itself that someone will care
for those minors pending resolution of their deportation proceedings. That is
easily done when the juvenile's parents have also been detained and the family
can be released together; it becomes complicated when the juveniles are arrested
alone, i.e. unaccompanied by a parent, guardian, or other related adult. This ____
problem is a serious one, since the INS arrests thousands of alien juveniles
each year (more than 8,500 in 1990 alone) - as many as 70% of them
unaccompanied. Brief for Petitioners 8. Most of these minors are boys in their
mid-teens, but perhaps 15% are girls and the same percentage 14 years of age or
younger. See id., at 9, n. 12; App. to Pet. for Cert. 177a. __
For a number of years the problem was apparently dealt with on a regional and
ad hoc basis, with some INS offices releasing unaccompanied alien juveniles not
only to their parents but also to a range of other adults and organizations. In
1984, responding to the increased flow of unaccompanied juvenile aliens into
California, the INS Western Regional Office adopted a policy of limiting the
release of detained minors to "`a parent or lawful guardian,' " except in
"`unusual and extraordinary cases,' " when the juvenile could be released to "`a
responsible individual 91-905 - OPINION
RENO v. FLORES 3 ____
who agrees to provide care and be responsible for the welfare and well being of
the child.'" See Flores v. Meese, 934 F. 2d 991, 994 (CA9 1990) (quoting ______ _____
policy), vacated, 942 F. 2d 1352 (CA9 1991) (en banc).
In July of the following year, the four respondents filed an action in the
District Court for the Central District of California on behalf of a class,
later certified by the court, consisting of all aliens under the age of 18 who
are detained by the INS Western Region because "a parent or legal guardian fails
to personally appear to take custody of them." App. 29. The complaint raised
seven claims, the first two challenging the Western Region release policy (on
constitutional, statutory, and international law grounds), and the final five
challenging the conditions of the juveniles' detention.
The District Court granted the INS partial summary judgment on the statutory
and international-law challenges to the release policy, and in late 1987
approved a consent decree that settled all claims regarding the detention
conditions. The court then turned to the constitutional challenges to the
release policy, and granted the respondents partial summary judgment on their
equal-protection claim that the INS had no rational basis for treating alien
minors in deportation proceedings differently from alien minors in exclusion
proceedings (Ftnote. 2) (whom INS regulations permitted to be paroled, in some (Ftnote. 2)
circumstances, to persons other than parents and legal guardians, including
other relatives and "friends," see 8 CFR S212.5(a)(2)(ii) (1987)). This
prompted the INS to initiate notice-and-comment rulemaking "to codify Service
policy regarding detention and release of juvenile aliens and to provide a
single policy for juveniles in both deportation
____________________
2) Exclusion proceedings, which are not at issue in the present case, 2)
involve aliens apprehended before "entering" the United States, as that term is
used in the immigration laws. See Leng May Ma v. Barber, 357 U. S. 185, 187 ___________ ______
(1958). 91-905 - OPINION
4 RENO v. FLORES ____
and exclusion proceedings." 52 Fed. Reg. 38245 (1987). The District Court
agreed to defer consideration of respondents' due process claims until the
regulation was promulgated.
The uniform deportation-exclusion rule finally adopted, published on May 17,
1988, see Detention and Release of Juveniles, 53 Fed. Reg. 17449 (codified as to
deportation at 8 CFR S242.24 (1992)), expanded the possibilities for release
somewhat beyond the Western Region policy, but not as far as many commenters had
suggested. It provides that alien juveniles "shall be released, in order of
preference, to: (i) a parent; (ii) a legal guardian; or (iii) an adult relative
(brother, sister, aunt, uncle, grandparent) who are [sic] not presently in INS ___
detention," unless the INS determines that "the detention of such juvenile is
required to secure his timely appearance before the Service or the immigration
court or to ensure the juvenile's safety or that of others." 8 CFR
S242.24(b)(1) (1992). If the only listed individuals are in INS detention, the
Service will consider simultaneous release of the juvenile and custodian "on a
discretionary case-by-case basis." S242.24(b)(2). A parent or legal guardian
who is in INS custody or outside the United States may also, by sworn affidavit,
designate another person as capable and willing to care for the child, provided
that person "execute[s] an agreement to care for the juvenile and to ensure the
juvenile's presence at all future proceedings." S242.24(b)(3). Finally, in
"unusual and compelling circumstances and in the discretion of the [INS]
district director or chief patrol agent," juveniles may be released to other
adults who execute a care and attendance agreement. S242.24(b)(4).
If the juvenile is not released under the foregoing provision, the regulation ___
requires a designated INS official, the "Juvenile Coordinator," to locate
"suitable placement . . . in a facility designated for the occupancy of
juveniles." S242.24(c). The Service may briefly hold the minor in an 91-905 - OPINION
RENO v. FLORES 5 ____
"INS detention facility having separate accommodations for juveniles,"
S242.24(d), but under the terms of the consent decree resolving respondents'
conditions-of-detention claims, the INS must within 72 hours of arrest place
alien juveniles in a facility that meets or exceeds the standards established by
the Alien Minors Care Program of the Community Relations Service (CRS),
Department of Justice, 52 Fed. Reg. 15569 (1987). See Memorandum of
Understanding Re Compromise of Class Action: Conditions of Detention, Flores v. ______
Meese, No. 85-4544-RJK (Px) (CD Cal., Nov. 30, 1987) (incorporating the CRS_____
notice and program description), reprinted in App. to Pet. for Cert. 148a-205a
(hereinafter Juvenile Care Agreement).
Juveniles placed in these facilities are deemed to be in INS detention
"because of issues of payment and authorization of medical care." 53 Fed. Reg.,
at 17449. "Legal custody" rather than "detention" more accurately describes the
reality of the arrangement, however, since these are not correctional
institutions but facilities that meet "state licensing requirements for the
provision of shelter care, foster care, group care, and related services to
dependent children," Juvenile Care Agreement 176a, and are operated "in an open
type of setting without a need for extraordinary security measures," id., at ___
173a. The facilities must provide, in accordance with "applicable child welfare
statutes and generally accepted child welfare standards, practices, principles
and procedures," id., at 157a, an extensive list of services, including physical ___
care and maintenance, individual and group counseling, education, recreation and
leisure-time activities, family reunification services, and access to religious
services, visitors, and legal assistance, id., at 159a, 178a-185a. ___
Although the regulation replaced the Western Region release policy that had
been the focus of respondents' constitutional claims, respondents decided to
maintain the litigation as a challenge to the new rule. Just a week after the
regulation took effect, in a brief, unpublished 91-905 - OPINION
6 RENO v. FLORES ____
order that referred only to unspecified "due process grounds," the District
Court granted summary judgment to respondents and invalidated the regulatory
scheme in three important respects. Flores v. Meese, No. CV 854544-RJK (Px) (CD ______ _____
Cal., May 25, 1988), App. to Pet. for Cert. 146a. First, the court ordered the
INS to release "any minor otherwise eligible for release . . . to his parents,
guardian, custodian, conservator, or other responsible adult party." Ibid. (em- ________________________________ ____
phasis added). Second, the order dispensed with the regulation's requirement
that unrelated custodians formally agree to care for the juvenile, 8 CFR ____ ___
SS242.24(b)(3) and (4) (1992), in addition to ensuring his attendance at future
proceedings. Finally, the District Court rewrote the related INS regulations
that provide for an initial determination of prima facie deportability and
release conditions before an INS examiner, see S287.3, with review by an
immigration judge upon the alien's request, see S242.2(d). It decreed instead
that an immigration-judge hearing on probable cause and release restrictions
should be provided "forthwith" after arrest, whether or not the juvenile
requests it. App. to Pet. for Cert. 146a.
A divided panel of the Court of Appeals reversed. Flores v. Meese, 934 F. 2d ______ _____
991 (CA9 1990). The Ninth Circuit voted to rehear the case and selected an
eleven-judge en banc court. See Ninth Circuit Rule 35-3. That court vacated
the panel opinion and affirmed the District Court order "in all respects."
Flores v. Meese, 942 F. 2d 1352, 1365 (1991). One judge dissented in part, see______ _____
id., at 1372-1377 (opinion of Rymer, J.), and four in toto, see id., at___ _______ ___
1377-1385 (opinion of Wallace, C. J.). We granted certiorari. 502 U. S. ___
(1992).
II
Respondents make three principal attacks upon INS regulation 242.24. First,
they assert that alien juveniles suspected of being deportable have a
"fundamental" right 91-905 - OPINION
RENO v. FLORES 7 ____
to "freedom from physical restraint," Brief for Respondents 16, and it is
therefore a denial of "substantive due process" to detain them, since the
Service cannot prove that it is pursuing an important governmental interest in a
manner narrowly tailored to minimize the restraint on liberty. Secondly,
respondents argue that the regulation violates "procedural due process,"
because it does not require the Service to determine, with regard to each ____
individual detained juvenile who lacks an approved custodian, whether his best__________
interests lie in remaining in INS custody or in release to some other
"responsible adult." Finally, respondents contend that even if the INS
regulation infringes no constitutional rights, it exceeds the Attorney General's
authority under 8 U. S. C. S1252(a)(1). We find it economic to discuss the
objections in that order, though we of course reach the constitutional issues
only because we conclude that the respondents' statutory argument
fails. (Ftnote. 3) (Ftnote. 3)
Before proceeding further, however, we make two important observations.
First, this is a facial challenge to INS regulation 242.24. Respondents do not
challenge its application in a particular instance; it had not yet been applied
in a particular instance - because it was not yet in existence - when their suit
was brought (directed at the 1984 Western Region release policy), and it had
____________________
3) The District Court and all three judges on the Court of Appeals panel 3)
held in favor of the INS on this statutory claim, see Flores v. Meese, 934 F. 2d ______ _____
991, 995, 997-1002 (CA9 1991); id., at 1015 (Fletcher, J., dissenting); the en ___
banc court (curiously) did not address the claim, proceeding immediately to find
the rule unconstitutional. Although respondents did not cross-petition for
certiorari on the statutory issue, they may legitimately defend their judgment
on any ground properly raised below. See Washington v. Confederated Bands and __________ ______________________
Tribes of Yakima Indian Nation, 439 U. S. 463, 476, n. 20 (1979). The INS does______________________________
not object to our considering the issue, and we do so in order to avoid deciding
constitutional questions unnecessarily. See Jean v. Nelson, 472 U. S. 846, 854 ____ ______
(1985). 91-905 - OPINION
8 RENO v. FLORES ____
been in effect only a week when the District Court issued the judgment
invalidating it. We have before us no findings of fact, indeed no record,
concerning the INS's interpretation of the regulation or the history of its
enforcement. We have only the regulation itself and the statement of basis and
purpose that accompanied its promulgation. To prevail in such a facial
challenge, respondents "must establish that no set of circumstances exists under
which the [regulation] would be valid." United States v. Salerno, 481 U. S. _____________ _______
739, 745 (1987). That is true as to both the constitutional challenges, see
Schall v. Martin, 467 U. S. 253, 268, n. 18 (1984), and the statutory challenge,______ ______
see NCIR, 502 U. S., at ___ (slip op., at 4-5). ____
The second point is related. Respondents spend much time, and their amici _____
even more, condemning the conditions under which some alien juveniles are held,
alleging that the conditions are so severe as to belie the Service's stated
reasons for retaining custody - leading, presumably, to the conclusion that the
retention of custody is an unconstitutional infliction of punishment without
trial. See Salerno, supra, at 746-748; Wong Wing v. United States, 163 U. S. _______ _____ _________ _____________
228, 237 (1896). But whatever those conditions might have been when this
litigation began, they are now (at least in the Western Region, where all
members of the respondents' class are held) presumably in compliance with the
extensive requirements set forth in the Juvenile Care Agreement that settled
respondents' claims regarding detention conditions, see supra, at 5. The _____
settlement agreement entitles respondents to enforce compliance with those
requirements in the District Court, see Juvenile Care Agreement 148a-149a, which
they acknowledge they have not done, Tr. of Oral Arg. 43. We will disregard the
effort to reopen those settled claims by alleging, for purposes of the
challenges to the regulation, that the detention conditions are other than what
the consent decree says they must be. 91-905 - OPINION
RENO v. FLORES 9 ____
III
Respondents' "substantive due process" claim relies upon our line of cases
which interprets the Fifth and Fourteenth Amendments' guarantee of "due process
of law" to include a substantive component, which forbids the government to
infringe certain "fundamental" liberty interests at all, no matter what process ______
is provided, unless the infringement is narrowly tailored to serve a compelling
state interest. See, e.g., Collins v. City of Harker Heights, 503 U. S. ___, ____ _ _______ ______________________
___ (1992) (slip op., at 9); Salerno, supra, at 746; Bowers v. Hardwick, 478 _______ _____ ______ ________
U. S. 186, 191 (1986). "Substantive due process" analysis must begin with a
careful description of the asserted right, for "[t]he doctrine of judicial self-
restraint requires us to exercise the utmost care whenever we are asked to break
new ground in this field." Collins, supra, at ___ (slip op., at 9); see Bowers _______ _ _____ ______
v. Hardwick, supra, at 194-195. The "freedom from physical restraint" invoked ________ _____
by respondents is not at issue in this case. Surely not in the sense of
shackles, chains, or barred cells, given the Juvenile Care Agreement. Nor even
in the sense of a right to come and go at will, since, as we have said
elsewhere, "juveniles, unlike adults, are always in some form of custody,"
Schall, supra, at 265, and where the custody of the parent or legal guardian______ _____
fails, the government may (indeed, we have said must) either exercise custody ____
itself or appoint someone else to do so. Ibid. Nor is the right asserted the _____
right of a child to be released from all other custody into the custody of its
parents, legal guardian, or even close relatives: the challenged regulation
requires such release when it is sought. Rather, the right at issue is the
alleged right of a child who has no available parent, close relative, or legal
guardian, and for whom the government is responsible, to be placed in the
custody of a willing-and-able private custodian rather than of a government-
operated or government-selected child-care institution.
If there exists a fundamental right to be released into 91-905 - OPINION
10 RENO v. FLORES ____
what respondents inaccurately call a "non-custodial setting," Brief for
Respondents 18, we see no reason why it would apply only in the context of
government custody incidentally acquired in the course of law enforcement. It
would presumably apply to state custody over orphans and abandoned children as
well, giving federal law and federal courts a major new role in the management
of state orphanages and other child-care institutions. Cf. Ankenbrandt v. ___________
Richards, 504 U. S. ___, ___ (1992) (slip op., at 14). We are unaware, however,________
that any court - aside from the courts below - has ever held that a child has a
constitutional right not to be placed in a decent and humane custodial institu-
tion if there is available a responsible person unwilling to become the child's
legal guardian but willing to undertake temporary legal custody. The mere
novelty of such a claim is reason enough to doubt that "substantive due process"
sustains it; the alleged right certainly cannot be considered "`so rooted in
the traditions and conscience of our people as to be ranked as fundamental.'"
Salerno, supra, at 751 (quoting Snyder v. Massachusetts, 291 U. S. 97, 105_______ _ _____ ______ _____________
(1934)). Where a juvenile has no available parent, close relative, or legal
guardian, where the government does not intend to punish the child, and where
the conditions of governmental custody are decent and humane, such custody
surely does not violate the Constitution. It is rationally connected to a
governmental interest in "preserving and promoting the welfare of the child,"
Santosky v. Kramer, 455 U. S. 745, 766 (1982), and is not punitive since it is________ ______
not excessive in relation to that valid purpose. See Schall, supra, at 269. ______ _____
Although respondents generally argue for the categorical right of private
placement discussed above, at some points they assert a somewhat more limited
constitutional right: the right to an individualized hearing on whether private
placement would be in the child's "best interests" - followed by private
placement if the answer is in 91-905 - OPINION
RENO v. FLORES 11 ____
the affirmative. It seems to us, however, that if institutional custody
(despite the availability of responsible private custodians) is not
unconstitutional in itself, it does not become so simply because it is shown to
be less desirable than some other arrangement for the particular child. "The
best interests of the child," a venerable phrase familiar from divorce
proceedings, is a proper and feasible criterion for making the decision as to
which of two parents will be accorded custody. But it is not traditionally the
sole criterion - much less the sole constitutional criterion - for other, less ______________
narrowly channeled judgments involving children, where their interests conflict
in varying degrees with the interests of others. Even if it were shown, for
example, that a particular couple desirous of adopting a child would best ____
provide for the child's welfare, the child would nonetheless not be removed from
the custody of its parents so long as they were providing for the child
adequately. See Quilloin v. Walcott, 434 U. S. 246, 255 (1978). Similarly,__________ ________ _______
"the best interests of the child" is not the legal standard that governs
parents' or guardians' exercise of their custody: so long as certain minimum
requirements of child care are met, the interests of the child may be
subordinated to the interests of other children, or indeed even to the interests
of the parents or guardians themselves. See, e.g., R. C. N. v. State, 141 Ga. ____ _ ________ _____
App. 490, 491, 233 S. E. 2d 866, 867 (1977).
"The best interests of the child" is likewise not an absolute and exclusive
constitutional criterion for the government's exercise of the custodial
responsibilities that it undertakes, which must be reconciled with many other
responsibilities. Thus, child-care institutions operated by the state in the
exercise of its parens patriae authority, see Schall, supra, at 265, are not ______________ ______ _____
constitutionally required to be funded at such a level as to provide the best ____
schooling or the best health care available; nor does the Constitution require ____
them to substitute, wherever possible, private nonadoptive custody for
institutional care. And 91-905 - OPINION
12 RENO v. FLORES ____
the same principle applies, we think, to the governmental responsibility at
issue here, that of retaining or transferring custody over a child who has come
within the Federal Government's control, when the parents or guardians of that
child are nonexistent or unavailable. Minimum standards must be met, and the
child's fundamental rights must not be impaired; but the decision to go beyond
those requirements - to give one or another of the child's additional interests
priority over other concerns that compete for public funds and administrative
attention - is a policy judgment rather than a constitutional imperative.
Respondents' "best interests" argument is, in essence, a demand that the INS
program be narrowly tailored to minimize the denial of release into private
custody. But narrow tailoring is required only when fundamental rights are
involved. The impairment of a lesser interest (here, the alleged interest in
being released into the custody of strangers) demands no more than a "reasonable
fit" between governmental purpose (here, protecting the welfare of the juveniles
who have come into the government's custody) and the means chosen to advance
that purpose. This leaves ample room for an agency to decide, as the INS has,
that administrative factors such as lack of child-placement expertise favor
using one means rather than another. There is, in short, no constitutional need
for a hearing to determine whether private placement would be better, so long as
institutional custody is (as we readily find it to be, assuming compliance with
the requirements of the consent decree) good enough.
If we harbored any doubts as to the constitutionality of institutional custody
over unaccompanied juveniles, they would surely be eliminated as to those
juveniles (concededly the overwhelming majority of all involved here) who are
aliens. "For reasons long recognized as valid, the responsibility for
regulating the relationship between the United States and our alien visitors has
been committed to the political branches of the Federal Government." Mathews _______ 91-905 - OPINION
RENO v. FLORES 13 ____
v. Diaz, 426 U. S. 67, 81 (1976). "`[O]ver no conceivable subject is the ____
legislative power of Congress more complete.'" Fiallo v. Bell, 430 U. S. 787, ______ ____
792 (1977) (quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320, ____________________________ _________
339 (1909)). Thus, "in the exercise of its broad power over immigration and
naturalization, `Congress regularly makes rules that would be unacceptable if
applied to citizens.'" 430 U. S., at 792 (quoting Mathews v. Diaz, supra, at _______ ____ _____
79-80). Respondents do not dispute that Congress has the authority to detain
aliens suspected of entering the country illegally pending their deportation
hearings, see Carlson v. Landon, 342 U. S. 524, 538 (1952); Wong Wing v. United _______ ______ _________ ______
States, 163 U. S., at 235. And in enacting the precursor to 8 U. S. C.______
S1252(a), Congress eliminated any presumption of release pending deportation,
committing that determination to the discretion of the Attorney General. See
Carlson v. Landon, supra, at 538-540. Of course, the INS regulation must still_______ ______ _____
meet the (unexacting) standard of rationally advancing some legitimate
governmental purpose - which it does, as we shall discuss later in connection
with the statutory challenge.
Respondents also argue, in a footnote, that the INS release policy violates
the "equal protection guarantee" of the Fifth Amendment because of the disparate
treatment evident in (1) releasing alien juveniles with close relatives or legal
guardians but detaining those without, and (2) releasing to unrelated adults
juveniles detained pending federal delinquency proceedings, see 18 U. S. C.
S5034, but detaining unaccompanied alien juveniles pending deportation
proceedings. The tradition of reposing custody in close relatives and legal
guardians is in our view sufficient to support the former distinction; and the
difference between citizens and aliens is adequate to support the latter.
IV
We turn now from the claim that the INS cannot 91-905 - OPINION
14 RENO v. FLORES ____
deprive respondents of their asserted liberty interest at all, to the ______
"procedural due process" claim that the Service cannot do so on the basis of the
procedures it provides. It is well established that the Fifth Amendment
entitles aliens to due process of law in deportation proceedings. See The ___
Japanese Immigrant Case, 189 U. S. 86, 100-101 (1903). To determine whether_______________________
these alien juveniles have received it here, we must first review in some detail
the procedures the INS has employed.
Though a procedure for obtaining warrants to arrest named individuals is
available, see 8 U. S. C. S1252(a)(1); 8 CFR S 242.2(c)(1) (1992), the
deportation process ordinarily begins with a warrantless arrest by an INS
officer who has reason to believe that the arrestee "is in the United States in
violation of any [immigration] law or regulation and is likely to escape before
a warrant can be obtained," 8 U. S. C. S 1357(a)(2). Arrested aliens are almost
always offered the choice of departing the country voluntarily, 8 U. S. C.
S1252(b) (1988 ed., Supp. III); 8 CFR S 242.5 (1992), and as many as 98% of them
take that course. See INS v. Lopez-Mendoza, 468 U. S. 1032, 1044 (1984). ___ _____________
Before the Service seeks execution of a voluntary departure form by a juvenile, ________
however, the juvenile "must in fact communicate with either a parent, adult
relative, friend, or with an organization found on the free legal services
list." 8 CFR S242.24(g) (1992). (Ftnote. 4) If the juvenile does not seek (Ftnote. 4)
voluntary departure, he must be brought before an INS examining officer within
24 hours of his arrest. S287.3; see 8 U. S. C. S 1357(a)(2). The examining
officer is a member of the Service's enforcement staff, but must be someone
other than the
____________________
4) Alien juveniles from Canada and Mexico must be offered the opportunity 4)
to make a telephone call but need not in fact do so, see 8 CFR S242.24(g)
(1992); the United States has treaty obligations to notify diplomatic or
consular officers of those countries whenever their nationals are detained, see
S242.2(g). 91-905 - OPINION
RENO v. FLORES 15 ____
arresting officer (unless no other qualified examiner is readily available). 8
CFR S287.3 (1992). If the examiner determines that "there is prima facie evi-
dence establishing that the arrested alien is in the United States in violation
of the immigration laws," ibid., a formal deportation proceeding is initiated ____
through the issuance of an order to show cause, S242.1, and within 24 hours the
decision is made whether to continue the alien juvenile in custody or release
him, S287.3.
The INS notifies the alien of the commencement of a deportation proceeding and
of the decision as to custody by serving him with a Form I-221S (reprinted in
App. to Brief for Petitioners 7a-8a) which, pursuant to the Immigration Act of
1990, 8 U. S. C. S1252b(a)(3)(A) (1988 ed., Supp. III), must be in English and
Spanish. The front of this form notifies the alien of the allegations against
him and the date of his deportation hearing. The back contains a section
entitled "NOTICE OF CUSTODY DETERMINATION," in which the INS officer checks a
box indicating whether the alien will be detained in the custody of the Service,
released on recognizance, or released under bond. Beneath these boxes, the form
states: "You may request the Immigration Judge to redetermine this decision."
See 8 CFR S242.2(c)(2) (1992). (The immigration judge is a quasi-judicial
officer in the Executive Office for Immigration Review, a division separated
from the Service's enforcement staff. S3.10.) The alien must check either a
box stating "I do" or a box stating "[I] do not request a redetermination by an
Immigration Judge of the custody decision," and must then sign and date this
section of the form. If the alien requests a hearing and is dissatisfied with
the outcome, he may obtain further review by the Board of Immigration Appeals,
S242.2(d); S 3.1(b)(7), and by the federal courts, see, e.g., Carlson v. Landon, ____ _ _______ ______
supra, at 529, 531._____
Respondents contend that this procedural system is unconstitutional because it
does not require the Service 91-905 - OPINION
16 RENO v. FLORES ____
to determine in the case of each individual alien juvenile that detention in INS
custody would better serve his interests than release to some other "responsible
adult." This is just the "substantive due process" argument recast in
"procedural due process" terms, and we reject it for the same reasons.
The District Court and the en banc Court of Appeals concluded that the INS
procedures are faulty because they do not provide for automatic review by an _________
immigration judge of the initial deportability and custody determinations. See
942 F. 2d, at 1364. We disagree. At least insofar as this facial challenge is
concerned, due process is satisfied by giving the detained alien juveniles the
right to a hearing before an immigration judge. It has not been shown that all______
of them are too young or too ignorant to exercise that right when the form
asking them to assert or waive it is presented. Most are 16 or 17 years old and
will have been in telephone contact with a responsible adult outside the INS -
sometimes a legal services attorney. The waiver, moreover, is revocable: the
alien may request a judicial redetermination at any time later in the deporta-
tion process. See 8 CFR S242.2(d) (1992); Matter of Uluocha, 20 I. & N. Dec. _________________
___ (Interim Dec. 3124, BIA 1989). We have held that juveniles are capable of
"knowingly and intelligently" waiving their right against self-incrimination in
criminal cases. See Fare v. Michael C., 442 U. S. 707, 724-727 (1979); see also ____ __________
United States v. Saucedo-Velasquez, 843 F. 2d 832, 835 (CA5 1988) (applying Fare_____________ _________________ ____
to alien juvenile). The alleged right to redetermination of prehearing custody
status in deportation cases is surely no more significant.
Respondents point out that the regulations do not set a time period within
which the immigration-judge hearing, if requested, must be held. But we will
not assume, on this facial challenge, that an excessive delay will invariably
ensue - particularly since there is no evidence of such 91-905 - OPINION
RENO v. FLORES 17 ____
delay, even in isolated instances. Cf. Matter of Chirinos, 16 I. & N. Dec. 276 __________________
(BIA 1977).
V
Respondents contend that the regulation goes beyond the scope of the Attorney
General's discretion to continue custody over arrested aliens under 8 U. S. C.
S1252(a)(1). That contention must be rejected if the regulation has a
"`reasonable foundation,' " Carlson v. Landon, supra, at 541, that is, if it _______ ______ _____
rationally pursues a purpose that it is lawful for the INS to seek. See also
NCIR, 502 U. S., at ___ (slip op., at 11). We think that it does.____
The statement of basis and purpose accompanying promulgation of regulation
242.42, in addressing the question "as to whose custody the juvenile should be
released," began with the dual propositions that "concern for the welfare of the
juvenile will not permit release to just any adult" and that "the Service has
neither the expertise nor the resources to conduct home studies for placement of
each juvenile released." Detention and Release of Juveniles, 53 Fed. Reg.
17449, 17449 (1988). The INS decided to "strik[e] a balance" by defining a list
of presumptively appropriate custodians while maintaining the discretion of
local INS directors to release detained minors to other custodians in "unusual
and compelling circumstances." Ibid. The list begins with parents, whom our _____
society and this Court's jurisprudence have always presumed to be the preferred
and primary custodians of their minor children. See Parham v. J. R., 442 U. S. ______ _____
584, 602-603 (1979). The list extends to other close blood relatives, whose
protective relationship with children our society has also traditionally
respected. See Moore v. East Cleveland, 431 U. S. 494 (1977); compare Village _____ ______________ _______
of Bell Terre v. Boras, 416 U. S. 1 (1974). And finally, the list includes_____________ _____
persons given legal guardianship by the States, which we have said possess
"special proficiency" in the field of domestic relations, including child
custody. 91-905 - OPINION
18 RENO v. FLORES ____
Ankenbrandt v. Richards, 504 U. S., at ___ (slip op., at 14). When neither___________ ________
parent, close relative, or state-appointed guardian is immediately
available, (Ftnote. 5) the INS will normally keep legal custody of the juvenile, (Ftnote. 5)
place him in a government-supervised and state-licensed shelter-care facility,
and continue searching for a relative or guardian, although release to others is
possible in unusual cases. (Ftnote. 6) (Ftnote. 6)
Respondents object that this scheme is motivated purely by "administrative
convenience," a charge echoed by the dissent, see, e.g., post, at 1-2. This ____ _ ____
fails to grasp the distinction between administrative convenience (or, to speak
less pejoratively, administrative efficiency) as the purpose of a policy - for _______
example, a policy of not considering late-filed objections - and administrative
efficiency as the reason for selecting one means of achieving a purpose over
another. Only the latter is at issue here. The
____________________
5) The regulation also provides for release to any person designated by a 5)
juvenile's parent or guardian as "capable and willing to care for the juvenile's
well-being." 8 CFR S242.24(b)(3) (1992). "[To] ensur[e] that the INS is
actually receiving the wishes of the parent or guardian," 53 Fed. Reg. 17449,
17450 (1988), the designation must be in the form of a sworn affidavit executed
before an immigration or consular officer.
6) The dissent maintains that, in making custody decisions, the INS cannot 6)
rely on "[c]ategorical distinctions between cousins and uncles, or between
relatives and godparents or other responsible persons," because "[d]ue process
demands more, far more." Post, at 25-26. Acceptance of such a proposition ____
would revolutionize much of our family law. Categorical distinctions between
relatives and nonrelatives, and between relatives of varying degree of affinity,
have always played a predominant role in determining child custody and in
innumerable other aspects of domestic relations. The dissent asserts, however,
that it would prohibit such distinctions only for the purpose of "prefer[ring]
detention [by which it means institutional detention] to release," and accuses_________ _______
us of "mischaracteriz[ing] the issue" in suggesting otherwise. Post, at 26, n. ____
29. It seems to us that the dissent mischaracterizes the issue. The INS uses
the categorical distinction between relatives and nonrelatives not to deny
release, but to determine which potential custodians will be accepted without
the safeguard of state-decreed guardianship. 91-905 - OPINION
RENO v. FLORES 19 ____
requisite statement of basis and purpose published by the INS upon promulgation
of regulation 242.24 declares that the purpose of the rule is to protect "the
welfare of the juvenile," 53 Fed. Reg., at 17449, and there is no basis for
calling that false. (Respondents' contention that the real purpose was to save
money imputes not merely mendacity but irrationality, since respondents point
out that detention in shelter-care facilities is more expensive than release.)
Because the regulation involves no deprivation of a "fundamental" right, the
Service was not compelled to ignore the costs and difficulty of alternative
means of advancing its declared goal. Compare Stanley v. Illinois, 405 U. S. _______ ________
645, 656-657 (1972). It is impossible to contradict the Service's assessment
that it lacks the "expertise," and is not "qualified," to do individualized
child-placement studies, 53 Fed. Reg., at 17449, and the right alleged here
provides no basis for this Court to impose upon what is essentially a law-
enforcement agency the obligation to expend its limited resources in developing
such expertise and qualification. (Ftnote. 7) That reordering of priorities is (Ftnote. 7)
for Congress - which has shown, we may say, no inclination to shrink from the
task. See, e.g., 8 U. S. C. S1154(c) (requiring INS to determine if applicants ____ _ _
for immigration
____________________
7) By referring unrelated persons seeking custody to state guardianship 7)
procedures, the INS is essentially drawing upon resources and expertise that are
already in place. Respondents' objection to this is puzzling, in light of their
assertion that the States generally view unrelated adults as appropriate
custodians. See post, at 6, n. 7 (dissent) (collecting state statutes). If ____
that is so, one wonders why the individuals and organizations respondents allege
are eager to accept custody do not rush to state court, have themselves
appointed legal guardians (temporary or permanent, the States have procedures
for both), and then obtain the juveniles' release under the terms of the
regulation. Respondents and their amici do maintain that becoming a guardian _____
can be difficult, but the problems they identify - delays in processing, the
need to ensure that existing parental rights are not infringed, the
"bureaucratic gauntlet" - would be no less significant were the INS to duplicate
existing state procedures. 91-905 - OPINION
20 RENO v. FLORES ____
are involved in "sham" marriages). We do not hold, as the dissent contends,
that "minimizing administrative costs" is adequate justification for the
Service's detention of juveniles, post, at 1; but we do hold that a detention ____
program justified by the need to protect the welfare of juveniles is not
constitutionally required to give custody to strangers if that entails the
expenditure of administrative effort and resources that the Service is unwilling
to commit. (Ftnote. 8) (Ftnote. 8)
Respondents also contend that the INS regulation violates the statute because
it relies upon a "blanket" presumption of the unsuitability of custodians other
than
____________________
8) We certainly agree with the dissent that this case must be decided in 8)
accordance with "indications of congressional policy," post, at 15-16. The most ____
pertinent indication, however, is not, as the dissent believes, the federal
statute governing detention of juveniles pending delinquency proceedings, 18
U. S. C. S5034, but the statute under which the Attorney General is here
acting, 8 U. S. C. S1252(a)(1). That grants the Attorney General discretion to __________
determine when temporary detention pending deportation proceedings is
appropriate, and makes his exercise of that discretion "presumptively correct
and unassailable except for abuse." Carlson v. Landon, 342 U. S. 524, 540 _______ ______
(1952). We assuredly cannot say that the decision to rely on universally
accepted presumptions as to the custodial competence of parents and close
relatives, and to defer to the expertise of the States regarding the
capabilities of other potential custodians, is an abuse of this broad discretion
simply because it does not track policies applicable outside the immigration
field. See NCIR, 502 U. S. ___, ___ (1991) (slip op., at 9). Moreover, ____
reliance upon the States to determine guardianship is quite in accord with what
Congress has directed in other immigration contexts. See 8 U. S. C. S1154(d)
(INS may not approve immigration petition for an alien juvenile orphan being
adopted unless "a valid home-study has been favorably recommended by an agency
of the State of the child's proposed residence, or by an agency authorized by
that State to conduct such a study"); S1522(d)(2)(B)(ii) (for refugee children
unaccompanied by parents or close relatives, INS shall "attempt to arrange . . .
placement under the laws of the States"); see also 45 CFR S400.113 (1992)
(providing support payments under S1522 until the refugee juvenile is placed
with a parent or with another adult "to whom legal custody and/or guardianship
is granted under State law"). 91-905 - OPINION
RENO v. FLORES 21 ____
parents, close relatives, and guardians. We have stated that, at least in
certain contexts, the Attorney General's exercise of discretion under
S1252(a)(1) requires "some level of individualized determination." NCIR, 502 ____
U. S., at ___ (slip op., at 11); see also Carlson v. Landon, 342 U. S., at 538. _______ ______
But as NCIR itself demonstrates, this does not mean that the Service must ____
forswear use of reasonable presumptions and generic rules. See 502 U. S., at
___, n. 11 (slip op., at 12-13, n. 11); cf. Heckler v. Campbell, 461 U. S. 458, _______ ________
467 (1983). In the case of each detained alien juvenile, the INS makes those
determinations that are specific to the individual and necessary to accurate
application of the regulation: Is there reason to believe the alien deportable?
Is the alien under 18 years of age? Does the alien have an available adult
relative or legal guardian? Is the alien's case so exceptional as to require
consideration of release to someone else? The particularization and
individuation need go no further than this. (Ftnote. 9) (Ftnote. 9)
Finally, respondents claim that the regulation is an abuse of discretion
because it permits the INS, once having determined that an alien juvenile lacks
an avail-
____________________
9) The dissent would mandate fully individualized custody determinations 9)
for two reasons. First, because it reads Carlson v. Landon, supra, as holding _______ ______ _____
that the Attorney General may not employ "mere presumptions" in exercising his
discretion. Post, at 19-20. But it was only the dissenters in Carlson who took ____ __________ _______
such a restrictive view. See 342 U. S., at 558-559, 563-564, 568 (Frankfurter,
J., dissenting). Second, because it believes that S1252(a) must be interpreted
to require individualized hearings in order to avoid "`constitutional doubts.' "
Post, at 16 (quoting United States v. Witkovich, 353 U. S. 194, 199 (1957)); see____ _____________ _________
post, at 22. The "constitutional doubts" argument has been the last refuge of____
many an interpretive lost cause. Statutes should be interpreted to avoid
serious constitutional doubts, Witkovich, supra, at 202, not to eliminate all_______ _________ _____
possible contentions that the statute might be unconstitutional. We entertain _____
no serious doubt that the Constitution does not require any more individuation
than the regulation provides, see supra, at 10-12, 16, and thus find no need to _____
supplement the text of S1252(a). 91-905 - OPINION
22 RENO v. FLORES ____
able relative or legal guardian, to hold the juvenile in detention indefinitely.
That is not so. The period of custody is inherently limited by the pending
deportation hearing, which must be concluded with "reasonable dispatch" to avoid
habeas corpus. 8 U. S. C. S1252(a)(1); cf. Salerno v. United States, 481 U. S. _______ _ _____________
739, 747 (1987) (noting time limits placed on pretrial detention by the Speedy
Trial Act). It is expected that alien juveniles will remain in INS custody an
average of only 30 days. See Juvenile Care Agreement 178a. There is no
evidence that alien juveniles are being held for undue periods pursuant to
regulation 242.24, or that habeas corpus is insufficient to remedy particular
abuses. (Ftnote. 10) And the reasonableness of the Service's negative (Ftnote. 10)
assessment of putative custodians who fail to obtain legal guardianship would
seem, if anything, to increase as time goes by.
* * *
We think the INS policy now in place is a reasonable response to the difficult
problems presented when the Service arrests unaccompanied alien juveniles. It
may well be that other policies would be even better, but "we are [not] a
legislature charged with formulating public policy." Schall v. Martin, 467 ______ ______
U. S., at 281. On its face, INS regulation 242.24 accords with both the
Constitution and the relevant statute.
The judgment of the Court of Appeals is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered. _________________
____________________
10) The dissent's citation of a single deposition from 1986, post, at 5 and 10) ____
n. 6, is hardly proof that "excessive delay" will result in the "typical" case,
post, at 6, under regulation 242.24, which was not promulgated until mid-1988.____