RENO, ATTORNEY GENERAL v. FLORES

Transcript: 

IN THE SUPREME COURT OF THE UNITED STATES

WILLIAM P. BARR, ATTORNEY GENERAL, et al., Petitioners v. JENNY LISETTE FLORES, et al.

No. 91-905

October 13, 1992

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:45 p.m.

APPEARANCES:

MAUREEN E. MAHONEY, ESQ., Deputy Solicitor General, Department of Justice, Washington D.C.; on behalf of the Petitioners.

CARLOS HOLGUIN, ESQ., Los Angeles, California; on behalf of the Respondents.

PROCEEDINGS

1:45 p.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in number 91-905, William P. Barr, Attorney General, v. Jenny Lisette Flores. You may proceed, Ms. Mahoney.

ORAL ARGUMENT OF MAUREEN E. MAHONEY ON BEHALF OF THE PETITIONER

MS. MAHONEY: Mr Chief Justice, and may it please the Court:

This case concerns a facial challenge to the constitutionality of a program adopted by the Attorney General in 1988 to govern the care and custody of unaccompanied alien minors who are charged with being in the United States illegally.

The Ninth Circuit held that this program was unconstitutional in two separate respects. First, it invalidated the substantive determination that the Attorney General made about who had the appropriate requirements to serve as a custodian for these children. And second, it invalidated the procedures that were used to make that determination.

We respectfully request this Court to reverse both rulings of the Ninth Circuit, and I would like to turn first to the substantive due process issue.

I think that the best way to explain why the program is constitutional is to explain the program. Because a description of those terms reveals that this program is not only supported by legitimate purposes which conclusively establish its constitutionality, but, in fact, these terms are far more consistent with the welfare of these children than the program that was adopted by the Ninth Circuit on its own.

And I think the best way to do this is just to -- to try to describe the problem that INS confronts. Every year thousands of unaccompanied minors are taken into custody. These children have travelled large -- primarily from Haiti or from Central America. Sometimes they're bound for relatives in the United States, sometimes they're living on the streets of Los Angeles, but all of them concede -- virtually all of them -- that they are here illegally.

And when INS takes them into custody it doesn't want to keep them in custody, but these children all share the same problem and that is that they have no home to go to. Now, what is INS supposed to do?

The easiest and the cheapest thing they could do is adopt the substantive policy that the Ninth Circuit said they should adopt, and that is to simply release them to the first willing adult who comes along and says that they'll ensure that they show up for their deportation hearing. And that's what the Ninth Circuit said that the INS must do.

QUESTION: May I just interrupt. You said the policy was adopted in 1988. I had in the back of my mind it was 1984. Whatever date it was, isn't it true that they had been doing this for a long time before 1984?

MS. MAHONEY: Your Honor, this problem started in the early -- in the 1980's, and there was no national program to deal with the issue of the custody of unaccompanied minors until 1988. It was done on a -- basically, on the basis of different districts using different policies. And, frankly, the system was somewhat haphazard.

But the important point here is that by the time the district court ruled in 1988, the policy that was at issue was the national policy that is reflected in two places. It is reflected in the regulation, 242.24, which establishes the requirements for fitness to serve as a custodian. And it's established in the standards that govern the shelter care facilities where these children have to be placed, and that's set forth in the Federal Register, and it is also adopted as part of a settlement agreement in this case that is binding and enforceable.

Both of those aspects of the Attorney General's program had been adopted and were being implemented at the time that the district court found this program to be unconstitutional. And the evidence in the case that had related to the conditions of custody, and also the program that had been followed previously, were simply irrelevant by that period of time.

QUESTION: Well have they -- excuse me.

MS. MAHONEY: Go ahead.

QUESTION: I was just going to ask you are they irrelevant in the sense -- sometimes history explains why a regulation is adopted. A regulation responds to problems that can be proved in the record of a case.

And I think -- isn't it true that in this record there is no evidence of any problem that caused the adoption of the new policy?

MS. MAHONEY: There is no evidence of any problem, but the INS did not concede that there were no problems in the districts where they released them.

QUESTION: They just didn't prove -- they just didn't prove that there were any.

MS. MAHONEY: They did not prove that there were any. But the important point here, I think, is that if we look at the Federal Register notice that accompanies the adoption of this regulation, it states quite clearly what the purposes of INS are. And those purposes, the purposes of the Attorney General, are to further the overall welfare of these children.

One thing that the Ninth Circuit just fundamentally did not discuss was what are -- what is the condition of custody that is at issue here. It assumed that what we are talking about is detention of children in institutional facilities, incarceration. And they -- they concluded that that doesn't make any sense if what you're trying to do is further the children's welfare.

But that, in fact, is not what INS does with these children. Instead, they -- while they retain legal custody until an appropriate guardian can be found, they have entered into a series of quite expensive agreements with private, State-licensed child welfare organizations to place the children in these homes, pending location of a family member or the appointment of a guardian.

Typically, the placement in these homes is 30 days, maybe a little bit more, a little bit less. It is -- it's an expensive program, and the restrictions on their freedom are truly quite minimal. In fact, under the terms of the -- of the program as established in the Federal Register, the facilities that provide this care -- and I would note, for instance, that half of the care providers are facilities that are -- have been established -- group homes and foster homes established by the Catholic Church.

These homes provide that -- that they are not -- they're to be done in an open setting. They don't have barbed wire. They're -- to use the terms of the CRS Standards, is that the homes are to use programs and strategies that are designed to prevent unauthorized absences. That's the nature of the restraint on liberty that we're talking about here.

Furthermore, in the Federal Register where the INS discusses why they retained legal custody of these children while they're in these homes, it's so that they can pay for it. They're not imposing substantial restraints on these children. They're -- they're retaining a legal obligation to care for the children until the home can be found.

Another important aspect of this program that absolutely goes by the board under the Ninth Circuit's plan is that these facilities that -- the directors of these child-care facilities are actually paid to help the children find family members. The whole objective is to find people that they can link up with and live with in a caring and supportive environment, and typically that is successful.

INS works with the director of the facility to try and locate the parents to find out who they would designate as a guardian, or to find relatives. And that is precisely how this program works, and that is -- it is the very purpose and, really, far more consistent with these children's interests than the plan that the Ninth Circuit has.

QUESTION: Now Ms. Mahoney, generally what is the age of these children? Does it run all the way from 0 to 18?

MS. MAHONEY: Generally, they're -- most of them are 16 and 17, some of them are as young as 13 and 14. And there are different kinds of care facilities available, particularly for the youngest children. Some of the Catholic Church's organizations, for instance, include foster-care homes where these children can be placed pending the location of a family member.

QUESTION: You made mention of Haiti. I don't find it in your brief, but how do those Haitians get over here?

MS. MAHONEY: Well, a lot of them are brought here or have -- had been brought here by the United States, The Coast Guard picked them up and have brought many of them from Guantanamo to the United States, to assert -- they paroled them into the United States.

And I would note, Your Honor, that many of those child -- some of those unaccompanied minors are housed in precisely the same location as these children who have been charged with illegal presence in the United States, showing that -- that these terms -- the terms of custody here are really not restrictive of liberty.

They are designed to further the interests of the children. They offer specialized programs to help the children in terms of becoming culturally acclimated into our society, and -- as well as -- as educational efforts and medical treatment. A whole range of services. But, frankly I think --

QUESTION: Ms. Mahoney, all of the juveniles which are subject to the INS program are themselves thought to be subject to deport -- to be illegally present.

MS. MAHONEY: Yes, Your Honor. And, in fact, as this Court noted in NCIR last year, aliens that are brought into custody and charged with being deportable, 97 percent of the time they concede deportability. And here I think it's probably more like 99 percent of the time they concede that they are deportable. And the only issue, really, is whether they will be given relief from deportation at the time of their hearing, which is often much longer, I mean much --

QUESTION: If they are found nondeportable, what provision is made for their custody? Assume a 15-year-old.

MS. MAHONEY: In other words if they were brought -- if they were arrested, and there was no basis to hold them.

QUESTION: They're arrested, they're found nondeportable, yes.

MS. MAHONEY: I don't know the answer to that. I assume that INS would place them in one of their shelter care facilities and look for a parent. I'm really not certain.

QUESTION: But if the police authorities detained, say, a 15-year-old -- he's known to be a citizen, he's not an alien -- can they hold -- continue to hold him if no parent or close relative appears, or is there a constitutional obligation to release the 15-year-old?

MS. MAHONEY: Not talking about aliens now.

QUESTION: Just -- just a citizen, a young citizen.

MS. MAHONEY: Well, I think that -- that the way it works under the statute, anyway, is that a magistrate is to find an appropriate custodian for them, including a licensed -- the director of a shelter care facility, and is to release the child to --

QUESTION: This is under the Federal Youth Corrections Act?

MS. MAHONEY: Yeah, 18 U.S.C. 5034, I believe They are to release them to the director of a shelter care facility, or a responsible adult.

QUESTION: Even though no offense has been committed.

MS. MAHONEY: Oh, excuse me, I'm sorry. If no offense has been committed --

QUESTION: Yes.

MS. MAHONEY: -- I do not know what they do with them.

QUESTION: Would it be constitutional for the Federal Government to pass a statute saying that they must be detained until an adult family member or other responsible adult appears to take custody of the child?

MS. MAHONEY: I think it would, Your Honor. The critical inquiry in due process analysis is the legitimacy of the Government's purpose. And certainly I think the -- the best analogy to what you're talking about would be statutes dealing with runaways.

Because oftentimes police, let's say, in California will pick up a child who is not charged with an offense, but who they discover has run away from their home in, let's say, Illinois. And many States have statutes that provide that the State authorities are not to release the children to anyone other than a legal custodian or a parent. And the reason is if they release them to someone else, they will prevent the family reunification which is really the heart of the liberty interests that children might have.

QUESTION: And this is up to the age of 18, you think?

MS. MAHONEY: That is up to the age of 18, that's correct, Your Honor. And I know that in -- in Arizona and in California they have such statutes.

Under the Ninth Circuit rationale, those laws really should be unconstitutional. Because what they have really said is that it is unconstitutional for the Attorney General to prefer to place these children temporarily in a licensed child-care facility pending the location of a family member, instead of releasing them to an unrelated adult.

And, I mean, from a parent's perspective, I think that the Ninth Circuit's system is rather frightening. I would certainly think that many parents would prefer to know that their children are in the custody of licensed child-care professionals than being released to strangers who are not under the supervision or monitoring of any State system. And they are simply vulnerable and in those parents' homes with no -- in those adults' homes with no one to watch them. So --

QUESTION: Ms. Mahoney, does the record include what you've just represented to us about the basic reason being to -- to, in effect, preserve conditions in which the reunification of the family can be fostered, as opposed to conditions in which that is less likely. Is that in the record?

MS. MAHONEY: Well, the CRS Standards are certainly in the record. Those are the standards, the community relations standards, that govern the facilities. And it very much says, in fact it places a contractual obligation on the facility to assist the child in finding an appropriate -- finding family relatives or an appropriate custodian and, in fact, says that they are to assist family members who need to go through the State guardianship process.

And, yes, that is in the record. It is a contractual obligation. It's in our appendix.

QUESTION: Ms. Mahoney, if we were dealing here with someone over the age of 18, and that person had been arrested on a deportation warrant, found not deportable, I take it, then, the INS would simply release the person?

MS. MAHONEY: That's correct, Your Honor.

QUESTION: So the INS deals differently with -- with minors or juveniles than it does with adults.

MS. MAHONEY: That's correct.

QUESTION: Would you clarify for me something that I think Justice Stevens asked you? Was it, in fact, the policy of INS before 1988 to release deportable minors to responsible adults other than the listed relatives?

MS. MAHONEY: Your Honor, it was not a national policy. Some districts did and some districts did not. San Diego, for instance, did not. They insisted that it be --

QUESTION: But no articulated policy.

MS. MAHONEY: There was not a unified policy. And, frankly, there was dissatisfaction with the policy, which is what led to the adoption of this overall program, in order to try to, in fact, assist the minors.

The --

QUESTION: But Ms. Mahoney -- excuse me.

QUESTION: This regulation was adopted with virtually no explanation in the record, as far as a normal APA explanation.

MS. MAHONEY: The Federal Register includes an explanation of the reasons.

QUESTION: Well, isn't it pretty cursory? I mean it just says no home studies; we're not equipped to do it, we're not equipped to consider those matters.

MS. MAHONEY: Well, it also says, though, that what they're concerned about is the welfare of the children and that they think it appropriate to rely upon State processes. And it talks about -- it's not just about financing this issue, it's about expertise.

And I think it's important to note that under certain provisions of the Immigration and Nationality Act, Congress has, in fact, said that it is appropriate for the Attorney General to defer to State laws concerning custody of children. And I'd like to, sort of, point out which those are, because I think they strongly support the policy that the INS and the Attorney General have adopted here.

First, in connection with adoption, which is set forth in 8 U.S.C. 1101(b)(1)(F) and 1154(d), Congress said that a foreign-born child can only be brought into the United States for adoption if the Attorney General is satisfied that proper care will be furnished, and that finding can only be made if there is a valid home study that has been favorably recommended by the State agency. In other words, even with respect to immigration, the State agencies' determinations are dispositive of fitness to serve as a custodian.

And probably of more significance is the 1980 Refugee Act has a provision at 8 U.S.C. 1522(d) that deals with the problem of what to do with the unaccompanied minor refugees who are brought into the United States legally. And there what Congress said is that these children have to be placed in homes under the laws of the States, and the director of the Office of Refugee Resettlement specified in the Federal Register at 52 Federal Register, 38147 and in regulation 45 CRF 400.115, that the States have to establish legal responsibility under State law for these children, so that the children can gain the protection that State law affords.

And stated that all -- that it is appropriate to place these children in group homes, just like INS does, pending location of a family, but cautioned that placing them even in State-licensed foster homes should not be done until those foster parents had received appropriate training on how to care for these children. And really --

QUESTION: Ms. Mahoney, may I go back to the history just a moment, please, because I think we're going -- isn't it true that the -- this case began in 1985.

MS. MAHONEY: That's correct, Your Honor.

QUESTION: 3 years before the regulation that you adopted.

MS. MAHONEY: That's correct.

QUESTION: And it terminated about the same time you promulgated the regulation.

MS. MAHONEY: Shortly afterwards.

QUESTION: In the district court. And prior to 1984, is it not true that the nationwide policy was to place the children with responsible adults?

MS. MAHONEY: I don't believe so, Your Honor.

QUESTION: Maybe there was no policy --

MS. MAHONEY: I believe there was -- they would -- different districts did it different ways.

QUESTION: Is there any evidence that the -- this policy had been adopted in any district before 1984?

MS. MAHONEY: Yes, Your Honor. Well, I --

QUESTION: Before 1984.

MS. MAHONEY: Before 1984 I'm not certain. I know it was a policy in San Diego at least during some period of the pendency --

QUESTION: Between 1984 and 1988.

MS. MAHONEY: Right, but --

QUESTION: And is there any evidence in the record that the old policy ever got the department in any trouble or ever got any children in any trouble?

MS. MAHONEY: Your Honor, the department did not put that evidence in the record, nor did they concede ever that there had not been any problems.

QUESTION: And didn't they have two reasons for adopting the policy, and one was to protect themselves from liability?

MS. MAHONEY: They stated that that was a reason when they adopted the policy in the region in -- in the Los Angeles area. A lot of the evidence in the record ran to --

QUESTION: And was that before the -- our decision in the Deshaney case?

MS. MAHONEY: Your Honor, I believe that it was. But that is not the --

QUESTION: You don't rely on that when -- that reason anymore.

MS. MAHONEY: No. That may be a reason, but I don't think that that is the -- what's motivating this. I mean INS is -- the Attorney General is spending a lot of money, a lot of effort, trying to help the children. And I don't see why we should conclude that they're constitutionally mandated to protect them less.

And even if that was once how they did it, one reason they might not know about problems, Your Honor, is that once they release them to an adult, they don't -- they don't necessarily hear from them ever again.

QUESTION: No, but the thing that puzzles me is -- under your description of the history it's puzzling to me to understand why anyone would bring this lawsuit.

MS. MAHONEY: Well, the lawsuit -- this was not the policy at the -- national policy at the time the lawsuit was brought.

QUESTION: No, but why wouldn't they have just -- why wouldn't your opponents just throw in the towel and say, well, they're taking such wonderful care of these children that we have no reason to litigate?

MS. MAHONEY: Your Honor, I think they should have. I think they should have, and I do not -- you know, when we were before the district court lawyers for the department said we have adopted a new policy.

First of all, we've settled all of the claims concerning the conditions of confinement. We have adopted the community relations standards and established a network of shelter care facilities, and there is a settlement agreement that is enforceable that requires us to adhere to those standards. And now we've adopted, related to that, this regulation which identifies who's appropriate to be fit as a custodian.

The district court, nevertheless, went ahead. He looked at -- he got supplemental briefs on the issue and found that the program was facially unconstitutional, and there's never been any question that it is that regulation which has been the subject -- was the subject of his order and which was before the Ninth Circuit at the time that they ruled.

They were -- I mean maybe they were influenced by ancient history, but the fact is this is the program that has been held invalid. Outside the western region, the Attorney General provides all of this support for the children, and inside the western region the Attorney General must release these children to any unrelated adult absent affirmative evidence that they're going to harm the child.

We don't like that system. We don't think it's sound, and think that it's -- it's simply not only legitimate, but that this is the way to do it. This is the way to handle the problem and to serve the long-term interests of these children.

If I could turn quickly to the procedural issue.

QUESTION: Ms. Mahoney, may I just ask you one question before you do that. It's just sort of about the present state of the record. We're left, it seems to me, as Justice Stevens has pointed out, with evidence that prior to '84 a -- we'll call it a less restrictive or less protective, whichever word we want to use, policy was in effect.

There's no evidence that the Government suffered liability as a result of that policy, and there's no evidence that, in fact, the Government had runaways and found it difficult to -- to bring their respondents to the point of adjudication. On top of that, we have a change of policy in '84 to the more protective or restrictive. We have no affirmative evidence supporting that.

How does that affect our right to -- to make a determination about legitimacy for the -- for the kind of threshold level substantive due process analysis?

MS. MAHONEY: Your Honor, I don't think there needs to be a factual record for the issue of legitimacy here. I think we can simply look at the program. There's nothing about the features of this program that would suggest an illegitimate purpose.

It is cheaper, it is easier, to release the children in the manner that the Ninth Circuit has established, so what possible illegitimate purpose could the INS have unless one concluded that it is not relevant whether these children find a home and an appropriate, suitable guardian.

And, certainly, the provisions of the Immigration and Nationality Act suggest otherwise, that Congress is very concerned with the welfare of alien children while they are in the United States, as they should be. And, in fact, the Attorney General is politically accountable to foreign nations for the treatment of their citizens, including their minor citizens, while they are here.

There's simply no basis to infer anything other than a legitimate purpose under these circumstances. And given that there really is not any significant restriction on these children's liberty interests, it seems to me that there's no real way to say that this doesn't survive constitutional scrutiny.

Certainly, though, under Kleindienst v. Mandel, all INS has to show is that it has a legitimate purpose, and certainly we have done that.

I'd like to save the remainder of my time for rebuttal, if there are no further questions.

QUESTION: Very well, Ms. Mahoney. Mr. Holguin, we'll hear from you.

ORAL ARGUMENT OF CARLOS HOLGUIN ON BEHALF OF THE RESPONDENTS

MR. HOLGUIN: Mr. Chief Justice, and may it please the Court:

The issue here, we believe, is straightforward. May a law enforcement agency institutionalize children throughout a lengthy deportation process solely to protect that child when there is a responsible adult available to care for that minor.

The district court held that the INS may detain children, provided the agency makes an individualized determination that an available adult would not be -- or release to an available adult would not in a given child's best interests.

Now, heretofore under our Constitution, liberty has been the norm and detention the carefully limited exception.

QUESTION: Well, with respect to children, Mr. Holguin, they're always in somebody else's custody, are they not?

MR. HOLGUIN: That's true, Your Honor.

QUESTION: I mean it isn't -- you aren't contending that these 13 or 15 or 16 should simply be released on their own on the street.

MR. HOLGUIN: Absolutely not, Your Honor. In fact, this case doesn't even involve those minors for whom no person comes. If -- under this district court's order, if no -- no responsible adult appears for that minor, then the Immigration Service, under this order, is permitted to continue detention.

QUESTION: And you don't contest the validity of that.

MR. HOLGUIN: No, not in this case, Your Honor.

QUESTION: Well, as a matter of law there's a right to detain in that circumstance, is there not? There's no constitutional violation.

MR. HOLGUIN: In the event that the INS takes a minor into custody and then no minor -- nobody comes forward for that minor.

QUESTION: Yes.

MR. HOLGUIN: I believe -- or the Constitution would require some efforts on the part of the State to minimize detention. What those might be is -- is really not at issue under the district court's order.

QUESTION: Well, would those efforts be sufficient in the terms in which your -- Ms. Mahoney described them to us, and that is that the -- that the children are -- are -- are -- are retained. The custody of the children is retained, and yet the contract parties who have actual custody of the children are obligated, among other things, to take steps to try to link them up with their natural families and ultimately to be in a position to reunify the families.

Would that be a sufficient justification on your theory?

MR. HOLGUIN: If the -- if Government has detained an individual and is making efforts to reduce or to minimize the amount of detention that individual is going to -- going to experience, then efforts toward family reunification are certainly -- are certainly one way of doing that.

The problem here is where we have no one coming forward for the minor. The efforts to reunify the family could go on for weeks, for months, even up to a year, and -- and -- and the --

QUESTION: Well let's assume they do that. Let's assume that that's what they do. Is the -- does the justification fall because of that possibility?

MR. HOLGUIN: That there may be reunification with a parent later on down the road?

QUESTION: That they're -- well, I am assuming, and you don't, at least at this point, challenge, that there is, in fact, a bona fide object to accomplish that result and a bona fide effort to do so.

MR. HOLGUIN: Yes, yes.

QUESTION: Yeah, okay.

QUESTION: So is this a -- a facial challenge to the policy? If that's so, if what you've just said is conceded, that there is a policy established that says they will look for a responsible family member to take the child, then you just are left with a facial challenge, are you not?

MR. HOLGUIN: I -- no, Your Honor. What we have is a situation where there is somebody available to care for that minor. There is no indication that there -- that these family reunification efforts are at any time in the future going to result in release.

The whole point is that the Immigration Service never bothers to figure out, well, what are the possibilities of family reunification here. It's simply a blanket rule that's applied and says that unless one of these people who appears on the blood relative list appears in front of us, then we're not going to release.

We say in our -- in our -- in our papers and in our plan that we're going to make efforts to find -- to find family members, but there's no provision as to what happens when those efforts appear to be futile.

And the record is quite clear. This is the furthest thing from a facial challenge. We have an extensive record here showing that minors, children were being held for extraordinarily long periods, despite these efforts that the Immigration Service has only recently inaugurated, ostensibly, to find family members and so forth, without there ever being an end to detention or any kind of an individualized determination, no matter how remote the possibility of finding any kind of a relative is.

And that's the entire thrust of this case.

QUESTION: Mr. Holguin.

MR. HOLGUIN: Yes.

QUESTION: Does your position not require you to maintain that the Federal statute governing detention of aliens suspected of illegal immigration is unconstitutional?

Because as I understand the statute, in principle all aliens suspected of illegal immigration may be detained in custody, adults and children alike. It's up to the discretion of the Attorney General to release them, if he wishes. Now is that unconstitutional?

MR. HOLGUIN: Your Honor, just last term this Court held in National Center for Immigrants Rights, Incorporated, versus the INS, that under that statute there needs to be an individualized determination as to cause for detain. Now once that happens --

QUESTION: Where -- as to cause, meaning as to whether the person is an illegal immigrant or not, or is likely to be an illegal immigrant. But you don't have to let them out to enjoy the United States for 2 years before you can finally deport them.

MR. HOLGUIN: Well --

QUESTION: You could -- you could hold them in custody, could you not, all of them, adults and children alike?

MR. HOLGUIN: You can maintain them in custody under the precedent that I've just cited only if there is an individualized determination, that there used to be done.

QUESTION: Determination of what? Determination that they're probably illegal immigrants, correct?

MR. HOLGUIN: I'm sorry, Your Honor. In that case it was an individualized determination of right to work or not.

So I think that the initial -- the initial decision to detain here is not at issue. The initial decision where the INS has said we're going to take you into custody is not the issue.

QUESTION: You will have won a pretty small victory if the only -- if the only minors that your -- that your victory applies to are those who are not reasonably suspected of being illegal immigrants, because I don't -- I don't suppose that that's a very large percentage of the total at issue.

MR. HOLGUIN: The Immigration Service's rationale for adopting this policy has nothing to do with whether a minor is going to appear for a deportation hearing or not, whether they're going to be available for deportation. The entire justification for this policy turns on one item, and that is whether or not detention is going to be in the best interests of minors as a general proposition.

QUESTION: Well, if -- if -- if it's determined that there's -- individually determined that there's probable cause to think an adult is deportable, I assume you concede that the INS may detain that adult in custody pending the final determination.

MR. HOLGUIN: Are you referring to the statute itself?

QUESTION: Yes, and the Constitution.

MR. HOLGUIN: Under the Constitution the INS would have to show a -- that its grounds for detaining are weighty enough to justify that kind of infringement on personal liberty. That showing --

QUESTION: So you don't concede that the INS could detain adults?

MR. HOLGUIN: Detain every -- no.

QUESTION: Its grounds for detaining are that this person does not belong in the United States. And we have -- we have good reason to believe that this person should be deported, and we're darned if we think that the person should enjoy the United States for as long as it takes to get the person deported.

MR. HOLGUIN: Well.

QUESTION: We're talking aliens, now, we're not talking about United States citizens.

MR. HOLGUIN: We may be. The point of the matter is, is that when counsel refers to the vast majority of people who are apprehended by the Immigration Service being illegally here and conceding their deportability, we're not -- these are not the minors that we're talking about in this case.

Those individuals sign what's called a voluntary departure form and are -- and are sent on the next available transportation outside of the country. Only those minors who say wait a minute, I have a reason to contest my deportability, are the ones that find themselves in the deportation hearings and in the long-term type of institutionalization that we're dealing with in this case.

So the vast majority of those whom you correctly point out are here illegally have gone and never find themselves members of this particular class of children. It's only those who have said wait a minute, I have a reason to contest my deportability, I have a defense of deportation, I want a deportation hearing -- and those are the ones that we're placing into this long-term detentive scheme.

QUESTION: Who do they deport these children to? What do you do with a child who says you've got me, I'm an illegal immigrant? Whom do we deport such a child to, if we don't know where his parents are?

MR. HOLGUIN: They're simply -- they're deported. They are deported. This is the reality of -- of -- of daily operations in this country. We'll deport them.

QUESTION: Without locating the parents?

MR. HOLGUIN: We'll send them to San Salvador. We'll send them to San Salvador. We'll send them to Haiti. We'll send them to Mexico. We'll send them to Europe. And if there is no one there to receive them, then they're simply, basically, placed there and that's it.

QUESTION: I can't believe that, but if that's true it seems to me that's the problem you ought to be concerned about. But the problem you're talking about is nothing compared to that.

QUESTION: Doesn't your argument at this point boil down, then, to a procedural due process argument that there is an inadequate basis to -- to separate the one category, children, and one category from children and the other?

MR. HOLGUIN: And the two categories you're referring to are?

QUESTION: Those who are reasonably suspected of being illegal aliens and those who are not.

MR. HOLGUIN: I don't believe so, Your Honor. What we've said here, and what Immigration has said again and again, if I may elaborate, is that the only reason for this policy is to protect children. It doesn't have anything to do with their deportability, the likelihood that they're going to be deported.

What we do know is that the majority of these minors, all of them in fact, are at the front end of the deportation process that could take anywhere from 6 months to a year to longer. The Immigration Service --

QUESTION: And that may be, but whether the Constitution is violated -- it may well be that the only reason they do it is because they're trying to protect the children, but whether the Constitution has been violated, surely, depends upon whether it is constitutional to keep these people without allowing any of them to leave custody.

MR. HOLGUIN: But the constitutionality of any detention must turn upon Government's reasons for detaining. It must turn on the weight of society's interest in having detention effected. Otherwise, as this Court held -- has held repeatedly -- it's freedom that is the constitutional norm.

Now just last term in Foucha v. Louisiana, that -- Mr. Foucha could have been detained. He could have been jailed for having committed a particular crime. He was found guilty -- he was found not guilty by reason of insanity, and this Court said, yes, the Government wants to detain now because of dangerousness.

We might have been able to hold him for a criminal -- having committed a criminal act, but we can't because the Government is talking about dangerousness now, and it's incumbent upon Government to show --

QUESTION: The reason for detention is this statute which says you can detain illegal aliens. The reason we're detailing -- detaining them is that they are illegal aliens. Now you say, well, you're letting the adults go until -- until the full trial.

And we say, well, maybe that's the case, but don't tell me the reason I'm detaining them is that they're children. There are a lot of children out there I don't detain. I'm detaining them because they're illegal aliens. Is that an unconstitutional reason for detaining? I don't think so.

MR. HOLGUIN: Very well. Now I wish to go into, now, the genesis of this policy, because counsel has made certain statements concerning that policy and its genesis that I think need to be explored.

First of all, the prior policy to 1984 was that, across the Nation, Immigration Service officers were entitled to make informed decisions as to whether they should release an individual to a person who -- to someone who comes for a minor.

QUESTION: Mr. Holguin, to what part of your argument -- your legal argument are these policy statements addressed? Is it to the constitutionality of the regulations?

MR. HOLGUIN: Yes, sir, yes.

QUESTION: You're not claiming they weren't authorized by statute.

MR. HOLGUIN: They weren't authorized by statute to make --

QUESTION: Yes. You certainly -- that, certainly, the Ninth Circuit never -- never passed on that.

MR. HOLGUIN: The panel did. The -- the en banc panel did not. The -- our position -- and continues to be in front of this Court and we've raised it in front of the Ninth Circuit -- is that because the Immigration Service, under the statute, must make an individualized discretion -- must exercise individualized discretion to continue someone in detention, that this particular blanket policy violates that statutory restriction.

The --

QUESTION: Did you cross petition for certiorari?

MR. HOLGUIN: No, we did not.

Now then, the record is -- is quite clear that the Immigration Service for years prior to 1984, and for 3 or 4 years now under the district court's order, has released minors to responsible unrelated adults with unblemished success.

The policy that we've heard about, and heard talked about as being some -- an enlightened policy in order to -- in order to protect minors, is simply not something that's supported in this record. In fact, we know that all 50 States, including the Federal Government in 18 U.S.C. 5034, all the model standards all say that detention is inimical to minors' well being. That what you do, as a matter of sound child welfare policy, is that that you release to responsible adults.

Now, the district court issued a simple order after -- on the basis of an uncontroverted record that showed that the INS lacks any substartial justification for this rule. And that, in fact, the INS lacks even a rational reason for this type of a detention policy.

QUESTION: So in -- what followed from that conclusion in the eyes of the district court, that the regulation violated some provision of the Constitution?

MR. HOLGUIN: That the regulation, to the extent that it did not provide for an individualized determination, did deny due process.

Now, the INS admitted that it had no evidence to support its view that releasing to --

QUESTION: Well how -- how -- how -- how could the lack of justification for the regulation -- if that was the DC's basis, how would that support a procedural due process violation?

MR. HOLGUIN: The procedural due process violation is simply this. That if the INS has reason to believe that detention is going to be in a given minor's best interest, that an individual who comes forward and says I would like to care for this minor is not qualified. Then you have some kind of procedure by which that is probed.

If, in fact, the Immigration Service comes to any kind of a decision --

QUESTION: Why do you need a procedure whereby it's probed? I mean where does the Constitution tell you that?

MR. HOLGUIN: The Constitution says that detention is going to be limited.

QUESTION: Well, but, again, you -- detention or custody, certainly if you're talking about adults, you're correct. But children are going to be in someone's custody. You agree with that, the INS agrees with that.

MR. HOLGUIN: Yes.

QUESTION: It just depends on whose custody they're going to be in.

MR. HOLGUIN: But why have we made that exception for minors? We've made that exception for minors because they need protection. Again, we come back to the INS's justification for this policy. Does it protect minors or doesn't it?

The INS -- and we have said that when you look at the facts in this case and how this matter -- how this matter has been applied, that is not the case. It does not result in protection. Now --

QUESTION: Well, let -- let me ask you this. Suppose that a State in its child welfare program determined that as far as any minor that it had to take into custody as being a runaway or a child without any visible means of support, can the State make a blanket determination that it thinks that a group home setting is better for those children than individualized placement with foster homes, for example?

Can the State do that, and just put all of such children in group homes?

MR. HOLGUIN: Where they would be detained?

QUESTION: Yes, indeed, as much as you'd be detained in any setting as a child.

MR. HOLGUIN: And this is a situation where the -- where somebody is available other than someone that the State has identified as being an appropriate custodian.

QUESTION: Well, as much as you have here, I guess. I don't know who all the people are that you say come forward to take these children.

MR. HOLGUIN: If the State has in front of it a responsible adult whom it has -- or whom it has simply said we know this adult is responsible, or we've determined this adult responsible, but we simply do not want to release, we're going to place a minor into a group home where he or she will be detained, then, no, that policy would not be constitutional.

QUESTION: This is a child who has parents, as far as the State knows.

MR. HOLGUIN: It may be a child who has parents, it may be an orphan.

QUESTION: They're -- they're looking for the parents and they're looking for relatives, and you're saying in the interim they cannot keep that child in a group home, they must release the child to anyone who comes forward that they believe is responsible. That's extraordinary.

MR. HOLGUIN: That's -- the position that we have said -- we have taken is that if the parent does not come forward, then, yes, there must be release. That a minor's freedom should not turn upon the willingness of a parent or a guardian to come forward for him or her.

QUESTION: A minor is not going to be free. He's -- he's going to be imprisoned in my home or he's going to be imprisoned in a group home. I mean, he's under the custody of someone. Minors cannot come and go at will; it's -- it's part of the problem of being a minor. You grow out of it eventually, so it's not so bad.

MR. HOLGUIN: What I want to do -- why don't we look at the reality. Let's look at the reality of this for just one moment.

Now, the reality is that in California, for example, INS detainees are kept in a facility in El Centro, California. A place, in essence, remote from anywhere, surrounded by desert.

It seems to me that -- as a parent, that if my child were kept in such a place, that I would certainly think that there's a big difference between having my child in that place and having my child placed with my -- with the child's godparents, with the child's adult cousins, with a volunteer church family, with another responsible adult who comes forward and wishes to lend that kind of assistance. That seems to me to be a big difference.

We are talking here in constitutional terms, however, only about whether the cage is gilded or whether it's not. The point is -- is that when minors are released, they're free to go to -- to church services, they're free to attend public schools, they're free to go to the park. None of these things occur -- none of these things occur from the middle of the California desert.

QUESTION: Free to do all those things, if their parents or guardians allow them.

MR. HOLGUIN: If their parents or guardians allow them, yes. And the point is -- is that the Immigration Service, in its role as a parent or guardian in this case, does not allow that.

QUESTION: May I ask you a question, counsel. I -- the way this case is debated in the opinions, everybody -- all -- the judge on the court of appeals seemed to assume that you're dead right, that the children would be better off if they could be placed with the -- with another adult. The Government says that's all wrong. They're really much better off in organized detention facilities.

Are there any district court findings telling us which is better for the children?

MR. HOLGUIN: No there are not, Your Honor. We can point, if I may elaborate, to the existence of unanimity in juvenile justice standards amongst the 50 States, amongst the various amici that have filed a brief before this Court saying we care for children all the time, everybody agrees that, in fact, detention, even under ideal circumstances, is inimical to child's well -- to children's welfare.

QUESTION: Yes, but your opponent cites to a lot of statutes that say yes, but you only give it to people who are either relatives or godparents, or there's a limited class, and they do allow custody in that limited class which is generally recognized in State statutes.

MR. HOLGUIN: I cannot disagree --

QUESTION: And maybe they're all wrong, but how do we answer that sitting here?

MR. HOLGUIN: I cannot disagree more stren -- well, because in the brief that's filed by the Child Welfare League of America you'll see citations to those statutes, and they don't provide that. Every State, in fact, says we don't lock children up unless we've made an individualized determination that this is, in fact, necessary.

Some sort of -- they all say released to responsible adult, any other custodian, the Federal Government itself, and Congress has said or any other responsible adult. This is simply a unanimous proposition amongst child welfare -- child welfare experts, and the Immigration Service has had -- has never really disputed that. It's said we're entitled to go off and simply rewrite the book on child welfare, an area in which we concede we have no special expertise.

QUESTION: I thought that -- I thought that -- wasn't the Immigration Service subject to some litigation about how it took care of these children?

MR. HOLGUIN: That was this litigation.

QUESTION: Yes, but wasn't there a -- wasn't there an order that they were supposed to comply with?

MR. HOLGUIN: There was -- there is a settlement --

QUESTION: And then there isn't any -- there isn't any dispute that the order has been complied with.

MR. HOLGUIN: That's correct, Your Honor, at this time.

QUESTION: And so the INS is complying with -- what the court ordered had to be what the court thought was adequate care. Is that right?

MR. HOLGUIN: What the parties agreed to in a settlement, not what the court ruled on.

QUESTION: Well, it's in -- it's in a decree.

MR. HOLGUIN: Yes, yes.

QUESTION: It's in a decree and the Government is complying with it. And you -- you say that -- that complying in the way they do is unconstitutional.

MR. HOLGUIN: Complying with the settlement agreement is certainly not constitutional. The --

QUESTION: Well --

MR. HOLGUIN: I mean certainly is constitutional. The point that -- the point that I need to make at this time is that --

QUESTION: But you -- you say they have to -- they have to do more than the decree requires.

MR. HOLGUIN: If there is a responsible --

QUESTION: Otherwise they're violating the Constitution.

MR. HOLGUIN: Yes, yes, that's correct.

QUESTION: Uh-hum.

MR. HOLGUIN: We have said -- what we are saying here is that -- what this settlement -- what the settlement achieves that the Immigration Service's -- is simply to bring INS detention facilities into compliance with minimal standards that have -- that are applied in all 50 States as to what an appropriate detention facility should be.

I might point out that even though you have a responsible person there that --

QUESTION: And so you say it's unconstitutional unless they exceed minimal standards.

MR. HOLGUIN: The conditions --

QUESTION: Right?

MR. HOLGUIN: I didn't understand the question. I'm sorry.

QUESTION: You say -- you say that they are violating the Constitution unless they exceed minimal standards.

MR. HOLGUIN: We're saying they violate the Constitution if they do not make an individualized determination that detention under those conditions or any other conditions is actually going to be in a child's best interests.

QUESTION: Well, but you would say -- you would say that -- that -- that detaining the child -- detaining the child in -- in the institution is unconstitutional if there is an adult who will take of them.

MR. HOLGUIN: Yes.

Now, let's go back again to this -- to the situation that prevails. We have a situation where the INS had released minors for years without any kind of problem. They've done this under the district court's order for -- now, for almost 4 years without any kind of a problem ever being reported.

It wasn't just a failure to produce evidence. There was discovery conducted in this case in which we asked the Government, produce any evidence you have. The Government was simply unable to do it. They've not gone back in front of the district court to seek relief under Rule 60(b) saying look, we have a problem with this policy.

In fact, if there were any kind of a significant risk that minors were being endangered by this kind of policy, we would be the first to come back in and say Judge Kelleher, you need to reverse this policy, you need to modify it. I don't believe that we'd have the U.S. Catholic Conference, the Lutheran Church in America, the Child Welfare League of America all filing amicus briefs in this case saying this is a misguided policy, it simply makes no sense.

The only thing the INS is able to say in support of this policy is that we're unable to do the kind of home studies that are required to ensure that this sort of a thing doesn't lead to some kind of disaster.

QUESTION: What -- what do you say to the legal response to this same argument which the Government -- assuming -- assuming what you say may be true, the fact is that under Kleindienst and Mandel the only thing they've got to satisfy us of is that they have a legitimate reason for having changed the policy and doing what they are doing, whether people think it is enlightened or not. Is that the proper standard?

MR. HOLGUIN: What Congress, making a decision about whether --

QUESTION: But was that the proper standard? Do you so read that case?

MR. HOLGUIN: No, that's -- no, no, Your Honor, that's not the standard.

QUESTION: What is the standard?

MR. HOLGUIN: The proper standard is whether the INS is able to show a good and sufficient reason in the individualized hearing for detention, simply that. If the INS has any real reason to detain, it's entitled to detain under this district court order.

It's only where there is no real reason to detain and the INS has simply said, you, you, and you, we're going to presume that you're going to be a fine custodian, and everyone else is somehow excluded no matter how reputable, no matter how much the INS officer, in fact, wants to release this minor to this individual, where it simply cannot be done.

It's that blanket, automatic detention that offends the Constitution here. It stands the proposition that detention is going to be the exception, liberty the norm, on it head.

QUESTION: Does their policy absolutely forbid any release to an unrelated -- can they somebody so exceptionally well-qualified they will go ahead and release to them?

MR. HOLGUIN: Again, we're talking about a -- a facial challenge versus an applied challenge. On it's face, the regulation appears to authorize that. We know from discovery and in practice that the Immigration Service never released an individual to anyone not on the blood relative list, except when the minor needed health care that the agency was simply not able or willing to provide at that time. That's the only time the INS could ever identify that, yes, we're going to go ahead and release a minor to some adult not appearing on our blood relative list.

QUESTION: You just said that -- according to you, the Constitution says that liberty is the norm and detention is the exception. Then you do contest the constitutionality of this statute, I take it? Because it -- it says just the opposite. It says detention is the norm, but the Attorney General may, in his discretion, release.

MR. HOLGUIN: If this were a statute --

QUESTION: That's not good, then?

MR. HOLGUIN: We do not contest the constitutionality of the statute. In fact, we contend that this statute supports the district court's order that was issued in this case because it requires an individualized determination, as this Court's held only last term.

Now if the -- if, in fact, what we're talking about here is the Constitution and not the statute, and the statute were to be interpreted as to permit nonindividualized detention just for everybody, then there would be a problem with the constitutionality of that statute, yes.

QUESTION: You think the individualized determination has to be made on the basis of the individual -- what's best for the individual? I assume that would apply for adults too. The Attorney General has to ask, with respect to each illegal alien, what would be best for this illegal alien.

MR. HOLGUIN: No, Your Honor. There are myriad reasons why the agency is entitled to detain adults and detain these children. If they believe they're -- he or she is a flight risk. If they believe that the minor is -- is a danger to the community, to himself or some others, they think that national security is involved.

All of these things are permitted. Detention is permitted for all of these things.

QUESTION: How about the individual who wants to take custody of them is not qualified?

MR. HOLGUIN: The agency is entitled to refuse release for that ground as well.

If I -- in the remaining time, let me just sum up our position on this. I believe that what we have -- we have seen here is a policy for which the INS has no factual justification. The Immigration Service can have a perfectly qualified individual come before it and say I am prepared and able to care for a particular -- for this particular minor. The Immigration Service says we will not even consider you, we will not even consider you.

QUESTION: And who are you representing?

MR. HOLGUIN: We're representing the plaintiffs in this matter, who include --

QUESTION: Who are who?

MR. HOLGUIN: Who is Jenny Flores, a 15-year-old girl who had a cousin come for her, an uncle once or twice removed. We have a girl for whom a family -- long-time family friend.

QUESTION: But these are all minors.

MR. HOLGUIN: These are all minors, yes, four girls.

The point at this -- that we find ourselves now at is that we have a situation where the Immigration Service is simply closing its eyes to what's in the best interests of these minors.

QUESTION: Thank you, Mr. Holguin.

MR. HOLGUIN: Thank you.

QUESTION: May I just ask one question. Are any of the named plaintiffs still in the custody of the INS?

MR. HOLGUIN: No, Your Honor. Judge Kelleher ordered the release of the last ones shortly after the litigation was filed.

QUESTION: Have they gone beyond age 18, the four?

MR. HOLGUIN: Several of them have, yes, Your Honor.

QUESTION: The four in question?

MR. HOLGUIN: One, I believe, is still under the age of 18.

QUESTION: Ms. Mahoney, you have 6 minutes remaining.

REBUTTAL ARGUMENT OF MAUREEN E. MAHONEY ON BEHALF OF THE PETITIONERS

MS. MAHONEY: I'd like to emphasize that this is a facial challenge to a policy that was adopted in 1988. And the fact that there might theoretically be some child who has the kind of bonds and relationship with a godparent, for instance, that might have some claim to a violation of their liberty because they weren't released is a very different question. It's not presented on a facial attack.

But I would also like to emphasize that the Ninth Circuit rule does not, in fact, permit INS to determine who is a responsible custodian for these children. At 21a of the appendix the Ninth Circuit specifically said: We hold that the INS may not determine that detention serves the best interests of members of the plaintiff class in the absence of affirmative evidence that release would place the particular child in danger of harm.

QUESTION: You don't think you'll win on this narrow ground, do you?

MS. MAHONEY: Your Honor, we'll win on the broadest grounds you'll give us.

But the -- the point here is that even under their regime, we cannot determine who, in fact, is an appropriate custodian. Under the regulations, if a godfather comes forward and says I'm ready and willing to take this child, we've had a long-term relationship, the regulation permits the district director, in his discretion, to determine that there are exceptional circumstances that indicate that this person is a fit custodian.

Under our regulation the unrelated adult, outside the western region, has to sign an agreement saying that they will care for the child. Not just that they'll make them show up at the deportation hearing, but that they will care for the child. And that's what we do outside the western region. And, in fact, that discretion is exercised sometimes.

That discretion is also reviewable before an immigration judge. The child -- if the godfather comes forward and thinks that the district director has unfairly denied him custody of the child, they'll simply request a hearing. There's no waiver; under the regulation at any time the child who is detained, or any adult who is detained, can ask for a hearing before the immigration judge.

QUESTION: What -- what could he possibly prove that would justify a direction to the Attorney General to release them?

MS. MAHONEY: Well --

QUESTION: And it would be in the child's best interest? Is that what he would have to prove?

MS. MAHONEY: That there are exceptional circumstances. And, in fact --

QUESTION: Rendering it in the child's best interest?

MS. MAHONEY: I think that's correct, Your Honor.

QUESTION: Well.

MS. MAHONEY: That there were reasons --

QUESTION: Well, gee, you're not as far apart as I thought you were, then.

MS. MAHONEY: Well the -- let me say that in -- in -- the idea is to leave discretion for those rather exceptional and unusual circumstances.

For instance, if the godfather has, in fact, lived and cared for this child and they have the kind of family relationship that INS is, in fact, trying to promote and makes representations that they're in the process of getting guardianship before the State, that would be the type of -- of circumstance that might warrant a release. But the fact is that the INS said -- that the Ninth Circuit has said all of that goes out the window.

The other thing is that in this case the godparent that we're referring to, even if the district director won't release the child, can go to the State court and get appointed a guardian. And in the interim the child will remain in a group home run by the Catholic Church or another private organization.

QUESTION: Ms. Mahoney, what -- does the record tell us how long these children are retained in custody in the typical case?

MS. MAHONEY: Yes, Your Honor. The -- it says that it's typically 30 days, that that's about how long it ordinarily takes. And the record also shows that it typically takes about 30 days to be appointed a guardian under State law. The record --

QUESTION: Ms. Mahoney, by the end of the 30 days they'd be deported.

MS. MAHONEY: Oh, no, Your Honor. Deportation is ordinarily a long time out, and most of these children, in fact, are never deported.

QUESTION: But they're only kept in the custody for 30 days. I don't understand how it --

MS. MAHONEY: Approximate -- most children are only kept in custody -- and, again, it's in the --

QUESTION: What happens at the end of the 30-day period for the typical child?

MS. MAHONEY: They're ordinarily reunified with family members or their -- a responsible custodian who gets qualified under State law is found. That -- that's the whole objective of the program, and that's where they typically end up.

QUESTION: Ms. Mahoney, you -- you've said in one breath that this is a facial challenge to the regulation and the procedures. And yet you've referred to something that the record shows and Mr. Holguin has referred to something -- he says that the record shows this exception is never really applied.

How can we assure ourselves that you're correct, if you are, that this is a facial challenge?

MS. MAHONEY: Well, it is a facial challenge because the program didn't fully go into place until 1988, shortly before the district court ruled. And the district court made no factual findings, so I think we have to construe it as a facial challenge.

QUESTION: Well, then why do you refer to something called the record?

MS. MAHONEY: Well, there was a record in this case, you're right, Your Honor. This record related to practices under the policy prior to the -- the time when it was adopted. There -- there is a record in the sense that there are Federal Register, that sort of thing, in the record to rely on for the statement of purposes.

QUESTION: Ms. Mahoney, just out of curiosity, is it really true that if the -- if the deportability of the minor is conceded, the minor is just put on a boat to somewhere?

MS. MAHONEY: No, Your --

QUESTION: Is that what really happens?

MS. MAHONEY: No, Your Honor, that isn't -- that is not true.

QUESTION: I didn't think so.

MS. MAHONEY: No. First of all, even if deportability is conceded, it's important here to -- these children, typically, do not claim that they're in the United States legally. But the vast majority of them want an opportunity to seek relief from deportation, which is a very different issue. They have no right to be here, but at the hearing they will be given an opportunity to establish that they're entitled to relief.

And if a -- a child is found to be deportable, then arrangements are made through the consulate of that child's foreign country for the return of the child -- the government of the other country takes custody of the child and reunifies them with their family or whatever, however the government makes arrangements. But that is the way this happens.

Thank you very much.

CHIEF JUSTICE REHNQUIST: Thank you, Ms. Mahoney. The case is submitted.

(Whereupon, at 2:45 p.m., the case in the above-entitled matter was submitted.)

Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 91-905, Reno against Flores will be announced by Justice Scalia.

Argument of Justice Scalia

Mr. Scalia: This case is here on writ of certiorari to the Court of Appeals for the Ninth circuit.

Respondents are a class of alien juveniles, arrested by the Immigration and Nationalization Service on suspicion of being deportable and then detained, pending their deportation hearings, pursuant to an INS regulation, codified at 8 CFR Section 242.24.

That regulation provides at accepting unusual circumstances the only individuals who be given custody of detained juveniles, are their parents, close relatives or legal guardians.

Juveniles, for whom no such custodian comes forward, are placed in juvenile care facilities that meet or exceed state licensing requirements for the provision of services to dependent children.

The initial deportability determination and the custody determination are reviewable by an immigration judge upon the juvenile's request.

Respondents contend that they have a right under the Constitution and under immigration laws to be routinely released into the custody of other unrelated responsible adults, and that a hearing before an immigration judge must be held, whether or not the juvenile requests it.

The District Court found for respondents, the Court of Appeals, sitting en banc affirmed.

In an opinion filed with the Clerk of the Court today, we reverse.

First, we hold that the regulation does not deprive respondents of substantive due process.

The substantive rights asserted by respondents is the right of a child for whom the government is temporarily responsible, to be placed in the custody of an unrelated private custodian, rather than of a government operated or government selected child care institution.

That claim is too novel to be ranked as a fundamental right, and therefore the regulation need pass no more stringent attest and that it would be rationally connected to the government's interest in protecting the welfare of the detained juveniles, and that it would not be punitive.

We find that it passes that test.

Nor does each unaccompanied juvenile have a substantive due process right to an individualized determination of whether private placement would be in that child's best interests.

Governmental custody must meet minimum standards as we conclude the institutional custody does here given the terms of a prior consent decree.

But the decision, whether to exceed those minimum standards, in light of competing demands upon agency and public resources is a policy judgment, not a constitutional imperative.

Any remaining constitutional doubts are eliminated by the fact at almost all respondents are aliens suspected to being deportable.

A class that maybe detained, and over which Congress has met to the Attorney General broad discretion regarding detention.

At the respondents procedural due process claim, procedures provided by the INS are not rendered invalid by their failure to require automatic review by an immigration judge of the initial deportability and custody determinations.

This is a facial challenge to the regulation, which means that respondents must show that no set of circumstances exists under which the regulation would be valid.

Affording the right to review suffices, since it appears that most of the juveniles detained, are neither too young nor too ignorant to exercise the right to ask for an appeal.

At disposes of the constitutional claims as for the statutory claim, we hold that the regulation is not an abuse of the Attorney General's discretion to continue custody over arrested juveniles under the Immigration and Nationality Act.

The regulation seeks to strike a balance between the services concern that the juvenile's welfare will not permit their release to just any adult, and the services assessment that it has neither the expertise nor the resources to conduct home studies for individualized placements.

If therefore permits release to parents and close relatives who are traditionally regarded as competent custodians, but otherwise requires an individual seeking custody to obtain an appointment as guardian from the states which are accustomed to evaluating the appropriateness of individual custodians.

The period of institutional custody that we note is limited by the pending deportation hearing, which must be concluded with reasonable dispatch in order to avoid habeas corpus.

The judgment of the Ninth Circuit is reversed and the case is remanded for further proceeding consistent with this opinion.

Justice O'Connor has filed a concurring opinion in which Justice Souter joins; Justice Stevens has filed a dissenting opinion in which Justice Blackmun joins.