934 F.2d 991 (9th Cir. 1990), 88-6249, Flores by Galvez-Maldonado v. Meese

Docket Nº:88-6249.
Citation:934 F.2d 991
Party Name:Jenny Lisette FLORES, a minor, by next friend Mario Hugh GALVEZ-MALDONADO; Dominga Hernandez-Hernandez, a minor, by next friend Jose Saul Mira; Alma Yanira Cruz-Aldama, a minor, by next friend Herman Perililo Tanchez, Plaintiffs-Appellees, v. Edwin MEESE, III; Immigration & Naturalization Service; Harold Ezell, Defendants-Appellants.
Case Date:June 20, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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934 F.2d 991 (9th Cir. 1990)

Jenny Lisette FLORES, a minor, by next friend Mario Hugh

GALVEZ-MALDONADO; Dominga Hernandez-Hernandez, a minor, by

next friend Jose Saul Mira; Alma Yanira Cruz-Aldama, a

minor, by next friend Herman Perililo Tanchez, Plaintiffs-Appellees,


Edwin MEESE, III; Immigration & Naturalization Service;

Harold Ezell, Defendants-Appellants.

No. 88-6249.

United States Court of Appeals, Ninth Circuit

June 20, 1990

Page 992

[Copyrighted Material Omitted]

Argued and Submitted April 5, 1989.

As Amended Sept. 7, 1990.

See also 681 F.Supp. 665.

Opinion, 913 F.2d 1315, superseded.

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Ian Fan, Asst. U.S. Atty., Los Angeles, Cal., for defendants-appellants.

Carlos Holguin, Nat. Center for Immigrants' Rights, Inc., Los Angeles, Cal., for plaintiffs-appellees.

Appeal from the United States District Court for the Central District of California.

Before WALLACE and FLETCHER, Circuit Judges, and LLOYD D. GEORGE, [*] District Judge.

WALLACE, Circuit Judge:

The Attorney General and Immigration and Naturalization Service (INS) appeal the district court's summary judgment to a plaintiff class of alien minors whose named representative is Jenny Flores (Flores). The district court held that an INS regulation governing the release of detained alien minors violates substantive due process, and ordered modifications to the regulation. The district court also held that INS procedures fell short of the requirements of procedural due process, and therefore ordered the INS "forthwith" to provide to any minor in custody an "administrative hearing to determine probable cause for his arrest and the need for any restrictions placed upon his release." On appeal, the INS challenges both of the district court's holdings. The district court had jurisdiction under 28 U.S.C. Sec. 1331. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 1291. We reverse and remand.


This case arises out of the INS's efforts to deal with the growing number of alien children entering the United States by themselves or without their parents (unaccompanied alien minors). Pursuant to 8 U.S.C. Secs. 1357(a)(2) and 1252(a)(1), INS agents may arrest and detain aliens, including alien minors, whom they suspect may be deportable. Section 1252(a)(1) provides that

any such alien taken into custody may, in the discretion of the Attorney General and pending ... final determination of deportability, (A) be continued in custody; or (B) be released under bond in the amount of not less than $500 with security approved by the Attorney General, containing such conditions as the Attorney General may prescribe; or (C) be released on conditional parole.

8 U.S.C. Sec. 1252(a)(1) (emphasis added). Section 1252(a)(1) also authorizes the Attorney General, "in his discretion" and "at any time," to revoke an alien's bond or parole. Plaintiffs are a class of alien minors who are being detained without bail by the INS

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pending deportation proceedings. The conditions of the plaintiffs' confinement are not at issue in this case. The issue is whether, and in what manner, the plaintiffs may be detained.

Section 1252 applies to deportable aliens only. Under our immigration laws, there is a fundamental distinction between "excludable" and "deportable" aliens and a corresponding distinction between exclusion and deportation proceedings. See 1 C. Gordon & S. Mailman, Immigration Law and Procedure Sec. 1.03 (rev. ed. 1989). Compare 8 U.S.C. Secs. 1221-1230 (provisions relating to entry and exclusion) with id. Secs. 1251-54 (provisions relating to deportation). Excludable aliens are those who have not "entered" the United States as that term is used in the immigration laws. See Leng May Ma v. Barber, 357 U.S. 185, 187-90, 78 S.Ct. 1072, 1073-75, 2 L.Ed.2d 1246 (1958); 8 U.S.C. Sec. 1101(a)(13). By contrast, deportable aliens are those who have entered the United States but whose presence violates the immigration laws. At issue in this case are the statutory provisions governing, and the rights of, deportable aliens only.

Under the statutory framework governing detention of deportable aliens, an alien detained pending deportation proceedings may obtain judicial review of a detention or bond release decision "upon a conclusive showing in habeas corpus proceedings that the Attorney General is not proceeding with such reasonable dispatch as may be warranted by the particular facts and circumstances in the case of any alien to determine deportability." 8 U.S.C. Sec. 1252(a)(1). Because this provision "deals only with complaints about delays in determining deportability in individual cases," it does not foreclose a challenge to an INS regulation brought under 28 U.S.C. Sec. 1331 rather than in habeas corpus proceedings. National Center for Immigrants Rights, Inc. v. INS, 743 F.2d 1365, 1368-69 (9th Cir.1984). After an order of deportation against an alien has been made final, the Attorney General is authorized to detain that alien for up to six months. 8 U.S.C. Sec. 1252(c). After the six months has elapsed, the Attorney General must release the deportable alien but may thereafter supervise him. 8 U.S.C. Sec. 1252(d).

The Attorney General is authorized by Congress to establish regulations which are necessary to carry out his authority under the immigration laws. 8 U.S.C. Sec. 1103(a). The Attorney General may delegate his responsibilities to other executive officers and indeed has delegated much of his authority over immigration to the Commissioner of the INS, who in turn has authorized the Deputy Commissioner to exercise the same degree of power. 8 U.S.C. Sec. 1103(a); 8 C.F.R. Sec. 100.2 (1988); see also Patel v. INS, 638 F.2d 1199, 1201 & n. 1 (9th Cir.1980).

Under 8 U.S.C. Sec. 1252(a)(1), the Attorney General may continue a deportable alien in custody and prescribe bond release conditions. Prior to 1984, no national policy existed regarding when an alien minor in deportation proceedings could be released on bail. By contrast, regulations did exist governing the release of alien minors who were in exclusion proceedings. See 8 C.F.R. Sec. 212.5(a)(2)(ii) (1987).

In 1984, the INS's Western Region adopted a policy governing release of detained alien minors in deportation proceedings. The policy provided that

[n]o minor shall be released except to a parent or lawful guardian. This is necessary to assure that the minor's welfare and safety is [sic] maintained and that the agency is protected against possible legal liability.

District Directors and Chief Patrol Agents are authorized, in unusual and extraordinary cases, to release a minor to a responsible individual who agrees to provide care and be responsible for the welfare and well being of the child. Release shall not be permitted if any doubt exists that the child will be properly protected.

Four plaintiffs, including named plaintiff Flores, filed this class action on July 11, 1985. The district court subsequently certified a class of alien minors comprising

[a]ll persons under the age of eighteen (18) years who have been, are, or will be

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arrested and detained pursuant to 8 U.S.C. Sec. 1252 by the [INS] within the INS' Western Region and who have been, are, or will be denied release from INS custody because a parent or legal guardian fails to personally appear to take custody of them.

Flores's complaint contained seven claims, only the first two of which are relevant to this appeal. The first claim alleged that the Western Region's bond release condition violated the Immigration & Nationality Act (INA), 8 U.S.C. Sec. 1101 et seq., the Administrative Procedure Act (APA), 5 U.S.C. Sec. 552 et seq., the fifth amendment's due process clause and equal protection guarantee, and international law. Flores's second claim challenged the INS's failure to provide (1) "prompt written notice" to the detainee that the bond release condition had been imposed, and (2) "prompt, mandatory, neutral and detached" review following arrest of (a) whether probable cause to arrest existed, (b) whether imposition of the bond condition was necessary to ensure future appearance, and (c) whether any available adult was suitable to ensure the detained juvenile's well-being and appearance at future proceedings. The second claim alleged that these failures violated due process and international law. Plaintiffs' last five claims, which challenged various conditions of the minors' confinement, including the INS's provision for education, recreation, and visitation, were resolved by settlement or motion and are not issues in this appeal.

The INS moved for partial summary judgment, and the district court held that the bond release condition did not violate the INA, APA, or international law, but deferred decision on the due process and equal protection claims until further discovery had been conducted.

Flores subsequently moved for summary judgment on various grounds, and the district court ruled that the bond release condition embodied in the Western Region's policy violated equal protection since no rational reason existed for treating alien minors in exclusion proceedings differently from alien minors in deportation proceedings. Under 8 C.F.R. Sec. 212.5(a)(2)(ii) (1987), alien minors in exclusion proceedings could be paroled to persons other than parents or legal guardians, including relatives such as sisters or brothers as well as non-relatives. Pointing to the fact that the INS had no uniform policy governing the release of alien minors, the district court ordered the INS to treat minors in deportation under the exclusion standards.

Thereafter, on October 15, 1987, the INS published in the Federal Register a proposed rule "to codify Service policy regarding detention and release of juvenile aliens and to provide a single policy for juveniles in both deportation and exclusion proceedings." 52 Fed.Reg. 38,245 (proposed...

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