942 F.2d 1352 (9th Cir. 1991), 88-6249, Flores by Galvez-Maldonado v. Meese

Docket Nº:88-6249.
Citation:942 F.2d 1352
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:August 09, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1352

942 F.2d 1352 (9th Cir. 1991)

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

August 9, 1991

Argued En Banc and Submitted April 18, 1991.

Page 1353

[Copyrighted Material Omitted]

Page 1354

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

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

William F. Abrams, Jeffer, Mangels, Butler & Marmaro, San Francisco, Cal., James H. Lovell, Heller, Ehrman, White & McAuliffe, Seattle, Wash., Vilma S. Martinez, Munger, Tolles & Olson, Laini Millar-Melnick, Los Angeles, Cal., Susan L. Burrell and Mark I. Soler, Youth Law Center, San Francisco, Cal., E. Richard Larson, Mexican-American Legal Defense and Education Fund, Los Angeles, Cal., John R. Heisse, II, Pettit & Martin, San Francisco, Cal., for the amici curiae.

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


SCHROEDER, Circuit Judge:


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

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

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


This case concerns the treatment of children who are arrested on suspicion of being illegal aliens but who have not yet been determined to be deportable. Because the children are persons present in the United States they must be afforded procedural protections in conjunction with any deprivation of liberty. Mathews v. Diaz, 426 U.S.

Page 1355

67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976).

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

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

Pending a determination of deportability ... [an] alien may, upon warrant of the Attorney General, be arrested and taken into custody.... [A]ny such alien ... may, in the discretion of the Attorney General and pending such final determination of deportability, (A) be continued in custody; or (B) be released under bond ... containing such conditions as the Attorney General may prescribe; or (C) be released on conditional parole.

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

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

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

During the course of this litigation, the INS codified the regional policy into the nationally applicable regulation now at issue. In promulgating that regulation, the INS did not refer to any particular problem that had arisen in the course of administering the immigration laws as they affected children. Rather, it simply cited the "dramatic increase in the number of juvenile aliens" found unaccompanied by a parent, guardian or a adult relative. 53 Fed.Reg. 17,449 (May 17, 1988). The regulation allows release to a somewhat broader class of people than did the Western Region

Page 1356

policy, i.e., a variety of adult relatives as opposed to just parents and legal guardians, but it prohibits release in cases where other responsible adults are available to take custody of the minor. It permits release to unrelated adults only in "unusual and compelling circumstances." 8 C.F.R. § 242.24. 1

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

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

53 Fed.Reg. at 17,449.

In response to comments suggesting that release to responsible adults should be permitted on a regular basis, the INS stated that it did not have the resources or expertise necessary to make a determination, in each case, whether release to the adult in question would be in the child's best interests. 53 Fed.Reg. at 17,449. The INS did not state any basis for its assumption that home studies would have to be conducted. Nor did the INS indicate that it had conducted such studies before releasing children to unrelated adults prior to the promulgation of this policy. Commenters also complained that the regulation's provision that release to unrelated adults could occur...

To continue reading