Aguilar v. United States Immigration & Customs Enforcement Division of the Department of Homeland Security , 510 F.3d 1 ( 2007 )

United States Court of Appeals
For the First Circuit
No. 07-1819
NOLBERTA AGUILAR ET AL.,
Petitioners, Appellants,
v.
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION
OF THE DEPARTMENT OF HOMELAND SECURITY ET AL.,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge.
Bernard J. Bonn, III and Harvey Kaplan, with whom Michael
Shin, Matthew M. Lyons, Dechert LLP, Kaplan, O'Sullivan & Friedman,
Nancy Kelly, John Willshire, Greater Boston Legal Servs., John
Reinstein, Laura Rótolo, American Civil Liberties Foundation of
Mass., Iris Gomez, Mass. Law Reform Inst., Ondine Sniffin, and
Catholic Social Servs. of Fall River were on brief, for
petitioners.
Thomas H. Dupree, Jr., Deputy Assistant Attorney General, with
whom Peter D. Keisler, Assistant Attorney General, Daniel J. Davis,
Counsel to the Assistant Attorney General, David J. Kline,
Principal Deputy Director, Office of Immigration Litigation,
Elizabeth J. Stevens, Attorney, Office of Immigration Litigation,
Michael J. Sullivan, United States Attorney, and Mark Grady,
Assistant United States Attorney, were on brief, for respondents.
November 27, 2007
SELYA, Senior Circuit Judge. This appeal has its genesis
in a dramatic raid on a leather goods factory in New Bedford,
Massachusetts. Enforcement of the immigration laws is difficult
and oftentimes controversial work. So it was here: the raid led to
the detention of hundreds of undocumented aliens and put
significant strains on those involved and those who wished to help.
In short order, the detainees (many of whom were whisked away to
distant places) brought a civil action alleging abridgement of a
constellation of constitutional and statutory rights.
Confronted with a maze of issues, the district court
patiently sorted through them and, in a thoughtful rescript,
eventually dismissed the action for want of subject matter
jurisdiction. Aguilar v. U.S. Immigr. & Customs Enf. Div. of Dep't
of Homeland Sec., 490 F. Supp. 2d 42, 48 (D. Mass. 2007). The
detainees (whom we sometimes shall refer to as "the petitioners")
now challenge that ukase. Their appeal raises novel and important
questions concerning the scope, reach, and interpretation of the
immigration laws. In particular, it requires us to disentangle the
Gordian knot of jurisdictional provisions created by recent
amendments to the Immigration and Nationality Act (INA).
We discern no simple, one-size-fits-all answer to the
questions presented by the parties. After careful perscrutation of
a scumbled record, we conclude that some of the petitioners' claims
are unpreserved, some are subject to a jurisdictional bar, and
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others are simply not actionable. The common denominator is that
none of the claims can proceed in the district court. Thus, while
our reasoning differs somewhat from that of the court below — and
our opinion should not be read as an unqualified endorsement of the
way in which immigration officials handled the matter — we affirm
the judgment of dismissal. The tale follows.
I.
We rehearse here only those facts needed to place this
appeal in workable perspective. On March 6, 2007, federal officers
conducted a raid as part of "Operation United Front." The raid
targeted Michael Bianco, Inc., a Department of Defense contractor
suspected of employing large numbers of illegal aliens.
Immigration and Customs Enforcement (ICE) agents, armed with search
and arrest warrants, appeared unannounced at the factory, arrested
five executives on immigration-related criminal charges, and took
more than 300 rank-and-file employees into custody for civil
immigration infractions. The ICE agents cast a wide net and paid
little attention to the detainees' individual or family
circumstances.
The government's subsequent actions regarding the
undocumented workers who were swept up in the net lie at the
epicenter of this litigation. After releasing dozens of employees
determined either to be minors or to be legally residing in the
United States, ICE transported the remaining detainees to Fort
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Devens (a holding facility in Ayer, Massachusetts). Citing a
shortage of available bed space in Massachusetts, ICE then began
transferring substantial numbers of aliens to faraway detention and
removal operations centers (DROs). For example, on March 7, 90
detainees were flown to a DRO in Harlingen, Texas, and the next day
116 more were flown to a DRO in El Paso, Texas.
ICE attempted to coordinate its maneuvers with the
Massachusetts Department of Social Services (DSS) to ensure the
proper care of family members. It took steps to address concerns
about child welfare and released several detainees for humanitarian
reasons. Still, the petitioners allege (and, for present purposes,
we accept) that ICE gave social welfare agencies insufficient
notice of the raid, that caseworkers were denied access to
detainees until after the first group had been transferred, and
that various ICE actions temporarily thwarted any effective
investigation into the detainees' needs. As a result, a
substantial number of the detainees' minor children were left for
varying periods of time without adult supervision.
With respect to the detainees themselves, the petitioners
aver that ICE inhibited their exercise of the right to counsel.
According to the petitioners, a squad of volunteer lawyers who had
offered to provide the detainees with guidance was turned away from
Fort Devens on March 7. The next day, the lawyers were allowed to
meet with those detainees (some thirty in number) who had expressly
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requested legal advice. The petitioners allege that,
notwithstanding this largesse, some detainees were denied access to
counsel after they arrived in Texas.
On the afternoon of March 8, the Guatemalan consul,
acting as next friend of the detainees (many of whom were
Guatemalan nationals), filed a petition for a writ of habeas corpus
and a complaint for declaratory and injunctive relief in the United
States District Court for the District of Massachusetts. The
action sought the detainees' immediate release or, in the
alternative, a temporary restraining order halting further
transfers. The district court enjoined ICE from moving any of the
remaining detainees out of Massachusetts pending further order of
the court.
On March 13, the plaintiffs filed an amended complaint,
fashioned as a class action, and withdrew their plea for immediate
release. The amended complaint named ICE and various other federal
agencies and actors as respondents (for ease in exposition, we
sometimes refer to the defendants, collectively, as "ICE" or "the
government"). In that pleading, the petitioners alleged that ICE's
actions had violated certain of the petitioners' constitutional and
statutory rights, including: (i) the right to be free from
arbitrary, prolonged, and indefinite detention; (ii) the right to
a prompt bond hearing, that is, one held in Massachusetts prior to
any transfer; (iii) the right to counsel; and (iv) the right of
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family integrity. The amended complaint further alleged that it
was "the established policy and practice of the [government] to
conduct large scale 'sweeps' or 'raids' in which large numbers of
persons suspected of being unlawfully present in the United States"
are held "at facilities which are some distance from the site of
arrest and under conditions where access to counsel . . . is
impracticable, if not impossible."
On March 16, the government filed an omnibus motion to
dismiss for want of personal and subject matter jurisdiction and
for failure to state any claim upon which relief might be granted.
In due course, the district court allowed the motion to dismiss on
the ground that it lacked subject matter jurisdiction. Aguilar,
490 F. Supp. 2d at 48. The court also dissolved the temporary
restraining order that it previously had issued.
The linchpin of the lower court's decision was its
conclusion that the INA, as amended by the REAL ID Act of 2005,
Pub. L. No. 109-13, 119 Stat. 231, 302, stripped it of both habeas
and federal question jurisdiction to hear the petitioners' claims.
Aguilar, 490 F. Supp. 2d at 46, 48 (citing 8 U.S.C. § 1252(b)(9));
id. at 47-48 (citing 8 U.S.C. § 1252(a)(2)(B)(ii)). In its
rescript, the court rejected the petitioners' attempted re-
characterization of their remonstrances as pattern and practice
claims, that is, claims alleging a collective denial of rights
collateral to removal proceedings. Id. at 48. In that regard, the
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court concluded that the petitioners had failed to link these
class-wide pattern and practice claims to any specific
constitutional violation that might be ripe for review. Id.
The district court paid special heed to the absence of
any Sixth Amendment right to counsel in removal proceedings, the
absence of any constitutional right to release on bond, and the
absence of any constitutional right to have a removal proceeding
held in a particular venue. Id. And while acknowledging that the
petitioners were entitled to the due process guarantees of the
Fifth Amendment as well as to certain statutory protections, the
district court concluded that those rights were personal to the
petitioners and, as such, had to be exhausted administratively
before the courts could become involved. Id.
This timely appeal ensued. In it, the petitioners assign
error to the lower court's conclusion that it lacked subject matter
jurisdiction over their claims and relatedly, to its conclusion
that the petitioners are only entitled to judicial review on an
individualized basis after exhausting their administrative
remedies. Overall, the petitioners urge us to hold that they have
stated cognizable claims that are ripe for judicial review and that
their action should, therefore, be allowed to proceed in the
district court.
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II.
Conscious of our role as a court of limited jurisdiction,
we begin our analysis with the multi-part question of whether and
to what extent the district court possessed subject matter
jurisdiction to hear the petitioners' claims. See Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 88-89 (1998); Bell v.
Hood, 327 U.S. 678, 682 (1946). We then turn to the surviving
claims.
We review a district court's dismissal for want of
subject matter jurisdiction de novo. See, e.g., Dominion Energy
Brayton Point, LLC v. Johnson, 443 F.3d 12, 16 (1st Cir. 2006).
For that purpose, we give weight to the well-pleaded factual
averments in the operative pleading (here, the petitioners' amended
complaint) and indulge every reasonable inference in the pleader's
favor. See Muñiz-Rivera v. United States, 326 F.3d 8, 11 (1st Cir.
2003). Where, however, those facts are illuminated, supplemented,
or even contradicted by other materials in the district court
record, we need not confine our jurisdictional inquiry to the
pleadings, but may consider those other materials.1 See J.S. ex
1
This seems an appropriate place to mention that, before oral
argument in this court, the government moved to supplement the
record with copies of orders from immigration judges awarding
continuances, changes of venue, and other ancillary relief to
several of the petitioners. We grant the motion. Although we
generally limit appellate consideration to the record before the
district court, this submission comes within an exception to the
usual rule because we may take judicial notice of the proffered
orders. See, e.g., Fornalik v. Perryman, 223 F.3d 523, 529 (7th
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rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004);
Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002). Our
solution to the jurisdictional puzzle may be original, that is, we
may affirm an order of dismissal on any ground made apparent by the
record (whether or not relied upon by the lower court). See
InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st Cir. 2003).
A.
The petitioners contend that the district court possessed
subject matter jurisdiction over their claims pursuant to the
general grant of federal question jurisdiction, 28 U.S.C. § 1331,
and the statutory grant of habeas corpus jurisdiction, id. § 2241.
In outlining this contention, they concede that Congress, in
enacting 8 U.S.C. § 1252(b)(9), attempted to direct challenges to
removal through defined administrative channels. They argue,
however, that their claims lie beyond the reach of this channeling
statute.
Delineating the precise ambit of section 1252(b)(9) calls
for an exercise in statutory construction. Thus, our starting
point is the statutory text. See Richardson v. United States, 526
Cir. 2000) (taking judicial notice of INS actions); see also Fed.
R. Evid. 201 advisory committee note (stating that judicial notice
may be taken on appeal). As we explain later in this opinion, the
orders are highly relevant to a determination of whether the
petitioners have an adequate forum in which to present their
claims.
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U.S. 813, 816 (1999); Fed. Refin. Co. v. Klock, 352 F.3d 16, 25
(1st Cir. 2003).
Section 1252(b)(9) is entitled "Consolidation of
questions for judicial review." It reads in pertinent part:
Judicial review of all questions of law and
fact, including interpretation and application
of constitutional and statutory provisions,
arising from any action taken or proceeding
brought to remove an alien from the United
States . . . shall be available only in
judicial review of a final order under this
section. Except as otherwise provided in this
section, no court shall have jurisdiction, by
habeas corpus under Section 2241 of Title 28,
or any other habeas corpus provision . . . or
by any other provision of law (statutory or
nonstatutory), to review such an order or such
questions of law or fact.
The Supreme Court has described this provision as a "general
jurisdictional limitation" and as "an unmistakable 'zipper'
clause." Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 482-
83 (1999). By its terms, the provision encompasses "all questions
of law and fact" and extends to both "constitutional and statutory"
challenges. Its expanse is breathtaking.
Congress's purpose in enacting section 1252(b)(9) is
evident. As its text makes manifest, that proviso was designed to
consolidate and channel review of all legal and factual questions
that arise from the removal of an alien into the administrative
process, with judicial review of those decisions vested exclusively
in the courts of appeals. See 8 U.S.C. § 1252(a)(5) (ordaining
that "a petition for review filed with an appropriate court of
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appeals . . . shall be the sole and exclusive means for judicial
review of an order of removal"). In enacting section 1252(b)(9),
Congress plainly intended to put an end to the scattershot and
piecemeal nature of the review process that previously had held
sway in regard to removal proceedings. See H.R. Rep. No. 109-72,
at 174 (2005) (Conf. Rep.), reprinted in 2005 U.S.C.C.A.N. 240,
299.
While paying lip service to the breadth and purpose of
section 1252(b)(9), the petitioners endeavor to avoid its
strictures by reading section 1252(b)(9) narrowly as stripping
district courts of jurisdiction over challenges to ongoing removal
proceedings — nothing more. On this basis, the petitioners claim
that the district court's habeas jurisdiction remains intact for
all legal challenges that are unaccompanied by any challenge to a
particular removal proceeding. That is wishful thinking; as we
explain below, such a construct belies the statute's plain meaning
and runs contrary to Congress's discernible intent.
Undocumented aliens cannot escape the vise-like grip of
section 1252(b)(9) by the simple expedient of banding together
claims consigned by law to administrative channels, declining to
raise them within the ambit of removal proceedings per se, and
maintaining that those unexhausted claims do not implicate a
particular removal determination. The reach of section 1252(b)(9)
is not limited to challenges to singular orders of removal or to
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removal proceedings simpliciter. By its terms, the provision aims
to consolidate "all questions of law and fact" that "arise from"
either an "action" or a "proceeding" brought in connection with the
removal of an alien. See 8 U.S.C. § 1252(b)(9). Importantly, the
statute channels federal court jurisdiction over "such questions of
law and fact" to the courts of appeals and explicitly bars all
other methods of judicial review, including habeas. Id.The petitioners cannot skirt the statutory channel
markers by lumping together a melange of claims associated with
removal, each of which would be jurisdictionally barred if brought
alone, and eschewing a direct challenge to any particular removal
proceeding. Such claim-splitting — pursuing selected arguments in
the district court and leaving others for adjudication in the
immigration court — heralds an obvious loss of efficiency and
bifurcation of review mechanisms. These are among the principal
evils that Congress sought to avoid through the passage of section
1252(b)(9). See H.R. Rep. No. 109-72, at 174, reprinted in 2005
U.S.C.C.A.N. at 299. It is our task to enforce the statute as
Congress wrote it, and we reject the petitioners' invitation to
read the statute in a way that would frustrate Congress's
unmistakable purpose.
In a somewhat related vein, the petitioners insist that
the challenged actions occurred prior to the institution of any
formal removal proceedings and, thus, are beyond the compass of the
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zipper clause. Although their factual premise is unarguably
correct, their conclusion is not; nothing in the statute limits its
reach to claims arising from extant removal proceedings. Reading
the statute to limit the exhaustion requirement to claims that
arise from ongoing removal proceedings would put an undue premium
on which party rushed to the courthouse first. More importantly,
such a reading would render the word "action" superfluous and
effectively excise it from the statute. Yet it is a familiar canon
of construction that, whenever possible, every word and phrase in
a statute should be given effect. See, e.g., United States v. Ven-
Fuel, Inc., 758 F.2d 741, 751-52 (1st Cir. 1985). That canon
demands our fidelity here.
None of this is to imply that section 1252(b)(9) is
limitless in its scope. The words "arising from" do not lend
themselves to precise application, see Hiroshi Motomura, Judicial
Review in Immigration Cases After AADC: Lessons from Civil
Procedure, 14 Geo. Immigr. L.J. 385, 424 (2000), and courts have
debated their meaning in other settings, see Humphries v. Various
Fed. USINS Employees, 164 F.3d 936, 943 (5th Cir. 1999) (collecting
cases). One thing is clear, however: those words are not
infinitely elastic. Cf. Louisville & Nashville R.R. v. Mottley,
211 U.S. 149, 152 (1908) (famously reading the analogous term
"arising under" more narrowly than plain meaning might suggest).
With respect to section 1252(b)(9), these words cannot be read to
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swallow all claims that might somehow touch upon, or be traced to,
the government's efforts to remove an alien.
To us, Congress's choice of phrase suggests that it did
not intend section 1252(b)(9) to sweep within its scope claims with
only a remote or attenuated connection to the removal of an alien.
Courts consistently have recognized that the term "arising from"
requires more than a weak or tenuous connection to a triggering
event. See, e.g., Franchise Tax Bd. v. Constr. Laborers Vacation
Trust, 465 U.S. 1, 27 n.32 (1983); Humphries, 164 F.3d at 943;
Pizarro v. Hoteles Cocorde Int'l, C.A., 907 F.2d 1256, 1259 (1st
Cir. 1990).
Furthermore, if Congress had intended to accomplish so
far-reaching a result, it could have used broader language. Cf.
McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 (1991)
(suggesting that if Congress intended a certain provision of the
INA to be read more expansively, it could have used more expansive
language). For example, Congress would have used the term "related
to" instead of "arising from." See Humphries, 164 F.3d at 943(suggesting that "related to" signifies a somewhat looser nexus
than "arising from").
Such a bounded reading of the statute is also suggested
by the fact that certain claims are excluded from the sweep of
section 1252(b)(9) by virtue of legislative intent and judicial
precedent. To illustrate, the legislative history indicates that
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Congress intended to create an exception for claims "independent"
of removal. H.R. Rep. No. 109-72, at 175, as reprinted in 2005
U.S.C.C.A.N. at 300. Thus, when it passed the REAL ID Act,
Congress stated unequivocally that the channeling provisions of
section 1252(b)(9) should not be read to preclude "habeas review
over challenges to detention." Id. (indicating that detention
claims are "independent of challenges to removal orders"). In line
with this prescription, we have held that district courts retain
jurisdiction over challenges to the legality of detention in the
immigration context. See Hernández v. Gonzales, 424 F.3d 42, 42
(1st Cir. 2005) (holding that detention claims are independent of
removal proceedings and, thus, not barred by section 1252(b)(9)).
This carve-out seemingly encompasses constitutional challenges
regarding the availability of bail. See, e.g., Demore v. Kim, 538
U.S. 510, 516 (2003).
There is no reason to believe that section 1252(b)(9)'s
exception for independent claims is restricted to those related to
detention. Cf. Sissoko v. Rocha, 440 F.3d 1145, 1156-57 (9th Cir.
2006) (suggesting that the broad jurisdiction-stripping provisions
of 8 U.S.C. § 1252(g) do not foreclose aliens' claims for money
damages under the doctrine of Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971)). After
all, section 1252(b)(9) is a judicial channeling provision, not a
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claim-barring one.2 The provision, where applicable, only requires
exhaustion of administrative procedures and the consolidation of
claims for judicial review.
We say "where applicable" because removal proceedings are
confined to determining whether a particular alien should be
deported. See id. § 1229a(c)(1)(A). While legal and factual
issues relating to that question can be raised in removal
proceedings and eventually brought to the court of appeals for
judicial review, certain claims, by reason of the nature of the
right asserted, cannot be raised efficaciously within the
administrative proceedings delineated in the INA. See, e.g.,
McNary, 498 U.S. at 496; Jupiter v. Ashcroft, 396 F.3d 487, 492
(1st Cir. 2005). Requiring the exhaustion of those claims would
foreclose them from any meaningful judicial review. Given
Congress's clear intention to channel, rather than bar, judicial
review through the mechanism of section 1252(b)(9), reading
"arising from" as used in that statute to encompass those claims
would be perverse.
We thus read the words "arising from" in section
1252(b)(9) to exclude claims that are independent of, or wholly
2
Congress knows how to bar claims in the immigration context
when it desires to do so. See, e.g., 8 U.S.C. § 1252(g)(2)
(declaring that "no court shall have jurisdiction to hear any cause
or claim by or on behalf of any alien arising from the decision or
action by the Attorney General to commence proceedings, adjudicate
cases, or execute removal orders").
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collateral to, the removal process. Among others, claims that
cannot effectively be handled through the available administrative
process fall within that purview. This reading, we believe, is
consistent with the wise presumption that Congress legislates with
knowledge of longstanding rules of statutory construction. See
McNary, 498 U.S. at 496. That presumption traditionally requires
that there be clear and convincing evidence of legislative intent
before restricting access to judicial review entirely. See, e.g.,
Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967).
This holding fits comfortably with traditional legal
principles. Courts long have recognized an exception to the
exhaustion requirement for claims that are collateral to
administrative proceedings. See, e.g., Bowen v. City of New York,
476 U.S. 467, 482-83 (1986); Mathews v. Eldridge, 424 U.S. 319, 330
(1976). In that regard, courts have been most willing to deem
claims "collateral" when requiring exhaustion would "foreclose all
meaningful judicial review." Thunder Basin Coal Co. v. Reich, 510
U.S. 200, 212-13 (1994); see Leedom v. Kyne, 358 U.S. 184, 190
(1958) (upholding injunction against agency action when petitioners
lacked any other means to protect or enforce their rights).
As a further reflection of this same attitude, courts
have demonstrated a particular hostility toward requiring
exhaustion when adequate relief could not feasibly be obtained
through the prescribed administrative proceedings. See, e.g.,
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Mathews, 424 U.S. at 331. That hostility also manifests itself
when a party would be "irreparably injured" by adherence to an
exhaustion requirement. Bowen, 476 U.S. at 483.
B.
Against this backdrop, we now turn to the question of
whether section 1252(b)(9) requires administrative exhaustion of
some or all of the petitioners' claims. We deal sequentially with
the petitioners' assertions about their constitutional right to be
free from harsh and inhumane conditions of confinement, their
assertions anent the right to counsel, and their assertions
concerning the right to family integrity. We subsume in these
discussions the petitioners' attempt to package their offerings as
class-wide pattern and practice suits.
We need not linger long over the conditions-of-
confinement claims. We assume, for argument's sake, that claims
challenging the conditions of an alien's detention are independent
of removal proceedings. Cf. Hernández, 424 F.3d at 42 (holding
that the REAL ID Act does not bar claims that merely challenge the
length of an alien's detention). Here, however, the conditions-of-
confinement claims were not raised below. That is a significant
omission. "If any principle is settled in this circuit, it is
that, absent the most extraordinary circumstances, legal theories
not raised squarely in the lower court cannot be broached for the
first time on appeal." Teamsters, Chauffeurs, Warehousemen &
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Helpers Union, Local No. 59, v. Superline Transp. Co., 953 F.2d 17,
21 (1st Cir. 1992).
To elaborate, the amended complaint in this case makes no
mention either of harsh conditions of confinement or of cruel and
inhumane treatment during detention. It only challenges the
legality and duration of confinement — and neither of those
challenges are renewed on appeal.
Going beyond the pleadings, the lone mention in the
district court record of any oppressively harsh conditions of
confinement is in an affidavit attached to one of the petitioners'
preliminary motions. That cursory reference is insufficient to
preserve the issue for appeal. See Paterson-Leitch Co. v. Mass.
Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988) ("One
should not be allowed to defeat the system by seeding the record
with mysterious references to unpled claims, hoping to set the
stage for an ambush should the ensuing ruling fail to suit."). The
petitioners, who could have asked the district court for leave
further to amend their complaint, Fed. R. Civ. P. 15(a), have shown
no reason — let alone a compelling reason — that would prompt us to
relax the prudential rule limiting appellate consideration to
issues that were squarely raised below. The conditions-of-
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confinement claims are, therefore, procedurally defaulted. We
reject them on that basis.3
The petitioners' right-to-counsel claims stand on more
solid procedural ground. Those claims were adequately raised
below. We turn, then, to their viability.
As the government repeatedly reminds us, aliens have no
constitutional right to counsel in removal proceedings. See Lozada
v. INS, 857 F.2d 10, 13 (1st Cir. 1988); see also INS v. Lopez-
Mendoza, 468 U.S. 1032, 1038 (1984) (stating that since "[a]
deportation proceeding is a purely civil action to determine
eligibility to remain in this country . . . various protections
that apply in the context of a criminal trial do not apply in a
deportation proceeding"). But aliens nonetheless are entitled to
due process, Lozada, 857 F.2d at 13, and the INA provides that, in
removal proceedings, an alien "shall have the privilege of being
represented (at no expense to the Government) by such counsel,
authorized to practice in such proceedings, as he shall choose."
8 U.S.C. § 1362.
3
Although the petitioners' amended complaint asserts that ICE
violated their due process rights by removing them from
Massachusetts prior to holding bond hearings, that claim has not
been squarely raised on appeal. The petitioners' brief only
mentions the right to a bond hearing in passing, and it is settled
that "issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived." United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Consequently,
we need not probe this point more deeply.
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In this instance, the petitioners claim that their
detention and subsequent transfer by the government infringed
their rights to counsel by barring their access to lawyers,
interfering with preexisting attorney-client relationships, and
making it difficult to secure counsel of their choosing. The
threshold questions are whether these claims arise from removal and
if so, whether they can be deemed independent of, or collateral to,
the removal process (and, thus, not subject to the channeling
effect of section 1252(b)(9)). Our answers to these questions
require us to hold that the petitioners' right-to-counsel claims
must be administratively exhausted.
The shorthand response to the petitioners' plaint is that
claims that are based upon an alleged deprivation of an alien's
right to counsel in connection with a removal proceeding, whether
pending or imminent, arise from the removal proceeding. By any
realistic measure, the alien's right to counsel is part and parcel
of the removal proceeding itself. See 8 U.S.C. § 1362. So viewed,
an alien's right to counsel possesses a direct link to, and is
inextricably intertwined with, the administrative process that
Congress so painstakingly fashioned.
The frequency with which right-to-counsel claims arise in
removal proceedings refutes any notion that such claims are
sufficiently separate from removal proceedings to be considered
either "independent" or "collateral." Challenges to removal orders
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premised on the government's putative violation of an alien's right
to counsel are commonplace, and such claims are often featured in
petitions for judicial review of removal orders. See, e.g., Michel
v. INS, 206 F.3d 253, 258 (2d Cir. 2000); Batanic v. INS, 12 F.3d
662, 667 (7th Cir. 1993); Rios-Berrios v. INS, 776 F.2d 859, 862-64
(9th Cir. 1985). Ultimately, allowing aliens to ignore the
channeling provisions of section 1252(b)(9) and bring right-to-
counsel claims directly in the district court would result in
precisely the type of fragmented litigation that Congress sought to
forbid.
In this instance, requiring the administrative exhaustion
of such claims does not, in the Supreme Court's phrase, "foreclose
all meaningful judicial review" of the claims. Thunder Basin, 510
U.S. at 212-13. The petitioners unquestionably have the right,
under the INA, to raise these claims before the immigration judge,
before the Board of Immigration Appeals (BIA), and ultimately
before the court of appeals. See, e.g., Mitchell, 206 F.3d at 256-
57. Thus, the petitioners — in contrast to the plaintiffs in cases
like Bowen and Mathews — can receive effective relief for their
alleged violations of the right to counsel simply by navigating the
channels deliberately dredged by Congress.
The proof of the pudding lies in the petitioners'
collective experiences. See supra note 1. In accordance with
applicable regulations, see 8 C.F.R. § 1003.29, each petitioner who
-22-
requested a continuance for the purpose of retaining counsel
received one. Many others have been granted changes in venue,
moving their cases from Texas to Massachusetts. See 8 C.F.R. §
1003.20(b). Each petitioner who raised an issue of this sort may
seek review, first by the BIA and then by the regional court of
appeals, of any adverse determination impacting his or her right to
counsel.
We note, moreover, that the petitioners, who assert that
they will be irreparably harmed if they are required to exhaust
their right-to-counsel claims administratively, have not
satisfactorily explained how or why this is so. We find
irreparable harm lacking in this instance. The absence of any such
harm places this case at a considerable remove from cases like
Bowen and Mathews, in which the delay attendant to the exhaustion
of administrative remedies likely would have engendered irreparable
injury. See Bowen, 476 U.S. at 483-84 (not requiring exhaustion of
administrative remedies because doing so might "trigger a severe
medical setback") (citation and internal quotation marks omitted);
Mathews, 424 U.S. at 331 (not requiring exhaustion because
plaintiff's physical condition and dependence on disability
benefits would, in the event, "damage him in a way not
recompensable through retroactive payments").
-23-
C.
The petitioners have another string to their bow: they
invoke the doctrine of constitutional avoidance. See Ashwander v.
TVA, 297 U.S. 288, 341 (1936) (Brandeis, J., concurring); United
States v. Nascimento, 491 F.3d 25, 38 (1st Cir. 2007).
Specifically, they contend that requiring exhaustion of their
right-to-counsel claims will give rise to a substantive
constitutional question similar to that noted by the Supreme Court
in McNary. This contention cannot withstand scrutiny.
The McNary claimants alleged that the Immigration and
Naturalization Service (INS) — the predecessor agency to ICE —
arbitrarily conducted its special agricultural workers program and,
in so doing, violated their due process rights. 498 U.S. at 487.
In particular, they complained that the INS (i) precluded
applicants from presenting witnesses or otherwise challenging
adverse evidence on which initial benefit denials had been
predicated; (ii) failed to furnish competent interpreters; and
(iii) neglected to arrange for verbatim recording of interviews,
thus inhibiting meaningful administrative review of on-the-ground
decisions. Id. at 487-88.
The Supreme Court expressed understandable concern about
this procedural matrix. See id. at 496 (reasoning that because
review of agency action was "confined to the record made in the
proceeding at the initial decisionmaking level," the lack of an
-24-
adequate record ensured that there would be "no complete or
meaningful basis upon which to review application determinations");
see also id. at 497 (explaining that barring district court review
would deprive the claimants of needed "factfinding and record-
developing capabilities"). Given these deficiencies, the Court
questioned the application of INA's exhaustion requirements to
claims alleging a "pattern and practice" of such due process
violations. See id. at 496-97. The Court suggested that the
claims were "collateral" to the review of program status
determinations and, thus, not covered by the exhaustion
requirements. Id. at 492.
The petitioners' analogy to McNary is imperfect. In the
last analysis, McNary was a statutory construction case. The Court
held that the statute governing review of special agricultural
worker program status determinations did not bar district courts
from exercising jurisdiction over due process pattern and practice
claims that challenged the program's characteristic procedures.
Id. The Court noted that if Congress had intended to require
exhaustion of such claims, it could have used clear language to
that effect. Id. at 494 (stating that Congress "could have modeled
the [statute] on 38 U.S.C. § 211(a), which governs review of
veterans' benefits claims, by referring to review 'on all questions
of law and fact'").
-25-
This holding is of little succor to the petitioners.
Section 1252(b)(9) sweeps much more broadly than the statute at
issue in McNary. Indeed, its text tracks the very language
suggested by the McNary Court as a means of consolidating claims
for review and channeling into removal proceedings. See 8 U.S.C.
§ 1252(b)(9) (providing for "judicial review of all questions of
law and fact" arising from removal). This language is expansive
enough to cover right-to-counsel claims brought by aliens in
connection with removal proceedings.
Here, moreover, the right-to-counsel claims do not give
rise to potential constitutional problems of the kind that troubled
the McNary Court. In contrast to McNary, the petitioners do not
challenge the manner in which an entire program — removal writ
large — is being implemented. They do not claim that the INA's
basic review procedures deny aliens the opportunity to call
witnesses or challenge adverse evidence. And, finally, they do not
denigrate the accuracy of the administrative record normally
compiled in the immigration court. Whereas in McNary, the lack of
a verbatim transcript made some degree of factfinding essential to
a determination of whether the initial hearing afforded due
process, id. at 497, no such problems are apparent here.
The bottom line is that immigration judges possess ample
evidence-gathering faculties, including the authority to administer
oaths, receive evidence, issue subpoenas, call witnesses, and
-26-
entertain cross-examination. See, e.g., 8 U.S.C. § 1229a(b)(1).
As previously noted, they routinely take evidence on, and
adjudicate, claims alleging violations of the right to counsel.
See, e.g., Wang v. Ashcroft, 367 F.3d 25, 28 (1st Cir. 2004);
Bernal-Vallejo v. INS, 195 F.3d 56, 63-64 (1st Cir. 1999). Thus,
the petitioners' individual right-to-counsel claims will need no
supplemental factfinding in order to create a solid platform for
further administrative and judicial review.
This means, of course, that reviewing tribunals, whether
administrative or judicial, can fairly hear and determine, on the
basis of the record compiled before the immigration judge, charges
that ICE's actions during and after the Bianco factory raid
transgressed a particular petitioner's right to counsel. Given
this reality, we are led inexorably to two conclusions. First,
McNary is distinguishable. Second, the doctrine of constitutional
avoidance is not in play in this case. See U.S. ex rel Att'y Gen.
v. Del. & Hudson Co., 213 U.S. 366, 408 (1909) (explaining that
constitutional avoidance canon applies only if "grave and doubtful
constitutional questions arise" from a particular statutory
construction).
The petitioners mount several other efforts to subvert
the INA's exhaustion requirements and the channeling mechanism of
section 1252(b)(9). The first of these consists of styling their
claims as class-wide pattern and practice claims. They argue that
-27-
their claims do not challenge any individual legal deprivation but,
rather, limn class-wide violations of constitutional and statutory
rights arising from an unwholesome, but institutionalized, pattern
and practice of conduct on the part of ICE.
This construct seems to suggest that class-wide pattern
and practice claims are always substantively different from
individual claims because the former challenge an established
policy of the agency, not an individual constitutional or statutory
deprivation. While there may be qualitative as well as
quantitative distinctions between class-wide pattern and practice
claims, on the one hand, and individual claims, on the other hand,
see, e.g., El Rescate Legal Servs., Inc. v. Exec. Office of Immigr.
Rev., 941 F.2d 950, 953 (9th Cir. 1991), merely conglomerating
individual claims and posturing the conglomeration as a pattern and
practice claim does not have talismanic effects. A pattern and
practice claim is not a freestanding cause of action but merely a
method of proving an underlying legal violation. See, e.g.,
Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 355 (5th Cir.
2001).
Nor do we think that aliens can dodge the channeling
machinery of section 1252(b)(9) simply by draping individual claims
in the mantle of a class action. Although the class action device
constitutes an important weapon in the modern litigator's
armamentarium, it is merely a procedural device governed by Federal
-28-
Rule of Civil Procedure 23, and Congress retains the power to
restrict its availability. See, e.g., 8 U.S.C. § 1252(e)(1)(B)
(forbidding the certification of class actions in cases under 8
U.S.C. § 1225(b)(1)); McKenna v. First Horizon Home Loan Corp., 475
F.3d 418, 423 (1st Cir. 2007) (holding that class action treatment
is not available for TILA rescission claims).
We add, moreover, that courts must always be wary of
strategic behavior designed to sidestep exhaustion requirements.
See, e.g., Booth v. Churner, 532 U.S. 731, 741 (2001); Coleman v.
Thompson, 501 U.S. 722, 732 (1991). That caveat has obvious
relevance when aliens seek to employ the class action format to
evade the INA's channeling requirements. Cf. Swan v. Stoneman, 635
F.2d 97, 105 n.9 (2d Cir. 1980) (suggesting that a district court
may consider whether a "class claim has been added merely to avoid
the exhaustion requirement").
Ultimately, then, we must discount nomenclature and
follow the time-honored precept that substance trumps form. See
Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 259 (1933);
Penhallow v. Doane's Adm'rs, 3 U.S. (3 Dall.) 53, 104 (1795); SEC
v. SG Ltd., 265 F.3d 42, 46-47 (1st Cir. 2001). Put bluntly, we
must look through such easy evasions as creative labeling and
consider the fundamental nature of the claims asserted. We cannot
allow collective end runs around congressional directives.
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Let us be perfectly clear. We do not suggest that
section 1252(b)(9) strips district courts of jurisdiction over all
pattern and practice claims. As the Supreme Court suggested in
McNary, 498 U.S. at 496, requiring exhaustion of certain pattern
and practice claims might result in a total denial of meaningful
judicial review. The trick is to distinguish wheat from chaff,
that is, to distinguish what must be exhausted from what need not
be exhausted. In that endeavor, the most salient questions involve
whether the underlying claims are cognizable within the review
process established by Congress, and if so, whether enforcement of
the exhaustion requirement will allow meaningful judicial review
without inviting an irreparable injury. Cf. Mathews, 424 U.S. at331 n.11 (underscoring that "the nature of the claim being asserted
and the consequences of deferment of judicial review are important
factors in determining whether a statutory requirement of finality
has been satisfied"). When, as in this case, the answers to these
queries yield no persuasive reason for bypassing the channels that
Congress has created, the use of pattern and practice or class
action nomenclature cannot alter the result.
The petitioners' remaining effort to circumvent the
channeling requirements of section 1252(b)(9) rests on a contention
that the administrative and judicial review provisions of the INA
are constitutionally suspect because they foreclose the
availability of a particular type of remedy. In essence, they
-30-
suggest that channeling their right-to-counsel claims into the
immigration court might raise constitutional concerns because
broad-based declaratory and injunctive relief would not be
available in that forum. We reject this suggestion.
While "every right, when withheld, must have a remedy,
and every injury its proper redress," Marbury v. Madison, 5 U.S. (1
Cranch) 137, 147 (1803), Congress has wide latitude in choosing
which remedy or remedies are appropriate for the violation of a
particular constitutional right. See generally Henry M. Hart, Jr.,
The Power of Congress to Limit the Jurisdiction of Federal Courts:
An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1366 (1953).
Congress possesses the power to regulate the jurisdiction of the
lower federal courts, see, e.g., Cary v. Curtis, 44 U.S. (3 How.)
236, 245 (1845), and the Supreme Court has not found constitutional
difficulties in congressional abrogation of certain remedies as
long as others are left intact. See, e.g., Lauf v. E.G. Shinner &
Co., 303 U.S. 323, 330 (1938) (rejecting an argument that
restrictions on injunctive relief contained in the Norris-LaGuardia
Act offend the Constitution); Cary, 44 U.S. at 250 (upholding
Congress's abolition of a cause of action against a tax collector
based in part on the fact that the claimant "was not without other
modes of redress"); cf. Swain v. Pressley, 430 U.S. 372, 381 (1977)
(holding that "the substitution of a collateral remedy which is
neither inadequate nor ineffective to test the legality of a
-31-
person's detention does not constitute a suspension of the writ of
habeas corpus").
Courts also have rebuffed litigants' attempts to bypass
congressionally mandated exhaustion requirements by demanding
remedies that the administrative procedures cannot grant. See,
e.g., Booth, 532 U.S. at 741 (holding that prisoners must exhaust
administrative remedies under the Prison Litigation Reform Act
"regardless of the relief offered through administrative
procedures"); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 61 (1st
Cir. 2002) ("Exhaustion is beneficial regardless of whether the
administrative process offers the specific form of remediation
sought by a particular plaintiff.").
To sum up, while Congress probably cannot nullify rights
guaranteed in the Constitution by prohibiting all remedies for the
violation of those rights, see, e.g., Webster v. Doe, 486 U.S. 592,
603 (1988) (requiring clear expression of congressional intent to
preclude judicial review of constitutional claims); but see id. at
613 (Scalia, J., dissenting) (asserting that "it is simply
untenable that there must be a judicial remedy for every
constitutional violation"), this is not such a case. The remedies
left open by section 1252(b)(9) are neither inadequate nor
ineffective to protect the petitioners' rights. Cf. Swain, 430
U.S. at 381 (limning this test in the habeas context). Each
petitioner's right to counsel can be adequately addressed and
-32-
effectively vindicated before an immigration judge (who can grant
a continuance, order a change of venue, or take other pragmatic
steps to ensure that the right is not sullied). In turn, those
orders can be meaningfully reviewed, first by the BIA and then by
the court of appeals. No more is exigible to uphold the district
court's dismissal of the petitioners' right-to-counsel claims.
Before concluding this phase of our discussion, we deem
it advisable to add that, in an abundance of caution, we have
sifted through the petitioners' pleadings, briefs, and other
submissions. To the extent that they arguably have raised
procedural due process claims above and beyond their right-to-
counsel claims — such as their vaguely articulated plaints about
difficulties in calling witnesses and in presenting evidence at the
removal proceedings — we find that section 1252(b)(9) mandates
their exhaustion.
Our reasoning is by now familiar. The petitioners'
procedural due process rights "arise from" removal in that they are
part of the fabric of the removal proceedings themselves. This
imbrication is borne out by the fact that, like right-to-counsel
claims, claims alleging violations of the right to procedural due
process are commonplace in petitions for administrative and
judicial review of removal orders. See, e.g., Frech v. U.S. Att'y
Gen., 491 F.3d 1277, 1281-82 (11th Cir. 2007); Enwonwu v. Gonzales,
438 F.3d 22, 31 (1st Cir. 2006); see also Gandarillas-Zambrana v.
-33-
BIA, 44 F.3d 1251, 1255-56 (4th Cir. 1995) (considering virtually
identical due process claims on appeal from a final order of
deportation).
We conclude, therefore, that given the nature of those
claims and their wonted treatment, they cannot plausibly be viewed
as either independent of, or collateral to, removal proceedings.4
It follows that the channeling mechanism of section 1252(b)(9)
governs such claims (if, indeed, they have been properly pleaded
and adequately developed).
D.
This leaves only the petitioners' substantive due process
claims, which allege violations of the Fifth Amendment right of
parents to make decisions as to the care, custody, and control of
their children. See, e.g., Troxel v. Granville, 530 U.S. 57, 65
(2000). We conclude that, unlike most of the petitioners' other
claims, these claims are collateral to removal and, thus, outside
the channeling mechanism of section 1252(b)(9).
We set the stage. The petitioners were carted away
unceremoniously at the time of the factory raid. They allege that
4
To be sure, we have suggested that a "denial of due process
may, in certain limited circumstances, be exempt from the ordinary
exhaustion requirement," Jupiter, 396 F.3d at 492. Withal, we have
underscored that "[t]hese circumstances are rare and are restricted
to claims that are beyond the authority of the agency to
adjudicate." Id. The petitioners have not demonstrated that their
claims deserve such extraordinary treatment.
-34-
their immediate detention, the subsequent string of transfers (many
of them to distant climes), and ICE's inadequate efforts either to
notify or to work with social service agencies disrupted family
units. That alleged disruption forms the centerpiece of their
substantive due process claims.
To be sure, these claims bear some connection to removal.
But the link is tenuous: the right to family integrity is only
marginally related to removal, the harm from continuing disruption
may be irretrievable, and the issue is not one with which the
immigration court ordinarily would grapple. Thus, reading section
1252(b)(9) to mandate administrative exhaustion of a substantive
due process claim that asserts this kind of "family integrity"
violation likely would sound the death knell for meaningful
judicial review. The issue of family integrity is completely
irrelevant to the mine-run of issues that will be litigated in
removal proceedings, and the claims have no bearing on the aliens'
immigration status. To cinch matters, the petitioners have no
other means within their control through which to protect or
enforce the asserted right.
Holding that the district court lacked jurisdiction over
these substantive due process claims not only would be inconsistent
with the express purpose of section 1252(b)(9) — which is to
channel claims, not to bar them — but also would contradict the
presumption favoring judicial review of administrative actions.
-35-
See Abbott Labs., 387 U.S. at 141. And, finally, because the
petitioners would be left without any effective remedy, they would
be irreparably harmed by this proposed application of the
exhaustion requirement.
In reaching the conclusion that the family integrity
claims are collateral and, thus, not subject to the exhaustion
requirement, we do not break with precedent. Contrary to the
government's insinuations, this case is distinct from cases like
Payne-Barahona v. Gonzales, 474 F.3d 1 (1st Cir 2007). There, the
alien unsuccessfully attempted to wedge a family integrity claim
into a removal proceeding. Id. at 2. Here, unlike in Payne-
Barahona, the petitioners do not base their claims on the notion
that their removal will split the family unit and thus violate
substantive due process; rather, they contend more narrowly that
ICE's failure to allow them time to make arrangements for the care
of their children before hauling them off violated their rights to
family integrity (and, thus, worked a substantive due process
violation).
Because we hold that the district court should not have
dismissed this subset of claims for failure to exhaust
administrative remedies, we must address the government's alternate
argument that a different statutory provision, 8 U.S.C. §
1252(a)(2)(B)(ii), bars the district court from exercising subject
matter jurisdiction over all of the petitioners' claims (including
-36-
the substantive due process claims). That statute provides in
pertinent part:
Notwithstanding any provision of law .
. . and regardless of whether the judgment,
decision, or action is made in removal
proceedings, no court shall have jurisdiction
to review —
* * *
(ii) any other decision or action of
the Attorney General or the Secretary of
Homeland Security the authority for which is
specified under this subchapter [8 U.S.C. §§
1151-1381] to be in the discretion of the
Attorney General or the Secretary of Homeland
Security . . . .
Id. For present purposes, this language must be read in
conjunction with 8 U.S.C. § 1231(g)(1), which provides that "[t]he
Attorney General shall arrange for appropriate places of detention
for aliens detained pending removal or a decision on removal."
The government says that the latter statute entrusts both
the timing and placement of an alien's detention to the unfettered
discretion of the Attorney General. Building on that foundation, it
posits that those sorts of wholly discretionary decisions are
unreviewable under section 1252(a)(2)(B)(ii). Accordingly, the
government urges us to find that the district court lacked
jurisdiction over constitutional and statutory claims, such as the
substantive due process claims advanced by the petitioners, arising
out of the petitioners' detention and transfers.
-37-
We reject the government's sprawling construction of
section 1252(a)(2)(B)(ii). As we have noted before, so broad a
reading is not evident from the statute's text. See Royal Siam
Corp. v. Chertoff, 484 F.3d 139, 143 (1st Cir. 2007). A more
natural reading would leave the petitioners' substantive due
process claims outside the reach of the statute.
In the first instance, there is considerable uncertainty
as to whether section 1231(g)(1) encompasses the authority to
transfer detainees. The first sentence of the provision — granting
the power to "arrange for appropriate places of detention for
aliens detained" — suggests that it might; the second sentence,
which authorizes the Attorney General "to acquire land and to
acquire, build and remodel, repair, and operate facilities,"
reflects more of a bricks-and-mortar orientation.
Here, however, this question of statutory interpretation
is of mainly academic interest. We need not resolve it because, in
all events, section 1231(g) fails to "specify" that individualized
transfer decisions are in the Attorney General's discretion. This
is in stark contrast to other sections of the INA. See, e.g., 8
U.S.C. §§ 1157(c)(1), 1181(a)(9)(B)(v), 1184(c)(6)(F),
1229b(b)(2)(D); see also Alaka v. Att'y Gen., 456 F.3d 88, 97 (3d
Cir. 2006) (stating that "there are no less than thirty-two
additional provisions in the very subchapter of the INA referenced
by 8 U.S.C. § 1252(a)(2)(B)(ii) that make explicit the grant of
-38-
'discretion' to the Attorney General or the Secretary of Homeland
Security"). If a statute does not explicitly specify a particular
authority as discretionary, section 1252(a)(2)(B)(ii) does not bar
judicial review of an ensuing agency action. See Alsamhouri v.
Gonzales, 484 F.3d 117, 122 (1st Cir. 2007).
We are aware that one respected court has stated that
section 1252(a)(2)(B)(ii) pretermits judicial review of the
Attorney General's decision to transfer detainees. Van Dinh v.
Reno, 197 F.3d 427, 433 (10th Cir. 1999). There, the panel said
that it was giving effect to the "literal meaning" of the statute.
Id. But this is a minority view: as other courts have recognized,
the plain language of the statute calls that statement into
question. See Zhao v. Gonzales, 404 F.3d 295, 303 n.6 (5th Cir.
2005) (concluding that "Van Dinh . . . misstates the statutory
text" and "analyze[s] statutory language that Congress did not
adopt"); Spencer Enters., Inc. v. United States, 345 F.3d 683, 691
(9th Cir. 2003) (finding Van Dinh's reasoning unpersuasive because
"the plain language of [section] 1252(a)(2)(B)(ii) requires that
discretionary authority be specified by the statute").
We share the view of the Fifth and Ninth Circuits.
Consequently, we reject Van Dinh and hold that section
1252(a)(2)(B)(ii) does not strip the district courts of
jurisdiction over substantive due process claims that are
collateral to removal proceedings when those claims challenge
-39-
decisions about the detention and transfer of aliens on family
integrity grounds.
E.
Although the petitioners' substantive due process claims
survive the INA's jurisdictional gauntlet, the government contends
in the alternative that these statements of claim fail to limn
causes of action on which relief may be granted. See Fed. R. Civ.
P. 12(b)(6). The district court did not reach this issue, but we
can affirm its order of dismissal on any alternative ground made
manifest in the record. See InterGen, 344 F.3d at 141. Thus, we
test the viability of the substantive due process claims, accepting
as true all the well-pleaded factual averments in the amended
complaint and drawing all reasonable inferences therefrom in the
petitioners' favor. Educadores Puertorriqueños en Acción v.
Hernández, 367 F.3d 61, 62 (1st Cir. 2004).
We begin with bedrock. The Fifth Amendment mandates that
no person shall "be deprived of life, liberty, or property, without
due process of law." U.S. Const. amend. V. The due process
guarantee has both procedural and substantive aspects. Amsden v.
Moran, 904 F.2d 748, 753 (1st Cir. 1990). Its substantive
component is at issue here. That component bars certain offensive
government actions "regardless of the fairness of the procedures
used to implement them." Daniels v. Williams, 474 U.S. 327, 331
(1986).
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The criteria for identifying whether government action
offends the guarantee of substantive due process hinge on the
nature of the challenged government action. See County of
Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998); DePoutot v.
Raffaelly, 424 F.3d 112, 118 (1st Cir. 2005). When challenging
executive action under the imprimatur of substantive due process,
"the threshold question is whether the behavior of the governmental
officer is so egregious, so outrageous, that it may fairly be said
to shock the contemporary conscience." Lewis, 523 U.S. at 847 n.8.
This mantra reflects a realization that challenges to executive
action must be viewed through the prism of "a particular need to
preserve the constitutional proportions of constitutional claims,
lest the Constitution be demoted to what we have called a font of
tort law." Id.Consistent with this need to refrain from
constitutionalizing ordinary misfeasance or malfeasance, the "shock
the conscience" standard erects a high hurdle for would-be
claimants. As a result, "liability for negligently inflicted harm
is categorically beneath the threshold of [substantive] due
process." Id. at 849. Indeed, "the requisite arbitrariness and
caprice must be stunning, evidencing more than humdrum legal
error." Amsden, 904 F.2d at 754 n.5. That strain of exaggerated
arbitrariness historically has involved "deliberate decisions of
government officials to deprive a person of life, liberty, or
-41-
property." Daniels, 474 U.S. at 331. Thus, "[e]xecutive branch
action that sinks to the depths of shocking the contemporary
conscience is much more likely to find its roots in 'conduct
intended to injure in some way unjustifiable by any government
interest.'" DePoutot, 424 F.3d at 119 (quoting Lewis, 523 U.S. at
849).
Here, the petitioners claim in essence that their
immediate detention and swift transfer to distant DROs wreaked
havoc with their right to make decisions about the care, custody,
and control of their minor children, leaving many minors
unattended. But neither the petitioners' amended complaint nor
their briefs offer any reason to believe that ICE's actions were so
"extreme, egregious, or outrageously offensive" as to cross the
"shock the conscience" line. DePoutot, 424 F.3d at 119. We
elaborate below.
The petitioners state cursorily in their amended
complaint that the government "willfully" interfered with their
rights. But any claim of an intentional deprivation is belied by
the petitioners' concession that ICE took at least some measures to
alleviate any resultant harm.5 Moreover, the petitioners do not
5
This concession squares with the district court's supportable
findings that ICE attempted to coordinate with social services
agencies to assure the adequate care of dependent children and in
fact took affirmative steps before and after the raid to attend to
family needs. Aguilar, 490 F. Supp. 2d at 43-44. The district
court likewise found that ICE immediately released thirty-five
persons who had been apprehended due to "pressing humanitarian
-42-
make any showing that the amount of time during which they were
denied the ability to make arrangements for their children was
disproportionate to what was reasonably necessary to process the
large number of aliens detained during the factory raid. While
ICE's actions during and after the raid seem callous in certain
respects, the facts alleged suggest no more than negligence or
misordered priorities.
Our thinking is influenced by a realization that the
evenhanded enforcement of the immigration laws, in and of itself,
cannot conceivably be held to violate substantive due process. See
Payne-Barahona, 474 F.3d at 2; De Robles v. INS, 485 F.2d 100, 102
(10th Cir. 1973). Any interference with the right to family
integrity alleged here was incidental to the government's
legitimate interest in effectuating detentions pending the removal
of persons illegally in the country. See Demore, 538 U.S. at 523(recognizing "detention during deportation proceedings as a
constitutionally valid aspect of the deportation process").
This is critically important because every such detention
of a parent, like every lawful arrest of a parent, runs the risk of
interfering in some way with the parent's ability to care for his
or her children. See Payne-Barahona, 474 F.3d at 3. That a
detention has an impact on the cohesiveness of a family unit is an
needs" (such as being the sole caregiver of one or more minor
children). Id. at 43 n.3.
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inevitable concomitant of the deprivation of liberty inherent in
the detention itself. So long as the detention is lawful, that so-
called deprivation of the right to family integrity does not
violate the Constitution.
We hold, therefore, that such an incidental interference,
standing alone, is not of constitutional magnitude. To rule
otherwise would risk turning every lawful detention or arrest of a
parent into a substantive due process claim. That would place new
and unprecedented constraints on law enforcement activities. Such
constraints would be unwarranted.
Applying the jurisprudence of substantive due process is
an exercise that is "highly dependent on context and detail."
DePoutot, 424 F.3d at 119. Were a substantial number of young
children knowingly placed in harm's way, it is easy to imagine how
viable claims might lie. But to state a cause of action for a
substantive due process violation, the petitioners' pleading would
have to allege facts that showed a plausible entitlement to relief.
Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1968-69 (2007). The
petitioners have not scaled this barrier.6
One further point is worthy of mention. While the "shock
the conscience" test comprises the threshold inquiry with respect
6
We take no view on whether an abandoned child might in
certain circumstances have a cause of action for damages against a
responsible government actor. See, e.g., White v. Rochford, 592
F.2d 381 (7th Cir. 1979). That issue is not before us.
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to substantive due process violations, the petitioners also must
show that the government deprived them of a protected interest in
life, liberty, or property. See Pagán v. Calderón, 448 F.3d 16, 32
(1st Cir. 2006); see also Lewis, 523 U.S. at 847 n.8 (asserting
that the "shock-the-conscience" inquiry "may be informed by a
history of liberty protection"). Here, the nature of the
underlying right asserted by the petitioners reinforces our
conclusion that they have not stated a viable substantive due
process claim.
We see the matter this way. Although the interest of
parents in the care, custody, and control of their offspring is
among the most venerable of the liberty interests protected by the
Fifth Amendment, see, e.g., Troxel, 530 U.S. at 65; Hatch v. Dep't
for Children, Youth & Their Families, 274 F.3d 12, 20 (1st Cir.
2001), the petitioners have not demonstrated that this guarantee of
substantive due process encompasses their assertions. After all,
the right to family integrity has been recognized in only a narrow
subset of circumstances.
To be sure, the petitioners cite cursorily to cases that
deal with this right but they conspicuously fail to build any
bridge between these cases and the facts that they allege. We do
not think that this is an accident. The petitioners' claims seem
markedly different from those scenarios that courts heretofore have
recognized under the rubric of family integrity. They have not
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alleged that the government has interfered permanently with their
custodial rights. See, e.g., Stanley v. Illinois, 405 U.S. 645,
649 (1972). Nor have they alleged that the government has meddled
with their right to make fundamental decisions regarding their
children's education, see, e.g., Meyer v. Nebraska, 262 U.S. 390,
400 (1923), or religious affiliation, see, e.g., Wisconsin v.
Yoder, 406 U.S. 205, 232 (1972). Taken most favorably to the
petitioners, the interference alleged here is transitory in nature
and in no way impinges on parental prerogatives to direct the
upbringing of their children.
We have scoured the case law for any authority suggesting
that claims similar to those asserted here are actionable under the
substantive component of the Due Process Clause, and we have found
none.7 That chasm is important because, given the scarcity of
"guideposts for responsible decisionmaking in this unchartered
area," courts must be "reluctant to expand the concept of
substantive due process." Washington v. Glucksberg, 521 U.S. 702,
720 (1997) (quoting Collins v. Harker Heights, 503 U.S. 115, 125
(1992)).
7
For example, the petitioners suggest that they had the right
to contact their family members immediately following their
detention. That is simply incorrect. Even one accused of
committing a crime does not have an absolute right to place a
telephone call immediately upon his apprehension. See Harrill v.
Blount County, 55 F.3d 1123, 1125 (6th Cir. 1995).
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This unfortunate case is a paradigmatic example of an
instance in which the prudential principle announced by the Collins
Court should be heeded. Accordingly, we dismiss the petitioners'
substantive due process claims for failure to satisfy the
prerequisites of Federal Rule of Civil Procedure 12(b)(6).
III.
We are sensitive to the concerns raised by the
petitioners and are conscious that undocumented workers, like all
persons who are on American soil, have certain inalienable rights.
But in the first instance, it is Congress — not the judiciary —
that has the responsibility of prescribing a framework for the
vindication of those rights. When Congress speaks clearly and
formulates a regime that satisfies constitutional imperatives, the
courts must follow Congress's lead. In that sense, it does not
matter whether a court approves or disapproves of an agency's modus
operandi.
We add only two comments. First, we applaud the able
district judge for the skill and sensitivity with which he handled
this highly charged case. Second, we express our hope that ICE,
though it has prevailed, nonetheless will treat this chiaroscuro
series of events as a learning experience in order to devise
better, less ham-handed ways of carrying out its important
responsibilities.
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The judgment of dismissal is affirmed. All parties shall bear
their own costs.
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