Dora Beltran v. Brent Cardall

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1993
D.B., as next friend of R.M.B., a minor,
Petitioner – Appellant,
v.
BRENT CARDALL, Chief Probation Officer, Yolo County
Juvenile Detention Facility; ROBERT CAREY, Director, Office
of Refugee Resettlement, U.S. Department of Health and
Human Services, in his official capacity; SYLVIA MATHEWS
BURWELL, Secretary, Department of Health and Human
Services, in her official capacity,
Respondents – Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:15-cv-00745-JCC)
Argued: March 22, 2016 Decided: June 20, 2016
Before KING, AGEE, and FLOYD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published
opinion. Judge King wrote the majority opinion, in which Judge
Agee joined. Judge Floyd wrote a dissenting opinion.
ARGUED: Susan Leigh Watson, TEXAS RIOGRANDE LEGAL AID, INC.,
Nashville, Tennessee, for Appellant. Katherine Elizabeth Mallo
Goettel, UNITED STATES DEPARTMENT OF JUSTICE, Chicago, Illinois,
for Appellees. ON BRIEF: Catherine Norris, TEXAS RIOGRANDE
LEGAL AID, INC., San Antonio, Texas; Simon Sandoval-Moshenberg,
LEGAL AID JUSTICE CENTER, Falls Church, Virginia, for Appellant.
1
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Leon Fresco, Deputy Assistant Attorney General, Civil Division,
William C. Peachey, Director, Elizabeth J. Stevens, Assistant
Director, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Dana J. Boente, United
States Attorney, Dennis Barghaan, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellees.
2
KING, Circuit Judge:
Dora Beltrán — also referred to as D.B. — appeals the
district court’s denial of her petition for a writ of habeas
corpus, seeking relief as next friend of R.M.B., her minor son.
R.M.B., a native of Guatemala, is being held as an unaccompanied
alien child (a “UAC”) by the Office of Refugee Resettlement (the
“Office”), an agency of the Department of Health and Human
Services (the “DHHS”). The Office has declined to release
R.M.B. to his mother because it deems her incapable of providing
for his physical and mental well-being. Beltrán maintains that
the Office lacks statutory authority to detain R.M.B., and that
his detention also contravenes substantive and procedural due
process. By decision of August 5, 2015, the district court
rejected Beltrán’s statutory and constitutional claims and
denied her request for habeas corpus relief. See D.B. v.
Poston, 119 F. Supp. 3d 472 (E.D. Va. 2015) (the “Opinion”). As
explained below, we affirm in part, vacate in part, and remand.
I.
A.
We draw the pertinent facts with respect to this proceeding
from the district court’s Opinion and other aspects of the
3
record. 1 R.M.B. was born in Guatemala in February 1999. In
2005, at the age of six, he left Guatemala with his mother and
three siblings and illegally entered the United States. Beltrán
and her children settled in Rio Bravo, Texas, near the Mexican
border. Soon thereafter, Beltrán married a man who was either a
citizen or a lawful permanent resident of this country.
Because Beltrán’s husband physically abused her on a
regular basis, she filed a petition with the U.S. Citizenship
and Immigration Services (the “USCIS”), seeking classification
as the spouse of an abusive citizen or lawful permanent resident
— a type of relief authorized by the Violence Against Women Act
(the “VAWA”). Beltrán’s VAWA petition was approved by the USCIS
in September 2012. In February 2013, the USCIS granted deferred
action to R.M.B. as a derivative beneficiary of his mother’s
VAWA petition. See J.A. 25-26 (explaining that deferred action
“is an administrative choice to give some cases lower priority
for removal,” and that the USCIS did not then anticipate
1In its Opinion, the district court referred to Beltrán
only by her initials, D.B., citing concerns about “the sensitive
nature of the issues involved in this proceeding.” See D.B.,
119 F. Supp. 3d at 474 n.1. Consistent with the complaint and
notice of appeal, as well as the appellate briefs, we refer to
Beltrán by name.
4
pursuing removal proceedings against R.M.B.). 2 According to
Beltrán, she was thereafter granted an adjustment of status by
the USCIS and became a lawful permanent resident. R.M.B.’s
immigration status, however, was never adjusted. On May 6,
2015, his deferred action was extended through April 6, 2016.
R.M.B has had a difficult upbringing. For example, he
witnessed his step-father physically abusing his mother on
multiple occasions. In December 2012, the State of Texas
removed Beltrán’s children from her custody after she left them
at home alone. Five months later, in May 2013, a Texas court
restored custody to Beltrán.
R.M.B. exhibited serious behavioral problems while the
family lived in Rio Bravo. During the period from 2011 to 2013,
he was arrested on multiple occasions. In July 2012, he was
found guilty by a state juvenile court of making a terroristic
threat and placed on probation. He also ran away from home
several times. R.M.B. used alcohol and tobacco at ten or eleven
years of age, marijuana by twelve, and hard drugs by fourteen.
R.M.B. has admitted being involved with gangs, as well as
smuggling drugs and immigrants across the Mexican border. He
2Citations herein to “J.A. __” and “J.A.S. __” refer to the
contents of the Joint Appendix and the Sealed Joint Appendix
filed by the parties in this appeal.
5
advised a psychologist that he has carried a gun and on one
occasion shot and killed a man.
Hoping that a new environment would improve R.M.B.’s
behavior, Beltrán moved her family in July 2013 about 160 miles
from Rio Bravo to Corpus Christi, Texas. In approximately
October 2013, however, R.M.B. (then fourteen years old) ran away
from their Corpus Christi home and returned to Rio Bravo, where
he found a job smuggling undocumented immigrants from the
Mexican border to McAllen, Texas.
On December 15, 2013, Border Patrol agents arrested R.M.B.
in Rio Grande City, Texas, near the Mexican border. R.M.B. told
one of the agents that he was waiting to pick up a group of
undocumented immigrants. The agent allowed R.M.B. to call his
mother, who told him to “remind the agent that he had VAWA.”
See J.A. 71. According to the agent, R.M.B. “displayed a bad
attitude towards his mother over the phone” and hung up on her.
See J.A.S. 45. During the phone call, Beltrán also spoke with
the Border Patrol agent, advising him that she and R.M.B. “had
VAWA and that we were filling out the papers and doing the other
things we needed to do to become permanent residents.” See J.A.
71. Beltrán emphasized that she “had immigration papers that
would prove all of this.” Id. The agent directed Beltrán to
look for her papers and said he would call back in about fifteen
minutes. Beltrán found the papers, got in her car, and began
6
driving from Corpus Christi to Rio Grande City. She had driven
thirty or forty miles when the Border Patrol agent called back.
The agent told Beltrán to return home because the Border Patrol
had decided to detain R.M.B. and send him to a youth shelter.
When Beltrán insisted that she had the appropriate papers, the
Border Patrol agent threatened to arrest her if she showed up.
As a result, Beltrán returned to Corpus Christi.
Shortly after R.M.B.’s December 15, 2013 arrest, the Border
Patrol decided that he was a UAC. The relevant statute
underlying that determination, found at § 279 of Title 6,
defines a UAC as a child who:
(A) has no lawful immigration status in the United
States;
(B) has not attained 18 years of age; and
(C) with respect to whom —
(i) there is no parent or legal guardian in the
United States; or
(ii) no parent or legal guardian in the United
States is available to provide care and physical
custody.
See 6 U.S.C. § 279(g)(2) (the “UAC definition”). Pursuant to
its UAC finding, the Border Patrol transferred R.M.B.’s custody
to the Office — as the agency responsible for providing care and
custody of all UACs — and initiated removal proceedings against
him.
7
Since his transfer to the Office’s custody in late 2013,
R.M.B. has been housed in seven different care provider
facilities in five states. While in the Office’s custody,
R.M.B.’s behavioral problems have continued. He has, for
example, fought with facility employees and residents and
engaged in sexually aggressive behavior toward staff members.
R.M.B. has also exhibited self-harming behavior and expressed
suicidal thoughts. On one occasion, he briefly escaped from the
Office’s custody by kicking out the window of a transport van.
In about January 2014, Beltrán submitted a family
reunification request to the Office, asking for R.M.B.’s release
to her custody. The Office promptly ordered a home study, after
determining that one was necessary to properly evaluate
Beltrán’s reunification request. The home study recommended
against releasing R.M.B. to Beltrán, concluding that her home
did “not appear to be a safe and stable environment by evidence
of [Beltrán’s] abusive relationship with her spouse.” See
J.A.S. 68. R.M.B., the home study related, had “an extensive
history of substance abuse and criminal history” and posed “a
high risk of recidivism.” Id. The home study also observed
that Beltrán was unable to provide a safety plan for R.M.B.
Consistent with those recommendations, the Office, by
letter of March 12, 2014, denied Beltrán’s family reunification
request. The denial letter explained that, prior to releasing a
8
UAC, the Office must “determine that the proposed custodian is
capable of providing for the [UAC’s] physical and mental well-
being.” See J.A.S. 88. That obligation arises from a statute
which provides, in relevant part, that a UAC “may not be placed
with a person or entity unless the [DHHS Secretary] makes a
determination that the proposed custodian is capable of
providing for the child’s physical and mental well-being.” See
8 U.S.C. § 1232(c)(3)(A) (the “suitable custodian requirement”).
The Office’s letter gave two reasons for denying
Beltrán’s family reunification request: that R.M.B. “requires
an environment with a high level of supervision and structure”;
and that, based on the home study, “it does not appear . . .
that your home can provide the structure and supervision
necessary for the safety of your son.” See J.A.S. 88. The
denial letter also advised Beltrán that she could seek
reconsideration of the Office’s decision by submitting a request
within thirty days to the DHHS Assistant Secretary for Children
and Families, Mark Greenberg. 3
On March 11, 2015, Beltrán sent a request for
reconsideration to the Office, asserting that R.M.B.’s
3The Assistant Secretary for Children and Families
supervises the Administration for Children and Families, which
is an operating division of the DHHS. The Office, in turn, is
within the Administration for Children and Families.
9
continuing detention was unlawful and demanding his release.
Subsequently, on April 15, 2015, R.M.B. appeared in immigration
court for the first time since his removal proceedings had been
instituted. The immigration judge terminated the removal
proceedings against R.M.B. because he had already been granted
deferred action.
B.
On June 12, 2015, Beltrán, as R.M.B.’s next friend, filed
her petition for habeas corpus in the Eastern District of
Virginia, pursuant to 28 U.S.C. § 2241. The petition named
three respondents: Darryl Poston, Director of the Northern
Virginia Juvenile Detention Facility, where R.M.B. was being
housed; Office Director Robert Carey; and DHHS Secretary Sylvia
Burwell. On June 17, 2015, in accordance with 28 U.S.C. § 2243,
the district court ordered that the petition be served on the
respondents and directed them to show cause why a writ should
not issue. 4
4Section 2243 of Title 28 establishes generally applicable
procedures for habeas corpus proceedings. Under § 2243, a
district court with jurisdiction over a habeas corpus petition
“shall forthwith award the writ or issue an order directing the
respondent to show cause why the writ should not be granted,”
unless the petition lacks merit on its face. The respondent
“shall make a return certifying the true cause of the
detention.”
10
On July 10, 2015 — after Beltrán filed her habeas corpus
petition — Assistant Secretary Greenberg denied Beltrán’s
request for reconsideration. Greenberg’s letter explained that
he agreed with the Office’s conclusion that R.M.B. “should not
be released due to the concerns and necessity to provide
structure and supervision given your son’s needs and welfare.”
See J.A.S. 90. In support of that conclusion, the letter
relied, inter alia, on a May 25, 2015 psychosexual risk
assessment, which concluded that R.M.B. “appears to be a
Moderate-Risk to continue engaging in sexual offending behaviors
and a Moderate-High Risk to continue engaging in non-sexual
offenses.” Id. at 85. The July 10 letter also rejected
Beltrán’s contention that, because she had been available to
take custody of R.M.B. when the Border Patrol detained him,
R.M.B. failed to satisfy the UAC definition.
On July 17, 2015, the government filed its response to
Beltrán’s habeas corpus petition, urging the district court to
deny it. The government submitted several exhibits in support
of its response, including (under seal) the home study report,
the psychosexual risk assessment, and a psychological evaluation
dated June 15, 2014.
C.
On August 5, 2015, the district court denied Beltrán’s
habeas corpus petition for the reasons explained in its Opinion.
11
The Opinion began by reciting “findings of fact” that the court
deemed undisputed and predicated on the record, “unless
otherwise noted.” See D.B., 119 F. Supp. 3d at 474. The
Opinion observed that there was “no motion currently pending
before” the court, but that the parties had submitted “sworn
affidavits and documentary evidence in favor of their respective
positions,” and that each party had requested a “summary
disposition” of the petition. Id. at 474 n.2. Accordingly, the
Opinion explained that the court would make findings of fact
after considering “the material in the record and the oral
argument of counsel, just as it would if the matter were before
the Court on summary judgment.” Id. 5
1.
The district court first addressed Beltrán’s statutory
contentions, beginning with the assertion that the Office lacked
authority to detain R.M.B. because he did not satisfy the UAC
definition. The Opinion explained that it was uncontested that
R.M.B. satisfies the first two elements of that definition, in
5 Although the district court referred to making “findings
of fact” as if on “summary judgment,” it appears that the
parties agreed to a proceeding more akin to a summary bench
trial, as contemplated by 28 U.S.C. § 2243 (“The court shall
summarily hear and determine the facts, and dispose of the
matter as law and justice require.”). We view the Opinion and
its factual recitation in that light, reviewing the facts
recited therein for clear error and the legal rulings de novo.
See Billings v. Polk, 441 F.3d 238, 243 (4th Cir. 2006).
12
that he has no lawful immigration status and has not yet
attained eighteen years of age. Only the third element —
whether, “as initially decided by” the Border Patrol, R.M.B. has
“no parent or legal guardian in the United States available to
provide care and physical custody” — was at issue. See D.B.,
119 F. Supp. 3d at 480; see also 6 U.S.C. § 279(g)(2)(C)(ii).
The Opinion then recognized that the Border Patrol agents
“determined, within their discretion, that [he] met the
definition of a UAC.” See D.B., 119 F. Supp. 3d at 482.
The Opinion ruled that Beltrán’s disagreement with the
Border Patrol’s UAC determination was “not cognizable for habeas
relief,” because § 2241 “is not the proper vehicle to challenge
discretionary federal agency action.” See D.B., 119 F. Supp. 3d
at 482. The Opinion also concluded that, “once R.M.B. was
classified as a UAC by [Border Patrol] field officers,” the
Office had no authority to release him to anyone unless it first
determined, under the suitable custodian requirement, that the
proposed custodian was capable of providing for R.M.B.’s
physical and mental well-being. Id. at 483 (citing 8 U.S.C.
§ 1232(c)(3)(A)).
The district court next addressed and rejected Beltrán’s
position that the Office lost custodial authority over R.M.B.
when his removal proceedings terminated. In that regard, the
Opinion observed that Beltrán’s argument relied “on a false
13
premise, i.e., that R.M.B. is in ‘immigration detention.’” See
D.B., 119 F. Supp. 3d at 485. The Opinion also reiterated that
the Office was precluded by statute from releasing R.M.B. to
anyone unless it first determined that the proposed new
custodian was capable of providing for his physical and mental
well-being.
2.
Having rejected Beltrán’s statutory claims, the district
court addressed and also rejected her substantive and procedural
due process claims, “in light of the Supreme Court’s holding in
Reno v. Flores, 507 U.S. 292 (1993).” See D.B., 119 F. Supp. 3d
at 486. As the Opinion explained, Flores involved a challenge
to a regulation of the Immigration and Naturalization Service
(the “INS”) providing for the release of juvenile aliens,
detained on suspicion of deportability, “only to their parents,
close relatives, or legal guardians, except in unusual and
compelling circumstances.” Id. (citing Flores, 507 U.S. at 294-
99). The Flores plaintiffs had contended that the INS
regulation facially contravened both substantive and procedural
due process. The Supreme Court readily rejected the substantive
due process challenge, ruling that an alien child with no
available parent, guardian, or close relative was not
constitutionally entitled to be released to the custody of an
unrelated adult, rather than placed in a childcare institution
14
selected or operated by the government. See Flores, 507 U.S. at
304-05.
In its Opinion, the district court acknowledged that
R.M.B.’s case is distinguishable from Flores, in that Beltrán is
seeking the release of her own son — not an unrelated child —
and contends she is available to take custody of R.M.B. See
D.B., 119 F. Supp. 3d at 487. The Opinion underscored, however,
that the authorities had determined, in their discretion “and
either rightly or wrongly, but in accordance with statute, that
R.M.B. is an alien child that has no available parent.” Id.
Accordingly, the Opinion characterized the “right at issue” as
the alleged right of an alien child who has no
available parent, close relative, or legal guardian,
as determined by the federal government, and for whom
the government is responsible, to nonetheless be
placed in the custody of his parent, who cannot, at
this time, properly care for his mental and physical
needs.
Id. The Opinion then determined that the alleged right was not
a fundamental one, that the Border Patrol’s UAC determination
was rational, and thus that no deprivation of substantive due
process had occurred. See id.
Turning to Beltrán’s procedural due process claim, the
Opinion explained that, in Flores, the Supreme Court “held that
the juvenile aliens’ demand for an individualized custody
hearing was merely the ‘substantive due process’ argument recast
in procedural terms,” and “found that due process was satisfied
15
by giving the detained alien juveniles the right to a hearing
before an immigration judge.” See D.B., 119 F. Supp. 3d at 487
(citing Flores, 507 U.S. at 307-09). The Opinion reasoned that
“R.M.B. was afforded the same right to a hearing before an
immigration judge, where his immigration proceedings were
terminated.” Id. Finally, the Opinion ruled that the mechanism
in place for seeking family reunification provided sufficient
procedural safeguards to “satisf[y] any constitutional
scrutiny.” Id. at 488. Accordingly, the district court denied
Beltrán’s habeas corpus petition.
On August 27, 2015, Beltrán noted this appeal from the
district court’s judgment. We possess jurisdiction pursuant to
28 U.S.C. § 1291. 6
II.
In addition to Beltrán’s statutory and constitutional
contentions, this appeal presents issues concerning jurisdiction
and the proper scope of review under 28 U.S.C. § 2241. The
6 On September 3, 2015, while this appeal was pending, the
government moved for leave to transfer R.M.B. from Virginia to a
facility in California, pursuant to Rule 23 of the Federal Rules
of Appellate Procedure. On September 23, 2015, over Beltrán’s
objection, we granted the government’s motion to transfer.
R.M.B. thereafter was moved to California, where he is presently
detained. In accordance with Rule 23(a), we have substituted
R.M.B.’s current custodian, Brent Cardall, for Darryl Poston as
the lead respondent in this appeal.
16
government maintains that Beltrán’s petition sought judicial
review of discretionary and factual decisions of administrative
agencies — in particular, the Border Patrol’s initial
determination that R.M.B. was a UAC and the Office’s denial of
family reunification — that are not subject to challenge by way
of habeas corpus. Beltrán answers that her contentions involve
questions of statutory interpretation and constitutional rights
that are cognizable under § 2241. Specifically, she maintains
that R.M.B. is not a UAC as a matter of federal law, that the
Office lacks statutory authority to detain UACs after their
immigration proceedings have terminated, and that R.M.B.’s
continuing detention contravenes substantive and procedural due
process.
Section 2241 of Title 28, the general habeas corpus
statute, provides that habeas corpus relief can extend to
several classes of persons, including those “in custody under or
by color of the authority of the United States” and those “in
custody in violation of the Constitution or laws or treaties of
the United States.” See 28 U.S.C. § 2241(c)(1), (3). It is
undisputed that R.M.B. is “in custody” under the authority of
the United States. Moreover, Beltrán’s petition alleges that
R.M.B.’s custody is in violation of federal statutes and the
Constitution. Accordingly, we are satisfied that subject matter
jurisdiction exists with respect to Beltrán’s § 2241 petition.
17
We are also of the view that the issues pursued by Beltrán,
on behalf of her son, are properly within the scope of this
habeas corpus proceeding. Beltrán contends that the Office is
holding R.M.B. pursuant to “the erroneous application or
interpretation” of applicable statutes. See Boumediene v. Bush,
553 U.S. 723, 779 (2008) (internal quotation marks omitted)
(observing that it is “uncontroversial” that such statutory
claims are cognizable in habeas corpus proceedings). She also
maintains that her son’s detention contravenes the Fifth
Amendment’s Due Process Clause. See Fay v. Noia, 372 U.S. 391,
402 (1963) (“[T]here is nothing novel in the fact that today
habeas corpus in the federal courts provides a mode for the
redress of denials of due process of law.”), overruled in part
on other grounds by Wainwright v. Sykes, 433 U.S. 72 (1977).
Beltrán’s contentions therefore fall within the traditional
scope of § 2241 habeas corpus review. 7
7The vast majority of federal habeas corpus proceedings are
pursued under 28 U.S.C. § 2254 by state prisoners seeking post-
conviction relief on the ground that their custody violates the
Constitution or federal law. As one of our sister circuits has
explained, § 2254 does not create an independent remedy apart
from § 2241, but merely imposes “a limitation on the preexisting
authority under § 2241(c)(3) to grant the writ of habeas corpus
to state prisoners.” See Medberry v. Crosby, 351 F.3d 1049,
1060 (11th Cir. 2003). Federal prisoners, by contrast, are
afforded a remedy separate and apart from habeas corpus under
§ 2241 — a motion, pursuant to 28 U.S.C. § 2255, to vacate, set
aside, or correct a sentence. Although the § 2255 remedy is not
considered a habeas corpus proceeding, see Medberry, 351 F.3d at
(Continued)
18
III.
Being satisfied that we possess jurisdiction, we first
proceed to the merits of Beltrán’s statutory contentions. We
review the district court’s factual findings for clear error and
its legal conclusions de novo. See supra note 5 (citing
Billings v. Polk, 441 F.3d 238, 243 (4th Cir. 2006)).
A.
The care and custody of UACs by the government is governed
by a legal framework consisting primarily of two statutory
provisions — § 279 of Title 6 and § 1232 of Title 8 — plus a
settlement agreement that is binding on the pertinent federal
agencies. At the outset of our discussion, we identify relevant
aspects of that framework, as well as some historical context.
1.
Prior to 2003, the INS was charged with the care and
custody of alien children who were arrested in this country on
suspicion of being deportable, and who had no responsible parent
or legal guardian. The INS, an arm of the Department of
1057, the standards governing § 2255 motions are similar to
those established in § 2254. A federal prisoner may seek habeas
corpus relief pursuant to § 2241 only if “the remedy by [§ 2255]
motion is inadequate or ineffective to test the legality of his
detention.” See 28 U.S.C. § 2255(e). Put succinctly, neither
§ 2254 nor § 2255 applies to this proceeding, because R.M.B. is
neither in custody pursuant to a state court judgment nor
serving a sentence imposed by a federal court.
19
Justice, was also responsible for prosecuting removal
proceedings against such children in the immigration courts.
In 1985, several juvenile aliens in INS custody initiated a
class action in the Central District of California challenging
INS policies regarding the detention of alien children. That
litigation wound its way through the federal court system —
including the Supreme Court, see Reno v. Flores, 507 U.S. 292
(1993) — for twelve years before the parties entered into a
court-approved settlement agreement in 1997 (the “Flores
Agreement”). The Flores Agreement established a “nationwide
policy for the detention, release, and treatment of minors in
the custody of the INS.” See Flores Agreement ¶ 9. The
Agreement is binding on all successor agencies to the INS,
including the Office — subject, of course, to changes in the
applicable statutes. 8
The Flores Agreement spells out a general policy favoring
less restrictive placements of alien children (rather than more
restrictive ones) and their release (rather than detention).
The Agreement contemplates that, unless detention is necessary
8The Office recognizes its continuing obligations under the
Flores Agreement. See Office of Refugee Resettlement, ORR Guide
to Children Entering the United States Unaccompanied § 3.3
(2015), http://www.acf.hhs.gov/programs/orr/resource/children-
entering-the-united-states-unaccompanied-section-3#3.3
(outlining obligations imposed by Flores Agreement on Office’s
care provider facilities).
20
to ensure a child’s safety or his appearance in immigration
court, he must be released “without unnecessary delay,”
preferably to a parent or legal guardian. See Flores Agreement
¶ 14. The appropriate agency may, however, require a “positive
suitability assessment” before releasing the child to the
custody of any individual or program. Id. ¶ 17.
The Flores Agreement specifies that, when an alien child is
not released, he ordinarily should “be placed temporarily in a
licensed program until such time as release can be effected
. . . or until [his] immigration proceedings are concluded,
whichever occurs earlier.” See Flores Agreement ¶ 19. The
child may be detained in a secure facility only under specified
limited circumstances, and then only when no less restrictive
alternative is “available and appropriate.” Id. ¶¶ 21, 23.
2.
In November 2002, Congress and the President enacted the
Homeland Security Act (the “HSA”), which “brought under a single
umbrella” most of the federal agencies responsible for securing
the border and administering the immigration laws. See Tabbaa
v. Chertoff, 509 F.3d 89, 92 (2d Cir. 2007). The HSA abolished
the INS and transferred most of its functions to agencies within
the newly created Department of Homeland Security (the “DHS”),
including the Border Patrol. The HSA carved out of that general
transfer to the DHS the “functions under the immigration laws
21
. . . with respect to the care of [UACs] that were vested by
statute in, or performed by, the [INS].” See 6 U.S.C. § 279(a).
All functions with respect to the care and custody of UACs were
transferred instead to the Office, as an agency of the DHHS.
Id.
The HSA also created the UAC definition. See 6 U.S.C.
§ 279(g)(2). First, to qualify as a UAC, an individual must
have “no lawful immigration status in the United States.” Id.
§ 279(g)(2)(A). Second, the individual must be under the age of
eighteen. See id. § 279(g)(2)(B). And third, the alien child
must have either (i) “no parent or legal guardian in the United
States”; or (ii) “no parent or legal guardian in the United
States . . . available to provide care and physical custody.”
Id. § 279(g)(2)(C).
The functions transferred to the Office include making and
implementing “placement determinations for all [UACs] who are in
Federal custody by reason of their immigration status.” See 6
U.S.C. § 279(b)(1)(A)-(E). In making such determinations, the
Office is required to consult with juvenile justice
professionals and relevant DHS officials, in order to ensure
that UACs appear at immigration proceedings; that UACs are
protected from “smugglers, traffickers, or others who might seek
to victimize or otherwise engage them in criminal, harmful, or
exploitive activity”; and that UACs are not likely to pose a
22
danger to themselves or others. Id. § 279(b)(2)(A). Finally,
although the Office is charged with the care, custody, and
placement of UACs, the responsibility for making immigration
benefit determinations — such as asylum, naturalization, and
adjustment of status — rests with appropriate officials within
the DHS, the Department of Justice, and the State Department.
See id. § 279(c).
3.
In 2008, six years after the HSA was enacted, Congress
modified the statutes concerning UACs by adoption of the William
Wilberforce Trafficking Victims Protection Reauthorization Act
of 2008 (the “Wilberforce Act”). The provisions relating to
UACs are found in § 235 of the Wilberforce Act, most of which
are codified at 8 U.S.C. § 1232. Congress therein reiterated
that responsibility for “the care and custody of all [UACs],
including responsibility for their detention, where
appropriate,” rests with the DHHS Secretary. See 8 U.S.C.
§ 1232(b)(1). Any other federal agency holding a UAC is duty-
bound to “transfer the custody of such child” to the Office “not
later than 72 hours after determining that such child is” a UAC.
Id. § 1232(b)(3). 9
9 The Wilberforce Act makes reference to responsibilities
being vested in the DHHS Secretary, whereas the HSA refers to
responsibilities being vested in the Office, which is part of
(Continued)
23
The Wilberforce Act contained provisions governing the
placement of UACs who are in the Office’s custody. For example,
the Office shall “promptly” place a UAC “in the least
restrictive setting that is in the [UAC’s] best interest,”
subject to the need to ensure the UAC’s safety and timely
appearance at immigration hearings. See 8 U.S.C.
§ 1232(c)(2)(A). The Office “shall not” place a UAC in a secure
facility “absent a determination that the [UAC] poses a danger
to self or others or has been charged with having committed a
criminal offense.” Id. In addition, the Office must review on
a monthly basis any placement of a UAC in a secure facility.
See id.
The Wilberforce Act also delineated when the Office can
release a UAC to the custody of a third party. In particular,
pursuant to the suitable custodian requirement, the Office “may
not” place a UAC with a person or entity without first making “a
determination that the proposed custodian is capable of
providing for the [UAC’s] physical and mental well-being.” See
8 U.S.C. § 1232(c)(3)(A). Furthermore, “[b]efore placing the
[UAC] with an individual,” the Office must determine whether a
the DHHS. Neither Beltrán nor the government has suggested that
this distinction has any impact on this appeal. As pertinent
here, the term “DHHS Secretary” also means “the Office,” and
vice versa.
24
home study is necessary. Id. § 1232(c)(3)(B). Conducting a
home study is mandatory in some circumstances, including for any
UAC “whose proposed sponsor clearly presents a risk of abuse,
maltreatment, exploitation, or trafficking to the child.” Id.
B.
Beltrán’s first statutory contention is that the Office
lacks the authority to detain R.M.B. because, as a matter of
law, he neither is nor has ever been a UAC. Specifically,
Beltrán contends that R.M.B. is not a UAC because she was and is
“available to provide care and physical custody” to him within
the meaning of the UAC definition. See 6 U.S.C.
§ 279(g)(2)(C)(ii). In particular, Beltrán insists that the
term “available” simply means “easy or possible to get or use,”
and that the UAC definition thus does not include an assessment
of a parent’s fitness or suitability as a custodian. See Br. of
Appellant 19 (internal quotation marks omitted).
As always, “[t]he starting point for any issue of statutory
interpretation . . . is the language of the statute itself.”
See United States v. Bly, 510 F.3d 453, 460 (4th Cir. 2007). If
“the language at issue has a plain and unambiguous meaning with
regard to the particular dispute,” that meaning controls. Id.
(internal quotation marks omitted). Critically, the UAC
definition does not refer, as Beltrán suggests, to a parent’s
availability in a general sense. Rather, it asks whether a
25
parent is “available to provide care and physical custody.” See
6 U.S.C. § 279(g)(2)(C)(ii) (emphasis added). The word “care”
generally means “[t]he provision of what is necessary for the
health, welfare, maintenance, and protection of someone or
something.” See The New Oxford American Dictionary 258 (8th ed.
2004). Consequently, to be “available to provide care” for a
child, a parent must be available to provide what is necessary
for the child’s health, welfare, maintenance, and protection.
And a parent who is not “capable of providing for the child’s
physical and mental well-being” — as mandated by the suitable
custodian requirement of 8 U.S.C. § 1232(c)(3)(A) — is not
available to provide what is necessary for the child’s health,
welfare, maintenance, and protection.
In these circumstances, we are unable to conclude as a
matter of law that R.M.B. is not a UAC. The Office found, after
conducting a home study and gathering other evidence, that
Beltrán was incapable of providing for R.M.B.’s physical and
mental well-being. In her reply brief, Beltrán insists that she
is not seeking review of the Office’s finding that she is not a
suitable custodian, even though she “unequivocally disputes”
that finding and contends that the procedures utilized to reach
it were unfair. See Reply Br. of Appellant 27. Because the
Office’s unsuitability finding establishes that Beltrán is not
available to provide care and physical custody of R.M.B., we
26
cannot say that R.M.B.’s detention is based on an erroneous
application or interpretation of the UAC definition. We
therefore reject Beltrán’s first statutory contention. 10
C.
Beltrán’s second statutory contention is that the Office
lacks authority to detain R.M.B. now that his immigration
proceedings have terminated. Concomitantly, Beltrán asserts
that the Flores Agreement bars the detention of R.M.B. by the
Office upon termination of those proceedings. In response, the
government maintains that the suitable custodian requirement
precludes the Office from releasing a UAC to an unsuitable
custodian even though the child’s immigration proceedings have
concluded. It also contends that, to the extent the Flores
Agreement bars the detention of a UAC after his immigration
proceedings have concluded, the Agreement was superseded in 2008
when the suitable custodian requirement was enacted.
10 We need not address the propriety of the Border Patrol’s
initial UAC determination with respect to R.M.B. The question
before the district court — and now before us — is whether
R.M.B.’s current detention complies with federal statutes and
the Constitution. Even if the Border Patrol incorrectly found
R.M.B. to be a UAC, the Office’s subsequent determination that
Beltrán is not capable of providing for R.M.B.’s physical and
mental well-being establishes her unavailability, and thus
confirms R.M.B.’s present status as a UAC.
27
1.
Read in isolation, the suitable custodian requirement is
clear: a UAC “may not be placed with a person or entity unless
the [Office] makes a determination that the proposed custodian
is capable of providing for the [UAC’s] physical and mental
well-being.” See 8 U.S.C. § 1232(c)(3)(A). Beltrán contends,
however, that other parts of the statutory scheme, as well as
the Flores Agreement, limit the authority of the Office over
UACs to those involved in pending immigration proceedings. She
therefore maintains that the suitable custodian requirement is
inapplicable to those UACs — such as R.M.B. — who are not
involved in such proceedings.
Beltrán is correct that, as a general proposition, an alien
may not be detained after his immigration proceedings have
terminated. See 8 U.S.C. § 1226(a) (“On a warrant issued by the
Attorney General, an alien may be arrested and detained pending
a decision on whether the alien is to be removed from the United
States.”). The Flores Agreement also recognizes that, generally
speaking, the detention of an alien child must end when
immigration proceedings terminate. See Flores Agreement ¶ 19
(providing that, if the INS does not release a minor, the minor
“shall remain in INS legal custody . . . until such time as
release can be effected . . . or until the minor’s immigration
proceedings are concluded, whichever occurs earlier”).
28
As a rule of statutory construction, however, the specific
terms of a statutory scheme govern the general ones. See RadLAX
Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2071
(2012). The general-specific rule is particularly applicable
where “Congress has enacted a comprehensive scheme and has
deliberately targeted specific problems with specific
solutions,” id. (internal quotation marks omitted), as it has
done in the immigration context.
Moreover, the general-specific rule is “perhaps most
frequently applied to statutes in which a general permission or
prohibition is contradicted by a specific prohibition or
permission.” See RadLAX, 132 S. Ct. at 2071. This proceeding
presents such a contradiction. On the one hand, 8 U.S.C.
§ 1226(a) confers general authority — on the Office with respect
to UACs, and on the DHS otherwise — to detain aliens only during
the pendency of immigration proceedings. 11 On the other hand,
the suitable custodian requirement imposes on the Office a
11By its terms, § 1226(a) of Title 8 lodges the power to
detain aliens in the Attorney General, and not in either the
Office or the DHS. The HSA, however, transferred alien
detention functions from the INS, an agency of the Department of
Justice, to the Office for UACs, and to the Under Secretary for
Border and Transportation Security within the DHS for aliens who
are not UACs. See 6 U.S.C. §§ 251(2), 279. Pursuant to the
HSA’s savings provisions, the reference to the Attorney General
in § 1226(a) with respect to the detention function must be
“deemed to refer” to the appropriate officials of those
transferee agencies. See 6 U.S.C. §§ 279(e)(1), 552(d), 557.
29
specific prohibition against releasing UACs to unsuitable
custodians. Thus, in order to “eliminate the contradiction,” we
are obliged to construe the suitable custodian requirement “as
an exception to” the general rule that an alien’s detention ends
when his immigration proceedings are terminated. Id. 12
2.
The general-specific rule of statutory construction, like
other interpretive canons, can be overcome by sufficient
indications of a contrary legislative intent. See S.C. Dep’t of
Health & Envt’l Control v. Commerce & Indus. Ins. Co., 372 F.3d
245, 258 (4th Cir. 2004). To overcome the presumption that a
specific statutory provision controls a general one, Congress’s
contrary intent must be “clear.” See Crawford Fitting Co. v.
J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987). We employ the
customary tools of construction to determine whether a clear
intent exists, interpreting relevant statutory terms “not in a
12 Beltrán contends that yet another canon of statutory
construction — the presumption against implied repeals —
requires us to read the suitable custodian requirement as
limited by the existing restriction in 8 U.S.C. § 1226(a) on
detention to the pendency of immigration proceedings. But the
suitable custodian requirement did not repeal § 1226(a) by
implication; it simply carved out an exception to its
application. See Strawser v. Atkins, 290 F.3d 720, 733 (4th
Cir. 2002) (rejecting repeal-by-implication argument where later
statute “simply created a specific, discrete exception” to
earlier one). Accordingly, we are satisfied that the
presumption against implied repeals has no application in this
matter.
30
vacuum, but with reference to the statutory context, structure,
history, and purpose.” See Abramski v. United States, 134 S.
Ct. 2259, 2267 (2014) (internal quotation marks omitted).
a.
To support her contention that the suitable custodian
requirement does not apply to a UAC who, like R.M.B., is not in
immigration proceedings, Beltrán relies on a number of statutory
provisions. First, she emphasizes provisions of the HSA
defining the scope of the Office’s authority, starting with its
transfer from the INS to the Office of the “functions under the
immigration laws . . . with respect to” UACs. See 6 U.S.C.
§ 279(a). Beltrán maintains that detaining alien children after
the termination of immigration proceedings was never a function
of the INS under the immigration laws. She also emphasizes that
two of the duties transferred to the Office are defined in terms
of UACs “who are in Federal custody by reason of their
immigration status.” Id. § 279(b)(1)(A), (C). Beltrán argues
that the phrase “by reason of their immigration status” suggests
that Congress understood that UACs would be detained only while
their immigration proceedings were pending. Finally, Beltrán
emphasizes the HSA’s general savings provisions, codified at 6
U.S.C. § 552. Subsection (a) of § 552 provides, inter alia,
that “completed administrative actions” — a term that
encompasses settlement agreements like the Flores Agreement —
31
“shall not be affected by the enactment of [the HSA] . . . , but
shall continue in effect . . . until amended, modified,
superseded, terminated, set aside, or revoked in accordance with
law.” See also 6 U.S.C. § 279(f)(2) (confirming that § 552(a)
savings provision applies to transfer of functions from INS to
Office “in the same manner” as it applies to transfer of
functions from INS to DHS agencies).
The foregoing provisions support the argument that the
authority the HSA transferred to the Office did not include
custodial authority over UACs not involved in immigration
proceedings. As such, they create the tension between 8 U.S.C.
§ 1226(a), which limits detention to the pendency of immigration
proceedings, and the suitable custodian requirement, which
precludes the Office from releasing a UAC to an unsuitable
custodian. The HSA provisions, however, provide little guidance
on how that tension should be resolved. The HSA’s transfer-of-
authority provisions were enacted in 2002 — six years before the
suitable custodian requirement became law. For that reason
alone, the transfer-of-authority provisions do not reveal
Congress’s intent with respect to the suitable custodian
requirement. Moreover, that Congress saw fit to alter
provisions governing UACs just six years after the HSA’s
enactment suggests that Congress was not entirely satisfied with
the existing statutory scheme.
32
Beltrán also maintains, however, that other provisions in 8
U.S.C. § 1232 — enacted contemporaneously with the suitable
custodian requirement in 2008 — show that Congress did not
intend to authorize the continued detention of UACs after the
conclusion of their immigration proceedings. In particular, she
contends that, because § 1232(b)(1) delegates the “care and
custody” of UACs to the Office “[c]onsistent with section 279 of
Title 6,” and because § 279 does not permit the detention of
UACs after immigration proceedings have concluded, such
detentions cannot be authorized by § 1232. Beltrán further
argues that § 1232(c)(3)(B)’s mandate that the Office “conduct
follow-up services, during the pendency of removal proceedings,
on children for whom a home study was conducted,” demonstrates
Congress’s intent that the Office, like the INS before it, is
entitled to detain UACs only while immigration proceedings are
ongoing.
In our view, the provisions of § 1232 invoked by Beltrán
fail to overcome the presumption created by the general-specific
rule. First, in § 1232(b)(1), the phrase “[c]onsistent with
section 279 of Title 6” does not qualify or limit the grant to
the Office of “responsibility” for “the care and custody of all”
UACs. Rather, that phrase simply reflects Congress’s
recognition that the responsibility identified in § 1232(b)(1)
had been previously conferred on the Office by § 279. It does
33
not show any congressional intent that the general limitation on
detention authority to a period when immigration proceedings are
pending would take precedence over the specific suitable
custodian requirement.
Finally, the portion of § 1232(c)(3)(B) that requires the
Office to conduct follow-up services for certain UACs “during
the pendency of removal proceedings” likewise fails to overcome
the presumption that the specific statutory provision controls
the general one. Congress’s decision to limit mandatory follow-
up services to the pendency of removal proceedings does not
clearly show that Congress intended to similarly limit other
statutory responsibilities, including the Office’s
administration of the suitable custodian requirement. Indeed,
it is entirely implausible that Congress would bury in a
subparagraph concerned with follow-up services so significant a
limitation on the Office’s authority. See Whitman v. Am.
Trucking Ass’ns, 531 U.S. 457, 468 (2001) (observing that
Congress does not “hide elephants in mouseholes”). 13
13 There is an additional reason that 8 U.S.C.
§ 1232(c)(3)(B) fails to illuminate congressional intent to
limit the Office’s authority over UACs to those involved in
ongoing immigration proceedings. That is, in addition to
mandating some follow-up services during the pendency of removal
proceedings, § 1232(c)(3)(B) also authorizes (but does not
require) follow-up services for UACs “with mental health or
other needs who could benefit from ongoing assistance from a
(Continued)
34
b.
The broader statutory scheme governing UACs, as well as
Congress’s purpose in enacting § 1232 of Title 8, reinforces our
conclusion that the Office’s responsibility for the care,
custody, and placement of UACs is not limited to the pendency of
immigration proceedings. A contrary reading would undermine the
web of statutory provisions designed to protect UACs.
Section 1232 of Title 8 addresses the treatment of UACs
throughout the immigration process, from arrest to either legal
status or repatriation. It requires all federal agencies to
transfer to the Office custody of any child determined to be a
UAC within seventy-two hours of that determination. See 8
U.S.C. § 1232(b)(2), (3). The DHHS Secretary and the Office
shoulder the responsibility for providing care to UACs in
federal custody and for making appropriate placement
determinations. See id. § 1232(b)(1), (c)(1)-(3). They are
also charged with ensuring that UACs are appropriately
represented in removal proceedings instituted by the DHS. See
id. § 1232(c)(5)-(6).
Section 1232 also deals with the repatriation of UACs to
their home countries. Paragraph (a)(1) directs the DHS
social welfare agency.” Notably, that authorization is not
limited to the pendency of removal proceedings.
35
Secretary, in conjunction with the DHHS Secretary, the Secretary
of State, and the Attorney General, to “develop policies and
procedures to ensure that [UACs] in the United States are safely
repatriated to their country of nationality or of last habitual
residence.” Subparagraph (a)(5)(A) obliges the Secretary of
State, in conjunction with the Secretaries of DHS and DHHS, non-
governmental organizations, “and other national and
international agencies and experts,” to create a pilot program
“to develop and implement best practices to ensure the safe and
sustainable repatriation and reintegration of [UACs] into their
country of nationality or of last habitual residence.”
Subparagraph (a)(5)(B) requires the DHS Secretary to consider
the State Department’s Country Reports on Human Rights
Practices, as well as the Trafficking in Persons Report, in
determining whether to repatriate a UAC to a particular country.
And subparagraph (a)(5)(C) mandates that the Secretary of State
and the DHHS Secretary, with the assistance of the DHS
Secretary, report to congressional committees “on efforts to
improve repatriation programs for” UACs. 14
14Under § 1522 of Title 8, UACs who obtain affirmative
relief in immigration proceedings, such as asylum or adjustment
of status, are covered by another program administered by the
Office — the unaccompanied refugee minor (“URM”) program. Under
the URM program, the Office seeks to arrange for the prompt and
appropriate placement of unaccompanied refugee children pursuant
to state law. See 8 U.S.C. § 1522(d)(2)(B). Until such
(Continued)
36
The intricate web of statutory provisions relating to UACs
reflects Congress’s unmistakable desire to protect that
vulnerable group. The statutory heading of 8 U.S.C. § 1232 —
“Enhancing efforts to combat the trafficking of children” —
confirms that purpose. See United States v. Hatcher, 560 F.3d
222, 226 (4th Cir. 2009) (explaining that statutory heading or
title may be considered in interpreting ambiguous statute).
Beltrán’s position concerning the statutory scheme,
however, would deny the protection of those statutory provisions
to an entire category of UACs: those who have received deferred
action but not adjustment of status to lawful permanent
resident. If her argument prevailed, the Office would be
obliged to release such a UAC to a parent or legal guardian,
even if the parent or legal guardian openly stated an intention
to harm the child.
When a statute is subject to two contrary interpretations,
we should adopt the one that “effectuates rather than frustrates
the major purpose of the legislative draftsmen.” See Shapiro v.
United States, 335 U.S. 1, 31 (1948). In our view, the
government’s interpretation of the statutory scheme is entirely
placement is accomplished, the Office has the “legal
responsibility” for a URM and may “make necessary decisions to
provide for the [URM’s] immediate care.” Id.
§ 1522(d)(2)(B)(ii).
37
consistent with Congress’s purpose of protecting UACs from
trafficking and exploitation. Beltrán’s preferred reading, by
contrast, is at odds with that purpose. 15
3.
Again, we require clear indications of contrary
congressional intent to overcome the rule that the specific
statutory provision controls the general one. See Crawford
Fitting Co., 482 U.S. at 445. Our examination of the text,
context, history, structure, and purpose of the relevant
statutory provisions reveals no clear intent of Congress that
the general rule — that an alien must be released upon
termination of his immigration proceedings — controls against
the specific and categorical prohibition barring the release of
a UAC to an unsuitable custodian. Moreover, a contrary reading
would frustrate Congress’s primary purpose for enacting 8 U.S.C.
§ 1232 — protecting UACs from trafficking and exploitation —
with respect to those UACs who have received deferred action.
Accordingly, we are satisfied that, even after R.M.B.’s
15Beltrán and the government each point to asserted
legislative history supporting their separate positions. The
post-enactment statements on which Beltrán relies, however, are
“in no sense part of the legislative history” of 8 U.S.C. § 1232
and do not assist our interpretive endeavor. See United
Airlines, Inc. v. McMann, 434 U.S. 192, 200 n.7 (1977),
superseded by statute as stated in Gen. Dynamics Land Sys., Inc.
v. Cline, 540 U.S. 581 (2004). Meanwhile, the government
unhelpfully relies on generalized statements made on the Senate
floor about a proposed bill that did not pass.
38
immigration proceedings concluded, the Office was not entitled
to release him to anyone unless it first determined that the
proposed custodian was capable of providing for his physical and
mental well-being.
IV.
We turn now to Beltrán’s constitutional contentions, which
we review de novo. See Darden v. Peters, 488 F.3d 277, 284 (4th
Cir. 2007). Beltrán asserts that the Office’s continuing
detention of R.M.B. contravenes the Fifth Amendment’s Due
Process Clause. That Clause provides that no person shall be
“deprived of life, liberty, or property, without due process of
law.” See U.S. Const. amend. V. Like its Fourteenth Amendment
counterpart, Fifth Amendment due process has both “substantive
and procedural components.” See Snider Int’l Corp. v. Town of
Forest Heights, Md., 739 F.3d 140, 145 (4th Cir. 2014); see also
Martin v. St. Mary’s Dep’t of Soc. Servs., 346 F.3d 502, 511
(4th Cir. 2003) (explaining that due process “guarantees more
than fair process and includes a substantive component that
provides heightened protection against government interference
with certain fundamental rights” (internal quotation marks
omitted)). Beltrán maintains that the Office has contravened
39
both components of due process. We address those contentions in
turn. 16
A.
We begin with Beltrán’s substantive due process claim. The
substantive component of due process “bar[s] certain government
actions regardless of the fairness of the procedures used to
implement them.” See Daniels v. Williams, 474 U.S. 327, 331
(1986). We have characterized substantive due process as “far
narrower in scope than procedural due process.” See Plyler v.
Moore, 100 F.3d 365, 374 (4th Cir. 1996). As one of our sister
circuits has explained, there are “two strands of the
substantive due process doctrine.” See Seegmiller v. LaVerkin
City, 528 F.3d 762, 767 (10th Cir. 2008). The first strand
protects rights that are “fundamental,” whereas the second
“protects against the exercise of governmental power that shocks
the conscience.” Id.
In this appeal, Beltrán invokes only the fundamental rights
strand of substantive due process. She contends that the
Office’s refusal to release R.M.B. to her custody impermissibly
interferes with his fundamental right to family integrity.
16
It is appropriate to observe that “the Due Process Clause
applies to all ‘persons’ within the United States, including
aliens, whether their presence here is lawful, unlawful,
temporary, or permanent.” See Zadvydas v. Davis, 533 U.S. 678,
693 (2001).
40
Relying on the Supreme Court’s 1993 decision in Reno v. Flores,
507 U.S. 292 (1993), the government responds that Beltrán has
failed to identify any “fundamental liberty interest at issue in
this case.” See Br. of Appellee 42.
The identification of those rights that implicate
substantive due process “has not been reduced to any formula.”
See Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015) (internal
quotation marks omitted). At minimum, however, they include
those “deeply rooted in this Nation’s history and tradition.”
See Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal
quotation marks omitted). This proceeding involves “perhaps the
oldest of the fundamental liberty interests recognized by” the
Supreme Court — “the interest of parents in the care, custody,
and control of their children.” See Troxel v. Granville, 530
U.S. 57, 65 (2000) (plurality opinion). We have agreed that
“few rights” are “more fundamental in and to our society than
those of parents to retain custody over and care for their
children, and to rear their children as they deem appropriate.”
See Jordan ex rel. Jordan v. Jackson, 15 F.3d 333, 342 (4th Cir.
1994). Just as parents possess a fundamental right with respect
to their children, children also enjoy a “familial right to be
raised and nurtured by their parents.” See Berman v. Young, 291
F.3d 976, 983 (7th Cir. 2002).
41
The fundamental right of a parent to control the upbringing
of her child, however, is “neither absolute nor unqualified.”
See Martin, 346 F.3d at 506. Rather, that right is “subject to
the child’s interest in his personal health and safety and the
state’s interest as parens patriae in protecting that interest.”
See White ex rel. White v. Chambliss, 112 F.3d 731, 735 (4th
Cir. 1997). On several occasions, we have upheld state policies
designed to effectuate the parens patriae interest. See, e.g.,
White, 112 F.3d at 736; Jordan, 15 F.3d at 343-44.
In most situations — such as in the White and Jordan cases
— the constitutionality of state actions that interfere with
family integrity depends on the adequacy of the procedures
available to contest them. Nevertheless, the Supreme Court has
recognized that certain intrusions into the parent-child
relationship may be so flagrant as to be invalid even if a fair
process is afforded. See Troxel, 530 U.S. at 67 (sustaining fit
parent’s substantive due process challenge to statute providing
for mandatory third-party visitation with court approval);
Pierce v. Soc’y of Sisters of Holy Names of Jesus & Mary, 268
U.S. 510 (1925) (invalidating statute requiring children to
attend public school through age sixteen); Meyer v. Nebraska,
262 U.S. 390 (1923) (striking down prohibition on teaching
languages other than English below ninth grade and teaching in
other than English); see also Stanley v. Illinois, 405 U.S. 645
42
(1972) (holding unconstitutional statutory scheme allowing
children of unwed father to be declared dependent on state
absent finding of unfitness). In each of those situations,
however, the challenged statute allowed a state to override the
decisions of fit parents — i.e., those considered capable of
providing for their children’s needs. Conversely, when a
state’s interference with parental control is predicated on a
determination that the parent is unable to provide adequate care
for a child, such interference does not contravene substantive
due process, at least in the absence of governmental action that
shocks the conscience. Cf. Troxel, 530 U.S. at 68 (explaining
that “there is a presumption that fit parents act in the best
interests of their children” (emphasis added)).
In this situation, the Office has denied Beltrán’s request
that R.M.B. be released to her custody, deciding that Beltrán is
incapable of providing for R.M.B.’s physical and mental well-
being. That determination suffices to address any substantive
due process concerns, and it renders inapposite those decisions
involving challenges to state interference with control of
children by fit parents. Accordingly, we reject Beltrán’s
substantive due process claim.
B.
We thus reach Beltrán’s final contention: that R.M.B. has
been denied his right to procedural due process. Beltrán
43
contends that the government has violated due process by failing
to provide R.M.B. with a proper hearing before a judge or some
other “impartial, competent adjudicator.” See Br. of Appellant
44-46. The government, on the other hand, responds that it has
provided sufficient mechanisms for challenging the Office’s
determination that Beltrán is unable to provide for R.M.B.’s
care and custody, which Beltrán utilized.
1.
The procedural component of due process “imposes
constraints on governmental decisions which deprive individuals
of ‘liberty’ or ‘property’ interests within the meaning of the
Due Process Clause.” See Mathews v. Eldridge, 424 U.S. 319, 332
(1976). The Office’s continuing detention of R.M.B. implicates
protected liberty interests, and the government does not contend
otherwise. And when the government deprives a person of a
protected liberty or property interest, it is obliged to provide
“notice and opportunity for hearing appropriate to the nature of
the case.” See Mullane v. Cent. Hanover Bank & Tr. Co., 339
U.S. 306, 313 (1950).
Typically, a procedural due process issue is evaluated
under the balancing standard that the Supreme Court articulated
in 1976 in Mathews v. Eldridge. See Hamdi v. Rumsfeld, 542 U.S.
507, 529-30 (2004) (plurality opinion) (explaining that Mathews
provides “ordinary mechanism” to determine what process is due);
44
Santosky v. Kramer, 455 U.S. 745, 754, 757 (1982) (applying
Mathews to determine standard of proof essential to termination
of parental rights). The Mathews framework consists of three
factors:
(1) the nature of the private interest that will be
affected, (2) the comparative risk of an erroneous
deprivation of that interest with and without
additional or substitute procedural safeguards, and
(3) the nature and magnitude of any countervailing
interest in not providing additional or substitute
procedural requirements.
See Turner v. Rogers, 564 U.S. 431, 444-45 (2011) (alterations
and internal quotation marks omitted).
2.
In denying Beltrán’s procedural due process claim, the
district court did not utilize the Mathews v. Eldridge
framework. Indeed, neither of the parties advised the court of
the potential applicability of the Mathews decision. In its
Opinion, however, the court articulated other reasons for
rejecting the procedural due process claim. Initially, the
Opinion compared R.M.B.’s situation to those of the class of
plaintiffs in Flores. The Opinion explained that, in Flores,
the Supreme Court deemed the procedural due process claim of the
alien children to be “merely the ‘substantive due process’
argument recast in procedural terms,” and ruled that procedural
due process “was satisfied by giving the detained alien
juveniles the right to a hearing before an immigration judge.”
45
See D.B., 119 F. Supp. 3d at 487 (citing Flores, 507 U.S. at
307-09). The Opinion then determined that “R.M.B. was afforded
the same right to a hearing before an immigration judge, where
his immigration proceedings were terminated.” Id. Next, the
Opinion invoked the rationale advanced by the government in this
appeal: Because the Office had provided — and Beltrán had
utilized — procedures for seeking family reunification, those
procedures “satisf[y] any constitutional scrutiny.” Id. at 488.
There are several material distinctions between this case
and Flores, and we do not believe that Flores controls Beltrán’s
procedural due process claim. First, Beltrán is seeking custody
of her own son, whereas the alien children in Flores were
seeking to be released to unrelated adults. Second, R.M.B. is
being held at a juvenile detention center; the Flores children,
by contrast, were in less secure facilities. See Flores, 507
U.S. at 298 (explaining that alien children were not in
correctional institutions but in facilities that met state
requirements for care of dependent children). Third, R.M.B. is
not similarly situated to the Flores plaintiffs, in that no
immigration proceedings are pending against him. Cf. Demore v.
Kim, 538 U.S. 510, 523 (2003) (observing that “detention during
deportation proceedings [is] a constitutionally valid aspect of
the deportation process”). Lastly, that R.M.B. was afforded a
brief hearing before an immigration judge is irrelevant to the
46
procedural due process claim, because the Office possesses the
sole authority to order his release. Accordingly, we reject the
district court’s conclusion that this claim fails under Flores.
We likewise reject the district court’s determination —
endorsed by the government — that R.M.B. received sufficient
process because Beltrán utilized the available family
reunification request procedures. The mere availability and
utilization of some procedures does not mean they were
constitutionally sufficient. That is, the Fifth Amendment
guarantees “due process of law,” not just “some process of law.”
See Davidson v. City of New Orleans, 96 U.S. 97, 107 (1877)
(Bradley, J., concurring).
Although we part company with the district court and the
government on the procedural due process issue, we also reject
Beltrán’s contention that due process automatically required
that R.M.B. be accorded a more substantial hearing prior to the
Office rejecting the family reunification request. As the
Supreme Court explained in 1972 in Morrissey v. Brewer, “due
process is flexible and calls for such procedural protections as
the particular situation demands.” See 408 U.S. 471, 481
(1972). For example, the “hearing” required by the Due Process
Clause need not be “an adversarial hearing, a full evidentiary
hearing, or a formal hearing.” See Buckingham v. Sec’y of U.S.
Dep’t of Ag., 603 F.3d 1073, 1082 (9th Cir. 2010) (citations and
47
internal quotation marks omitted); see also Bowens v. N.C. Dep’t
of Hum. Res., 710 F.2d 1015, 1020 (4th Cir. 1983) (“The judicial
model of an evidentiary hearing is not a steadfast
constitutional requirement.” (internal quotation marks
omitted)). The basic requirements of notice and an opportunity
to be heard demand only that the complaining party receive
notice of the reasons for the deprivation, an explanation of the
evidence against him, and “an opportunity to present his side of
the story.” See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 546 (1985). Beyond those requirements, the need for
procedural safeguards is ordinarily measured by the three-factor
framework established in Mathews v. Eldridge.
3.
As we noted above, the Mathews v. Eldridge framework was
not utilized in the district court. When a judgment has been
predicated on an erroneous legal standard, the proper remedy “is
usually to remand for a determination under the appropriate
standard.” See Bauer v. Lynch, 812 F.3d 340, 352 (4th Cir.
2016) (internal quotation marks omitted). That remedy is
warranted in this proceeding for several reasons. The three-
factor Mathews framework is “flexible” and highly “fact-
specific.” See Ciambriello v. Cty. of Nassau, 292 F.3d 307, 319
(2d Cir. 2002). Moreover, the parties have not yet addressed
that standard and how it might impact this case. As a “court of
48
review, not of first view,” we are ill-suited to apply the fact-
specific Mathews framework in the first instance. See Lovelace
v. Lee, 472 F.3d 174, 203 (4th Cir. 2006) (internal quotation
marks omitted). We therefore vacate the judgment with respect
to the procedural due process claim and remand for further
proceedings.
V.
Pursuant to the foregoing, we affirm the judgment with
respect to the statutory and substantive due process claims. On
the procedural due process claim, however, we vacate and remand
for such other and further proceedings as may be appropriate.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
49
FLOYD, Circuit Judge, dissenting:
The majority thoughtfully explains the authority of various
federal government agencies over unaccompanied alien children.
But this case does not feature an unaccompanied alien child.
This case features an accompanied alien child.
R.M.B. is a child. He is an alien. But he is not
unaccompanied. R.M.B.’s mother, Dora Beltrán, is here in the
United States. She is a lawful permanent resident, J.A. 33, and
has been protesting for more than two years that she is
available to take custody of R.M.B.
The agency here does not want to release R.M.B. because it
thinks that Beltrán is an unfit mother. Perhaps she is. But
Congress has not empowered the federal Office of Refugee
Resettlement to seize children from bad parents. The Office is
only authorized to detain alien children whose parents are not
available in the United States. Because Beltrán is “available
to provide care” as defined in statute, the Office has no legal
authority to detain R.M.B.
I am not insensitive to the majority’s unstated concern
that society is better off with R.M.B. in government custody.
If that is true, any number of state or other federal government
authorities may be legally authorized to act. But the question
in this case is whether the Office has authority. It does not.
I must respectfully dissent.
50
I.
As the majority notes, Congress has conferred to the Office
the authority to detain unaccompanied alien children. Ante, at
23 & n.9. Congress defines an “unaccompanied alien child” (UAC)
as a child who:
(A) has no lawful immigration status in the United
States;
(B) has not attained 18 years of age; and
(C) with respect to whom—
(i) there is no parent or legal guardian in the
United States; or
(ii) no parent or legal guardian in the United
States is available to provide care and
physical custody.
6 U.S.C. § 279(g)(2). Thus, to be a UAC an individual must
satisfy each of the three prongs: (A), (B), and (C).
R.M.B. satisfies prongs (A) and (B) of the statutory
definition: he “has no lawful immigration status” and he “has
not attained 18 years of age.” Prong (C) can be satisfied in
one of two ways. R.M.B. does not satisfy prong (C) the first
way; he has a parent, Beltrán, “in the United States.” Whether
or not R.M.B. is legally an “unaccompanied alien child”—and,
therefore, whether the Office has authority to detain him—thus
turns on whether or not he satisfies prong (C) the second way—
that is, whether Beltrán “is available to provide care and
physical custody.”
51
Thus far, the majority and I agree. We also agree that in
interpreting the UAC statute, we begin with “the plain meaning
of the text.” Trejo v. Ryman Hosp. Props., Inc., 795 F.3d 442,
446 (4th Cir. 2015). But in our reading of “available to
provide care,” the majority and I part ways. I think the text
means just what it says: a child is not unaccompanied in the
United States if a parent is available to provide care. Beltrán
is available to provide care; R.M.B. is not, therefore,
unaccompanied.
The majority interprets the same text to mean “capable of
providing for the child’s physical and mental well-being.”
Ante, at 26. There are several problems with this reading, not
the least of which is that it is not what the statutory
definition says. This interpretation also reads the key word—
“available”—out of the statute; whatever gloss the other words
place on “available,” that word must play some role. But the
more fundamental problem with the majority’s interpretation is
that it comes from reading 6 U.S.C. § 279(g)(2)(C)(ii)
independent of its statutory context. “In determining the plain
meaning of the text, we must consider the broader context of the
statute as a whole in light of the cardinal rule that the
meaning of statutory language, plain or not, depends on
context.” Trejo, 795 F.3d at 446 (quotations omitted). With
52
respect, the majority’s reading does not fit with the text. And
it jars with the context.
A.
The majority makes short work of Beltrán’s statutory
argument that her son R.M.B. is not an unaccompanied alien
child: three paragraphs in a nearly 50-page opinion. Ante, at
25-27. And only a portion of those few paragraphs construes the
key statutory definition. More is not always better. But in
this instance, I think depth brings clarity.
The majority first notes Beltrán’s use of a dictionary to
define “available” as “easy or possible to get or use.” Ante,
at 25 (citing Appellant’s Br. 19). Without disputing this
linguistic definition, the majority characterizes its use as
equivalent to an argument that the definition in 6 U.S.C.
§ 279 (g)(2)(C)(ii) “does not include an assessment of a
parent’s fitness or suitability as a custodian.” Ante, at 25.
The majority reads in such a suitability assessment by
emphasizing that the word “available” is followed by the words
“to provide care.” Ante, at 25-26. The majority then goes to a
dictionary to expand on the word “care” and, importing its
chosen definition, finds that a parent “must be” “available to
provide what is necessary for the child’s health, welfare,
maintenance, and protection.” Ante, at 26. I might quibble
53
with the particular substituted definition, but regardless, the
statute thus construed still asks only if the parent is
“available” to provide; the text still “does not include an
assessment of a parent’s fitness or suitability as a custodian.”
Ante, at 25.
At this point, Beltrán still might prevail under the
majority’s analysis. But rather than apply its own reading of
the UAC definition and ask whether Beltrán was available to
provide for R.M.B., the majority relies on a distinct, non-
definitional provision of the statute to conclude that the UAC
definition contains an unstated suitability assessment.
Specifically, the majority determines that: “a parent who is not
‘capable of providing for the child’s physical and mental well-
being’—as mandated by the suitable custodian requirement of
8 U.S.C. § 1232(c)(3)(A)—is not available to provide what is
necessary for the child’s health, welfare, maintenance, and
protection.” Ante, at 26. It is from this cross-statute
incorporation that the majority reads “an assessment of a
parent’s fitness or suitability” into the UAC definition. 1
1The majority later makes explicit that it is substituting
8 U.S.C. § 1232’s “suitable custodian requirement” in place of
6 U.S.C. § 279’s definition of an “unaccompanied alien child”:
“Because the Office’s unsuitability finding establishes that
Beltrán is not available to provide care and physical custody of
R.M.B., we cannot say that R.M.B.’s detention is based on an
(Continued)
54
However, the Supreme Court has “stated time and again that
courts must presume that a legislature says in a statute what it
means and means in a statute what it says there.” Arlington
Cent. School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296
(2006). Accord, e.g., Ross v. Blake, 578 U.S. __, (2016) (slip
op., at 4-8). There is no reason to presume that when Congress
defined UACs to exclude alien children who have an available
parent in the United States that Congress meant anything
different than what it said. The statutory UAC definition does
not use the words “assessment,” “fitness,” or “suitability.”
And the majority’s reliance on the different language from a
non-definitional part of the statute “denies effect to Congress’
textual shift, and therefore ‘runs afoul of the usual rule that
when the legislature uses certain language in one part of the
statute and different language in another, the court assumes
different meanings were intended.’” Roberts v. Sea-Land Servs.,
Inc., 132 S. Ct. 1350, 1357 n.5 (2012) (quoting Sosa v. Alvarez-
Machain, 542 U.S. 692, 711, n.9 (2004)); cf. Meese v. Keene, 481
U.S. 465, 484 (1987) (“It is axiomatic that the statutory
definition of the term excludes unstated meanings of that
term.”)
erroneous application or interpretation of the UAC definition.”
Ante, at 26-27.
55
Aside from the problematic reliance on the non-definitional
language, the majority over-reads the words “to provide care”
that follow the word “available.” Those following words are
part of the statutory definition, and it is natural to read them
as informing the sense in which “available” is used. But it is
unnatural to read them to transmute the word Congress used—
“available”—into a wholly different word. The alchemy of plain
meaning is not so powerful. Rather, those following words speak
to situations in which a parent’s availability is limited in a
straightforward way. If a parent were, for example,
incarcerated, they might be “available to speak on the phone”
but likely would not be “available to provide care.”
Of course the Supreme Court’s presumption “that a
legislature says in a statute what it means and means in a
statute what it says there,” Murphy, 548 U.S. at 296, is just
that: a presumption. It can be overcome. Although I conclude
that the plain meaning of “available” is available, my
disagreement with the majority on this issue is not solely the
result of looking at a statutory word or four and seeing a
different meaning. The more fundamental reason that I cannot
join in the majority’s reading is that, as discussed below, it
simply does not accord with the statutory context.
56
B.
A laser focus on isolated words risks missing the forest
for the trees. One need not accept what I consider the most
natural reading of “available to provide care” to reject the
majority’s construction. The statutory context readily dispels
the notion that myriad federal agencies are required to make ad
hoc parental suitability determinations in the field.
1.
The repeated use of the acronym “UAC,” although efficient,
obscures the precise term that 6 U.S.C. § 279(g)(2) is defining.
The words “available to provide care and physical custody” in
6 U.S.C. § 279(g)(2)(C)(ii) help define what makes an individual
an “unaccompanied alien child.” Specifically, the words in
subsection (ii) define whether an individual is accompanied or
not.
The statutory UAC definition has three prongs, one for each
of three relevant characteristics. An individual is an “alien”
if he or she “has no lawful immigration status in the United
States,” id. § 279(g)(2)(A); is a “child” if he or she “has not
attained 18 years of age,” id. § 279(g)(2)(B); and is
“unaccompanied” if “no parent or legal guardian in the United
States is available to provide care and physical custody,” id.
57
§ 279(g)(2)(C)(ii). If an individual has all three
characteristics, he or she is an “unaccompanied alien child.”
It thus strikes me that however we read “available” in
prong (C), it must go to the question of whether an alien child
is accompanied in the United States or not. As a purely
linguistic matter, I do not think that a parent’s “fitness”
speaks to whether the parent is accompanying a child. Put
another way, a child can be accompanied by an unfit parent. It
is much harder, linguistically and practically, to be
accompanied by an unavailable parent.
One additional observation before looking outside of
6 U.S.C. § 279(g)(2): both parts of prong (C) speak broadly of
a parent being “in the United States.” This language strongly
suggests that in drafting the statute, Congress was concerned
with whether a child was accompanied in the sense of having a
parent in the territory of the United States, and not
accompanied in the sense of having a parent holding the child’s
hand at all times. The “in the United States” language is
difficult to harmonize with an accompaniment status that changes
every time a parent goes to work, drops a child off at school,
or runs to the grocery store. It is much easier to read the
language in harmony with a legislative concern about, for
58
example, children who cross the border into the United States
without their parents. 2
This does not mean that a parent is necessarily “available
to provide care” simply because she or he is somewhere in the
territory of the United States. The first part of prong (C) of
the UAC definition sets the baseline that a child is not
unaccompanied if they have a “parent or legal guardian in the
United States”; the second part of prong (C) acknowledges the
reality that although physically present, a parent in the United
States may not be “available to provide care and physical
custody” as a practical matter. 6 U.S.C. § 279(g)(2)(C). One
obvious application, alluded to earlier, would be to a parent
2See Office of Refugee Resettlement, Children Entering the
United States Unaccompanied: Introduction (January 30, 2015),
http://www.acf.hhs.gov/programs/orr/resource/children-entering-
the-united-states-unaccompanied-0 (suggesting that
“unaccompanied children” are those “who enter the United States
. . . without a parent”). I note that although it does not
appear that our sister circuits have construed the definition,
the few decisions that reference 6 U.S.C. § 279(g)(2) appear to
assume that UAC status does not turn on a parental fitness
assessment. See, e.g., Cortez-Vasquez v. Holder, 440 F. App’x
295, 298 (5th Cir. 2011); Tambaani v. Attorney Gen. of U.S., 388
F. App’x 131, 134 (3rd Cir. 2010). I also note that the Office
does not appear to read the statute as the majority does. The
Office’s primary argument is that the federal courts lack
jurisdiction to review agency application of the UAC statute;
the majority, as do I, rightly rejects this argument. See ante,
at 16-18. When the Office does take a position on the scope of
the statutory definition, it suggests parental proximity, rather
than fitness, is the touchstone. See, e.g., Appellees’ Br. 29
n.7. I presume this is why the Office has not taken custody of
those of Beltrán’s other minor children who are aliens.
59
who is incarcerated or otherwise in custodial detention in the
United States. It would be absurd to conclude that Congress
intended the Office to turn away vulnerable children on the
basis that they were accompanied by a jailed parent. Another
likely application is to parents in the United States whose
existence is not known to federal authorities. If a parent
refuses to make herself available to take custody of a child—
perhaps out of a concern for her own immigration status—Congress
could hardly have expected the Office to release the minor on
his or her own.
2.
Beyond Section 279(g)(2), the “broader context of the
statute,” Trejo, 795 F.3d at 446, strongly counsels against
reading an extra-textual parental fitness assessment into the
definition of “unaccompanied.” As the majority observes, “[t]he
care and custody of UACs by the government is governed by a
legal framework consisting primarily of two statutory
provisions--§ 279 of Title 6 and § 1232 of Title 8.” Ante
at 19. The term “unaccompanied alien child” appears in numerous
places in each, and both provisions make explicit that the
definition in 6 U.S.C. § 279(g)(2) controls throughout. See
6 U.S.C. § 279(g); 18 U.S.C. § 1232(g). The Office refers to
these statutes as “the UAC statutes.” E.g., Appellees’ Br. 33.
60
A quick skim of the statutes makes plain that the Office’s
authority runs only to UACs; every relevant statutory grant of
authority to the Office is conditioned on the existence of an
unaccompanied alien child. This fact is important, as “an
agency literally has no power to act . . . unless and until
Congress confers power upon it.” New York v. FERC, 535 U.S. 1,
18 (2002) (quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355,
374 (1986)). Like all federal agencies, the Office of Refugee
Resettlement is “a creature of statute. It has no
constitutional or common law existence or authority, but only
those authorities conferred upon it by Congress.” Michigan v.
EPA, 268 F.3d 1075, 1081 (D.C. Cir. 2001).
The core statutory authority the Office relies on for the
legality of its continued detention of R.M.B. is 8 U.S.C.
§ 1232(c)(3)(A). See Appellees’ Br. 26 n.4 (“The reason R.M.B.
is still in ORR custody is . . . the Congressional mandate in
8 U.S.C. § 1232(c)(3)(A).”) The majority refers to this
provision as the “suitable custodian requirement.” Ante, at 9.
Section 1232(c)(3)(A) provides:
[A]n unaccompanied alien child may not be placed with a
person or entity unless the [Secretary] makes a
determination that the proposed custodian is capable of
providing for the child’s physical and mental well-being.
61
The Office refuses to “place” R.M.B. with Beltrán because it has
determined that Beltrán is incapable and thus not a suitable
custodian.
If Beltrán were only to dispute the wisdom of the Office’s
determination, my view of the Office’s position might be
different. But Beltrán disputes the Office’s authority to make
the determination at all. This is why the case is before us on
a habeas petition and not, for example, via the Administrative
Procedure Act. See 5 U.S.C. § 702. Congress has only conferred
to the Office the authority to make placement determinations for
unaccompanied alien children: 8 U.S.C. § 1232(c)(3)(A)
explicitly states that “an unaccompanied alien child may not be
placed.” (emphasis added). If R.M.B. is not unaccompanied, the
Office “literally has no power to act” over him, New York, 535
U.S. at 18, whether it is purporting to detain him, place him,
or otherwise.
In my view, the text and structure of 8 U.S.C. § 1232
preclude reading the UAC definition in 6 U.S.C. § 279(g)(2) to
include a parental fitness component. The Office’s application
of these statutes to R.M.B. and Beltrán is illustrative. Under
the majority’s reading, the suitable custodian requirement in
Section 1232(c)(3)(A) becomes superfluous: a determination that
Beltrán is suitable would simultaneously operate to make her
available under the majority’s reading of Section 279(g)(2);
62
this would render R.M.B. not a UAC, making the placement
determination both unnecessary and beyond the Office’s
authority. In cases in which a child has a parent in the United
States, the majority’s reading makes the UAC determination and
the suitable custodian determination redundant. The Supreme
Court has admonished:
It is a fundamental canon of statutory construction
that the words of a statute must be read in their
context and with a view to their place in the overall
statutory scheme. A court must therefore interpret
the statute as a symmetrical and coherent regulatory
scheme and fit, if possible, all parts into a
harmonious whole.
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133
(2000) (quotations omitted). It is quite possible to fit
Section 279(g)(2) and Section 1232(c)(3)(A) into a harmonious
whole. Reading the former to enquire of a parent’s
availability, and the latter to ask of an alternate custodian’s
suitability, reveals a coherent regulatory scheme—one that
recognizes that Congress never intended the Office to be making
Section 1232(c)(3)(A) determinations for a child whose parent is
knocking on the Office’s door. 3
3
The Office appears to concede that its authority ends once
an individual ceases to be an “unaccompanied alien child.” It
recognizes that its authority ends once R.M.B. “turns eighteen.”
Appellees’ Br. 1. It also recognizes that its authority ends if
R.M.B. gains “lawful immigration status.” Id. at 40 n.14. In
other words, the Office’s custodial authority ends when R.M.B.
is either not a “child,” or not an “alien.” The text of the UAC
(Continued)
63
Another contextual problem with fitting the majority’s UAC
definition into the statutory scheme becomes apparent when
considering how R.M.B. wound up in Office custody. As the
Office repeatedly reminds the Court, it was Customs and Border
Protection (CBP) that first classified R.M.B. as a UAC before
transferring him to the Office. The majority correctly holds
that we are not concerned here with CBP’s detention authority,
because habeas only tests current detention and R.M.B. is
currently being detained by the Office. Ante, at 27 n.10. 4
However, this does not make CBP’s involvement irrelevant.
The statutory UAC definition in 6 U.S.C. § 279(g)(2) applies to
all federal agencies, not just the Office. (Indeed, the Office
definition provides no indication that custodial authority does
not also end when R.M.B. is no longer “unaccompanied.”
4 I understand this holding to implicitly reject one of the
Office’s alternative arguments; I will explicitly reject it.
The Office suggests that once CBP classified R.M.B. as a UAC,
the Office was powerless to classify him otherwise. Congress
did not give federal agencies discretion to classify individuals
as UACs. Congress provided an explicit statutory definition.
An individual who satisfies the definition is a UAC and must be
treated as such; if the individual does not satisfy the
definition, the government has no nebulous discretionary
authority to treat the individual as a UAC. If CBP wrongly
classified R.M.B. as a UAC in violation of statute, transferring
R.M.B. to another federal agency does not cure the violation.
R.M.B. is a UAC if 6 U.S.C. § 279(g)(2) says he is, not if the
government declares him so. The Office cannot expand its
statutory authority by arguing that some other agency violated
the statute first.
64
generally does not take custody of a child in the first
instance; it receives custody of children from other federal
agencies.) It is axiomatic that “available” has the same
meaning when the statute is read by an employee of one federal
agency as it does when the same statute is read by an employee
of a different federal agency.
The Office tells us that “federal agents who encounter a
child . . . are tasked with quickly determining whether a child
is a UAC and transferring the child to HHS.” Appellees’ Br. 28.
Congress mandates each agency to notify HHS of “discovery of an
unaccompanied alien child” within 48 hours and, except in
exceptional circumstances, transfer custody within 72 hours.
See 8 U.S.C. § 1232(b). Congress could reasonably expect a
federal agent to determine whether a child has a parent in the
United States within this time frame. I cannot see how agents
could be expected to make parental suitability determinations in
this window.
Congress has created a “coherent regulatory scheme,” Brown
& Williamson, 529 U.S. at 133, for minor aliens present in the
United States without a parent or legal guardian. The statutes
work as a harmonious whole when “available” in 6 U.S.C.
§ 279(g)(2) is read to mean “available.” By reading “available”
to mean something else, the majority turns the UAC definition
into a square peg that does not fit into the statutory whole.
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C.
It is not only the text of the definition and the context
of the statute that I think foreclose the majority’s
construction of “available to provide care.” I am also
concerned by the necessary consequences of that construction. I
do not mean the practical consequences for Beltrán or R.M.B., or
anyone else; I mean the consequence that the statutory scheme
thus interpreted raises unnecessary constitutional questions.
As the Supreme Court has explained, “when deciding which of
two plausible statutory constructions to adopt, a court must
consider the necessary consequences of its choice. If one of
them would raise a multitude of constitutional problems, the
other should prevail—whether or not those constitutional
problems pertain to the particular litigant before the Court.”
Clark v. Martinez, 543 U.S. 371, 380-81 (2005). The majority
construes the statutes to permit an administrative agency of the
federal government to involuntarily detain a lawful permanent
resident’s child if the agency decides that the resident is an
unfit parent. 5
5 Nothing in the majority’s construction would appear to bar
the Office from detaining the alien child of a U.S. citizen in
the United States. The UAC definition only addresses the
child’s immigration status. If Beltrán naturalizes, it has no
obvious effect on the operation of 6 U.S.C. § 279(g)(2).
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To be sure, the Constitution does not forbid the government
from removing children from unfit parents. However, such an
exercise of state power is generally conditioned by significant
procedural safeguards. See, e.g., Stanley v. Illinois, 405 U.S.
645, 658 (1972) (holding that “parents are constitutionally
entitled to a hearing on their fitness before their children are
removed from their custody”). Congress’s power over immigration
is very broad, and in this arena Congress “regularly makes rules
that would be unacceptable if applied to citizens.” Reno v.
Flores, 507 U.S. 292, 305-06 (1993) (quotation omitted). But
this power is not absolute, and in these circumstances it
confronts constitutional rights that are among the most basic
and resistant to government interference: the right “to raise
one’s children,” e.g., Stanley, 405 U.S. at 651, and the right
to “freedom from bodily restraint” that “has always been at the
core of the liberty protected by the Due Process Clause.”
Foucha v. Louisiana, 504 U.S. 71, 80 (1992). Both Beltrán and
R.M.B. are entitled to the protections of due process. See
Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (collecting cases).
If a federal agency seized a citizen child from a citizen
parent without a hearing, under a statute analogous to that
here, I am skeptical that such action would survive
constitutional scrutiny. Although the constitutional concerns
are decidedly attenuated for aliens, Flores, 507 U.S. at 305-06,
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they are significant enough that the majority devotes ten pages
to addressing them. Ante, at 39-49. And with regard to
Beltrán’s procedural due process claim, the majority concludes
it must vacate the district court’s holding on the issue and
remand for additional proceedings. Ante, at 49.
I do not suggest that all or any portion of 6 U.S.C. § 279
or 8 U.S.C. § 1232 is unconstitutional. I only suggest that
there is no need to read those statutes such that their
constitutionality is even in question. A chief justification of
the canon of constitutional avoidance “is that it allows courts
to avoid the decision of constitutional questions. It is a tool
for choosing between competing plausible interpretations of a
statutory text, resting on the reasonable presumption that
Congress did not intend the alternative which raises serious
constitutional doubts.” Clark, 543 U.S. at 381. Cf. Zadvydas,
533 U.S. at 682 (construing an immigration statute “to contain
an implicit ‘reasonable time’ limitation” due to “serious
constitutional concerns” with the “indefinite detention” of
certain aliens).
As I read the statutes here, the federal government may
take custody of alien minors who do not have a parent or other
legal guardian available in the United States. The
constitutional concerns with such a regulatory scheme are
minimal. See, e.g., Flores, 507 U.S. at 305 (“If we harbored
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any doubts as to the constitutionality of institutional custody
over unaccompanied juveniles, they would surely be eliminated as
to those juveniles . . . who are aliens.”) But as the majority
construes these statutes, the constitutional questions are very
real. Cf. id. at 302-03.
A “longstanding principle of judicial restraint requires
that courts avoid reaching constitutional questions in advance
of the necessity of deciding them.” Camreta v. Greene, 563 U.S.
692, 705 (2011) (quotation omitted). Cf. Zadvydas, 533 U.S. at
689 (“We have read significant limitations into other
immigration statutes in order to avoid their constitutional
invalidation.”) There is no need to decide any constitutional
questions here. We need only read the statutes as written.
II.
On my view of the Office’s statutory authority, there is no
need to address the other issues reached by the majority.
Questions about the full statutory scope of the Office’s
authority over UACs, or the constitutionality of that authority
in application, are moot in my mind. Because the Office has no
statutory authority to detain R.M.B., we should order the Office
to stop detaining him.
I note that such an order need not—and perhaps should not—
result in R.M.B. being released from all government custody. I
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detect in the majority opinion, and in the opinion of the
district court, a concern about the risk R.M.B. poses to
society. Although many of the allegations the government
appellees introduce into the record are unsubstantiated, I am
under no illusion about R.M.B. I am also not insensitive to the
possibility that his best interests may not be served by being
released to Beltrán.
There are legally authorized processes to address these
concerns. For example, if federal or state authorities have
probable cause to suspect R.M.B. has committed a crime, he can
be arrested. If state child welfare agencies are concerned
about Beltrán’s fitness to exercise custody over R.M.B., those
agencies have the statutory authority—and perhaps the
obligation—to intervene. But just because there may be a valid
authority to detain R.M.B., it does not mean that any claimed
authority is valid. I conclude that the Office lacks statutory
authority over R.M.B. and that the agency’s continued detention
of him—now for more than two years—is unlawful.
I respectfully dissent.
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