Dora Beltran v. Darryl Poston

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:15-cv-00745-JCC-JFA. [999858972]. [15-1993]

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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.
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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.

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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”),
Services

an

(the

agency

of

“DHHS”).

the

Department

The

Office

of

has

Health

declined

and
to

Human

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.
rejected
denied

By decision of August 5, 2015, the district court
Beltrán’s

her

request

statutory
for

and

habeas

constitutional

corpus

relief.

claims
See

and

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

3

and

other

aspects

of

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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

1

did

not

then

anticipate

In 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.

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pursuing

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removal

proceedings

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against

R.M.B.). 2

According

to

Beltrán, she was thereafter granted an adjustment of status by
the

USCIS

and

immigration

became

status,

a

lawful

however,

permanent

was

never

resident.

adjusted.

R.M.B.’s
On

May

6,

2015, his deferred action was extended through April 6, 2016.
R.M.B
witnessed
multiple

has
his

had

a

difficult

step-father

occasions.

In

upbringing.

physically
December

For

abusing

2012,

the

example,

he

mother

on

his
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

family lived in Rio Bravo.

behavioral

problems

while

the

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.
several times.

He also ran away from home

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

smuggling drugs and immigrants across the Mexican border.

2

as
He

Citations 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.

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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.”
71.

See J.A.

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
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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

underlying

that

that

he

was

a

determination,

UAC.
found

The
at

relevant

§ 279

of

statute
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.

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Since his transfer to the Office’s custody in late 2013,
R.M.B.

has

facilities

been
in

housed

five

in

seven

states.

R.M.B.’s

behavioral

example,

fought

While

problems

with

have

facility

different
in

provider

Office’s

the

care

custody,

continued.

employees

He

and

has,

for

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.
determining
Beltrán’s

The Office promptly ordered a home study, after

that

one

was

reunification

necessary

request.

The

to

properly

home

study

evaluate

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]

J.A.S. 68.

abusive

relationship

with

her

spouse.”

See

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
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UAC, the Office must “determine that the proposed custodian is
capable of providing for the [UAC’s] physical and mental wellbeing.”

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

providing for the child’s physical and mental well-being.”

of
See

8 U.S.C. § 1232(c)(3)(A) (the “suitable custodian requirement”).
The

Office’s

letter

gave

two

Beltrán’s family reunification request:

reasons

for

denying

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

necessary for the safety of your son.”
denial

letter

also

advised

Beltrán

and

supervision

See J.A.S. 88.
that

she

could

The
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

reconsideration

11,
to

2015,
the

Beltrán

Office,

3

sent

asserting

a

request
that

for

R.M.B.’s

The 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.

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continuing

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detention

was

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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

Virginia,
three

for

pursuant

respondents:

Virginia

Juvenile

habeas
to

28

corpus

in

U.S.C.

§ 2241.

Darryl
Detention

Poston,

the

Eastern
The

Director

Facility,

where

District

petition

of

the

R.M.B.

of

named

Northern
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

4

Section 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.”

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On July 10, 2015 — after Beltrán filed her habeas corpus
petition

—

Assistant

Secretary

request for reconsideration.

Greenberg

denied

Beltrán’s

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.

relied,

inter

assessment,

In
alia,

which

support
on

concluded

that

conclusion,

May

a

of

25,

2015

that

R.M.B.

the

letter

psychosexual
“appears

to

risk
be

a

Moderate-Risk to continue engaging in sexual offending behaviors
and

a

Moderate-High

offenses.”

Id.

at

Risk

to

85.

continue

The

July

engaging

10

letter

in

non-sexual

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.
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The Opinion began by reciting “findings of fact” that the court
deemed

undisputed

otherwise

noted.”

and

predicated

See

D.B.,

119

on
F.

the

Supp.

record,
3d

at

“unless

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

disposition” of the petition.

had

requested

Id. at 474 n.2.

a

“summary

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
Id. 5

the Court on summary judgment.”

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).

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that

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he

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has

no

lawful

eighteen

years

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immigration
of

age.

status

Only

and

the

has

third

not

element

yet
—

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

“determined,

recognized

within

their

definition of a UAC.”
The

Opinion

that

the

Border

discretion,

that

Patrol
[he]

agents

met

the

with

the

See D.B., 119 F. Supp. 3d at 482.

ruled

that

Beltrán’s

disagreement

Border Patrol’s UAC determination was “not cognizable for habeas
relief,” because § 2241 “is not the proper vehicle to challenge
discretionary federal agency action.”
at

482.

The

classified

as

Opinion
a

UAC

also

by

concluded

[Border

See D.B., 119 F. Supp. 3d
that,

Patrol]

“once

field

R.M.B.

was

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

physical and mental well-being.

of

providing

for

R.M.B.’s

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

relied

observed

that

Beltrán’s
13

argument

“on

a

false

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premise, i.e., that R.M.B. is in ‘immigration detention.’”
D.B., 119 F. Supp. 3d at 485.

See

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).”
at 486.

See D.B., 119 F. Supp. 3d

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

compelling circumstances.”
99).

The

Flores

guardians,

except

in

unusual

and

Id. (citing Flores, 507 U.S. at 294-

plaintiffs

had

contended

that

the

INS

regulation facially contravened both substantive and procedural
due process.
due

process

available

The Supreme Court readily rejected the substantive
challenge,

parent,

ruling

guardian,

that
or

an
close

alien

child

relative

with
was

no
not

constitutionally entitled to be released to the custody of an
unrelated adult, rather than placed in a childcare institution
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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.
D.B., 119 F. Supp. 3d at 487.

See

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.
Turning

to

See id.

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
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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).
“R.M.B.

was

immigration
terminated.”

afforded
judge,
Id.

the

same

where

right

his

The Opinion reasoned that
to

a

hearing

immigration

before

proceedings

an

were

Finally, the Opinion ruled that the mechanism

in place for seeking family reunification provided sufficient
procedural

safeguards

to

scrutiny.”

Id. at 488.

“satisf[y]

any

constitutional

Accordingly, the district court denied

Beltrán’s habeas corpus petition.
On

August

27,

2015,

district court’s judgment.

Beltrán

noted

this

appeal

from

the

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.

6

The

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.

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maintains

that

Pg: 17 of 70

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

immigration

statutory
proceedings

authority
have

to

detain

terminated,

UACs

and

after

that

their

R.M.B.’s

continuing detention contravenes substantive and procedural due
process.
Section
statute,

2241

provides

of

Title

that

28,

habeas

the

corpus

general
relief

habeas
can

corpus

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.
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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

to

R.M.B.

pursuant

“the

erroneous

interpretation” of applicable statutes.
553

U.S.

(observing

723,

is

(internal

See Boumediene v. Bush,
quotation

She also

son’s

detention

Amendment’s Due Process Clause.

that

omitted)

claims are cognizable in habeas corpus proceedings).
her

“uncontroversial”

marks

statutory

that

it

(2008)

or

such

maintains

that

779

application

contravenes

the

Fifth

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

7

The vast majority of federal habeas corpus proceedings are
pursued under 28 U.S.C. § 2254 by state prisoners seeking postconviction 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)
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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.

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Justice,

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was

also

Pg: 20 of 70

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
Agreement”).

settlement
The

agreement

Flores

Agreement

in

1997

established

(the
a

“Flores

“nationwide

policy for the detention, release, and treatment of minors in
the

custody

Agreement

of

is

the

INS.”

binding

on

all

See

Flores

successor

Agreement
agencies

¶ 9.

to

the

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
8

The 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/childrenentering-the-united-states-unaccompanied-section-3#3.3
(outlining obligations imposed by Flores Agreement on Office’s
care provider facilities).

20

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to

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ensure

court,

a

he

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child’s
must

safety

be

or

released

Pg: 21 of 70

his

appearance

“without

immigration

unnecessary

preferably to a parent or legal guardian.
¶ 14.

in

delay,”

See Flores Agreement

The appropriate agency may, however, require a “positive

suitability

assessment”

before

releasing

custody of any individual or program.

the

child

to

the

Id. ¶ 17.

The Flores Agreement specifies that, when an alien child is
not released, he ordinarily should “be placed temporarily in a
licensed
. . .

or

whichever

program
until
occurs

until
[his]

such

time

as

immigration

earlier.”

See

release

can

proceedings

Flores

are

Agreement

be

effected

concluded,
¶ 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.
v. Chertoff, 509 F.3d 89, 92 (2d Cir. 2007).

See Tabbaa

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
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. . . 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.
§ 279(g)(2).

See 6 U.S.C.

First, to qualify as a UAC, an individual must

have “no lawful immigration status in the United States.”
§ 279(g)(2)(A).
eighteen.

Id.

Second, the individual must be under the age of

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.”
U.S.C. § 279(b)(1)(A)-(E).
Office

is

required

to

See 6

In making such determinations, the
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
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danger to themselves or others.

Id. § 279(b)(2)(A).

although

the

with

placement

of

Office
UACs,

is
the

charged

the

responsibility

care,

for

Finally,

custody,

making

and

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

appropriate,”
§ 1232(b)(1).

rests

with

for
the

DHHS

their

detention,

Secretary.

See

where
8

U.S.C.

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)
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Wilberforce

Act

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contained

provisions

governing

placement of UACs who are in the Office’s custody.
the

Office

shall

restrictive

setting

subject

the

“promptly”

to

appearance

that

need

at

is

to

in

ensure

immigration

§ 1232(c)(2)(A).

place
the
the

a

UAC

[UAC’s]
UAC’s

For example,

“in

the

best

interest,”

safety

hearings.

the

See

least

and

timely

8

U.S.C.

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

providing for the [UAC’s] physical and mental well-being.”
8 U.S.C. § 1232(c)(3)(A).

of
See

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.

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home study is necessary.

Pg: 25 of 70

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

§ 279(g)(2)(C)(ii).

In

UAC

definition.

particular,

Beltrán

See
insists

6

U.S.C.
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

UAC

quotation

marks

omitted).

Critically,

the

definition does not refer, as Beltrán suggests, to a parent’s
availability in a general sense.
25

Rather, it asks whether a

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parent is “available to provide care and physical custody.”
6 U.S.C. § 279(g)(2)(C)(ii) (emphasis added).

See

The word “care”

generally means “[t]he provision of what is necessary for the
health,

welfare,

something.”
2004).

maintenance,

and

protection

of

someone

or

See The New Oxford American Dictionary 258 (8th ed.

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

matter of law that R.M.B. is not a UAC.
conducting

a

home

study

and

to

conclude

as

a

The Office found, after

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
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that

application

R.M.B.’s

or

Pg: 27 of 70

detention

interpretation

of

is

based

the

on

UAC

an

erroneous

definition.

We

therefore reject Beltrán’s first statutory contention. 10
C.
Beltrán’s second statutory contention is that the Office
lacks

authority

proceedings

to

have

detain

R.M.B.

terminated.

now

that

his

Concomitantly,

immigration

Beltrán

asserts

that the Flores Agreement bars the detention of R.M.B. by the
Office upon termination of those proceedings.
government
precludes

maintains
the

that

Office

from

the

suitable

releasing

a

In response, the

custodian
UAC

to

an

requirement
unsuitable

custodian even though the child’s immigration proceedings have
concluded.
Agreement

It also contends that, to the extent the Flores
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.

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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

well-being.”

providing

for

the

[UAC’s]

physical

See 8 U.S.C. § 1232(c)(3)(A).

and

mental

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

terminated.

detained

after

his

immigration

proceedings

have

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.”).
speaking,

The Flores Agreement also recognizes that, generally
the

detention

of

an

immigration proceedings terminate.

alien

child

must

end

when

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”).
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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).
where

The general-specific rule is particularly applicable

“Congress

deliberately

has

enacted

targeted

a

comprehensive

specific

scheme

and

with

specific

problems

has

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

permission.”
presents

such

contradicted

by

a

specific

See RadLAX, 132 S. Ct. at 2071.
a

contradiction.

On

the

prohibition

or

This proceeding

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
the

suitable

custodian

requirement

11

imposes

On the other hand,
on

the

Office

a

By 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.

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prohibition

custodians.

against

Pg: 30 of 70

releasing

UACs

to

unsuitable

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

indications of a contrary legislative intent.

by

sufficient

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.

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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.
§ 279(a).

See 6 U.S.C.

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

immigration status.”

in

Federal

custody

by

reason

Id. § 279(b)(1)(A), (C).

of

their

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.
that

“completed

Subsection (a) of § 552 provides, inter alia,
administrative

actions”

—

a

term

that

encompasses settlement agreements like the Flores Agreement —
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“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
HSA

provisions

authority

the

custodial

authority

proceedings.

support
to

transferred
over

the

Office

UACs

the

not

argument
did

involved

that

not

in

the

include

immigration

As such, they create the tension between 8 U.S.C.

§ 1226(a), which limits detention to the pendency of immigration
proceedings,
precludes

and

the

custodian.

the

Office

suitable
from

custodian

releasing

a

requirement,

UAC

to

an

which

unsuitable

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
alone,

custodian
the

Congress’s
requirement.
provisions

requirement

became

transfer-of-authority
intent

with

respect

Moreover,
governing

UACs

that
just

law.

For

to

the

Congress
six

reason

do

provisions

that
not

reveal

suitable
saw

years

fit

after

custodian
to

alter

the

HSA’s

enactment suggests that Congress was not entirely satisfied with
the existing statutory scheme.
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Beltrán also maintains, however, that other provisions in 8
U.S.C.

§ 1232

custodian

—

enacted

requirement

in

contemporaneously
2008

—

show

that

with

the

Congress

suitable
did

not

intend to authorize the continued detention of UACs after the
conclusion of their immigration proceedings.
contends

that,

because

§ 1232(b)(1)

In particular, she

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

detentions

immigration
cannot

be

proceedings

authorized

by

have

§ 1232.

concluded,
Beltrán

such

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.
33

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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.
up

services

to

Congress’s decision to limit mandatory followthe

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.
it

is

entirely

implausible

that

Congress

would

Indeed,

bury

in

a

subparagraph concerned with follow-up services so significant a
limitation
Trucking

on

the

Ass’ns,

Office’s
531

U.S.

authority.
457,

468

See
(2001)

Whitman

v.

(observing

Am.
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)
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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

U.S.C. § 1232(b)(2), (3).
shoulder

the

federal

custody

determinations.
also

charged

that

determination.

See

8

The DHHS Secretary and the Office

responsibility
and

of

providing

to

UACs

in

placement

See id. § 1232(b)(1), (c)(1)-(3).

They are

ensuring

making

care

appropriate

with

for

for

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

social welfare agency.”
Notably, that authorization
limited to the pendency of removal proceedings.

35

the

DHS

is

not

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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, nongovernmental

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

Practices,

Department’s
as

well

as

the

Country

Reports

Trafficking

in

on

Human

Persons

Rights

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

Secretary,

DHHS

Secretary,

report

to

with

the

congressional

assistance

committees

of

“on

the

efforts

DHS
to

improve repatriation programs for” UACs. 14

14

Under § 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)
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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

to

efforts

combat

confirms that purpose.

the

trafficking

of

children”

—

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:
action

but

resident.

not
If

adjustment
her

argument

those who have received deferred
of

status

prevailed,

to

lawful

permanent

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.”
United

States,

335

U.S.

1,

31

(1948).

In

See Shapiro v.
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

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consistent

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with

Congress’s

Pg: 38 of 70

purpose

trafficking and exploitation.

of

protecting

UACs

from

Beltrán’s preferred reading, by

contrast, is at odds with that purpose. 15
3.
Again,
congressional
statutory

we

require

intent

provision

to

clear

overcome

controls

history,

the

the

Fitting Co., 482 U.S. at 445.
context,

indications

structure,

rule

general

of

one.

the

specific

See

that

contrary

Crawford

Our examination of the text,
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

15

that,

even

after

R.M.B.’s

Beltrán 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.
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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.
Cir.

2007).

detention

See Darden v. Peters, 488 F.3d 277, 284 (4th

Beltrán

of

R.M.B.

Process Clause.

asserts

that

contravenes

the

the

Office’s

Fifth

continuing

Amendment’s

Due

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

omitted)).

fundamental

rights”

(internal

quotation

marks

Beltrán maintains that the Office has contravened

39

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both components of due process.

Pg: 40 of 70

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.”
(1986).

See Daniels v. Williams, 474 U.S. 327, 331

We have characterized substantive due process as “far

narrower in scope than procedural due process.”
Moore, 100 F.3d 365, 374 (4th Cir. 1996).
circuits

has

explained,

there

are

substantive due process doctrine.”

As one of our sister

“two

rights

that

are

strands

of

the

See Seegmiller v. LaVerkin

City, 528 F.3d 762, 767 (10th Cir. 2008).
protects

See Plyler v.

“fundamental,”

The first strand
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

16

right

to

family

integrity.

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).

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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.”
The

See Br. of Appellee 42.

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.”
F.3d 976, 983 (7th Cir. 2002).

41

See Berman v. Young, 291

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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

available to contest them.
recognized

that

certain

on

the

adequacy

of

the

procedures

Nevertheless, the Supreme Court has
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

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(1972)

Filed: 06/20/2016

(holding

children

of

unwed

absent finding

of

Pg: 43 of 70

unconstitutional
father

to

be

unfitness).

statutory
declared

In

each

scheme

dependent
of

those

allowing
on

state

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 wellbeing.

That determination suffices to address any substantive

due process concerns, and it renders inapposite those decisions
involving
children

challenges
by

fit

to

state

parents.

interference

Accordingly,

with

we

control

reject

of

Beltrán’s

substantive due process claim.
B.
We thus reach Beltrán’s final contention:
been

denied

his

right

to

procedural
43

due

that R.M.B. has

process.

Beltrán

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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.”
44-46.

See Br. of Appellant

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.”
(1976).

See Mathews v. Eldridge, 424 U.S. 319, 332

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);
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Filed: 06/20/2016

Kramer,

455

U.S.

Pg: 45 of 70

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

district

court

framework.

Beltrán’s

procedural

did

utilize

not

due

the

process

Mathews

claim,
v.

Eldridge

Indeed, neither of the parties advised the court of

the potential applicability of the Mathews decision.
Opinion,
rejecting

the

however,
the

the

court

procedural

due

articulated
process

other

In its
for

Initially,

the

claim.

reasons

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.”
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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.
of

her

own

son,

whereas

First, Beltrán is seeking custody

the

alien

children

seeking to be released to unrelated adults.

in

Flores

were

Second, R.M.B. is

being held at a juvenile detention center; the Flores children,
by contrast, were in less secure facilities.
U.S.

at

298

correctional

(explaining
institutions

that
but

alien
in

children

facilities

requirements for care of dependent children).
not

similarly

situated

to

the

Flores

See Flores, 507
were

that

not

met

in

state

Third, R.M.B. is

plaintiffs,

immigration proceedings are pending against him.

in

that

no

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
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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

reunification
utilization

Beltrán

request
of

some

constitutionally

utilized

the

procedures.

The

procedures

does

sufficient.

That

available

family

mere

availability

not

mean

is,

the

they

Fifth

and
were

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

(1972).

situation

demands.”

See

408

U.S.

471,

481

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

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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

constitutional
omitted)).
to

be

evidentiary

hearing

requirement.”

is

(internal

not

a

steadfast

quotation

marks

The basic requirements of notice and an opportunity

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.”
532,

546

See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

(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

standard.”
2016)

remand

for

a

determination

under

the

See Bauer v. Lynch, 812 F.3d 340, 352 (4th Cir.

(internal

quotation

marks

omitted).

That

warranted in this proceeding for several reasons.
factor

Mathews

specific.”

appropriate

framework

is

“flexible”

and

remedy

is

The three-

highly

“fact-

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.
48

As a “court of

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review, not of first view,” we are ill-suited to apply the factspecific Mathews framework in the first instance.

See Lovelace

v. Lee, 472 F.3d 174, 203 (4th Cir. 2006) (internal quotation
marks omitted).
to

the

We therefore vacate the judgment with respect

procedural

due

process

claim

and

remand

affirm

the

for

further

proceedings.

V.
Pursuant

to

the

foregoing,

we

judgment

respect to the statutory and substantive due process claims.

with
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

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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.
Congress

has

not

empowered

the

federal

Perhaps she is.
Office

Resettlement to seize children from bad parents.

of

But

Refugee

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.
I must respectfully dissent.
50

It does not.

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I.
As the majority notes, Congress has conferred to the Office
the authority to detain unaccompanied alien children.
23 & n.9.

Ante, at

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:
R.M.B.
definition:

satisfies

prongs

(A), (B), and (C).

(A)

and

(B)

of

the

statutory

he “has no lawful immigration status” and he “has

not attained 18 years of age.”
one of two ways.

Prong (C) can be satisfied in

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

physical custody.”
51

to

provide

care

and

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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.”
446

(4th

Trejo v. Ryman Hosp. Props., Inc., 795 F.3d 442,

Cir.

2015).

But

in

our

reading

provide care,” the majority and I part ways.
means just what it says:

of

“available

I think the text

a child is not unaccompanied in the

United States if a parent is available to provide care.
is

available

to

to

provide

care;

R.M.B.

is

not,

Beltrán

therefore,

unaccompanied.
The majority interprets the same text to mean “capable of
providing

for

Ante, at 26.
the

least

the

child’s

physical

and

mental

well-being.”

There are several problems with this reading, not

of

which

definition says.

is

that

it

is

not

what

the

statutory

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.

independent of its statutory context.

§

279(g)(2)(C)(ii)

“In determining the plain

meaning of the text, we must consider the broader context of the
statute

as

meaning
context.”

of

a

whole

in

statutory

light

of

language,

the

cardinal

plain

or

rule

not,

that

the

depends

on

Trejo, 795 F.3d at 446 (quotations omitted).

52

With

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respect, the majority’s reading does not fit with the text.

And

it jars with the context.

A.
The
argument

majority

makes

that

son

her

short

R.M.B.

work
is

of

not

Beltrán’s

an

statutory

unaccompanied

alien

child:

three paragraphs in a nearly 50-page opinion.

25-27.

And only a portion of those few paragraphs construes the

key statutory definition.

Ante, at

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.”
at

25

(citing

Appellant’s

linguistic

definition,

equivalent

to

an

Br.

the

majority

argument

§ 279 (g)(2)(C)(ii)

19).

“does

that
not

Without

disputing

characterizes

the

definition

include

an

majority

reads

in

such

a

its
in

suitability

this

use

6

assessment

parent’s fitness or suitability as a custodian.”
The

Ante,

as

U.S.C.
of

a

Ante, at 25.
assessment

by

emphasizing that the word “available” is followed by the words
“to provide care.”
dictionary

to

Ante, at 25-26.

expand

on

the

word

The majority then goes to a
“care”

and,

importing

its

chosen definition, finds that a parent “must be” “available to
provide

what

is

necessary

for

maintenance, and protection.”

the

child’s

Ante, at 26.
53

health,

welfare,

I might quibble

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with the particular substituted definition, but regardless, the
statute

thus

“available”

construed

to

still

provide;

the

asks

text

only

still

if

the

parent

is

“does

not

include

an

assessment of a parent’s fitness or suitability as a custodian.”
Ante, at 25.
At

this

point,

Beltrán

majority’s analysis.
the

UAC

provide

might

prevail

under

the

But rather than apply its own reading of

definition
for

still

and

R.M.B.,

ask

the

whether

majority

Beltrán

relies

was

on

a

available

distinct,

to

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 wellbeing’—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

protection.”
incorporation

the

child’s

Ante,
that

at
the

26.

health,
It

majority

welfare,
is

from

reads

“an

maintenance,

this

and

cross-statute

assessment

of

a

parent’s fitness or suitability” into the UAC definition. 1

1

The 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)
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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

different than what it said.
not

use

the

words

that

Congress

meant

anything

The statutory UAC definition does

“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. AlvarezMachain, 542 U.S. 692, 711, n.9 (2004)); cf. Meese v. Keene, 481
U.S.

465,

definition

484
of

(1987)
the

(“It

term

is

axiomatic

excludes

unstated

that

the

meanings

statutory
of

that

term.”)

erroneous application or interpretation of the UAC definition.”
Ante, at 26-27.

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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.
unnatural

to

read

them

to

transmute

the

word

“available”—into a wholly different word.
meaning is not so powerful.

But it is

Congress

used—

The alchemy of plain

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.
that

the

plain

It can be overcome.

meaning

of

“available”

Although I conclude
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.

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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.

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§ 279(g)(2)(C)(ii).

If

Pg: 58 of 70

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

linguistic

matter,

I

speaks

whether

the

to

United

do

States

not

think

parent

is

or

that

not.
a

As

parent’s

accompanying

a

a

purely

“fitness”

child.

Put

another way, a child can be accompanied by an unfit parent.

It

is

to

be

outside

of

much

harder,

linguistically

and

practically,

accompanied by an unavailable parent.
One

additional

6 U.S.C. § 279(g)(2):

observation

before

looking

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.
language

in

harmony

with

a

It is much easier to read the
legislative

58

concern

about,

for

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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

UAC

definition

sets

the

The first part of prong (C) of
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

custody” as a practical matter.

provide

care

and

physical

6 U.S.C. § 279(g)(2)(C).

One

obvious application, alluded to earlier, would be to a parent
2

See Office of Refugee Resettlement, Children Entering the
United States Unaccompanied: Introduction (January 30, 2015),
http://www.acf.hhs.gov/programs/orr/resource/children-enteringthe-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.

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who is incarcerated or otherwise in custodial detention in the
United States.
intended

the

It would be absurd to conclude that Congress

Office

to

turn

away

vulnerable

children

basis that they were accompanied by a jailed parent.
likely

application

is

to

parents

in

the

United

existence is not known to federal authorities.

on

the

Another

States

whose

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
statute,”

Section

Trejo,

279(g)(2),

795

F.3d

at

the

“broader

context

of

446,

strongly

counsels

the

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

definition in 6 U.S.C. § 279(g)(2) controls throughout.
6 U.S.C. § 279(g); 18 U.S.C. § 1232(g).
these statutes as “the UAC statutes.”
60

the
See

The Office refers to

E.g., Appellees’ Br. 33.

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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

§ 1232(c)(3)(A).

continued

detention

of

R.M.B.

is

8

U.S.C.

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

provision as the “suitable custodian requirement.”

to

this

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.

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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,
different.

my

view

of

the

Office’s

position

might

be

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
62

reading

of

Section

279(g)(2);

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would

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render

determination
authority.

R.M.B.

both

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not

a

unnecessary

UAC,
and

making

the
the

beyond

placement
Office’s

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.

(2000)

Brown

&

Williamson

(quotations

Tobacco

omitted).

Corp.,

It

is

529

quite

U.S.

possible

120,

133

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)
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Another contextual problem with fitting the majority’s UAC
definition

into

considering

how

the

statutory

R.M.B.

wound

up

scheme
in

becomes

Office

apparent

custody.

As

when
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

currently being detained by the Office.

detention

and

R.M.B.

is

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.

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generally

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does

not

take

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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
exceptional
See 8

alien

child”

circumstances,

U.S.C.

§ 1232(b).

within

48

hours

transfer

custody

Congress

could

and,
within

reasonably

except
72

in

hours.

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.
work

as

a

harmonious

whole

when

“available”

§ 279(g)(2) is read to mean “available.”

The statutes
in

6

U.S.C.

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

construction

of

that

I

“available

think
to

foreclose

provide

the

care.”

majority’s
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.
645,

658

(1972)

See, e.g., Stanley v. Illinois, 405 U.S.

(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).
this

power

is

not

absolute,

and

in

these

But

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

Foucha v. Louisiana, 504 U.S. 71, 80 (1992).

Clause.”

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

here,

I

skeptical

am

hearing,

constitutional scrutiny.

under
that

a

statute

such

analogous

action

would

to

that

survive

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.
there

is

no

need

to

read

those

I only suggest that

statutes

constitutionality is even in question.

such

that

their

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

constitutional

concerns”

time’
with

limitation”
the

due

“indefinite

to

“serious

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

constitutional
minimal.

available
concerns

in

with

the
such

United
a

States.

regulatory

scheme

The
are

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

limitations

(“We

have

immigration

read

statutes

invalidation.”)
questions here.

significant

in

order

to

avoid

their

into

other

constitutional

There is no need to decide any constitutional
We need only read the statutes as written.

II.
On my view of the Office’s statutory authority, there is no
need

to

Questions

address

the

other

about

the

full

issues

reached

statutory

scope

by
of

the
the

majority.
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.
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the

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majority

court,

a

opinion,

concern

Although

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many

about
of

the

and
the

in

the

risk

opinion
R.M.B.

allegations

the

of

poses

the
to

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
concerns.

are

legally

authorized

processes

to

address

these

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

obligation—to intervene.

authority—and

perhaps

the

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.

70