322
Stevens, J., dissenting
adults willing and able to assume custody of them is contrary to federal policy, is belied by years of experience with both citizen and alien juveniles, and finds no support whatsoever in the administrative proceedings that led to the promulgation of the Agency's regulation. I will then turn to the Court's statutory and constitutional analysis and explain why this ill-conceived and ill-considered regulation is neither authorized by § 242(a) of the Immigration and Nationality Act nor consistent with fundamental notions of due process of law.
At the outset, it is important to emphasize two critical points. First, this case involves the institutional detention of juveniles who pose no risk of flight and no threat of harm to themselves or to others. They are children who have responsible third parties available to receive and care for them; many, perhaps most, of them will never be deported.2 It makes little difference that juveniles, unlike adults, are always in some form of custody, for detention in an institution pursuant to the regulation is vastly different from release to a responsible person—whether a cousin,3 a godparent, a friend, or a charitable organization—willing to assume responsibility for the juvenile for the time the child would otherwise be detained.4 In many ways the difference is
2 See Tr. of Oral Arg. 55 (statement by counsel for petitioners).
3 The Court assumes that the rule allows release to any "close relative," ante, at 302. The assumption is incorrect for two reasons: The close character of a family relationship is determined by much more than the degree of affinity; moreover, contrary to the traditional view expressed in Moore v. East Cleveland, 431 U. S. 494, 504 (1977), the INS rule excludes cousins.
4 The difference is readily apparent even from the face of the allegedly benign Memorandum of Understanding Re Compromise of Class Action: Conditions of Detention, reprinted in App. to Pet. for Cert. 148a- 205a (Juvenile Care Agreement), upon which the Court so heavily relies to sustain this regulation. To say that a juvenile care facility under the agreement is to be operated " 'in an open type of setting without a need for extraordinary security measures,' " ante, at 298 (quoting Juvenile Care Agreement 173a) (emphasis added), suggests that the facility has some standard level of security designed to ensure that children do not
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