Demore v. Kim, 538 U.S. 510, 66 (2003)

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Cite as: 538 U. S. 510 (2003)

Opinion of Souter, J.

tion that alien juveniles could only be released to the custody of the juvenile's parent, legal guardian, or another specified adult relative. Even this limitation, however, was subject to exception for releasing a juvenile to another person in " 'unusual and compelling circumstances and in the discretion of the [INS] district director or chief patrol agent.' " 507 U. S., at 297 (quoting 8 CFR § 242.24(b)(4) (1992)).

Thus, the substantive due process issue in Flores was not whether the aliens' detention was necessary to a governmental purpose: " 'freedom from physical restraint' " was "not at issue" at all because, as juveniles, the aliens were " 'always in some form of custody.' " 507 U. S., at 302 (quoting Schall v. Martin, 467 U. S. 253, 265 (1984)). Since " '[l]egal custody' rather than 'detention' more accurately describes the reality of the arrangement" in Flores, 507 U. S., at 298, that case has no bearing on this one, which concerns the detention of an adult.29

Flores is equally distinguishable at the procedural level. We held that the procedures for the custody decision sufficed constitutionally because any determination to keep the alien "in the custody of the [INS], released on recognizance, or released under bond" was open to review by the immigration court, the Board of Immigration Appeals, and the federal courts. Id., at 308. Like the aliens in Carlson, the juveniles in Flores were subject to a different system and raised a different complaint from Kim's.

While Flores holds that the INS may use "reasonable presumptions and generic rules" in carrying out its statutory discretion, 507 U. S., at 313, it gave no carte blanche to gen-29 Nor is it to the point for the Court to quote Flores as rejecting the aliens' challenge to a " ' "blanket" presumption of the unsuitability of custodians other than parents, close relatives, and guardians.' " Ante, at 526 (quoting 507 U. S., at 313). Flores expressly stated that the regulation did not implicate the core liberty interest in avoiding physical confinement. Id., at 302 ("The 'freedom from physical restraint' . . . is not at issue in this case").

575

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