dissenting:

I respectfully dissent. As Chief Justice Rehnquist observed, “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 , 107 S.Ct. 2095, 2105 , 95 L.Ed.2d 697 (1987). The majority goes to great lengths to deny liberty to children whose only possible offense is their alienage.

The facts of this case are among the most disturbing I have confronted in my years on the court. Children are being held in detention by the INS for as long as two years in highly inappropriate conditions out of a professed concern for their welfare. When the case first came before the district court, the only requirement for institutionalizing a child was a determination by an INS agent — not a judge — that there was prima facie evidence of the child’s deportability. Upon such a slender showing, children were put into “detention centers” for indeterminate periods of time, deprived of education, recreation, and visitation, commingled with adults of both sexes and subjected to strip searches with no showing of cause. In the INS’s Western Region, a child could escape such confinement only if a parent or legal guardian, or “in unusual and extraordinary cases” a responsible adult, came forward to seek release. The rationale for this regulation was to assure the “minor’s welfare and safety” and to protect the agency from legal liability.

Only after suit was brought against it did the INS agree to modify the conditions of confinement and the treatment of the children during detention. The district court approved a partial settlement whereby the INS agreed to provide education, reasonable visitation rights, and recreation as well as to cease commingling detained minors with unrelated adult prisoners. Subsequently, without agreement of the INS, the court ordered the INS to cease strip searching the children unless it had reasonable suspicion to believe they were concealing weapons or contraband. The INS has not appealed that order.

In light of the INS’s announced intention to promulgate new rules governing minors’ pre-hearing release, the district court agreed to postpone ordering the agency in the Western Region to release children awaiting their deportation hearing to responsible adults (although that was the practice followed by the INS in other regions of the country and was the nationwide policy regarding children held for exclusion hearings). The INS’s final regulations, however, allowed release to responsible adults other than parents, legal guardians, and adult relatives only in “unusual and compelling circumstances” and did nothing to provide for neutral and detached evaluation of the basis for determining the likelihood that the detained minors were deportable.

The district court concluded that the final regulations did not satisfy minimum due process requirements. Judge Kelleher entered an order requiring the INS (1) to release minors otherwise eligible for release to their parents, guardian, custodian, conservator, or other responsible adult party, (2) to advise those released promptly in writing of the conditions of their release, and (3) to hold a prompt administrative hearing to determine probable cause for their arrest and the need for any restrictions to be placed upon their release. This was a simple, sensible, minimally intrusive direction to the agency. I would uphold it rather than search for ways to reverse.

The result the majority reaches is deeply troubling. Equally troubling, however, are the analytic framework and standard of review adopted by the majority; they will reverberate well beyond the issues presented in this particular case.

I

The majority opinion rests its holding on Congress’ plenary power over matters of immigration and naturalization and on the broad discretion Congress has delegated to the Attorney General and the INS to carry out its decisions to admit or exclude certain groups of persons. I agree with the majority that the INS has broad authority and discretion.

*1015 I also agree with the majority’s rejection of the appellees’ statutory argument that Congress limited the agency to promulgating regulations that would insure the appearance of minors at their upcoming deportation hearings. This, however, disposes only of appellees’ claim that the INS exceeded the scope of its statutory authority-

The INS’s discretion also is limited by the Constitution. Despite Congress’ broad powers in matters of immigration, the Constitution extends certain protections to all persons within the jurisdiction of the United States. For instance, the protections of the Fifth and Fourteenth Amendments extend to aliens physically present in the United States. Mathews v. Diaz, 426 U.S. 67, 77 , 96 S.Ct. 1883, 1890 , 48 L.Ed.2d 478 (1975) (“There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law.”); Plyler v. Doe, 457 U.S. 202 , 102 S.Ct. 2382 , 72 L.Ed.2d 786 (1982); Baires v. INS, 856 F.2d 89, 90 (9th Cir. 1988). Nor are appellees ineligible for constitutional protection because of their youth. Sckall v. Martin, 467 U.S. 253 , 104 S.Ct. 2403 , 81 L.Ed.2d 207 (1984); Bellotti v. Baird, 443 U.S. 622 , 99 S.Ct. 3035 , 61 L.Ed.2d 797 (1979); In re Gault, 387 U.S. 1 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967). Despite these clear holdings and despite the fact that laws that adversely treat aliens or that infringe on a basic constitutional right warrant heightened scrutiny, the majority nevertheless concludes that the INS’s regulations are largely beyond judicial review. In arriving at its conclusions, the majority makes two errors in its constitutional analysis.

A.

First, the majority misinterprets the scope and overlooks the source of the executive and legislative branches’ discretion. After establishing that the subject matter of the challenged regulations (the manner of detention of suspected illegal aliens) is not outside the scope of the INS’s statutory authority, a proposition with which I fully agree, the majority proceeds to discuss another subject entirely, Congress’ broad authority to determine who should be allowed to enter and remain in the country. The opinion then moves from the discussion of Congress’ unfettered power to decide whom to admit to the United States to the conclusion that since the due process clause does not constrain congressional power to determine who may enter, this somehow determines the due process rights of individuals present in the United States awaiting deportation proceedings and constrains judicial review of claimed violations of their due process rights and conditions of confinement,

In effect, the majority is moving from the uncontroverted propositions that the political branches have plenary authority over deciding whom to admit into the country and that such political decisions are largely immune from judicial review, to the unsupportable conclusion that how it treats those whom it detains while the deportation process is underway is likewise beyond judicial review. This is an unwarranted leap.

The majority exhaustively reviews the relevant statutes, legislative history, and case law to establish the general proposition that the legislative and executive branches have virtually unbridled authority over matters of immigration and naturalization. While it is true that the political branches have virtually unreviewable authority to decide whom to admit into the United States and whom to exclude, this does not mean they can do just anything to an individual while his status is under review. A decision by the political branches to admit more Nigerians than Irish into the United States may not be vulnerable to an Equal Protection challenge. But a decision to incarcerate all Nigerians awaiting deportation hearings but not Irish would be accorded no such judicial deference. The courts’ deference to the “plenary power” of Congress is limited essentially to Congress’s decision regarding who is excluda-ble; it does not extend to their treatment during the deportation process. The very Supreme Court eases upon which the ma *1016 jority relies makes this clear. See, e.g., Mallo v. Bell, 430 U.S. 787 , 97 S.Ct. 1473 , 52 L.Ed.2d 50 (1976) (upholding law granting preferential immigration status to natural mothers but not natural fathers of children born outside of marriage); Harisiades v. Shaughnessy, 342 U.S. 580 , 72 S.Ct. 512 , 96 L.Ed. 586 (1952) (upholding Alien Registration Act of 1940, which authorized deportation of aliens because of their membership in the Communist Party); Galvan v. Press, 347 U.S. 522 , 74 S.Ct. 737 , 98 L.Ed. 911 (1954) (upholding Internal Security Act of 1950 which provided for the deportation of legally resident aliens because they had once been members of the Communist Party even though unaware of the party’s advocacy of violent overthrow of the government). The cases the majority cites in which the Supreme Court recognized that “Congress regularly makes rules that would be unacceptable if applied to citizens,” likewise refer to legislative decisions regarding which aliens to exclude from the country. For instance, in Kleindienst v. Mandel, 408 U.S. 753 , 92 S.Ct. 2576 , 33 L.Ed.2d 683 (1972) the Supreme Court affirmed the Attorney General’s denial of a visa for a Marxist alien scholar even though such action would violate the First Amendment if applied to a U.S. citizen.

The respective roles of the three branches is readily understandable once one recognizes that congressional and executive authority over immigration stems from the allocation within our scheme of separation of powers and federalism, to the national political branches of all authority over foreign relations and national security. This both limits and justifies congressional and executive authority. The reason for the substantial deference that the judiciary owes to the other two branches in these areas has been recognized time and again by the Supreme Court. In Mathews v. Diaz, 426 U.S. 67, 81 , 96 S.Ct. 1883, 1892 , 48 L.Ed.2d 478 (1975), the Court observed that the political branches of the federal government are responsible for our relations with foreign powers and cautioned that constitutional law must not unnecessarily inhibit the flexibility of the political branches to respond to changing political and economic global conditions. The Diaz Court relied on the reasoning of a 1952 case, Harisiades v. Shaughnessy, 342 U.S. 580 , 72 S.Ct. 512 , in which the Court noted that “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.” Id. at 588-89 , 72 S.Ct. at 518-19 . Similarly, in Galven, 347 U.S. 522 , 74 S.Ct. 737 , 98 L.Ed. 911 (1953), the Court deferred to the broad power of Congress over sovereignty, foreign relations, and national security.

The majority quotes these cases and others to support its view that the judiciary must defer to the INS in all matters: “Because Congress’s power over immigration is plenary and political in nature, the exercise of that power is subject ‘ “only to narrow judicial review.” ’ ” (Maj.Op. at 1004). What the majority glosses over, however, is that those cases limit the INS’s claim to deference to those areas that affect our country’s relations with foreign powers or our national security. 1

The majority suggests without quite saying it that Congress wished to give and the courts have allowed the INS virtually unre-viewable discretion to hold arrested aliens in custody prior to their deportation hearings. The majority quotes extensively from Congressional committee reports of the Hobbs Bill, a defeated precursor to the 1950 Subversive Activities Control Act (of which the present § 1252 is a derivative of a derivative). The majority highlights those sections that express Congressional intent to grant the Attorney General “untrammeled authority” to impose conditions of release (such as requiring aliens to make *1017 periodic reports as to their location or to post more bond money) pending final determination of deportability. I question whether this statement, made in the 1950’s, regarding discretion to impose conditions on those aliens released on bond is a useful aid to judicial interpretation of the effect of the current immigration act on the INS’s discretion to refuse to release aliens under any condition. Even if it were, such legislative history that would infuse a statute with an unconstitutional cast should be read suspiciously and narrowly. See United States v. Witkovich, 353 U.S. 194 , 77 S.Ct. 779 , 1 L.Ed.2d 765 (1957) (rejecting a literal reading of a provision of the Immigration and Nationality Act of 1952 where such a broad interpretation of the discretion granted the Attorney General would generate constitutional doubts as to the validity of the statute).

The majority also relies heavily on Carlson v. Landon, 342 U.S. 524 , 72 S.Ct. 525 , 96 L.Ed. 547 (1952), in which the Court, in reviewing the bond provisions of the Subversive Activities Control Act, agreed with the government that “Congress’ intention [was] to make the Attorney General’s exercise of discretion presumptively correct and unassailable except for abuse.” Carlson cannot be read as the majority suggests as conferring upon the INS unfettered authority over pre-hearing detention of aliens. The purpose of the Subversive Activities Control Act was to deport all alien Communists as a menace to the security of the United States. Carlson involved a challenge to the Attorney General’s decision to hold aliens who were active Communists without bail pending determination of their deportability. The Attorney General justified the exercise of discretion to deny bail “by reference to the legislative scheme to eradicate the evils of Communist activity.” Id. at 543 , 72 S.Ct. at 536. The Supreme Court upheld the pre-hearing detention out of deference to the Attorney General’s national security authority: “As all alien Communists are deportable, like Anarchists, because of Congress’ understanding of their attitude toward the use of force and violence in such a constitutional democracy as ours to accomplish their political aims, evidence of membership plus personal activity in supporting and extending the Party’s philosophy concerning violence gives adequate grounds for detention.” Id. at 541, 72 S.Ct. at 535. Carlson merely upheld the INS’s detention of those individuals who pose a threat to the community or who are a “menace to the public interest.” Id. at 541 , 72 S.Ct. at 534. Where the Supreme Court subsequently has cited Carlson , it has given it a narrow interpretation. United States v. Salerno, 481 U.S. 739, 748 , 107 S.Ct. 2095, 2101 , 95 L.Ed.2d 697 (1987) (Carlson cited for proposition that there is “no absolute constitutional barrier to detention of potentially dangerous resident aliens pending deportation proceedings.”); INS v. Lopez-Mendoza, 468 U.S. 1032 , 104 S.Ct. 3479 , 82 L.Ed.2d 778 (1983) (Carlson cited for proposition that the Eighth Amendment does not require bail to be granted in “certain” deportation cases). The majority’s reliance on United States Ex Eel. Barbour v. District Dir. of INS, 491 F.2d 573 (5th Cir.1974) is likewise misplaced as that case also addressed the INS’s authority to detain an alien believed to pose a risk to national security. (The Syrian government had notified U.S. authorities of petitioner’s true identity as an officer of the Syrian Army accused of smuggling money.)

Where the INS acts outside this realm— as it does when it determines how the people whom Congress has decided will not be admitted into the United States are to be treated while they await deportation determinations as well as when it purports to act in the interest of alien children — the INS has no special claim to deference beyond that which we accord any other agency. Although protecting the children’s welfare may be a statutorily permissible interest, the agency is entitled to no special deference in this area. Recent Supreme Court cases are in accord. Although reaffirming the political branches’ virtually unreviewable authority over decisions as to which groups to exclude and whom to deport, the Court has struck down laws that imposed discriminatorily adverse conditions or treatment of aliens while present in our country.

*1018 In Hampton v. Mow Sun Wong, 426 U.S. 88 , 96 S.Ct. 1895 , 48 L.Ed.2d 495 (1976) the Court found that the Civil Service Commission regulation barring noncitizens from civil service employment unconstitutionally deprived resident aliens of liberty without due process in violation of the Fifth Amendment. The Court explicitly rejected the government’s “primary submission that the federal power over aliens is so plenary that any agent of the National Government may arbitrarily subject all resident aliens to different substantive rules from those applied to citizens.” Similarly, in Plyler v. Doe, 457 U.S. 202 , 102 S.Ct. 2382 , in striking down a state law withholding funds for the education of illegal alien children, the Court analyzed the degree of deference due this state law by contrasting it to the deference accorded federal legislative decisions which is derived from Congress’ plenary authority over foreign relations and international commerce, and upon the inherent power of a sovereign to close its borders. The Court noted that the “obvious need for delicate policy judgments has counseled the Judicial Branch to avoid intrusion into this field.” The regulations at issue in this case present no delicate foreign policy issues. They do not impinge in any way on decisions as to which groups of people to admit or exclude from the country. Nor is there any claim made that these children pose a risk to our national security. The INS regulations at issue command no special deference.

B.

On the contrary, the agency’s regulations should be more closely reviewed because they deprive a group traditionally subject to discrimination of their physical liberty; a quasi-suspect class is being deprived of a basic constitutional right. Either factor is sufficient to trigger heightened judicial scrutiny. Both are present here. The majority nonetheless insists we should apply a deferential standard of review. This second error also is critical. Perhaps less so to the outcome of this case — since the- regulations could not pass even a rational relation test — than to the integrity of constitutional analysis.

Í disagree profoundly with majority’s characterization of the constitutional right at stake. The majority, starting from the premise that in substantive due process analysis, the right at stake must be defined narrowly, then defines the right claimed by appellees as “the right of alien juveniles in deportation proceedings to be released to unrelated adults.” (Maj.Op. at 1007). The majority, unable to locate this phrase in the constitution or precedent, then reasons that there is no fundamental constitutional right implicated and that the regulations are subject to only minimal scrutiny. This analysis is, very simply, wrong. 2 The Constitution is not a civil code. Constitutional rights are not characterized at that level of specificity. To define the right as the majority does defines it out of existence. For its approach to constitutional analysis— which would apply in Equal Protection Clause analysis as well — the majority relies on two cases. It cites Christy v. Hodel, 857 F.2d 1324 (9th Cir.1988), for the proposition that the right at stake must be defined narrowly for the purposes of substantive due process analysis. What the court said was that strict judicial scrutiny of legislation is reserved for enactments that “impinge upon constitutionally protected rights.” (quoting San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 40 , 93 S.Ct. 1278, 1300 , 36 L.Ed.2d 16 (1973)). Christy involved an alleged taking of property by an Interior Department Endangered Species Act regulation that prohibited the killing of grizzly bears. Plaintiffs alleged this deprived them of their constitutional right to defend their sheep. The District Court granted summary judgment for the government. Despite a well developed body of caselaw that guides the analysis of takings claims under the fifth amendment, the court analyzed the case as requiring the court to determine first whether the plaintiffs were alleging a “funda *1019 mental right.” The plaintiffs urged that, since the Supreme Court had inferred a constitutional right to privacy despite the absence of express language in the constitution, this court should recognize a constitutional right to kill federally protected wildlife in defense of one’s property. The court understandably declined to do so.

Christy should be read simply as a refusal to find that the fifth amendment protection of property rights embraces the right to be exempt from laws protecting endangered species. To the extent Christy is read as standing for a general proposition that rights must be defined narrowly in substantive due process cases, it is inconsistent with Supreme Court precedent. In NAACP v. Alabama, 357 U.S. 449 , 78 S.Ct. 1163 , 2 L.Ed.2d 1488 (1957) the Court did not consider whether there is a fundamental right against “forced disclosure of membership lists.” Rather it'analyzed the impact of state law on the fundamental right to . “association.” In New York Times v. United States, 403 U.S. 713 , 91 S.Ct. 2140 , 29 L.Ed.2d 822 (1971), the Supreme Court considered the impact of the government’s action, not on the newspapers’ right to publish a classified study on the United States policy-making in Viet Nam, but on the newspapers’ right of freedom of the press. In Wisconsin v. Yoder, 406 U.S. 205 , 92 S.Ct. 1526 , the Court did not examine whether there is a fundamental right to educate one’s children at home once they have completed the eighth grade; it analyzed whether the state compulsory education law violated the right to free exercise of religion.

In the second case cited to support the majority’s assertion that rights must be narrowly defined, Almario v. Attorney General, 872 F.2d 147 (6th Cir.1989), the sixth circuit rejected plaintiffs’ argument that the Immigration Marriage Fraud Act violates due process by unreasonably burdening the fundamental right to marry. The opinion does state that the constitution does not recognize the right of a citizen spouse to have his or her alien spouse remain in this country. However; the court merely was restating the holdings of previous cases, which concluded that the deportation of alien spouses did not unconstitutionally interfere with the right to marry, a right which the court recognized was fundamental. Finding that a constitutional right is not violated by a particular government action is quite different from denying the existence of the right.

Recent debates over which rights are “fundamental” have occurred in the context of deciding whether unenumerated rights — those rights not readily identifiable in the text of the Constitution or its amendments — such as the right to privacy, to association, to vote, or to obtain education, should qualify as fundamental. 3 The analysis the majority has employed to define the right is suitable when the issue facing the court is whether an activity that is at the periphery of an already recognized right should be included in that category. See e.g., Cohen v. California, 403 U.S. 15 , 91 S.Ct. 1780 (does first amendment right to free speech include the right to wear a jacket with obscenities emblazoned on it); Buckley v. Valeo, 424 U.S. 1 , 96 S.Ct. 612 , 46 L.Ed.2d 659 (1976) (does right to free speech include right to make campaign expenditures); Youngberg v. Romeo, 457 U.S. 307 , 102 S.Ct. 2452 , 73 L.Ed.2d 28 (1981) (does liberty interest of institutionalized persons extend to training and habili-tation necessary to ensure bodily safety and a minimum of physical restraint). It is obvious that this case requires neither type of analysis.

The majority also relies on Bowers v. Hardwick, 478 U.S. 186 , 106 S.Ct. 2841 , 92 L.Ed.2d 140 (1986) to support its characterization of appellees’ right. Hardwick simply has no applicability to this case. In Hardwick , the Court advised against expanding the list of fundamental rights which have attenuated roots in the language or design of the Constitution and the Court refused to acknowledge that engaging in “homosexual sodomy” was included *1020 in the right to privacy. Although there may be disagreement over the far reaches of “liberty,” there can be no dispute that its source is the text of the Constitution, that its core reference is to freedom from physical restraint, and that the interest is fundamental. This is apparent from all the decisions that have addressed- substantive and procedural due process challenges to government’s incarcerating or institutionalizing persons.

As the Supreme Court stated in United States v. Salerno, 481 U.S. 739, 751 , 107 S.Ct. 2095, 2103 , 95 L.Ed.2d 697 (1987), although the government has a strong interest in protecting the community from allegedly dangerous criminals, it must be balanced against “the individual’s strong interest in liberty. We do not minimize the importance and fundamental nature of this right.” See also, DeShaney v. Winnebago County DSS, 489 U.S. 189 , 109 S.Ct. 998, 1006 , 103 L.Ed.2d 249 (1989) (“In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf — through incarceration, institutionalization, or other similar restraint of personal liberty — which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause ... ”); and Ingraham v. Wright, 430 U.S. 651, 673-74 , 97 S.Ct. 1401, 1413 , 51 L.Ed.2d 711 (1977) (the “liberty interest ... [has] always ... been thought to encompass freedom from bodily restraint.”) 4

*1021 II

I would find that the challenged INS regulations unconstitutionally deprive detained alien minors of their liberty. The regulation’s effect is to mandate continuous pre-hearing detention of alien minors if there is no relative or legal guardian readily at hand to whom they can be released. We should be guided therefore by cases that have analyzed laws mandating pretrial detention in other situations: United States v. Salerno, 481 U.S. 739 , 107 S.Ct. 2095 , 95 L.Ed.2d 697 (1987) and Schall v. Martin, 467 U.S. 253 , 104 S.Ct. 2403 , 81 L.Ed.2d 207 (1984). 5 Although in both Salerno and Schall the Court upheld the challenged pretrial detention rules, both cases are instructive in the framework of analysis and a useful standard of comparison they provide. The striking differences between the facts of Schall and Salerno and the facts here reveal that the INS’s regulations do not lie on the permissible side of the boundary.

Schall involved a substantive and procedural due process challenge to a statute authorizing pretrial detention of minors found to pose a serious risk to the community. As the Court noted, although juvenile offenses are not crimes and proceedings against juvenile offenders are characterized as civil, some of the protections provided in the criminal context apply in such civil proceedings because restrictions are placed on juveniles adjudged delinquent. 467 U.S. at 257, n. 4 , 104 S.Ct. at 2406, n. 4. The Court stated that a minor’s interest in “freedom from institutional restraints” is “undoubtedly substantial,” although qualified by the fact that children “are always in some form of custody.” Id. at 265, 104 S.Ct. at 2410. Even though the minor’s liberty interest is qualified, the Court will require a “legitimate and compelling state interest” to override it. Id. at 264, 104 S.Ct. at 2409. There are four governmental concerns that the Court has *1022 recognized as sufficient to override this liberty interest and to justify pretrial detention: (1) danger to the community if the individual were to be released; (2) risk of flight; (3) concern that the detainee might attempt to influence the tribunal illegitimately, for example, by intimidating witnesses or jurors; and (4) the need to protect a juvenile from the consequences of his criminal activity as well as to preserve and promote the welfare of the child. Salerno, 481 U.S. at 748-49 , 107 S.Ct. at 2102 ; Schall 467 U.S. at 265-66 , 104 S.Ct. at 2410-11 . The government bears the burden of proving on an individualized basis that detention is required to serve these interests. The INS has not met its burden.

The stark contrast the INS regulations pose to the New York scheme upheld in Schall and the federal statute upheld in Salerno makes clear that the INS is acting well outside the realm found permissible by the Court. In Schall the New York statute authorized pretrial detention of accused juvenile delinquents based on a finding of a serious risk that the child would commit additional criminal acts before the return date. In upholding the law, the Court relied on the range of protections provided the juveniles. The child was guaranteed an individualized probable cause hearing to determine whether the child posed a risk to the community. There was a strictly limited period of pre-hearing detention and an expedited factfinding hearing. During their short stay (a maximum permissible detention of seventeen days for the most dangerous children and six days for less serious offenders) the children were subject to carefully regulated conditions of confinement providing for dormitory assignment based on age, size, and behavior, and they received counseling sessions, education and recreational programs. The protections upon which the Court relied to uphold pretrial detention in Schall are absent in Flores. The INS makes no attempt to expedite factfinding hearings, no time limits are imposed on the permissible period of detention. In fact, the INS admits it has no idea how long the children could be detained.

Other differences between Schall and the circumstances of this case further cut against the majority’s position. First, the minors in question in Schall had been found to pose a danger to the community. If anything, the government has a greater interest in detaining juveniles accused of criminal activity than children it seeks only to deport; minors who are not even arguably a threat to the community should be subject to fewer restrictions on their physical liberty. Second, one of the explicit statutory purposes of the New York law was “to determine and pursue the needs and best interests of the child.” Id. at 257, n. 4 , 104 S.Ct. at 2406, n. 4. This justifies deference to the parens patriae role asserted by the government in a way that is markedly absent in the present case, where the explicit statutory purpose guiding the INS is to protect the national security and guide foreign relations.

The statute upheld in Salerno, 481 U.S. 739 , 107 S.Ct. 2095 , likewise is in sharp contrast to the regulations challenged here. The Court found the Bail Reform Act of 1984 constitutional because it was narrowly tailored to serve a compelling state interest. The Act requires courts prior to trial to detain arrestees charged with certain serious felonies if the government demonstrates by clear and convincing evidence after an adversary hearing that there is no other way to assure the appearance of the person at future proceedings or to protect the safety of the community. The Salerno Court emphasized the number of procedural safeguards provided the arrestee, including a “full-blown adversary hearing” in which the government must convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person, and the overwhelming nature of the government’s interest in protecting the community from danger posed by those who have been arrested for violent and other particularly serious offenses. Id. at 750 , 107 S.Ct. at 2103 . Again, Flores stands in sharp contrast. The children do not pose a threat to the community. There are no comparable procedural protections.

*1023 Whatever the proper standard of review, the constitutionality of the INS’s regulations must be assessed by evaluating the degree and nature of the harm imposed on the children against the nature of the government interest furthered by the regulations. To the extent the INS seeks to justify the regulation on the ground that they ensure the child’s appearance at future hearings, that interest fails to justify the detention of the children. It is not even rational to suppose that the child will be more likely to return for his deportation hearing after being released to an irresponsible relative than if he is released to a responsible adult. 6

The INS seeks to justify detaining the children primarily on the ground that they do so out of concern for the children’s welfare. The INS’s assertion that children’s welfare is better served by remaining indefinitely in jail stretches credulity. Common sense as well as expert testimony tells us that keeping children in jail, even under “ideal” jail conditions simply is not a rational way for the government to fulfill its responsibilities as “surrogate parent.” 7

The inadequacy of the INS’s justification is underscored by the fact that at the time the agency implemented these regulations out of its concern for the welfare of the children, it was incarcerating them in detention centers commingled with adults without providing them recreation, education, visitation by family or friends, and subjecting them to arbitrary strip searches. It was only as a result of this lawsuit that the agency modified its treatment of the detainees. So although the conditions have been ameliorated by the settlement decree and a court order, the genuineness of the INS concern is placed in some doubt. Certainly at the outset of this litigation, the INS’s professed concern for the children’s welfare was entirely undercut by the reality of the conditions under which it detained them. Appellees’ claim of pretext is not without substance particularly in light of the evidence that undocumented parents who came to claim their children were swooped up immediately and deportation proceedings commenced against them. If the INS were using the children as bait to lure their parents, this would not only be insidious, it would be unconstitutional. “Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.” Plyler v. Doe, 457 U.S. at 220, 102 S.Ct. at 2396 . 8

*1024 Even assuming that protecting children is a compelling government interest and that Congress has delegated the duty to the INS in this instance, the INS had many options that would be more narrowly tailored and less burdensome. The INS argues that it “is not a social welfare agency” and insists that it does not have the resources or the expertise to assess whether an adult other than a parent or legal guardian would be responsible enough to take custody of a detained minor. However, evaluating the fitness of other adults to take custody of detained minors would appear to be much less burdensome than incarcerating children at a cost of up to $100 per day and overseeing their welfare in an institutional setting. The administrative burden to the INS in evaluating the fitness of a given adult to take custody of a detained minor would be an insufficient reason to infringe upon children’s fundamental constitutional rights. See Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142, 150-52 , 100 S.Ct. 1540, 1545-46 , 64 L.Ed.2d 107 (1980) (administrative convenience and savings from imposing blanket eligibility rule rather than making individualized determination of dependency insufficient to justify discriminatory state law.) The INS admits that it never has been sued for having released a juvenile to someone other than a parent or legal guardian, nor is it aware of any case in which a minor released to an unrelated adult has been harmed or neglected. There is simply no evidence that the INS’s regulations in fact protect children, are necessary to avoid liability or tend to insure their appearance at future proceedings.

Ill

In response to appellees’ argument that the INS should provide prompt, mandatory, neutral and detached review to every arrested minor, Judge Kelleher issued an injunction ordering the INS to provide all minors taken into custody an administrative hearing to determine probable cause for their arrest and the need to place any restrictions upon their release. The majority concludes that such procedural protections are not constitutionally required in civil deportation hearings. I disagree with this characterization of the issue. What is being challenged is the adequacy of procedures allowing pre-hearing detention following an administrative arrest. Determinations of who may remain in this country invoke entirely different concerns than does the treatment of those persons who are detained awaiting disposition of their immigration status. These INS procedures are more closely analogous to criminal proceedings.

As the Supreme Court repeatedly has instructed, the constitutional sufficiency of procedures must be determined with reference to the rights and interests at stake, and, of course, varies with the circumstances. Morrissey v. Brewer, 408 U.S. 471, 481 , 92 S.Ct. 2593, 2600 , 33 L.Ed.2d 484 (1972). In Gerstein v. Pugh, 420 U.S. 103 , 95 S.Ct. 854 , 43 L.Ed.2d 54 (1975), the Supreme Court held that judicial determination of probable cause is a constitutionally required prerequisite to extended restraint of liberty following arrest. Recognizing the injury to an individual's family relationships and job as well as the other restraints on liberty, the Court reasoned that when “the stakes are this high,” a determination by a neutral magistrate is required. Prosecutorial judgment standing alone is not enough. Id. at 114 , 95 S.Ct. at 863 . Children held under administrative arrest in detention prior to their deportation hearings require no less. Nonetheless, the majority concludes that Gerstein is inapplicable because the arrests at issue in Gerstein were pursuant to criminal law while deportation hearings are civil proceedings. The majority instead would remand the case to the district court for application of the Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976) test. Although I believe that the outcome under the Mathews test will be no different than the conclusion compelled by Gerstein , remanding the question to the district court is neither necessary nor appropriate.

In evaluating the constitutionality of procedures provided by the government in any case, Mathews v. Eld-ridge directs courts to consider the interest at stake for the individual, the governmental interests in *1025 volved, and the value of additional procedural requirements. In essence, these are the factors the Court considered in deciding Gerstein the previous year. The Court concluded that an individual’s interest in remaining free from incarceration is so great as to require the procedural protection of a neutral and detached magistrate. See also, Vitek v. Jones, 445 U.S. 480 , 100 S.Ct. 1254 , 63 L.Ed.2d 552 (1980) (the liberty interest of a prisoner in not being classified as mentally ill and transferred to a mental hospital is substantial enough to warrant the procedural safeguard of an independent decisionmaker). Indeed, in Schall v. Martin, 467 U.S. 253 , 104 S.Ct. 2403 , 81 L.Ed.2d 207 (1983), the Court upheld New York laws governing the pretrial detention of juveniles explicitly in part because the procedural safeguards surpassed those required by Gerstein . The Schall Court’s reliance on Gerstein is particularly significant in light of the fact that New York’s juvenile detention proceedings are civil; the Court relied on both Mathews and Gerstein in evaluating the adequacy of procedures applied to determine juvenile detention. 9

CONCLUSION

We must remember that persons arrested by the INS are often entitled to and do remain in the United States. Some of the children arrested eventually will be found to be citizens or legal aliens, while others may be granted political asylum. Even if we were so unfeeling as to be unconcerned with the tragic effects on children who in the end will be returned to their home countries, at the least we ought to be alarmed at the effect on those who will remain. As the Supreme Court warned in Plyler v. Doe, 457 U.S. 202 , 102 S.Ct. 2382 “ ‘the illegal alien of today may well be the legal alien of tomorrow.’ ” Certainly, incarceration no less than denial of an education, will mean that these children “ ‘already disadvantaged as a result of poverty, lack of English-speaking ability, and undeniable racial prejudices, ... will become permanently locked into the lowest socioeconomic class.’ ” Id. at 208-09 , 102 S.Ct. at 2390.

I would affirm the district court.

. As one commentator notes, "even the federal government cannot make free use of alienage classifications which do not relate to foreign policy.” Rotunda, Nowak, and Young, Treatise on Constitutional Law: Substance and Procedure, § 18.12, at 494.

. Elsewhere, the majority concludes that there is no "substantive due process right not to be deported." This exemplifies the use of a straw person to obfuscate the real issue. This case is not about deportation; it is about pre-hearing detention.

. The Court originally considered which individual rights are considered fundamental when it undertook the task of "selective incorporation" or making applicable to the states certain provisions of the Bill of Rights.

. The majority relies on Justice Scalia's concurring opinion in Cruzan v. Director, Missouri Department of Health, — U.S. -, 110 S.Ct. 2841 , 111 L.Ed.2d 224 (1990) as support for its definition of the constitutional right at issue in this appeal. The majority’s reliance on the concurrence is surprising since all but Justice Sca-lia acknowledged that there are substantive limits on the ability of the state to infringe upon an individual’s right to liberty. Additionally, Cru-zan like Bowers v. Hardwick, 478 U.S. 186 , 106 S.Ct. 2841 , 92 L.Ed.2d 140 (1986) is a case that required the Court to further define the outer boundary of a recognized constitutional right, i.e. does the right to liberty encompass the "right to die?” It cannot seriously be argued that the right to liberty does not encompass the right to physical liberty.

Justice Scalia, in contrast to the other eight Justices, resisted finding a substantive due process right implicated and declined to agree that "due process” includes substantive limits. The majority quotes Justice Scalia: "[t]he text of the Due Process Clause does not protect individuals against deprivations of liberty simpliciter." Cru-zan 110 S.Ct. at 2859 . Yet a few lines after the passage quoted by the majority, Justice Scalia explains that he need not resolve whether the due process clause imposes substantive limitations on government action because “no substantive due process claim can be maintained unless the claimant demonstrates that the State has deprived him of a right historically and traditionally protected against State interference.” .Id. 110 S.Ct. at 2859-60 . Justice Scalia traces the history of the law regulating suicide and concludes that traditional Anglo-American law accorded it no protection. Even assuming the validity of Justice Scalia’s analysis, it provides no support for the majority's position in the present case: an examination of the history of Anglo-American law would uncover a traditional definition of liberty that at the minimum encompassed physical liberty. As Justice Cardozo wrote, "Bills of rights give assurance to the individual of the preservation of liberty. They do not define the liberty they promise. In the beginnings of constitutional government, the freedom that was uppermost in the minds of men was freedom of the body.... There went along with this, or grew from it, a conception of a liberty that was broader than the physical.” B.N. Cardozo, "Paradoxes of Legal Science," in Selected Writings of Benjamin Nathan Cardozo, 311 (M.E. Hall ed. 1947).

The majority observes that the right to liberty is not a “free-floating fundamental substantive due process right.” Flores, at 1007 n. 3. I agree. The Constitution does not forbid the detention of either adults or children. But it is axiomatic that the Constitution places a heavy burden upon the state to establish that deprivation of an individual’s physical liberty is necessary. Traditionally this burden must be met by a showing of such things as the fact that the person committed a crime or that he must be committed because he poses a danger to society or to himself — determinations accompanied by strict procedural safeguards which are conspicuously absent here. This constitutional tradition is precisely why the pretrial detention at issue in Salerno, 481 U.S. 739 , 107 S.Ct. 2095 , was so controversial. It also explains why, even though the Salerno Court may not have used the terminology of strict scrutiny, it exercised careful and searching review of the need for the government's pretrial detention system. (Ironically, one is reminded of Korematsu v. United States, 323 U.S. 214 , 65 S.Ct. 193 , 89 L.Ed. 194 (1944) where the majority purportedly applied strict scrutiny, while the dissent, applying only a reasonable relation test, found the government’s invocation of national security insufficient justification for detaining aliens and citizens of Japanese descent.)

The problem with the majority's opinion is that it assumes that the government may incar *1021 cerate an individual unless he can establish the existence of an extraordinary reason why he should remain free. The history of our law teaches us otherwise: the state may not jail someone unless it can present an overriding justification for doing so. Or as Justice Cardozo wrote, "The subject was not to be tortured or imprisoned at the mere pleasure of the ruler.” Cardozo at 311.

When the individuals detained have no representation in the political process, we have an added obligation to assure ourselves that the state is not acting improperly. There is a final irony in the majority’s reliance on Justice Sca-lia’s concurring opinion in Cruzan . Justice Sca-lia rhetorically asks what safeguard exists to prevent the State from passing oppressive laws such as imposing a tax of 100% on income above the subsistence level or requiring us to send our children to school for 10 hours a day. It is not, concludes Justice Scalia, the Due Process Clause. Instead, "[o]ur salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.” Cruzan, 110 S.Ct. at 2863 . But who are the "loved ones” that the children imprisoned in INS detention camps can call upon to speak for them? Certainly not the politically powerful. Probably not even the enfranchised. The hardships the INS imposes in this case— even if they can be said to have the sanction of the democratic majority — fall on neither the majority nor their loved ones. Rather, they fall on a silent and isolated and helpless minority. Even if we were restricted to Justice Scalia’s narrow version of individual liberty, the children would prevail.

. It is true that all procedural criminal protections do not apply in deportation hearings. This is because a deportation hearing is a purely civil matter designed to determine a person’s eligibility to remain in this country and is “intended to provide a streamlined determination of eligibility to remain in this country, nothing more.” INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 , 104 S.Ct. 3479, 3483 , 82 L.Ed.2d 778 (1984).

Once again, however, this appeal is not about deportation hearings. It is about placing people in physical custody while they await disposition of their status. Thus it more closely resembles criminal incarceration. Administrative warrants are issued for the aliens' arrest, searches are permitted incidental to the arrests, their physical liberty is taken away, and they may challenge the length of their custody by petitioning for writ of habeas corpus. As the Tenth Circuit has concluded, detention of aliens pending deportation is properly analogized to incarceration pending criminal trial. Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1387 (10th Cir.1981).

Significantly, in analyzing a federal pretrial detention statute in Salerno, 481 U.S. 739 , 107 S.Ct. 2095 , the Court relied on Schall v. Martin, 467 U.S. 253 , 104 S.Ct. 2403 , which involved detention prior to civil proceedings. (The Salerno Court concluded that pretrial detention under the Bail Reform Act is regulatory, not penal.)

. According to appellees, this was an after-the-fact justification put forward by the agency.

. Not surprisingly, experts advise that releasing children to any responsible adult is far preferable to jailing them, even under ideal conditions. See Institute of Judicial Administration/American Bar Association, Juvenile Justice Standards Relating to Interim Status: The Release, Control and Detention of Accused Juvenile Offenders Between Arrest and Disposition (1980) (Restraint on the freedom of accused juvenile generally is contrary to public policy. Exceptions recommended only in the case of a juvenile accused of violent crime or with a demonstrated record of flight or who pose a threat to community or himself. “Whenever an accused juvenile cannot be unconditionally released, conditional or supervised release that results in the least restrictive interference with the liberty of the juvenile should be favored over more intrusive alternatives.”) Id. at §§ 3.4 and 6.6.

. In its amendment at 1003, n. 2, the majority questions my skepticism over the INS’s assertion that its policy of detaining children is justified by its pursuit of the children’s best interests. The majority insists that it is rational to 'believe that indefinite detention of these children serves their welfare more than would releasing them to unrelated adults. The majority opinion raises the spectre of the INS releasing children to child abusers and sexual deviants. However, the INS presented no evidence that this was a risk. Indeed, in a brief filed after this appeal was submitted, amici, including the American Friends Service Committee, Lutheran Immigration and Refugee Service, the American Branch of the International Social Service and other organizations with expertise and experience assisting children and aliens, explained that in their experience it is church members, social workers, and parents with roots in the local community who are willing to take responsibility for the children. I agree that the INS must take precautions to determine that children are released to responsible and suitable adults. The majority accepts the INS's position that although it can afford to keep the children in custody, it does not have the resources to do the screening necessary to ensure their safety on release. I find this position incredible.

. The majority disregards the Court’s application of Gerstein to prehearing civil detention because, according to the majority, although the Court cited Gerstein numerous times, it "never declared, however, that Gerstein’s standards directly applied to civil juvenile proceedings." This treatment of the Court's opinion is puzzling. The Court began its discussion of the sufficiency of the procedures afforded juveniles by stating that “In Gerstein v. Pugh, 420 U.S., at 114 , [ 95 S.Ct., at 863 ], we held that a judicial determination of probable cause is a prerequisite to any extended restraint on the liberty of an adult accused of crime.... Gerstein arose under the Fourth Amendment, but the same concern with ‘flexibility’ and ‘informality,’ while yet ensuring adequate predetention procedures, is present in this context (citations omitted). In many respect, the FCA provides far more prede-tention protection for juveniles than we found to be constitutionally required for a probable-cause determination for adults in Gerstein.” Id. 467 U.S. at 274-75 , 104 S.Ct. at 2415. The Court went to on explicitly compare aspects of the New York law with those features found constitutionally adequate in Gerstein .

The majority instead prefers to rely on the "forceful dicta” of Abel v. United States, 362 U.S. 217 , 80 S.Ct. 683 , 4 L.Ed.2d 668 (1960). In this 1959 spy case, the Supreme Court rejected a challenge to an arrest that was the product of the INS and the FBI working in concert. It is true that the Court deferred to the "overwhelming historical legislative recognition of the propriety of administrative arrest for deportable aliens.” However, appellees do not challenge whether the INS may make administrative arrests; the issue is what protections must accompany those arrests.

The majority also relies on Min-Shey Hung v. United States, 617 F.2d 201 (10th Cir.1980), in which the tenth circuit held the INS procedures for arresting aliens to be sufficient to meet constitutional standards. The Hung court, however, did not explain how the INS's law enforcement officers decisions are "basically the same as a criminal proceeding before a magistrate on probable cause.” 617 F.2d at 202 . In any event, Hung did not present an issue of the adequacy of pre-hearing detention; the petitioner was released on bond within 24 hours.