                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-1993


D.B., as next friend of R.M.B., a minor,

                      Petitioner – Appellant,

           v.

BRENT CARDALL,    Chief   Probation  Officer,   Yolo  County
Juvenile Detention Facility; ROBERT CAREY, Director, Office
of Refugee Resettlement, U.S. Department of Health and
Human Services, in his official capacity; SYLVIA MATHEWS
BURWELL,   Secretary,   Department  of   Health   and  Human
Services, in her official capacity,

                      Respondents – Appellees.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:15-cv-00745-JCC)


Argued:   March 22, 2016                   Decided:   June 20, 2016


Before KING, AGEE, and FLOYD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by published
opinion. Judge King wrote the majority opinion, in which Judge
Agee joined. Judge Floyd wrote a dissenting opinion.


ARGUED: Susan Leigh Watson, TEXAS RIOGRANDE LEGAL AID, INC.,
Nashville, Tennessee, for Appellant.   Katherine Elizabeth Mallo
Goettel, UNITED STATES DEPARTMENT OF JUSTICE, Chicago, Illinois,
for Appellees.    ON BRIEF: Catherine Norris, TEXAS RIOGRANDE
LEGAL AID, INC., San Antonio, Texas; Simon Sandoval-Moshenberg,
LEGAL AID JUSTICE CENTER, Falls Church, Virginia, for Appellant.

                                 1
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Leon Fresco, Deputy Assistant Attorney General, Civil Division,
William C. Peachey, Director, Elizabeth J. Stevens, Assistant
Director, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Dana J. Boente, United
States Attorney, Dennis Barghaan, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellees.




                               2
KING, Circuit Judge:

       Dora Beltrán — also referred to as D.B. — appeals the

district court’s denial of her petition for a writ of habeas

corpus, seeking relief as next friend of R.M.B., her minor son.

R.M.B., a native of Guatemala, is being held as an unaccompanied

alien child (a “UAC”) by the Office of Refugee Resettlement (the

“Office”),     an   agency   of   the   Department       of   Health    and     Human

Services     (the   “DHHS”).      The   Office     has   declined      to   release

R.M.B. to his mother because it deems her incapable of providing

for his physical and mental well-being.                Beltrán maintains that

the Office lacks statutory authority to detain R.M.B., and that

his detention also contravenes substantive and procedural due

process.       By decision of August 5, 2015, the district court

rejected     Beltrán’s     statutory       and   constitutional        claims      and

denied   her    request    for    habeas     corpus    relief.     See      D.B.    v.

Poston, 119 F. Supp. 3d 472 (E.D. Va. 2015) (the “Opinion”).                        As

explained below, we affirm in part, vacate in part, and remand.



                                        I.

                                        A.

       We draw the pertinent facts with respect to this proceeding

from   the   district     court’s   Opinion      and   other     aspects     of    the




                                        3
record. 1    R.M.B. was born in Guatemala in February 1999.                   In

2005, at the age of six, he left Guatemala with his mother and

three siblings and illegally entered the United States.                 Beltrán

and her children settled in Rio Bravo, Texas, near the Mexican

border.     Soon thereafter, Beltrán married a man who was either a

citizen or a lawful permanent resident of this country.

      Because     Beltrán’s     husband    physically   abused    her    on   a

regular basis, she filed a petition with the U.S. Citizenship

and Immigration Services (the “USCIS”), seeking classification

as the spouse of an abusive citizen or lawful permanent resident

— a type of relief authorized by the Violence Against Women Act

(the “VAWA”).      Beltrán’s VAWA petition was approved by the USCIS

in September 2012.       In February 2013, the USCIS granted deferred

action to R.M.B. as a derivative beneficiary of his mother’s

VAWA petition.      See J.A. 25-26 (explaining that deferred action

“is an administrative choice to give some cases lower priority

for   removal,”    and   that    the   USCIS   did   not   then   anticipate




      1In its Opinion, the district court referred to Beltrán
only by her initials, D.B., citing concerns about “the sensitive
nature of the issues involved in this proceeding.”     See D.B.,
119 F. Supp. 3d at 474 n.1.   Consistent with the complaint and
notice of appeal, as well as the appellate briefs, we refer to
Beltrán by name.



                                       4
pursuing      removal    proceedings       against    R.M.B.). 2          According        to

Beltrán, she was thereafter granted an adjustment of status by

the   USCIS     and   became     a    lawful    permanent    resident.           R.M.B.’s

immigration      status,    however,       was    never    adjusted.        On       May   6,

2015, his deferred action was extended through April 6, 2016.

      R.M.B     has   had   a    difficult       upbringing.        For    example,        he

witnessed       his   step-father       physically        abusing    his    mother         on

multiple      occasions.         In    December     2012,    the    State       of    Texas

removed Beltrán’s children from her custody after she left them

at home alone.          Five months later, in May 2013, a Texas court

restored custody to Beltrán.

      R.M.B.     exhibited       serious       behavioral    problems       while          the

family lived in Rio Bravo.              During the period from 2011 to 2013,

he was arrested on multiple occasions.                      In July 2012, he was

found guilty by a state juvenile court of making a terroristic

threat and placed on probation.                   He also ran away from home

several times.        R.M.B. used alcohol and tobacco at ten or eleven

years of age, marijuana by twelve, and hard drugs by fourteen.

R.M.B.    has    admitted       being    involved     with     gangs,      as    well      as

smuggling drugs and immigrants across the Mexican border.                                  He




      2Citations herein to “J.A. __” and “J.A.S. __” refer to the
contents of the Joint Appendix and the Sealed Joint Appendix
filed by the parties in this appeal.



                                           5
advised a psychologist that he has carried a gun and on one

occasion shot and killed a man.

       Hoping       that    a    new     environment     would   improve    R.M.B.’s

behavior, Beltrán moved her family in July 2013 about 160 miles

from   Rio    Bravo        to   Corpus    Christi,     Texas.    In   approximately

October 2013, however, R.M.B. (then fourteen years old) ran away

from their Corpus Christi home and returned to Rio Bravo, where

he    found     a   job     smuggling      undocumented     immigrants     from   the

Mexican border to McAllen, Texas.

       On December 15, 2013, Border Patrol agents arrested R.M.B.

in Rio Grande City, Texas, near the Mexican border.                    R.M.B. told

one of the agents that he was waiting to pick up a group of

undocumented immigrants.               The agent allowed R.M.B. to call his

mother, who told him to “remind the agent that he had VAWA.”

See J.A. 71.          According to the agent, R.M.B. “displayed a bad

attitude towards his mother over the phone” and hung up on her.

See J.A.S. 45.         During the phone call, Beltrán also spoke with

the Border Patrol agent, advising him that she and R.M.B. “had

VAWA and that we were filling out the papers and doing the other

things we needed to do to become permanent residents.”                     See J.A.

71.    Beltrán emphasized that she “had immigration papers that

would prove all of this.”                 Id.       The agent directed Beltrán to

look for her papers and said he would call back in about fifteen

minutes.      Beltrán found the papers, got in her car, and began

                                                6
driving from Corpus Christi to Rio Grande City.                  She had driven

thirty or forty miles when the Border Patrol agent called back.

The agent told Beltrán to return home because the Border Patrol

had decided to detain R.M.B. and send him to a youth shelter.

When Beltrán insisted that she had the appropriate papers, the

Border Patrol agent threatened to arrest her if she showed up.

As a result, Beltrán returned to Corpus Christi.

       Shortly after R.M.B.’s December 15, 2013 arrest, the Border

Patrol    decided    that   he   was   a    UAC.        The   relevant    statute

underlying    that   determination,        found   at    § 279    of     Title   6,

defines a UAC as a child who:

       (A) has no lawful immigration status in the United
       States;

       (B) has not attained 18 years of age; and

       (C) with respect to whom —

            (i) there is no parent or legal guardian in the
            United States; or

            (ii) no parent or legal guardian in the United
            States is available to provide care and physical
            custody.

See 6 U.S.C. § 279(g)(2) (the “UAC definition”).                   Pursuant to

its UAC finding, the Border Patrol transferred R.M.B.’s custody

to the Office — as the agency responsible for providing care and

custody of all UACs — and initiated removal proceedings against

him.




                                       7
      Since his transfer to the Office’s custody in late 2013,

R.M.B.     has    been       housed    in     seven    different         care          provider

facilities       in   five    states.         While   in    the     Office’s           custody,

R.M.B.’s     behavioral        problems       have    continued.             He    has,     for

example,     fought      with       facility      employees        and   residents          and

engaged in sexually aggressive behavior toward staff members.

R.M.B. has also exhibited self-harming behavior and expressed

suicidal thoughts.           On one occasion, he briefly escaped from the

Office’s custody by kicking out the window of a transport van.

      In    about      January        2014,       Beltrán     submitted            a     family

reunification request to the Office, asking for R.M.B.’s release

to her custody.        The Office promptly ordered a home study, after

determining       that       one    was     necessary       to     properly            evaluate

Beltrán’s    reunification           request.        The    home    study         recommended

against releasing R.M.B. to Beltrán, concluding that her home

did “not appear to be a safe and stable environment by evidence

of   [Beltrán’s]       abusive       relationship      with      her     spouse.”           See

J.A.S. 68.        R.M.B., the home study related, had “an extensive

history of substance abuse and criminal history” and posed “a

high risk of recidivism.”                  Id.    The home study also observed

that Beltrán was unable to provide a safety plan for R.M.B.

      Consistent       with        those    recommendations,           the    Office,        by

letter of March 12, 2014, denied Beltrán’s family reunification

request.     The denial letter explained that, prior to releasing a

                                              8
UAC, the Office must “determine that the proposed custodian is

capable of providing for the [UAC’s] physical and mental well-

being.”       See J.A.S. 88.          That obligation arises from a statute

which provides, in relevant part, that a UAC “may not be placed

with a person or entity unless the [DHHS Secretary] makes a

determination         that      the   proposed    custodian    is     capable     of

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

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

           The    Office’s      letter     gave   two    reasons     for   denying

Beltrán’s family reunification request:                  that R.M.B. “requires

an environment with a high level of supervision and structure”;

and that, based on the home study, “it does not appear . . .

that       your   home    can    provide    the   structure    and    supervision

necessary for the safety of your son.”                    See J.A.S. 88.         The

denial       letter      also    advised    Beltrán     that   she    could     seek

reconsideration of the Office’s decision by submitting a request

within thirty days to the DHHS Assistant Secretary for Children

and Families, Mark Greenberg. 3

       On     March      11,     2015,     Beltrán      sent   a     request     for

reconsideration           to    the    Office,    asserting        that    R.M.B.’s



       3The Assistant Secretary for Children and Families
supervises the Administration for Children and Families, which
is an operating division of the DHHS.    The Office, in turn, is
within the Administration for Children and Families.



                                           9
continuing     detention      was   unlawful    and    demanding     his    release.

Subsequently, on April 15, 2015, R.M.B. appeared in immigration

court for the first time since his removal proceedings had been

instituted.       The     immigration        judge    terminated     the     removal

proceedings against R.M.B. because he had already been granted

deferred action.

                                        B.

      On June 12, 2015, Beltrán, as R.M.B.’s next friend, filed

her   petition    for    habeas     corpus     in    the   Eastern   District      of

Virginia,    pursuant    to    28   U.S.C.     § 2241.      The   petition       named

three     respondents:     Darryl     Poston,        Director   of   the    Northern

Virginia    Juvenile     Detention    Facility,        where    R.M.B.     was   being

housed; Office Director Robert Carey; and DHHS Secretary Sylvia

Burwell.     On June 17, 2015, in accordance with 28 U.S.C. § 2243,

the district court ordered that the petition be served on the

respondents and directed them to show cause why a writ should

not issue. 4




      4Section 2243 of Title 28 establishes generally applicable
procedures for habeas corpus proceedings.      Under § 2243, a
district court with jurisdiction over a habeas corpus petition
“shall forthwith award the writ or issue an order directing the
respondent to show cause why the writ should not be granted,”
unless the petition lacks merit on its face.      The respondent
“shall make a return certifying the true cause of the
detention.”



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

petition      —     Assistant             Secretary      Greenberg          denied        Beltrán’s

request for reconsideration.                      Greenberg’s letter explained that

he agreed with the Office’s conclusion that R.M.B. “should not

be    released      due        to   the     concerns          and    necessity       to     provide

structure and supervision given your son’s needs and welfare.”

See    J.A.S. 90.              In   support       of    that        conclusion,      the     letter

relied,      inter     alia,         on     a    May     25,    2015        psychosexual       risk

assessment,         which       concluded         that    R.M.B.        “appears       to    be   a

Moderate-Risk to continue engaging in sexual offending behaviors

and    a    Moderate-High           Risk    to    continue          engaging    in    non-sexual

offenses.”          Id.     at      85.         The    July    10     letter    also      rejected

Beltrán’s contention that, because she had been available to

take   custody       of    R.M.B.         when    the    Border       Patrol    detained       him,

R.M.B. failed to satisfy the UAC definition.

       On    July    17,       2015,      the    government         filed    its     response     to

Beltrán’s habeas corpus petition, urging the district court to

deny it.       The government submitted several exhibits in support

of its response, including (under seal) the home study report,

the psychosexual risk assessment, and a psychological evaluation

dated June 15, 2014.

                                                  C.

       On    August       5,    2015,      the    district          court    denied       Beltrán’s

habeas corpus petition for the reasons explained in its Opinion.

                                                  11
The Opinion began by reciting “findings of fact” that the court

deemed     undisputed    and    predicated          on     the    record,        “unless

otherwise    noted.”     See    D.B.,    119     F.      Supp.   3d   at    474.     The

Opinion observed that there was “no motion currently pending

before” the court, but that the parties had submitted “sworn

affidavits and documentary evidence in favor of their respective

positions,”    and     that    each   party        had     requested       a   “summary

disposition” of the petition.           Id. at 474 n.2.           Accordingly, the

Opinion explained that the court would make findings of fact

after    considering    “the    material      in    the     record    and      the   oral

argument of counsel, just as it would if the matter were before

the Court on summary judgment.”          Id. 5

                                        1.

     The    district    court    first       addressed       Beltrán’s         statutory

contentions, beginning with the assertion that the Office lacked

authority to detain R.M.B. because he did not satisfy the UAC

definition.     The Opinion explained that it was uncontested that

R.M.B. satisfies the first two elements of that definition, in

     5 Although the district court referred to making “findings
of fact” as if on “summary judgment,” it appears that the
parties agreed to a proceeding more akin to a summary bench
trial, as contemplated by 28 U.S.C. § 2243 (“The court shall
summarily hear and determine the facts, and dispose of the
matter as law and justice require.”).    We view the Opinion and
its factual recitation in that light, reviewing the facts
recited therein for clear error and the legal rulings de novo.
See Billings v. Polk, 441 F.3d 238, 243 (4th Cir. 2006).



                                        12
that    he    has    no    lawful      immigration          status    and    has     not   yet

attained     eighteen       years      of     age.      Only    the    third    element      —

whether, “as initially decided by” the Border Patrol, R.M.B. has

“no parent or legal guardian in the United States available to

provide care and physical custody” — was at issue.                                  See D.B.,

119 F. Supp. 3d at 480; see also 6 U.S.C. § 279(g)(2)(C)(ii).

The    Opinion      then     recognized         that    the     Border      Patrol       agents

“determined,         within       their       discretion,       that     [he]       met    the

definition of a UAC.”             See D.B., 119 F. Supp. 3d at 482.

       The    Opinion      ruled       that    Beltrán’s       disagreement         with   the

Border Patrol’s UAC determination was “not cognizable for habeas

relief,” because § 2241 “is not the proper vehicle to challenge

discretionary federal agency action.”                       See D.B., 119 F. Supp. 3d

at    482.     The    Opinion       also      concluded      that,    “once     R.M.B.     was

classified     as    a     UAC    by   [Border       Patrol]    field       officers,”      the

Office had no authority to release him to anyone unless it first

determined, under the suitable custodian requirement, that the

proposed      custodian          was    capable        of    providing       for     R.M.B.’s

physical and mental well-being.                      Id. at 483 (citing 8 U.S.C.

§ 1232(c)(3)(A)).

       The district court next addressed and rejected Beltrán’s

position that the Office lost custodial authority over R.M.B.

when his removal proceedings terminated.                         In that regard, the

Opinion      observed      that    Beltrán’s         argument    relied       “on    a    false

                                               13
premise, i.e., that R.M.B. is in ‘immigration detention.’”                                See

D.B., 119 F. Supp. 3d at 485.                The Opinion also reiterated that

the Office was precluded by statute from releasing R.M.B. to

anyone    unless     it        first     determined       that       the     proposed     new

custodian was capable of providing for his physical and mental

well-being.

                                            2.

       Having    rejected       Beltrán’s       statutory       claims,      the   district

court addressed and also rejected her substantive and procedural

due process claims, “in light of the Supreme Court’s holding in

Reno v. Flores, 507 U.S. 292 (1993).”                    See D.B., 119 F. Supp. 3d

at 486.     As the Opinion explained, Flores involved a challenge

to a regulation of the Immigration and Naturalization Service

(the    “INS”)    providing        for    the     release       of    juvenile      aliens,

detained on suspicion of deportability, “only to their parents,

close    relatives,       or    legal     guardians,       except       in    unusual     and

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

99).      The    Flores         plaintiffs       had     contended         that    the    INS

regulation facially contravened both substantive and procedural

due process.       The Supreme Court readily rejected the substantive

due    process    challenge,       ruling        that    an     alien      child   with    no

available       parent,        guardian,        or      close     relative         was    not

constitutionally entitled to be released to the custody of an

unrelated adult, rather than placed in a childcare institution

                                            14
selected or operated by the government.              See Flores, 507 U.S. at

304-05.

      In   its   Opinion,    the    district        court    acknowledged      that

R.M.B.’s case is distinguishable from Flores, in that Beltrán is

seeking the release of her own son — not an unrelated child —

and contends she is available to take custody of R.M.B.                         See

D.B., 119 F. Supp. 3d at 487.         The Opinion underscored, however,

that the authorities had determined, in their discretion “and

either rightly or wrongly, but in accordance with statute, that

R.M.B. is an alien child that has no available parent.”                        Id.

Accordingly, the Opinion characterized the “right at issue” as

      the alleged right of an alien child who has no
      available parent, close relative, or legal guardian,
      as determined by the federal government, and for whom
      the government is responsible, to nonetheless be
      placed in the custody of his parent, who cannot, at
      this time, properly care for his mental and physical
      needs.

Id.   The Opinion then determined that the alleged right was not

a fundamental one, that the Border Patrol’s UAC determination

was rational, and thus that no deprivation of substantive due

process had occurred.       See id.

      Turning    to   Beltrán’s    procedural       due     process   claim,   the

Opinion explained that, in Flores, the Supreme Court “held that

the   juvenile    aliens’    demand    for     an     individualized     custody

hearing was merely the ‘substantive due process’ argument recast

in procedural terms,” and “found that due process was satisfied

                                      15
by giving the detained alien juveniles the right to a hearing

before an immigration judge.”                See D.B., 119 F. Supp. 3d at 487

(citing Flores, 507 U.S. at 307-09).                    The Opinion reasoned that

“R.M.B.   was   afforded       the    same      right   to    a   hearing     before   an

immigration     judge,        where       his     immigration       proceedings       were

terminated.”     Id.     Finally, the Opinion ruled that the mechanism

in place for seeking family reunification provided sufficient

procedural      safeguards           to     “satisf[y]        any       constitutional

scrutiny.”      Id. at 488.          Accordingly, the district court denied

Beltrán’s habeas corpus petition.

     On   August   27,    2015,       Beltrán       noted    this    appeal    from    the

district court’s judgment.                We possess jurisdiction pursuant to

28 U.S.C. § 1291. 6



                                            II.

     In   addition       to    Beltrán’s          statutory       and   constitutional

contentions, this appeal presents issues concerning jurisdiction

and the proper scope of review under 28 U.S.C. § 2241.                                 The


     6 On September 3, 2015, while this appeal was pending, the
government moved for leave to transfer R.M.B. from Virginia to a
facility in California, pursuant to Rule 23 of the Federal Rules
of Appellate Procedure.   On September 23, 2015, over Beltrán’s
objection, we granted the government’s motion to transfer.
R.M.B. thereafter was moved to California, where he is presently
detained.   In accordance with Rule 23(a), we have substituted
R.M.B.’s current custodian, Brent Cardall, for Darryl Poston as
the lead respondent in this appeal.



                                            16
government    maintains      that   Beltrán’s      petition       sought    judicial

review of discretionary and factual decisions of administrative

agencies     —    in    particular,      the       Border     Patrol’s      initial

determination that R.M.B. was a UAC and the Office’s denial of

family reunification — that are not subject to challenge by way

of habeas corpus.       Beltrán answers that her contentions involve

questions of statutory interpretation and constitutional rights

that are cognizable under § 2241.              Specifically, she maintains

that R.M.B. is not a UAC as a matter of federal law, that the

Office   lacks    statutory    authority      to     detain   UACs      after    their

immigration      proceedings    have     terminated,        and    that     R.M.B.’s

continuing detention contravenes substantive and procedural due

process.

     Section     2241   of     Title   28,     the     general     habeas       corpus

statute,   provides     that    habeas      corpus     relief     can     extend   to

several classes of persons, including those “in custody under or

by color of the authority of the United States” and those “in

custody in violation of the Constitution or laws or treaties of

the United States.”          See 28 U.S.C. § 2241(c)(1), (3).                   It is

undisputed that R.M.B. is “in custody” under the authority of

the United States.        Moreover, Beltrán’s petition alleges that

R.M.B.’s custody is in violation of federal statutes and the

Constitution.      Accordingly, we are satisfied that subject matter

jurisdiction exists with respect to Beltrán’s § 2241 petition.

                                       17
      We are also of the view that the issues pursued by Beltrán,

on behalf of her son, are properly within the scope of this

habeas corpus proceeding.             Beltrán contends that the Office is

holding      R.M.B.    pursuant       to     “the    erroneous       application     or

interpretation” of applicable statutes.                    See Boumediene v. Bush,

553   U.S.    723,    779    (2008)   (internal          quotation    marks    omitted)

(observing     that    it    is    “uncontroversial”         that     such    statutory

claims are cognizable in habeas corpus proceedings).                          She also

maintains      that    her    son’s        detention      contravenes        the   Fifth

Amendment’s Due Process Clause.                  See Fay v. Noia, 372 U.S. 391,

402 (1963) (“[T]here is nothing novel in the fact that today

habeas corpus in the federal courts provides a mode for the

redress of denials of due process of law.”), overruled in part

on other grounds by Wainwright v. Sykes, 433 U.S. 72 (1977).

Beltrán’s     contentions         therefore       fall    within     the   traditional

scope of § 2241 habeas corpus review. 7


      7The vast majority of federal habeas corpus proceedings are
pursued under 28 U.S.C. § 2254 by state prisoners seeking post-
conviction relief on the ground that their custody violates the
Constitution or federal law. As one of our sister circuits has
explained, § 2254 does not create an independent remedy apart
from § 2241, but merely imposes “a limitation on the preexisting
authority under § 2241(c)(3) to grant the writ of habeas corpus
to state prisoners.”    See Medberry v. Crosby, 351 F.3d 1049,
1060 (11th Cir. 2003).      Federal prisoners, by contrast, are
afforded a remedy separate and apart from habeas corpus under
§ 2241 — a motion, pursuant to 28 U.S.C. § 2255, to vacate, set
aside, or correct a sentence. Although the § 2255 remedy is not
considered a habeas corpus proceeding, see Medberry, 351 F.3d at
(Continued)
                                            18
                                             III.

          Being    satisfied    that    we    possess          jurisdiction,          we   first

proceed to the merits of Beltrán’s statutory contentions.                                     We

review the district court’s factual findings for clear error and

its       legal    conclusions    de    novo.            See    supra   note      5    (citing

Billings v. Polk, 441 F.3d 238, 243 (4th Cir. 2006)).

                                              A.

          The care and custody of UACs by the government is governed

by    a    legal    framework     consisting            primarily     of    two   statutory

provisions — § 279 of Title 6 and § 1232 of Title 8 — plus a

settlement agreement that is binding on the pertinent federal

agencies.         At the outset of our discussion, we identify relevant

aspects of that framework, as well as some historical context.

                                              1.

          Prior    to   2003,   the    INS    was       charged      with   the       care   and

custody of alien children who were arrested in this country on

suspicion of being deportable, and who had no responsible parent

or    legal       guardian.      The   INS,        an    arm    of   the    Department       of



1057, the standards governing § 2255 motions are similar to
those established in § 2254. A federal prisoner may seek habeas
corpus relief pursuant to § 2241 only if “the remedy by [§ 2255]
motion is inadequate or ineffective to test the legality of his
detention.”   See 28 U.S.C. § 2255(e).   Put succinctly, neither
§ 2254 nor § 2255 applies to this proceeding, because R.M.B. is
neither in custody pursuant to a state court judgment nor
serving a sentence imposed by a federal court.



                                              19
Justice,      was     also      responsible          for     prosecuting         removal

proceedings against such children in the immigration courts.

      In 1985, several juvenile aliens in INS custody initiated a

class action in the Central District of California challenging

INS policies regarding the detention of alien children.                               That

litigation wound its way through the federal court system —

including the Supreme Court, see Reno v. Flores, 507 U.S. 292

(1993) — for twelve years before the parties entered into a

court-approved        settlement       agreement       in     1997     (the      “Flores

Agreement”).        The   Flores      Agreement      established       a    “nationwide

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

the   custody    of   the     INS.”        See   Flores     Agreement       ¶ 9.      The

Agreement   is      binding     on   all    successor       agencies       to   the   INS,

including the Office — subject, of course, to changes in the

applicable statutes. 8

      The Flores Agreement spells out a general policy favoring

less restrictive placements of alien children (rather than more

restrictive     ones)     and   their      release    (rather    than       detention).

The Agreement contemplates that, unless detention is necessary

      8The Office recognizes its continuing obligations under the
Flores Agreement. See Office of Refugee Resettlement, ORR Guide
to Children Entering the United States Unaccompanied § 3.3
(2015),    http://www.acf.hhs.gov/programs/orr/resource/children-
entering-the-united-states-unaccompanied-section-3#3.3
(outlining obligations imposed by Flores Agreement on Office’s
care provider facilities).



                                           20
to   ensure     a    child’s       safety   or    his    appearance    in    immigration

court,     he       must    be      released      “without     unnecessary        delay,”

preferably to a parent or legal guardian.                      See Flores Agreement

¶ 14.    The appropriate agency may, however, require a “positive

suitability         assessment”       before      releasing     the     child     to   the

custody of any individual or program.                    Id. ¶ 17.

      The Flores Agreement specifies that, when an alien child is

not released, he ordinarily should “be placed temporarily in a

licensed      program      until     such   time    as    release     can    be   effected

. . .    or     until      [his]    immigration         proceedings    are    concluded,

whichever       occurs     earlier.”        See    Flores    Agreement       ¶ 19.     The

child may be detained in a secure facility only under specified

limited circumstances, and then only when no less restrictive

alternative is “available and appropriate.”                    Id. ¶¶ 21, 23.

                                             2.

      In November 2002, Congress and the President enacted the

Homeland Security Act (the “HSA”), which “brought under a single

umbrella” most of the federal agencies responsible for securing

the border and administering the immigration laws.                            See Tabbaa

v. Chertoff, 509 F.3d 89, 92 (2d Cir. 2007).                        The HSA abolished

the INS and transferred most of its functions to agencies within

the newly created Department of Homeland Security (the “DHS”),

including the Border Patrol.                The HSA carved out of that general

transfer to the DHS the “functions under the immigration laws

                                             21
. . . with respect to the care of [UACs] that were vested by

statute in, or performed by, the [INS].”         See 6 U.S.C. § 279(a).

All functions with respect to the care and custody of UACs were

transferred instead to the Office, as an agency of the DHHS.

Id.

       The HSA also created the UAC definition.            See 6 U.S.C.

§ 279(g)(2).      First, to qualify as a UAC, an individual must

have “no lawful immigration status in the United States.”               Id.

§ 279(g)(2)(A).     Second, the individual must be under the age of

eighteen.      See id. § 279(g)(2)(B).       And third, the alien child

must have either (i) “no parent or legal guardian in the United

States”; or (ii) “no parent or legal guardian in the United

States . . . available to provide care and physical custody.”

Id. § 279(g)(2)(C).

       The functions transferred to the Office include making and

implementing “placement determinations for all [UACs] who are in

Federal custody by reason of their immigration status.”             See 6

U.S.C. § 279(b)(1)(A)-(E).         In making such determinations, the

Office    is     required     to   consult     with   juvenile    justice

professionals and relevant DHS officials, in order to ensure

that   UACs    appear   at   immigration   proceedings;   that   UACs   are

protected from “smugglers, traffickers, or others who might seek

to victimize or otherwise engage them in criminal, harmful, or

exploitive activity”; and that UACs are not likely to pose a

                                     22
danger to themselves or others.                 Id. § 279(b)(2)(A).           Finally,

although    the    Office    is    charged      with   the     care,   custody,     and

placement    of    UACs,    the    responsibility        for     making   immigration

benefit determinations — such as asylum, naturalization, and

adjustment of status — rests with appropriate officials within

the DHS, the Department of Justice, and the State Department.

See id. § 279(c).

                                          3.

     In    2008,    six    years   after     the   HSA     was    enacted,    Congress

modified the statutes concerning UACs by adoption of the William

Wilberforce Trafficking Victims Protection Reauthorization Act

of 2008 (the “Wilberforce Act”).                   The provisions relating to

UACs are found in § 235 of the Wilberforce Act, most of which

are codified at 8 U.S.C. § 1232.                   Congress therein reiterated

that responsibility for “the care and custody of all [UACs],

including         responsibility          for      their         detention,       where

appropriate,”      rests    with    the    DHHS    Secretary.          See    8   U.S.C.

§ 1232(b)(1).       Any other federal agency holding a UAC is duty-

bound to “transfer the custody of such child” to the Office “not

later than 72 hours after determining that such child is” a UAC.

Id. § 1232(b)(3). 9


     9 The Wilberforce Act makes reference to responsibilities
being vested in the DHHS Secretary, whereas the HSA refers to
responsibilities being vested in the Office, which is part of
(Continued)
                                          23
      The    Wilberforce       Act     contained       provisions    governing       the

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

the   Office      shall      “promptly”        place    a   UAC     “in     the    least

restrictive      setting      that    is   in    the    [UAC’s]     best    interest,”

subject     to   the   need    to     ensure    the    UAC’s   safety      and    timely

appearance       at      immigration        hearings.             See       8     U.S.C.

§ 1232(c)(2)(A).        The Office “shall not” place a UAC in a secure

facility “absent a determination that the [UAC] poses a danger

to self or others or has been charged with having committed a

criminal offense.”           Id.     In addition, the Office must review on

a monthly basis any placement of a UAC in a secure facility.

See id.

      The Wilberforce Act also delineated when the Office can

release a UAC to the custody of a third party.                       In particular,

pursuant to the suitable custodian requirement, the Office “may

not” place a UAC with a person or entity without first making “a

determination         that    the     proposed     custodian        is     capable    of

providing for the [UAC’s] physical and mental well-being.”                           See

8 U.S.C. § 1232(c)(3)(A).               Furthermore, “[b]efore placing the

[UAC] with an individual,” the Office must determine whether a



the DHHS. Neither Beltrán nor the government has suggested that
this distinction has any impact on this appeal.    As pertinent
here, the term “DHHS Secretary” also means “the Office,” and
vice versa.



                                           24
home study is necessary.          Id. § 1232(c)(3)(B).            Conducting a

home study is mandatory in some circumstances, including for any

UAC “whose proposed sponsor clearly presents a risk of abuse,

maltreatment, exploitation, or trafficking to the child.”                   Id.

                                        B.

      Beltrán’s   first   statutory      contention    is   that    the     Office

lacks the authority to detain R.M.B. because, as a matter of

law, he neither is nor has ever been a UAC.                       Specifically,

Beltrán contends that R.M.B. is not a UAC because she was and is

“available to provide care and physical custody” to him within

the    meaning    of      the     UAC        definition.    See       6     U.S.C.

§ 279(g)(2)(C)(ii).       In    particular,      Beltrán    insists       that    the

term “available” simply means “easy or possible to get or use,”

and that the UAC definition thus does not include an assessment

of a parent’s fitness or suitability as a custodian.                  See Br. of

Appellant 19 (internal quotation marks omitted).

      As always, “[t]he starting point for any issue of statutory

interpretation . . . is the language of the statute itself.”

See United States v. Bly, 510 F.3d 453, 460 (4th Cir. 2007).                       If

“the language at issue has a plain and unambiguous meaning with

regard to the particular dispute,” that meaning controls.                         Id.

(internal   quotation     marks    omitted).          Critically,         the    UAC

definition does not refer, as Beltrán suggests, to a parent’s

availability in a general sense.                Rather, it asks whether a

                                        25
parent is “available to provide care and physical custody.”                        See

6 U.S.C. § 279(g)(2)(C)(ii) (emphasis added).                      The word “care”

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

health,     welfare,      maintenance,     and      protection     of   someone        or

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

2004).     Consequently, to be “available to provide care” for a

child, a parent must be available to provide what is necessary

for the child’s health, welfare, maintenance, and protection.

And a parent who is not “capable of providing for the child’s

physical and mental well-being” — as mandated by the suitable

custodian    requirement      of   8   U.S.C.       § 1232(c)(3)(A)      —   is    not

available to provide what is necessary for the child’s health,

welfare, maintenance, and protection.

     In    these    circumstances,       we   are    unable   to    conclude      as    a

matter of law that R.M.B. is not a UAC.                The Office found, after

conducting    a    home    study   and    gathering      other     evidence,      that

Beltrán was incapable of providing for R.M.B.’s physical and

mental well-being.         In her reply brief, Beltrán insists that she

is not seeking review of the Office’s finding that she is not a

suitable    custodian,      even   though     she     “unequivocally      disputes”

that finding and contends that the procedures utilized to reach

it were unfair.        See Reply Br. of Appellant 27.                   Because the

Office’s unsuitability finding establishes that Beltrán is not

available to provide care and physical custody of R.M.B., we

                                         26
cannot    say    that    R.M.B.’s       detention       is    based    on    an    erroneous

application       or     interpretation         of      the   UAC     definition.         We

therefore reject Beltrán’s first statutory contention. 10

                                               C.

     Beltrán’s second statutory contention is that the Office

lacks     authority      to     detain    R.M.B.        now    that    his       immigration

proceedings       have    terminated.           Concomitantly,         Beltrán       asserts

that the Flores Agreement bars the detention of R.M.B. by the

Office upon termination of those proceedings.                          In response, the

government       maintains      that     the    suitable       custodian         requirement

precludes       the    Office    from    releasing        a   UAC     to    an    unsuitable

custodian even though the child’s immigration proceedings have

concluded.        It also contends that, to the extent the Flores

Agreement    bars       the   detention        of   a   UAC   after    his immigration

proceedings have concluded, the Agreement was superseded in 2008

when the suitable custodian requirement was enacted.




     10 We need not address the propriety of the Border Patrol’s
initial UAC determination with respect to R.M.B.    The question
before the district court — and now before us — is whether
R.M.B.’s current detention complies with federal statutes and
the Constitution.   Even if the Border Patrol incorrectly found
R.M.B. to be a UAC, the Office’s subsequent determination that
Beltrán is not capable of providing for R.M.B.’s physical and
mental well-being establishes her unavailability, and thus
confirms R.M.B.’s present status as a UAC.



                                               27
                                            1.

       Read in isolation, the suitable custodian requirement is

clear:       a UAC “may not be placed with a person or entity unless

the [Office] makes a determination that the proposed custodian

is    capable      of    providing   for   the   [UAC’s]   physical      and    mental

well-being.”            See 8 U.S.C. § 1232(c)(3)(A).          Beltrán contends,

however, that other parts of the statutory scheme, as well as

the Flores Agreement, limit the authority of the Office over

UACs to those involved in pending immigration proceedings.                        She

therefore maintains that the suitable custodian requirement is

inapplicable to those UACs — such as R.M.B. — who are not

involved in such proceedings.

       Beltrán is correct that, as a general proposition, an alien

may    not    be    detained    after      his   immigration     proceedings     have

terminated.        See 8 U.S.C. § 1226(a) (“On a warrant issued by the

Attorney General, an alien may be arrested and detained pending

a decision on whether the alien is to be removed from the United

States.”).         The Flores Agreement also recognizes that, generally

speaking,       the      detention   of     an   alien   child    must    end    when

immigration proceedings terminate.                  See Flores Agreement ¶ 19

(providing that, if the INS does not release a minor, the minor

“shall remain in INS legal custody . . . until such time as

release can be effected . . . or until the minor’s immigration

proceedings are concluded, whichever occurs earlier”).

                                            28
      As a rule of statutory construction, however, the specific

terms of a statutory scheme govern the general ones.                          See RadLAX

Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2071

(2012).       The general-specific rule is particularly applicable

where      “Congress      has   enacted   a    comprehensive         scheme     and   has

deliberately          targeted       specific        problems         with      specific

solutions,” id. (internal quotation marks omitted), as it has

done in the immigration context.

      Moreover,        the      general-specific      rule      is     “perhaps       most

frequently applied to statutes in which a general permission or

prohibition      is       contradicted    by    a     specific        prohibition       or

permission.”        See RadLAX, 132 S. Ct. at 2071.                   This proceeding

presents     such     a   contradiction.        On    the    one      hand,    8   U.S.C.

§ 1226(a) confers general authority — on the Office with respect

to UACs, and on the DHS otherwise — to detain aliens only during

the pendency of immigration proceedings. 11                    On the other hand,

the   suitable      custodian      requirement       imposes     on    the     Office    a

      11By its terms, § 1226(a) of Title 8 lodges the power to
detain aliens in the Attorney General, and not in either the
Office or the DHS.       The HSA, however, transferred alien
detention functions from the INS, an agency of the Department of
Justice, to the Office for UACs, and to the Under Secretary for
Border and Transportation Security within the DHS for aliens who
are not UACs.    See 6 U.S.C. §§ 251(2), 279.    Pursuant to the
HSA’s savings provisions, the reference to the Attorney General
in § 1226(a) with respect to the detention function must be
“deemed to refer” to the appropriate officials of those
transferee agencies. See 6 U.S.C. §§ 279(e)(1), 552(d), 557.



                                          29
specific     prohibition     against     releasing   UACs    to       unsuitable

custodians.    Thus, in order to “eliminate the contradiction,” we

are obliged to construe the suitable custodian requirement “as

an exception to” the general rule that an alien’s detention ends

when his immigration proceedings are terminated.             Id. 12

                                       2.

     The general-specific rule of statutory construction, like

other     interpretive     canons,     can   be   overcome   by       sufficient

indications of a contrary legislative intent.            See S.C. Dep’t of

Health & Envt’l Control v. Commerce & Indus. Ins. Co., 372 F.3d

245, 258 (4th Cir. 2004).            To overcome the presumption that a

specific statutory provision controls a general one, Congress’s

contrary intent must be “clear.”             See Crawford Fitting Co. v.

J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987).                 We employ the

customary tools of construction to determine whether a clear

intent exists, interpreting relevant statutory terms “not in a

     12 Beltrán contends that yet another canon of statutory
construction — the presumption against implied repeals —
requires us to read the suitable custodian requirement as
limited by the existing restriction in 8 U.S.C. § 1226(a) on
detention to the pendency of immigration proceedings.           But the
suitable custodian requirement did not repeal § 1226(a) by
implication;    it   simply   carved    out    an   exception   to  its
application.     See Strawser v. Atkins, 290 F.3d 720, 733 (4th
Cir. 2002) (rejecting repeal-by-implication argument where later
statute “simply created a specific, discrete exception” to
earlier   one).       Accordingly,   we    are    satisfied   that  the
presumption against implied repeals has no application in this
matter.



                                       30
vacuum, but with reference to the statutory context, structure,

history, and purpose.”              See Abramski v. United States, 134 S.

Ct. 2259, 2267 (2014) (internal quotation marks omitted).

                                          a.

       To     support    her    contention     that   the     suitable       custodian

requirement does not apply to a UAC who, like R.M.B., is not in

immigration proceedings, Beltrán relies on a number of statutory

provisions.           First,    she   emphasizes      provisions        of   the    HSA

defining the scope of the Office’s authority, starting with its

transfer from the INS to the Office of the “functions under the

immigration laws . . . with respect to” UACs.                           See 6 U.S.C.

§ 279(a).       Beltrán maintains that detaining alien children after

the termination of immigration proceedings was never a function

of the INS under the immigration laws.                She also emphasizes that

two of the duties transferred to the Office are defined in terms

of     UACs    “who     are    in   Federal    custody   by    reason        of    their

immigration status.”            Id. § 279(b)(1)(A), (C).            Beltrán argues

that the phrase “by reason of their immigration status” suggests

that Congress understood that UACs would be detained only while

their immigration proceedings were pending.                       Finally, Beltrán

emphasizes the HSA’s general savings provisions, codified at 6

U.S.C. § 552.           Subsection (a) of § 552 provides, inter alia,

that     “completed       administrative        actions”      —     a     term     that

encompasses settlement agreements like the Flores Agreement —

                                          31
“shall not be affected by the enactment of [the HSA] . . . , but

shall    continue        in     effect     . . .           until       amended,         modified,

superseded, terminated, set aside, or revoked in accordance with

law.”    See also 6 U.S.C. § 279(f)(2) (confirming that § 552(a)

savings provision applies to transfer of functions from INS to

Office   “in     the     same    manner”        as    it     applies        to     transfer      of

functions from INS to DHS agencies).

     The    foregoing         provisions        support         the    argument         that     the

authority    the    HSA       transferred       to    the       Office      did       not    include

custodial      authority        over     UACs        not    involved          in      immigration

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

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

proceedings,       and    the     suitable           custodian         requirement,           which

precludes    the    Office       from    releasing          a    UAC     to      an    unsuitable

custodian.       The HSA provisions, however, provide little guidance

on how that tension should be resolved.                          The HSA’s transfer-of-

authority provisions were enacted in 2002 — six years before the

suitable    custodian         requirement       became          law.        For       that    reason

alone,     the     transfer-of-authority               provisions           do        not    reveal

Congress’s       intent       with     respect        to     the       suitable         custodian

requirement.           Moreover,        that     Congress             saw     fit       to    alter

provisions       governing       UACs    just        six     years       after         the    HSA’s

enactment suggests that Congress was not entirely satisfied with

the existing statutory scheme.

                                            32
       Beltrán also maintains, however, that other provisions in 8

U.S.C.    § 1232    —     enacted     contemporaneously          with   the   suitable

custodian    requirement       in    2008    —    show    that    Congress    did    not

intend to authorize the continued detention of UACs after the

conclusion of their immigration proceedings.                     In particular, she

contends    that,    because        § 1232(b)(1)      delegates     the   “care      and

custody” of UACs to the Office “[c]onsistent with section 279 of

Title 6,” and because § 279 does not permit the detention of

UACs     after     immigration        proceedings         have    concluded,        such

detentions       cannot   be   authorized        by   § 1232.      Beltrán    further

argues that § 1232(c)(3)(B)’s mandate that the Office “conduct

follow-up services, during the pendency of removal proceedings,

on children for whom a home study was conducted,” demonstrates

Congress’s intent that the Office, like the INS before it, is

entitled to detain UACs only while immigration proceedings are

ongoing.

       In our view, the provisions of § 1232 invoked by Beltrán

fail to overcome the presumption created by the general-specific

rule.      First, in § 1232(b)(1), the phrase “[c]onsistent with

section 279 of Title 6” does not qualify or limit the grant to

the Office of “responsibility” for “the care and custody of all”

UACs.        Rather,       that      phrase      simply     reflects      Congress’s

recognition that the responsibility identified in § 1232(b)(1)

had been previously conferred on the Office by § 279.                         It does

                                            33
not show any congressional intent that the general limitation on

detention authority to a period when immigration proceedings are

pending     would     take        precedence     over   the   specific     suitable

custodian requirement.

      Finally, the portion of § 1232(c)(3)(B) that requires the

Office to conduct follow-up services for certain UACs “during

the pendency of removal proceedings” likewise fails to overcome

the presumption that the specific statutory provision controls

the general one.        Congress’s decision to limit mandatory follow-

up   services    to    the    pendency     of    removal   proceedings     does    not

clearly show that Congress intended to similarly limit other

statutory        responsibilities,               including       the       Office’s

administration of the suitable custodian requirement.                         Indeed,

it   is    entirely     implausible       that     Congress   would    bury    in    a

subparagraph concerned with follow-up services so significant a

limitation      on    the    Office’s     authority.       See   Whitman      v.    Am.

Trucking     Ass’ns,        531    U.S.   457,    468   (2001)   (observing        that

Congress does not “hide elephants in mouseholes”). 13




      13 There   is   an  additional   reason   that  8   U.S.C.
§ 1232(c)(3)(B) fails to illuminate congressional intent to
limit the Office’s authority over UACs to those involved in
ongoing immigration proceedings.     That is, in addition to
mandating some follow-up services during the pendency of removal
proceedings, § 1232(c)(3)(B) also authorizes (but does not
require) follow-up services for UACs “with mental health or
other needs who could benefit from ongoing assistance from a
(Continued)
                                           34
                                                b.

       The broader statutory scheme governing UACs, as well as

Congress’s purpose in enacting § 1232 of Title 8, reinforces our

conclusion       that     the        Office’s        responsibility      for    the       care,

custody, and placement of UACs is not limited to the pendency of

immigration proceedings.               A contrary reading would undermine the

web of statutory provisions designed to protect UACs.

       Section 1232 of Title 8 addresses the treatment of UACs

throughout the immigration process, from arrest to either legal

status or repatriation.                 It requires all federal agencies to

transfer to the Office custody of any child determined to be a

UAC    within    seventy-two          hours     of     that   determination.           See    8

U.S.C. § 1232(b)(2), (3).                 The DHHS Secretary and the Office

shoulder    the    responsibility             for      providing   care        to   UACs     in

federal      custody           and      for      making       appropriate           placement

determinations.           See id. § 1232(b)(1), (c)(1)-(3).                         They are

also    charged         with     ensuring        that      UACs    are     appropriately

represented in removal proceedings instituted by the DHS.                                  See

id. § 1232(c)(5)-(6).

       Section 1232 also deals with the repatriation of UACs to

their     home    countries.             Paragraph        (a)(1)    directs         the    DHS



social welfare agency.”     Notably, that authorization                               is   not
limited to the pendency of removal proceedings.



                                                35
Secretary, in conjunction with the DHHS Secretary, the Secretary

of State, and the Attorney General, to “develop policies and

procedures to ensure that [UACs] in the United States are safely

repatriated to their country of nationality or of last habitual

residence.”           Subparagraph         (a)(5)(A)        obliges    the    Secretary      of

State, in conjunction with the Secretaries of DHS and DHHS, non-

governmental           organizations,                “and      other        national        and

international agencies and experts,” to create a pilot program

“to develop and implement best practices to ensure the safe and

sustainable repatriation and reintegration of [UACs] into their

country     of        nationality          or   of      last     habitual         residence.”

Subparagraph (a)(5)(B) requires the DHS Secretary to consider

the   State       Department’s             Country      Reports        on    Human     Rights

Practices,       as    well    as    the    Trafficking         in   Persons      Report,    in

determining whether to repatriate a UAC to a particular country.

And subparagraph (a)(5)(C) mandates that the Secretary of State

and   the    DHHS       Secretary,          with      the     assistance      of     the    DHS

Secretary,       report       to    congressional           committees      “on   efforts    to

improve repatriation programs for” UACs. 14


      14Under § 1522 of Title 8, UACs who obtain affirmative
relief in immigration proceedings, such as asylum or adjustment
of status, are covered by another program administered by the
Office — the unaccompanied refugee minor (“URM”) program. Under
the URM program, the Office seeks to arrange for the prompt and
appropriate placement of unaccompanied refugee children pursuant
to state law.     See 8 U.S.C. § 1522(d)(2)(B).      Until such
(Continued)
                                                36
     The intricate web of statutory provisions relating to UACs

reflects     Congress’s            unmistakable     desire        to        protect    that

vulnerable group.             The statutory heading of 8 U.S.C. § 1232 —

“Enhancing       efforts      to   combat   the    trafficking         of    children”    —

confirms that purpose.              See United States v. Hatcher, 560 F.3d

222, 226 (4th Cir. 2009) (explaining that statutory heading or

title may be considered in interpreting ambiguous statute).

     Beltrán’s          position       concerning      the        statutory       scheme,

however, would deny the protection of those statutory provisions

to an entire category of UACs:               those who have received deferred

action     but    not      adjustment       of    status     to    lawful       permanent

resident.         If    her    argument     prevailed,      the     Office      would    be

obliged to release such a UAC to a parent or legal guardian,

even if the parent or legal guardian openly stated an intention

to harm the child.

     When a statute is subject to two contrary interpretations,

we should adopt the one that “effectuates rather than frustrates

the major purpose of the legislative draftsmen.”                        See Shapiro v.

United   States,        335    U.S.    1,   31    (1948).         In    our    view,     the

government’s interpretation of the statutory scheme is entirely



placement   is   accomplished,   the   Office has   the “legal
responsibility” for a URM and may “make necessary decisions to
provide    for    the    [URM’s]    immediate  care.”      Id.
§ 1522(d)(2)(B)(ii).



                                            37
consistent     with   Congress’s      purpose        of   protecting           UACs   from

trafficking and exploitation.              Beltrán’s preferred reading, by

contrast, is at odds with that purpose. 15

                                        3.

      Again,     we     require       clear       indications            of      contrary

congressional    intent       to   overcome      the   rule    that      the     specific

statutory    provision    controls      the      general      one.       See     Crawford

Fitting Co., 482 U.S. at 445.                 Our examination of the text,

context,     history,    structure,        and     purpose        of     the    relevant

statutory provisions reveals no clear intent of Congress that

the   general    rule    —     that   an     alien     must     be      released      upon

termination of his immigration proceedings — controls against

the specific and categorical prohibition barring the release of

a UAC to an unsuitable custodian.                Moreover, a contrary reading

would frustrate Congress’s primary purpose for enacting 8 U.S.C.

§ 1232 — protecting UACs from trafficking and exploitation —

with respect to those UACs who have received deferred action.

Accordingly,     we     are    satisfied      that,        even        after     R.M.B.’s

      15Beltrán and the government each point to asserted
legislative history supporting their separate positions.     The
post-enactment statements on which Beltrán relies, however, are
“in no sense part of the legislative history” of 8 U.S.C. § 1232
and do not assist our interpretive endeavor.         See United
Airlines, Inc. v. McMann, 434 U.S. 192, 200 n.7 (1977),
superseded by statute as stated in Gen. Dynamics Land Sys., Inc.
v. Cline, 540 U.S. 581 (2004).        Meanwhile, the government
unhelpfully relies on generalized statements made on the Senate
floor about a proposed bill that did not pass.


                                        38
immigration proceedings concluded, the Office was not entitled

to release him to anyone unless it first determined that the

proposed custodian was capable of providing for his physical and

mental well-being.



                                      IV.

       We turn now to Beltrán’s constitutional contentions, which

we review de novo.       See Darden v. Peters, 488 F.3d 277, 284 (4th

Cir.    2007).      Beltrán     asserts     that       the   Office’s   continuing

detention      of   R.M.B.     contravenes       the    Fifth   Amendment’s     Due

Process Clause.       That Clause provides that no person shall be

“deprived of life, liberty, or property, without due process of

law.”    See U.S. Const. amend. V.           Like its Fourteenth Amendment

counterpart, Fifth Amendment due process has both “substantive

and procedural components.”          See Snider Int’l Corp. v. Town of

Forest Heights, Md., 739 F.3d 140, 145 (4th Cir. 2014); see also

Martin v. St. Mary’s Dep’t of Soc. Servs., 346 F.3d 502, 511

(4th Cir. 2003) (explaining that due process “guarantees more

than    fair   process   and    includes     a   substantive      component   that

provides heightened protection against government interference

with    certain     fundamental     rights”       (internal     quotation     marks

omitted)).       Beltrán maintains that the Office has contravened




                                       39
both components of due process.                 We address those contentions in

turn. 16

                                           A.

      We begin with Beltrán’s substantive due process claim.                          The

substantive component of due process “bar[s] certain government

actions regardless of the fairness of the procedures used to

implement them.”           See Daniels v. Williams, 474 U.S. 327, 331

(1986).     We have characterized substantive due process as “far

narrower in scope than procedural due process.”                       See Plyler v.

Moore, 100 F.3d 365, 374 (4th Cir. 1996).                       As one of our sister

circuits        has     explained,      there     are     “two     strands       of   the

substantive due process doctrine.”                  See Seegmiller v. LaVerkin

City, 528 F.3d 762, 767 (10th Cir. 2008).                          The first strand

protects        rights    that   are    “fundamental,”          whereas    the    second

“protects against the exercise of governmental power that shocks

the conscience.”         Id.

      In this appeal, Beltrán invokes only the fundamental rights

strand     of    substantive      due    process.         She    contends    that     the

Office’s refusal to release R.M.B. to her custody impermissibly

interferes       with    his     fundamental      right    to     family    integrity.

      16
       It is appropriate to observe that “the Due Process Clause
applies to all ‘persons’ within the United States, including
aliens, whether their presence here is lawful, unlawful,
temporary, or permanent.” See Zadvydas v. Davis, 533 U.S. 678,
693 (2001).



                                           40
Relying on the Supreme Court’s 1993 decision in Reno v. Flores,

507 U.S. 292 (1993), the government responds that Beltrán has

failed to identify any “fundamental liberty interest at issue in

this case.”     See Br. of Appellee 42.

     The      identification     of     those    rights      that   implicate

substantive due process “has not been reduced to any formula.”

See Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015) (internal

quotation marks omitted).             At minimum, however, they include

those “deeply rooted in this Nation’s history and tradition.”

See Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal

quotation marks omitted).        This proceeding involves “perhaps the

oldest of the fundamental liberty interests recognized by” the

Supreme Court — “the interest of parents in the care, custody,

and control of their children.”             See Troxel v. Granville, 530

U.S. 57, 65 (2000) (plurality opinion).                We have agreed that

“few rights” are “more fundamental in and to our society than

those    of   parents   to   retain   custody   over   and   care   for   their

children, and to rear their children as they deem appropriate.”

See Jordan ex rel. Jordan v. Jackson, 15 F.3d 333, 342 (4th Cir.

1994).     Just as parents possess a fundamental right with respect

to their children, children also enjoy a “familial right to be

raised and nurtured by their parents.”           See Berman v. Young, 291

F.3d 976, 983 (7th Cir. 2002).



                                       41
       The fundamental right of a parent to control the upbringing

of her child, however, is “neither absolute nor unqualified.”

See Martin, 346 F.3d at 506.           Rather, that right is “subject to

the child’s interest in his personal health and safety and the

state’s interest as parens patriae in protecting that interest.”

See White ex rel. White v. Chambliss, 112 F.3d 731, 735 (4th

Cir. 1997).     On several occasions, we have upheld state policies

designed to effectuate the parens patriae interest.                    See, e.g.,

White, 112 F.3d at 736; Jordan, 15 F.3d at 343-44.

       In most situations — such as in the White and Jordan cases

— the constitutionality of state actions that interfere with

family    integrity    depends    on   the    adequacy     of   the    procedures

available to contest them.         Nevertheless, the Supreme Court has

recognized     that    certain     intrusions       into    the     parent-child

relationship may be so flagrant as to be invalid even if a fair

process is afforded.         See Troxel, 530 U.S. at 67 (sustaining fit

parent’s substantive due process challenge to statute providing

for    mandatory    third-party     visitation      with    court      approval);

Pierce v. Soc’y of Sisters of Holy Names of Jesus & Mary, 268

U.S.   510    (1925)   (invalidating      statute    requiring        children   to

attend public school through age sixteen); Meyer v. Nebraska,

262    U.S.   390   (1923)    (striking     down   prohibition      on   teaching

languages other than English below ninth grade and teaching in

other than English); see also Stanley v. Illinois, 405 U.S. 645

                                       42
(1972)     (holding      unconstitutional              statutory     scheme     allowing

children    of   unwed    father       to    be    declared       dependent     on   state

absent finding     of     unfitness).             In   each   of    those   situations,

however, the challenged statute allowed a state to override the

decisions of fit parents — i.e., those considered capable of

providing    for   their     children’s            needs.         Conversely,    when    a

state’s interference with parental control is predicated on a

determination that the parent is unable to provide adequate care

for a child, such interference does not contravene substantive

due process, at least in the absence of governmental action that

shocks the conscience.            Cf. Troxel, 530 U.S. at 68 (explaining

that “there is a presumption that fit parents act in the best

interests of their children” (emphasis added)).

       In this situation, the Office has denied Beltrán’s request

that R.M.B. be released to her custody, deciding that Beltrán is

incapable of providing for R.M.B.’s physical and mental well-

being.     That determination suffices to address any substantive

due process concerns, and it renders inapposite those decisions

involving    challenges      to     state         interference      with    control     of

children    by   fit     parents.           Accordingly,      we     reject     Beltrán’s

substantive due process claim.

                                             B.

       We thus reach Beltrán’s final contention:                      that R.M.B. has

been   denied    his     right    to    procedural          due    process.      Beltrán

                                             43
contends that the government has violated due process by failing

to provide R.M.B. with a proper hearing before a judge or some

other “impartial, competent adjudicator.”                     See Br. of Appellant

44-46.     The government, on the other hand, responds that it has

provided    sufficient      mechanisms         for    challenging      the   Office’s

determination that Beltrán is unable to provide for R.M.B.’s

care and custody, which Beltrán utilized.

                                          1.

     The     procedural          component       of     due     process       “imposes

constraints on governmental decisions which deprive individuals

of ‘liberty’ or ‘property’ interests within the meaning of the

Due Process Clause.”            See Mathews v. Eldridge, 424 U.S. 319, 332

(1976).     The Office’s continuing detention of R.M.B. implicates

protected liberty interests, and the government does not contend

otherwise.     And       when    the   government      deprives    a   person    of   a

protected liberty or property interest, it is obliged to provide

“notice and opportunity for hearing appropriate to the nature of

the case.”     See Mullane v. Cent. Hanover Bank & Tr. Co., 339

U.S. 306, 313 (1950).

     Typically,      a    procedural      due    process      issue    is    evaluated

under the balancing standard that the Supreme Court articulated

in 1976 in Mathews v. Eldridge.                See Hamdi v. Rumsfeld, 542 U.S.

507, 529-30 (2004) (plurality opinion) (explaining that Mathews

provides “ordinary mechanism” to determine what process is due);

                                          44
Santosky v.       Kramer,     455      U.S.   745,   754,     757   (1982)    (applying

Mathews to determine standard of proof essential to termination

of parental rights).              The Mathews framework consists of three

factors:

        (1) the nature of the private interest that will be
        affected, (2) the comparative risk of an erroneous
        deprivation   of  that   interest with and   without
        additional or substitute procedural safeguards, and
        (3) the nature and magnitude of any countervailing
        interest in not providing additional or substitute
        procedural requirements.

See Turner v. Rogers, 564 U.S. 431, 444-45 (2011) (alterations

and internal quotation marks omitted).

                                              2.

        In   denying    Beltrán’s       procedural      due    process    claim,     the

district      court     did      not    utilize      the    Mathews      v.   Eldridge

framework.        Indeed, neither of the parties advised the court of

the potential applicability of the Mathews decision.                            In its

Opinion,      however,      the     court      articulated      other    reasons     for

rejecting     the     procedural       due    process   claim.       Initially,      the

Opinion compared R.M.B.’s situation to those of the class of

plaintiffs in Flores.             The Opinion explained that, in Flores,

the Supreme Court deemed the procedural due process claim of the

alien    children      to   be    “merely      the   ‘substantive       due   process’

argument recast in procedural terms,” and ruled that procedural

due     process     “was    satisfied         by   giving     the    detained      alien

juveniles the right to a hearing before an immigration judge.”

                                              45
See D.B., 119 F. Supp. 3d at 487 (citing Flores, 507 U.S. at

307-09).      The Opinion then determined that “R.M.B. was afforded

the same right to a hearing before an immigration judge, where

his immigration proceedings were terminated.”                        Id.     Next, the

Opinion invoked the rationale advanced by the government in this

appeal:       Because the Office had provided — and Beltrán had

utilized — procedures for seeking family reunification, those

procedures “satisf[y] any constitutional scrutiny.”                        Id. at 488.

       There are several material distinctions between this case

and Flores, and we do not believe that Flores controls Beltrán’s

procedural due process claim.              First, Beltrán is seeking custody

of    her    own    son,   whereas   the    alien       children   in      Flores     were

seeking to be released to unrelated adults.                    Second, R.M.B. is

being held at a juvenile detention center; the Flores children,

by contrast, were in less secure facilities.                       See Flores, 507

U.S.    at    298    (explaining     that       alien     children      were    not     in

correctional        institutions     but    in    facilities       that      met    state

requirements for care of dependent children).                      Third, R.M.B. is

not    similarly     situated   to   the    Flores       plaintiffs,       in   that   no

immigration proceedings are pending against him.                        Cf. Demore v.

Kim, 538 U.S. 510, 523 (2003) (observing that “detention during

deportation proceedings [is] a constitutionally valid aspect of

the deportation process”).            Lastly, that R.M.B. was afforded a

brief hearing before an immigration judge is irrelevant to the

                                           46
procedural due process claim, because the Office possesses the

sole authority to order his release.              Accordingly, we reject the

district court’s conclusion that this claim fails under Flores.

      We likewise reject the district court’s determination —

endorsed by the government — that R.M.B. received sufficient

process     because     Beltrán       utilized          the      available         family

reunification    request     procedures.          The    mere     availability        and

utilization     of    some    procedures       does      not      mean      they    were

constitutionally      sufficient.          That    is,     the      Fifth    Amendment

guarantees “due process of law,” not just “some process of law.”

See Davidson v. City of New Orleans, 96 U.S. 97, 107 (1877)

(Bradley, J., concurring).

      Although we part company with the district court and the

government on the procedural due process issue, we also reject

Beltrán’s    contention      that   due    process       automatically        required

that R.M.B. be accorded a more substantial hearing prior to the

Office    rejecting   the    family    reunification           request.        As    the

Supreme Court explained in 1972 in Morrissey v. Brewer, “due

process is flexible and calls for such procedural protections as

the   particular     situation      demands.”        See      408    U.S.    471,     481

(1972).     For example, the “hearing” required by the Due Process

Clause need not be “an adversarial hearing, a full evidentiary

hearing, or a formal hearing.”             See Buckingham v. Sec’y of U.S.

Dep’t of Ag., 603 F.3d 1073, 1082 (9th Cir. 2010) (citations and

                                          47
internal quotation marks omitted); see also Bowens v. N.C. Dep’t

of Hum. Res., 710 F.2d 1015, 1020 (4th Cir. 1983) (“The judicial

model      of      an   evidentiary          hearing      is    not      a     steadfast

constitutional          requirement.”             (internal      quotation         marks

omitted)).        The basic requirements of notice and an opportunity

to   be    heard    demand     only    that       the   complaining     party    receive

notice of the reasons for the deprivation, an explanation of the

evidence against him, and “an opportunity to present his side of

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

532,      546    (1985).      Beyond    those       requirements,       the    need    for

procedural safeguards is ordinarily measured by the three-factor

framework established in Mathews v. Eldridge.

                                             3.

       As we noted above, the Mathews v. Eldridge framework was

not utilized in the district court.                      When a judgment has been

predicated on an erroneous legal standard, the proper remedy “is

usually     to    remand     for   a   determination        under     the    appropriate

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

2016)      (internal       quotation    marks       omitted).         That    remedy    is

warranted in this proceeding for several reasons.                             The three-

factor      Mathews     framework       is    “flexible”        and    highly     “fact-

specific.”        See Ciambriello v. Cty. of Nassau, 292 F.3d 307, 319

(2d Cir. 2002).            Moreover, the parties have not yet addressed

that standard and how it might impact this case.                       As a “court of

                                             48
review, not of first view,” we are ill-suited to apply the fact-

specific Mathews framework in the first instance.                See Lovelace

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

marks omitted).       We therefore vacate the judgment with respect

to   the   procedural   due   process    claim   and    remand   for   further

proceedings.



                                    V.

      Pursuant   to   the   foregoing,    we   affirm    the   judgment   with

respect to the statutory and substantive due process claims.               On

the procedural due process claim, however, we vacate and remand

for such other and further proceedings as may be appropriate.



                                                       AFFIRMED IN PART,
                                           VACATED IN PART, AND REMANDED




                                    49
FLOYD, Circuit Judge, dissenting:

      The majority thoughtfully explains the authority of various

federal government agencies over unaccompanied alien children.

But this case does not feature an unaccompanied alien child.

This case features an accompanied alien child.

      R.M.B.    is    a    child.   He     is    an   alien.     But    he   is    not

unaccompanied.        R.M.B.’s mother, Dora Beltrán, is here in the

United States.        She is a lawful permanent resident, J.A. 33, and

has   been     protesting     for   more      than    two    years    that   she   is

available to take custody of R.M.B.

      The agency here does not want to release R.M.B. because it

thinks that Beltrán is an unfit mother.                     Perhaps she is.        But

Congress     has     not    empowered    the     federal     Office    of    Refugee

Resettlement to seize children from bad parents.                     The Office is

only authorized to detain alien children whose parents are not

available in the United States.                 Because Beltrán is “available

to provide care” as defined in statute, the Office has no legal

authority to detain R.M.B.

      I am not insensitive to the majority’s unstated concern

that society is better off with R.M.B. in government custody.

If that is true, any number of state or other federal government

authorities may be legally authorized to act.                   But the question

in this case is whether the Office has authority.                     It does not.

I must respectfully dissent.

                                         50
                                        I.

       As the majority notes, Congress has conferred to the Office

the authority to detain unaccompanied alien children.                 Ante, at

23 & n.9.       Congress defines an “unaccompanied alien child” (UAC)

as a child who:

       (A) has no lawful immigration status in the United
           States;

       (B) has not attained 18 years of age; and

       (C) with respect to whom—

             (i)    there is no parent or legal guardian in the
                    United States; or

             (ii) no parent or legal guardian in the United
                  States is available to provide care and
                  physical custody.

6 U.S.C. § 279(g)(2).         Thus, to be a UAC an individual must

satisfy each of the three prongs:            (A), (B), and (C).

       R.M.B.    satisfies   prongs     (A)    and   (B)   of   the   statutory

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

not attained 18 years of age.”               Prong (C) can be satisfied in

one of two ways.        R.M.B. does not satisfy prong (C) the first

way; he has a parent, Beltrán, “in the United States.”                  Whether

or not R.M.B. is legally an “unaccompanied alien child”—and,

therefore, whether the Office has authority to detain him—thus

turns on whether or not he satisfies prong (C) the second way—

that   is,   whether    Beltrán   “is    available    to   provide    care   and

physical custody.”

                                        51
       Thus far, the majority and I agree.                              We also agree that in

interpreting the UAC statute, we begin with “the plain meaning

of the text.”             Trejo v. Ryman Hosp. Props., Inc., 795 F.3d 442,

446    (4th    Cir.       2015).           But    in     our     reading         of   “available       to

provide care,” the majority and I part ways.                                     I think the text

means just what it says:                      a child is not unaccompanied in the

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

is     available          to    provide          care;      R.M.B.       is       not,       therefore,

unaccompanied.

       The majority interprets the same text to mean “capable of

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

Ante, at 26.             There are several problems with this reading, not

the    least       of     which       is    that       it   is    not    what         the     statutory

definition says.               This interpretation also reads the key word—

“available”—out of the statute; whatever gloss the other words

place on “available,” that word must play some role.                                           But the

more fundamental problem with the majority’s interpretation is

that     it     comes          from    reading          6      U.S.C.        §    279(g)(2)(C)(ii)

independent of its statutory context.                             “In determining the plain

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

statute       as    a    whole    in       light    of      the    cardinal           rule    that    the

meaning       of        statutory          language,        plain       or       not,    depends      on

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



                                                   52
respect, the majority’s reading does not fit with the text.                                      And

it jars with the context.



                                               A.

       The    majority      makes     short         work       of    Beltrán’s         statutory

argument      that   her    son     R.M.B.      is       not    an       unaccompanied      alien

child:       three paragraphs in a nearly 50-page opinion.                               Ante, at

25-27.       And only a portion of those few paragraphs construes the

key statutory definition.               More is not always better.                         But in

this instance, I think depth brings clarity.

       The majority first notes Beltrán’s use of a dictionary to

define “available” as “easy or possible to get or use.”                                     Ante,

at    25   (citing    Appellant’s        Br.        19).        Without         disputing    this

linguistic      definition,       the    majority             characterizes        its     use    as

equivalent      to    an    argument      that          the    definition         in   6   U.S.C.

§ 279 (g)(2)(C)(ii)          “does       not        include         an     assessment       of    a

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

The    majority      reads     in       such        a    suitability            assessment       by

emphasizing that the word “available” is followed by the words

“to provide care.”          Ante, at 25-26.               The majority then goes to a

dictionary      to   expand    on     the      word       “care”         and,   importing        its

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

provide      what    is    necessary      for       the       child’s      health,       welfare,

maintenance, and protection.”                   Ante, at 26.                I might quibble

                                               53
with the particular substituted definition, but regardless, the

statute     thus       construed          still     asks       only     if       the   parent       is

“available”       to    provide;       the       text   still      “does         not   include      an

assessment of a parent’s fitness or suitability as a custodian.”

Ante, at 25.

      At    this       point,       Beltrán       still        might    prevail        under     the

majority’s analysis.                But rather than apply its own reading of

the   UAC   definition         and     ask      whether        Beltrán       was    available       to

provide     for    R.M.B.,       the      majority      relies         on    a     distinct,    non-

definitional provision of the statute to conclude that the UAC

definition         contains          an      unstated           suitability            assessment.

Specifically, the majority determines that: “a parent who is not

‘capable of providing for the child’s physical and mental well-

being’—as     mandated         by     the       suitable       custodian         requirement        of

8 U.S.C. § 1232(c)(3)(A)—is not available to provide what is

necessary     for      the    child’s           health,    welfare,          maintenance,        and

protection.”           Ante,     at       26.      It     is    from        this    cross-statute

incorporation          that     the    majority         reads      “an       assessment        of   a

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




      1The majority later makes explicit that it is substituting
8 U.S.C. § 1232’s “suitable custodian requirement” in place of
6 U.S.C. § 279’s definition of an “unaccompanied alien child”:
“Because the Office’s unsuitability finding establishes that
Beltrán is not available to provide care and physical custody of
R.M.B., we cannot say that R.M.B.’s detention is based on an
(Continued)
                                                  54
       However, the Supreme Court has “stated time and again that

courts must presume that a legislature says in a statute what it

means and means in a statute what it says there.”                                Arlington

Cent. School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296

(2006).       Accord, e.g., Ross v. Blake, 578 U.S. __, (2016) (slip

op., at 4-8).           There is no reason to presume that when Congress

defined UACs to exclude alien children who have an available

parent       in   the     United      States        that   Congress      meant   anything

different than what it said.               The statutory UAC definition does

not    use    the      words   “assessment,”         “fitness,”     or    “suitability.”

And the majority’s reliance on the different language from a

non-definitional part of the statute “denies effect to Congress’

textual shift, and therefore ‘runs afoul of the usual rule that

when the legislature uses certain language in one part of the

statute and different language in another, the court assumes

different meanings were intended.’”                    Roberts v. Sea-Land Servs.,

Inc., 132 S. Ct. 1350, 1357 n.5 (2012) (quoting Sosa v. Alvarez-

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

U.S.    465,      484    (1987)    (“It   is        axiomatic     that    the    statutory

definition        of    the    term    excludes        unstated    meanings      of   that

term.”)



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



                                               55
       Aside from the problematic reliance on the non-definitional

language, the majority over-reads the words “to provide care”

that follow the word “available.”                    Those following words are

part of the statutory definition, and it is natural to read them

as informing the sense in which “available” is used.                        But it is

unnatural      to   read   them   to      transmute    the    word   Congress   used—

“available”—into a wholly different word.                     The alchemy of plain

meaning is not so powerful.               Rather, those following words speak

to situations in which a parent’s availability is limited in a

straightforward         way.         If     a     parent     were,    for    example,

incarcerated, they might be “available to speak on the phone”

but likely would not be “available to provide care.”

       Of     course    the     Supreme         Court’s    presumption      “that    a

legislature says in a statute what it means and means in a

statute what it says there,” Murphy, 548 U.S. at 296, is just

that: a presumption.           It can be overcome.             Although I conclude

that    the     plain      meaning     of       “available”    is    available,     my

disagreement with the majority on this issue is not solely the

result of looking at a statutory word or four and seeing a

different meaning.            The more fundamental reason that I cannot

join in the majority’s reading is that, as discussed below, it

simply does not accord with the statutory context.




                                            56
                                      B.

       A laser focus on isolated words risks missing the forest

for the trees.     One need not accept what I consider the most

natural reading of “available to provide care” to reject the

majority’s construction.      The statutory context readily dispels

the notion that myriad federal agencies are required to make ad

hoc parental suitability determinations in the field.



                                      1.

       The repeated use of the acronym “UAC,” although efficient,

obscures the precise term that 6 U.S.C. § 279(g)(2) is defining.

The words “available to provide care and physical custody” in

6 U.S.C. § 279(g)(2)(C)(ii) help define what makes an individual

an   “unaccompanied   alien   child.”            Specifically,   the   words   in

subsection (ii) define whether an individual is accompanied or

not.

       The statutory UAC definition has three prongs, one for each

of three relevant characteristics.               An individual is an “alien”

if he or she “has no lawful immigration status in the United

States,” id. § 279(g)(2)(A); is a “child” if he or she “has not

attained    18   years   of   age,”        id.     §   279(g)(2)(B);    and    is

“unaccompanied” if “no parent or legal guardian in the United

States is available to provide care and physical custody,” id.



                                      57
§ 279(g)(2)(C)(ii).                      If       an        individual          has      all       three

characteristics, he or she is an “unaccompanied alien child.”

      It    thus      strikes       me    that         however      we    read      “available”        in

prong (C), it must go to the question of whether an alien child

is   accompanied           in   the      United        States       or       not.       As   a   purely

linguistic       matter,        I   do    not      think      that       a    parent’s       “fitness”

speaks     to    whether        the    parent          is    accompanying           a   child.        Put

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

is   much        harder,         linguistically               and        practically,            to    be

accompanied by an unavailable parent.

      One       additional          observation             before       looking         outside       of

6 U.S.C. § 279(g)(2):                 both parts of prong (C) speak broadly of

a parent being “in the United States.”                               This language strongly

suggests that in drafting the statute, Congress was concerned

with whether a child was accompanied in the sense of having a

parent      in       the    territory         of        the     United         States,       and      not

accompanied in the sense of having a parent holding the child’s

hand at all times.                    The “in the United States” language is

difficult to harmonize with an accompaniment status that changes

every time a parent goes to work, drops a child off at school,

or runs to the grocery store.                           It is much easier to read the

language        in    harmony       with      a    legislative               concern     about,       for




                                                   58
example, children who cross the border into the United States

without their parents. 2

      This does not mean that a parent is necessarily “available

to provide care” simply because she or he is somewhere in the

territory of the United States.              The first part of prong (C) of

the   UAC   definition     sets   the   baseline     that   a    child    is   not

unaccompanied if they have a “parent or legal guardian in the

United States”; the second part of prong (C) acknowledges the

reality that although physically present, a parent in the United

States    may   not   be   “available    to     provide   care   and     physical

custody” as a practical matter.              6 U.S.C. § 279(g)(2)(C).          One

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

      2See Office of Refugee Resettlement, Children Entering the
United States Unaccompanied: Introduction (January 30, 2015),
http://www.acf.hhs.gov/programs/orr/resource/children-entering-
the-united-states-unaccompanied-0         (suggesting        that
“unaccompanied children” are those “who enter the United States
. . . without a parent”).     I note that although it does not
appear that our sister circuits have construed the definition,
the few decisions that reference 6 U.S.C. § 279(g)(2) appear to
assume that UAC status does not turn on a parental fitness
assessment.   See, e.g., Cortez-Vasquez v. Holder, 440 F. App’x
295, 298 (5th Cir. 2011); Tambaani v. Attorney Gen. of U.S., 388
F. App’x 131, 134 (3rd Cir. 2010). I also note that the Office
does not appear to read the statute as the majority does.     The
Office’s primary argument is that the federal courts lack
jurisdiction to review agency application of the UAC statute;
the majority, as do I, rightly rejects this argument. See ante,
at 16-18. When the Office does take a position on the scope of
the statutory definition, it suggests parental proximity, rather
than fitness, is the touchstone.    See, e.g., Appellees’ Br. 29
n.7. I presume this is why the Office has not taken custody of
those of Beltrán’s other minor children who are aliens.



                                        59
who is incarcerated or otherwise in custodial detention in the

United States.         It would be absurd to conclude that Congress

intended    the    Office     to   turn       away       vulnerable     children     on    the

basis that they were accompanied by a jailed parent.                               Another

likely   application        is   to     parents      in    the     United   States      whose

existence is not known to federal authorities.                              If a parent

refuses to make herself available to take custody of a child—

perhaps out of a concern for her own immigration status—Congress

could hardly have expected the Office to release the minor on

his or her own.



                                              2.

     Beyond       Section    279(g)(2),            the    “broader      context    of     the

statute,”     Trejo,   795       F.3d    at    446,       strongly      counsels   against

reading an extra-textual parental fitness assessment into the

definition of “unaccompanied.”                 As the majority observes, “[t]he

care and custody of UACs by the government is governed by a

legal    framework          consisting         primarily           of    two      statutory

provisions--§ 279 of Title 6 and § 1232 of Title 8.”                                      Ante

at 19.     The term “unaccompanied alien child” appears in numerous

places   in   each,    and       both    provisions         make    explicit      that    the

definition in 6 U.S.C. § 279(g)(2) controls throughout.                                   See

6 U.S.C. § 279(g); 18 U.S.C. § 1232(g).                          The Office refers to

these statutes as “the UAC statutes.”                     E.g., Appellees’ Br. 33.

                                              60
     A quick skim of the statutes makes plain that the Office’s

authority runs only to UACs; every relevant statutory grant of

authority to the Office is conditioned on the existence of an

unaccompanied    alien     child.    This      fact    is   important,     as     “an

agency literally has no power to act . . . unless and until

Congress confers power upon it.”          New York v. FERC, 535 U.S. 1,

18 (2002) (quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355,

374 (1986)).     Like all federal agencies, the Office of Refugee

Resettlement     is   “a     creature     of     statute.         It       has     no

constitutional or common law existence or authority, but only

those authorities conferred upon it by Congress.”                  Michigan v.

EPA, 268 F.3d 1075, 1081 (D.C. Cir. 2001).

     The core statutory authority the Office relies on for the

legality   of   its   continued     detention     of    R.M.B.   is    8      U.S.C.

§ 1232(c)(3)(A).      See Appellees’ Br. 26 n.4 (“The reason R.M.B.

is still in ORR custody is . . . the Congressional mandate in

8 U.S.C.   §    1232(c)(3)(A).”)        The     majority      refers     to      this

provision as the “suitable custodian requirement.”                 Ante, at 9.

Section 1232(c)(3)(A) provides:

   [A]n unaccompanied alien child may not be placed with a
   person   or  entity   unless  the   [Secretary]  makes   a
   determination that the proposed custodian is capable of
   providing for the child’s physical and mental well-being.




                                     61
The Office refuses to “place” R.M.B. with Beltrán because it has

determined that Beltrán is incapable and thus not a suitable

custodian.

     If Beltrán were only to dispute the wisdom of the Office’s

determination,          my    view     of   the     Office’s       position      might   be

different.       But Beltrán disputes the Office’s authority to make

the determination at all.               This is why the case is before us on

a habeas petition and not, for example, via the Administrative

Procedure Act.          See 5 U.S.C. § 702.           Congress has only conferred

to the Office the authority to make placement determinations for

unaccompanied       alien           children:         8      U.S.C.         § 1232(c)(3)(A)

explicitly states that “an unaccompanied alien child may not be

placed.”     (emphasis added).              If R.M.B. is not unaccompanied, the

Office “literally has no power to act” over him, New York, 535

U.S. at 18, whether it is purporting to detain him, place him,

or otherwise.

     In    my    view,       the    text    and    structure       of   8    U.S.C.   § 1232

preclude reading the UAC definition in 6 U.S.C. § 279(g)(2) to

include a parental fitness component.                     The Office’s application

of these statutes to R.M.B. and Beltrán is illustrative.                              Under

the majority’s reading, the suitable custodian requirement in

Section 1232(c)(3)(A) becomes superfluous: a determination that

Beltrán is suitable would simultaneously operate to make her

available       under    the       majority’s      reading    of    Section      279(g)(2);

                                              62
this       would    render    R.M.B.   not     a     UAC,    making        the   placement

determination          both     unnecessary         and      beyond        the     Office’s

authority.          In cases in which a child has a parent in the United

States, the majority’s reading makes the UAC determination and

the    suitable       custodian     determination         redundant.         The    Supreme

Court has admonished:

       It is a fundamental canon of statutory construction
       that the words of a statute must be read in their
       context and with a view to their place in the overall
       statutory scheme.   A court must therefore interpret
       the statute as a symmetrical and coherent regulatory
       scheme and fit, if possible, all parts into a
       harmonious whole.

FDA    v.    Brown    &   Williamson    Tobacco       Corp.,    529    U.S.      120,    133

(2000)      (quotations       omitted).        It    is     quite   possible        to   fit

Section 279(g)(2) and Section 1232(c)(3)(A) into a harmonious

whole.             Reading    the    former     to     enquire        of     a     parent’s

availability, and the latter to ask of an alternate custodian’s

suitability,          reveals   a    coherent       regulatory        scheme—one         that

recognizes that Congress never intended the Office to be making

Section 1232(c)(3)(A) determinations for a child whose parent is

knocking on the Office’s door. 3


       3
       The Office appears to concede that its authority ends once
an individual ceases to be an “unaccompanied alien child.”     It
recognizes that its authority ends once R.M.B. “turns eighteen.”
Appellees’ Br. 1. It also recognizes that its authority ends if
R.M.B. gains “lawful immigration status.”    Id. at 40 n.14.   In
other words, the Office’s custodial authority ends when R.M.B.
is either not a “child,” or not an “alien.” The text of the UAC
(Continued)
                                          63
     Another contextual problem with fitting the majority’s UAC

definition    into    the   statutory      scheme    becomes    apparent      when

considering   how    R.M.B.   wound   up    in   Office    custody.      As    the

Office repeatedly reminds the Court, it was Customs and Border

Protection (CBP) that first classified R.M.B. as a UAC before

transferring him to the Office.             The majority correctly holds

that we are not concerned here with CBP’s detention authority,

because   habeas     only   tests   current      detention     and    R.M.B.   is

currently being detained by the Office.             Ante, at 27 n.10. 4

     However, this does not make CBP’s involvement irrelevant.

The statutory UAC definition in 6 U.S.C. § 279(g)(2) applies to

all federal agencies, not just the Office.                (Indeed, the Office


definition provides no indication that custodial authority does
not also end when R.M.B. is no longer “unaccompanied.”



     4 I understand this holding to implicitly reject one of the
Office’s alternative arguments; I will explicitly reject it.
The Office suggests that once CBP classified R.M.B. as a UAC,
the Office was powerless to classify him otherwise.      Congress
did not give federal agencies discretion to classify individuals
as UACs.    Congress provided an explicit statutory definition.
An individual who satisfies the definition is a UAC and must be
treated as such; if the individual does not satisfy the
definition,   the   government has   no  nebulous   discretionary
authority to treat the individual as a UAC.       If CBP wrongly
classified R.M.B. as a UAC in violation of statute, transferring
R.M.B. to another federal agency does not cure the violation.
R.M.B. is a UAC if 6 U.S.C. § 279(g)(2) says he is, not if the
government declares him so.      The Office cannot expand its
statutory authority by arguing that some other agency violated
the statute first.



                                      64
generally     does     not   take     custody    of   a    child   in    the    first

instance; it receives custody of children from other federal

agencies.)        It   is    axiomatic    that    “available”      has    the     same

meaning when the statute is read by an employee of one federal

agency as it does when the same statute is read by an employee

of a different federal agency.

       The Office tells us that “federal agents who encounter a

child . . . are tasked with quickly determining whether a child

is a UAC and transferring the child to HHS.”                  Appellees’ Br. 28.

Congress mandates each agency to notify HHS of “discovery of an

unaccompanied      alien     child”    within    48    hours    and,     except    in

exceptional      circumstances,       transfer    custody      within    72    hours.

See 8    U.S.C.    § 1232(b).         Congress   could     reasonably     expect    a

federal agent to determine whether a child has a parent in the

United States within this time frame.                 I cannot see how agents

could be expected to make parental suitability determinations in

this window.

       Congress has created a “coherent regulatory scheme,” Brown

& Williamson, 529 U.S. at 133, for minor aliens present in the

United States without a parent or legal guardian.                   The statutes

work    as   a    harmonious    whole     when    “available”      in    6     U.S.C.

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

to mean something else, the majority turns the UAC definition

into a square peg that does not fit into the statutory whole.

                                         65
                                      C.

        It is not only the text of the definition and the context

of   the    statute      that   I    think     foreclose     the        majority’s

construction       of   “available   to    provide   care.”         I    am   also

concerned by the necessary consequences of that construction.                   I

do not mean the practical consequences for Beltrán or R.M.B., or

anyone else; I mean the consequence that the statutory scheme

thus interpreted raises unnecessary constitutional questions.

     As the Supreme Court has explained, “when deciding which of

two plausible statutory constructions to adopt, a court must

consider the necessary consequences of its choice. If one of

them would raise a multitude of constitutional problems, the

other     should    prevail—whether       or   not   those    constitutional

problems pertain to the particular litigant before the Court.”

Clark v. Martinez, 543 U.S. 371, 380-81 (2005).                    The majority

construes the statutes to permit an administrative agency of the

federal government to involuntarily detain a lawful permanent

resident’s child if the agency decides that the resident is an

unfit parent. 5


     5 Nothing in the majority’s construction would appear to bar
the Office from detaining the alien child of a U.S. citizen in
the United States.      The UAC definition only addresses the
child’s immigration status.    If Beltrán naturalizes, it has no
obvious effect on the operation of 6 U.S.C. § 279(g)(2).


                                      66
       To be sure, the Constitution does not forbid the government

from removing children from unfit parents.                        However, such an

exercise of state power is generally conditioned by significant

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

645,    658   (1972)      (holding   that     “parents     are     constitutionally

entitled to a hearing on their fitness before their children are

removed from their custody”).            Congress’s power over immigration

is very broad, and in this arena Congress “regularly makes rules

that would be unacceptable if applied to citizens.”                         Reno v.

Flores, 507 U.S. 292, 305-06 (1993) (quotation omitted).                          But

this    power    is    not   absolute,      and    in   these     circumstances    it

confronts constitutional rights that are among the most basic

and resistant to government interference: the right “to raise

one’s children,” e.g., Stanley, 405 U.S. at 651, and the right

to “freedom from bodily restraint” that “has always been at the

core    of    the    liberty   protected      by   the    Due     Process   Clause.”

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

R.M.B. are entitled to the protections of due process.                            See

Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (collecting cases).

       If a federal agency seized a citizen child from a citizen

parent   without      a   hearing,    under    a   statute      analogous   to   that

here,    I      am    skeptical      that     such       action     would    survive

constitutional scrutiny.             Although the constitutional concerns

are decidedly attenuated for aliens, Flores, 507 U.S. at 305-06,

                                         67
they are significant enough that the majority devotes ten pages

to   addressing    them.        Ante,    at    39-49.       And    with       regard   to

Beltrán’s procedural due process claim, the majority concludes

it must vacate the district court’s holding on the issue and

remand for additional proceedings.              Ante, at 49.

      I do not suggest that all or any portion of 6 U.S.C. § 279

or 8 U.S.C. § 1232 is unconstitutional.                     I only suggest that

there   is   no   need     to   read     those      statutes      such     that    their

constitutionality is even in question.                   A chief justification of

the canon of constitutional avoidance “is that it allows courts

to avoid the decision of constitutional questions.                       It is a tool

for choosing between competing plausible interpretations of a

statutory    text,    resting     on     the    reasonable        presumption      that

Congress did not intend the alternative which raises serious

constitutional doubts.”          Clark, 543 U.S. at 381.                Cf. Zadvydas,

533 U.S. at 682 (construing an immigration statute “to contain

an   implicit     ‘reasonable      time’       limitation”        due    to    “serious

constitutional     concerns”      with       the    “indefinite         detention”     of

certain aliens).

      As I read the statutes here, the federal government may

take custody of alien minors who do not have a parent or other

legal   guardian       available        in     the       United    States.             The

constitutional       concerns     with       such    a    regulatory      scheme       are

minimal.     See, e.g., Flores, 507 U.S. at 305 (“If we harbored

                                         68
any doubts as to the constitutionality of institutional custody

over unaccompanied juveniles, they would surely be eliminated as

to those juveniles . . . who are aliens.”)                    But as the majority

construes these statutes, the constitutional questions are very

real.      Cf. id. at 302-03.

       A   “longstanding        principle    of    judicial    restraint   requires

that courts avoid reaching constitutional questions in advance

of the necessity of deciding them.”                Camreta v. Greene, 563 U.S.

692, 705 (2011) (quotation omitted).                  Cf. Zadvydas, 533 U.S. at

689     (“We     have      read      significant      limitations      into    other

immigration       statutes      in   order   to    avoid   their     constitutional

invalidation.”)          There is no need to decide any constitutional

questions here.          We need only read the statutes as written.



                                           II.

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

need    to     address    the     other   issues    reached    by    the   majority.

Questions       about     the     full    statutory    scope    of   the   Office’s

authority over UACs, or the constitutionality of that authority

in application, are moot in my mind.                  Because the Office has no

statutory authority to detain R.M.B., we should order the Office

to stop detaining him.

       I note that such an order need not—and perhaps should not—

result in R.M.B. being released from all government custody.                      I

                                            69
detect   in    the     majority         opinion,      and    in   the    opinion    of   the

district      court,       a     concern   about       the    risk      R.M.B.   poses    to

society.        Although         many    of     the    allegations        the    government

appellees introduce into the record are unsubstantiated, I am

under no illusion about R.M.B.                  I am also not insensitive to the

possibility that his best interests may not be served by being

released to Beltrán.

      There    are     legally         authorized     processes      to    address    these

concerns.       For example, if federal or state authorities have

probable cause to suspect R.M.B. has committed a crime, he can

be   arrested.        If       state    child    welfare     agencies      are    concerned

about Beltrán’s fitness to exercise custody over R.M.B., those

agencies       have        the      statutory         authority—and         perhaps      the

obligation—to intervene.                But just because there may be a valid

authority to detain R.M.B., it does not mean that any claimed

authority is valid.              I conclude that the Office lacks statutory

authority over R.M.B. and that the agency’s continued detention

of him—now for more than two years—is unlawful.

      I respectfully dissent.




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