                                         PUBLISHED

                           UNITED STATES COURT OF APPEALS
                               FOR THE FOURTH CIRCUIT


                                          No. 18-1503


ARELI VEGA REYNA, as next friend of J.F.G., K.G., J.D.V. and J.D.V., all
minor children; MACARIO DIAZ MORALES; KAREN VITELA, as next friend
of M.V.R.C., a minor; HUMBERTO RAMOS RAYGOZA; ADELA MEJIA, as
next friend of K.D.R.M., a minor,

                        Plaintiffs - Appellants,

                v.

RUSSELL HOTT, in his official capacity as Director of the Immigration and
Customs Enforcement Virginia Field Office; RONALD D. VITIELLO, in his
official capacity as Acting Director of the Department of Homeland Security;
ELAINE C. DUKE, in her official capacity as Acting Secretary of the Department
of Homeland Security,

                        Defendants - Appellees.

------------------------------

JACK P. SHONKOFF, M.D.; JAMES A. COAN, Ph.D.; J.H. PATE SKENE, J.D.,
Ph.D.; LINDA C. MAYES, M.D.; JOSEPH WOOLSTON, M.D.; AMERICAN
ACADEMY OF CHILD AND ADOLESCENT PSYCHIATRY; AMERICAN
PSYCHOANALYTIC ASSOCIATION; CAPITAL AREA IMMIGRANTS’
RIGHTS COALITION,

                        Amici Supporting Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, District Judge. (1:17-cv-01192-LO-TCB)


Argued: December 12, 2018                                    Decided: April 16, 2019
Before NIEMEYER, FLOYD, and RICHARDSON, Circuit Judges.


Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge
Floyd and Judge Richardson joined.


ARGUED: Nicholas Richard Klaiber, Richmond, Virginia, for Appellants. Julian
Michael Kurz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Simon Y. Sandoval-Moshenberg, Rebecca R. Wolozin, Falls
Church, Virginia, Angela Adair Ciolfi, LEGAL AID JUSTICE CENTER, Charlottesville,
Virginia, for Appellants. Joseph H. Hunt, Assistant Attorney General, William C.
Peachey, Director, Jeffrey S. Robins, Assistant Director, District Court Section, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees. Erik W. Snapp, Christopher S. Burrichter, Chicago, Illinois, G. Eric
Brunstad, Jr., DECHERT LLP, Hartford, Connecticut, for Amici Jack P. Shonkoff, M.D.,
James A. Coan, Ph.D., J.H. Pate Skene, J.D., Ph.D., Linda C. Mayes, M.D., Joseph
Woolston, M.D., the American Academy of Child and Adolescent Psychiatry, and the
American Psychoanalytic Association. Adina Appelbaum, Claudia Cubas, David Laing,
CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION, Washington, D.C., for
Amicus Capital Area Immigrants’ Rights Coalition.




                                            2
NIEMEYER, Circuit Judge:

       Macario Diaz Morales and Humberto Ramos Raygoza, who are both aliens, were

arrested and detained in Farmville, Virginia, by Immigration and Customs Enforcement

(“ICE”) under 8 U.S.C. § 1226(a), pending removal for being in the United States

without inspection or admission. They, along with their children, commenced this action

against officials of ICE and the Department of Homeland Security, challenging their

transfer or anticipated transfer from ICE’s detention facility in Farmville, Virginia, to its

facility in Livingston, Texas, or another facility out of State. They alleged that such

transfers “separat[e] [them] from their children and mak[e] it impossible for children to

have access to their parents or to visit them” and therefore violate their “substantive due

process right to family unity” and their “procedural due process right to notice and an

opportunity to be heard” before such transfers, in violation of the Fifth Amendment.

Because ICE “frequently transfers detainees among its detention facilities,” they also

sought to represent a nationwide class of detainees and their children. The plaintiffs

sought declaratory and injunctive relief, and Raygoza additionally sought habeas relief

based on the same allegations.

       ICE and the Department of Homeland Security (collectively, “the government”)

filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),

contending (1) that, by reason of 8 U.S.C. § 1252(a)(2)(B)(ii), the court did not have

jurisdiction to review such discretionary decisions; (2) that the substantive right to

“family unity” does not exist; and (3) that the plaintiffs have no liberty interest protected

by procedural due process.

                                             3
       While the district court rejected the government’s jurisdictional argument, it

granted the motion to dismiss, concluding that the plaintiffs had not sufficiently alleged

that the government’s transfer practices violated a substantive due process right. And

without a protectable liberty interest, the court concluded, the plaintiffs were not denied

procedural due process. Relying on those same reasons, the court also denied Raygoza’s

request for habeas relief. We affirm.


                                             I

       In September 2017, Morales and Raygoza were arrested in Virginia, where they

and their families lived, on charges that they were present in the United States without

inspection or admission.    They were detained at the Farmville Detention Center in

Farmville, Virginia, pursuant to 8 U.S.C. § 1226(a), pending a decision on their removal

from the United States. A month later, ICE transferred Raygoza, along with 150 other

detainees, allegedly without prior notice, to the Polk County Detention Center in

Livingston, Texas. Morales alleged that at that time he “believed he [too] would be

imminently transferred out of Virginia by ICE.”

       In October 2017, a month after their arrest, Morales and Raygoza, along with their

children, commenced this action challenging the constitutionality of ICE’s transfer

decisions and actions.

       On November 1, 2017, Morales was released on bond, and on November 8, 2017,

Raygoza, who had been transferred to Texas, was also released on bond. They both have

asserted, however, that they “are subject to re-detention by ICE at any time” and


                                            4
thereafter would “remain at risk of sudden transfer out of reach of their children,” in

violation of the constitutional “right to family unity.”

       In their complaint, Morales, Raygoza, and their children alleged, in three counts,

claims grounded on a constitutional right to “family unity.” In Count I, they contended

that “ICE’s policies and actions . . . violated the substantive due process right to family

unity . . . by transferring [detainees] away from their children such that it prevents them

from maintaining family unity with their children, as guaranteed by the Fifth

Amendment.” In Count II, they alleged that “ICE’s policies and actions . . . violate the

procedural due process right to notice and an opportunity to be heard . . . prior to

transferring a parent away from his or her child, preventing family unity between parent

and child, as guaranteed by the Fifth Amendment.” And in Count III, Raygoza sought

habeas relief based on his alleged unconstitutional transfer from Virginia to Texas. The

complaint requested declaratory and injunctive relief against the government, seeking to

“stop . . . all federal immigration official[s] from indiscriminately ripping families apart

by abruptly and suddenly transferring detained immigrant parents without regard for their

or their children’s rights to family unity and due process of law.”

       The government filed a motion to dismiss the complaint under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6). For its jurisdictional challenge, the government

relied on 8 U.S.C. § 1252(a)(2)(B)(ii), which deprives federal courts of subject-matter

jurisdiction to review any “decision or action of the Attorney General or the Secretary of

Homeland Security the authority for which is specified under this subchapter to be in the

discretion of the Attorney General or the Secretary of Homeland Security.” (Emphasis

                                              5
added). It located the relevant discretionary decisions sought to be reviewed in 8 U.S.C.

§ 1231(g), which provides that “the Attorney General shall arrange for appropriate

places of detention for aliens detained pending removal or a decision on removal”

(emphasis added), arguing that “appropriate” connotes discretion. For its argument under

Rule 12(b)(6) that the plaintiffs’ complaint failed to state a claim upon which relief could

be granted, the government contended that no substantive due process right exists “to

remain in detention in a particular location near the detainees’ children” and that, because

the “plaintiffs have no protected interest in detention at a specific location or in a specific

state, . . . the transfer of a detainee without a hearing does not violate” the right to

procedural due process.

       The district court denied the government’s motion based on a lack of jurisdiction,

but it dismissed the plaintiffs’ complaint under Rule 12(b)(6), concluding that a

substantive due process right to family unity would require an unjustified expansion of

accepted jurisprudence and, moreover, that such a right would not be violated in this case

because “any government intrusion on [such a] right [would be] reasonable and

incidental” and would not “shock the conscience.” Based on its conclusions reached with

respect to the plaintiffs’ substantive due process claim, the court concluded that the

plaintiffs had no “recognized liberty interest” to be protected procedurally. For the same

reasons, the court dismissed Raygoza’s habeas petition.

       From the district court’s judgment dated March 20, 2018, the plaintiffs filed this

appeal.



                                              6
                                             II

       We begin by noting what the plaintiffs are not challenging. They do not challenge

their arrest and ICE’s right to detain and continue to detain Morales and Raygoza,

agreeing that the two men were lawfully arrested and detained under the authority

granted to ICE in 8 U.S.C. § 1226(a); they do not challenge their place of detention in

Farmville, Virginia; they do not challenge the conditions of their confinement; and they

do not challenge any bond-hearing conduct or bond-hearing decision made under

§ 1226(a). Rather, they contend more narrowly that ICE officials’ decisions to transfer

them while detained from a detention facility near their families to another facility away

from their families violated a substantive due process right to “family unity,” as well as

their procedural due process rights to notice and hearing before transfer.        As they

summarize their position, federal immigration officers are “indiscriminately ripping

families apart by abruptly and suddenly transferring detained immigrant parents without

regard for their children’s rights to family unity and due process of law.”

       In response to the plaintiffs’ claims, the government contends that we lack

jurisdiction to review ICE transfer decisions, as they are discretionary decisions over

which Congress has precluded judicial review under 8 U.S.C. § 1252(a)(2)(B)(ii).

       Because any question about jurisdiction goes to our power to act, we must decide

first whether we have jurisdiction — regardless of whether the issue of jurisdiction is

raised or how it is raised — to review ICE officials’ decisions to transfer aliens detained

under § 1226(a) from a facility near the detainees’ families to one farther away. See



                                             7
Demore v. Kim, 538 U.S. 510, 516 (2003); Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 101–02 (1998).

       For its jurisdictional argument, the government notes that 8 U.S.C.

§ 1252(a)(2)(B)(ii) strips federal courts of subject-matter jurisdiction to review decisions

or actions of ICE or the Secretary of Homeland Security, “the authority for which is

specified under this subchapter to be in the discretion of the Attorney General or the

Secretary of Homeland Security.”         (Emphasis added).       And it argues that the

discretionary decision or action that we are being asked to review is “specified” in

8 U.S.C. § 1231(g), which provides, “The Attorney General shall arrange for appropriate

places of detention for aliens detained pending removal or a decision on removal,”

asserting that “‘appropriate’ connotes discretion.” (Emphasis added). *

       Section 1252 provides in relevant part:

       (a)(2) Matters not subject to judicial review

                                          *         *   *

              (B) Denials of discretionary relief

              Notwithstanding any other provision of law (statutory or
              nonstatutory), including section 2241 of Title 28, or any other
              habeas corpus provision . . . and regardless of whether the judgment,
              decision, or action is made in removal proceedings, no court shall
              have jurisdiction to review —

                                         *          *   *


       *
        While the relevant statutes often refer to the Attorney General, those references
are “deemed to refer” to the Secretary of Homeland Security. See 6 U.S.C. §§ 557,
251(2).

                                              8
              (ii) any other decision or action of the Attorney General or the
              Secretary of Homeland Security the authority for which is specified
              under this subchapter to be in the discretion of the Attorney General
              or the Secretary of Homeland Security, other than the granting of
              relief under section 1158(a) [addressing asylum] of this title.

8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). And the Supreme Court has provided the

proper understanding of when discretion is “specified” in the statute:

       [T]he statutory proscription Congress enacted, § 1252(a)(2)(B)(ii), speaks
       of authority “specified” — not merely assumed or contemplated — to be in
       the Attorney General’s discretion. “Specified” is not synonymous with
       “implied” or “anticipated.” See Webster’s New Collegiate Dictionary,
       1116 (1974) (“specify” means “to name or state explicitly or in detail”).
       See also Soltane v. U.S. Dept. of Justice, 381 F.3d 143, 147 (C.A.3 2004)
       (Alito, J.) (“[W]e do not think . . . that the use of marginally ambiguous
       statutory language without more, is adequate to ‘specif[y]’ that a particular
       action is within the Attorney General’s discretion for the purpose of
       § 1252(a)(2)(B)(ii).”).

Kucana v. Holder, 558 U.S. 223, 243 n.10 (2010). Thus, when § 1252 strips courts of

jurisdiction to review decisions or actions for which authority is “specified . . . to be in

the discretion of the Attorney General or the Secretary of Homeland Security,” such

discretionary authority may not be implied; it must be explicitly conferred in the statute.

       The government contends that discretionary authority to make transfer decisions

and engage in transfer actions is “specified” in § 1231(g). Section 1231(g) provides that

“the Attorney General shall arrange for appropriate places of detention for aliens detained

pending removal or a decision on removal.” It also provides that when such “facilities

are unavailable,” the Attorney General may acquire or construct a facility suitable for

such use. The government argues that the word “‘appropriate’ when modifying places of

detention connotes discretion,” and therefore, its decisions and actions regarding transfer


                                             9
are not subject to review by the courts. Its very argument, however — that “appropriate”

connotes discretion — gives away its position, as “connote” means “to convey in

addition to exact explicit meaning” or “to imply as a logical connotation,” either of which

means implied. Merriam-Webster’s Collegiate Dictionary 264 (11th ed. 2007) (emphasis

added).   Moreover, while the word “appropriate” is a broad term understood to

incorporate “multiple relevant factors,” Michigan v. EPA, 135 S. Ct. 2699, 2709 (2015),

discretion to consider the factors can only be implied from their multiplicity.

       More fundamentally, however, the language of § 1231(g) does not address

transfers at all, nor does it explicitly grant the Attorney General or the Secretary of

Homeland Security discretion with respect to transfers. Indeed, § 1231(g) appears to

relate more centrally to the government’s brick and mortar obligations for obtaining

facilities in which to detain aliens. It provides that the Attorney General “shall arrange

for appropriate places of detention for aliens detained pending removal or decision on

removal” and, when such facilities “are unavailable,” authorizes the Attorney General to

“expend” from specified appropriations “amounts necessary to acquire land and to

acquire, build, remodel, repair, and operate facilities (including living quarters for

immigration officers if not otherwise available) necessary for detention.”        8 U.S.C.

§ 1231(g)(1).

       Nonetheless, the government relies on our decision in Gandarillas-Zambrana v.

Bd. of Immigration Appeals, 44 F.3d 1251, 1256 (4th Cir. 1995) (addressing the

predecessor to 8 U.S.C. § 1231(g)), to find transfer authority within § 1231(g). In

Gandarillas-Zambrana, however, we implied the right to transfer aliens from one

                                             10
detention facility to another from the authority granted the Attorney General under the

predecessor to § 1231(g) to determine the location of detention facilities. See id. Thus,

while that holding might rightfully locate government authority to transfer aliens from

one detention facility to another in § 1231(g), it finds that the authority is implied. That,

of course, does not serve to advance the government’s position in seeking to apply

§ 1252(a)(2)(B)(ii), which requires that discretionary authority be specified, i.e., made

explicit, in order to be unreviewable.

       Moreover, any approach that we might take for interpreting § 1252(a)(2)(B)(ii)

and § 1231(g) must respect the presumption favoring judicial review. Indeed, in Kucana,

the Supreme Court emphasized the importance of this presumption in the context of

immigration legislation.     558 U.S. at 251–52.        It held there that, “[b]ecause the

presumption favoring interpretations of statutes to allow judicial review of administrative

action is well-settled, . . . the Court assumes that Congress legislates with knowledge of

the presumption.     It therefore takes clear and convincing evidence to dislodge the

presumption.” Id. (emphasis added) (internal quotation marks and citation omitted). In

light of this, we cannot conclude that § 1231(g) provides clear and convincing evidence

that Congress specified discretionary authority to transfer detainees from one facility to

another, thereby satisfying the circumstances giving rise to the jurisdictional bar of

§ 1252(a)(2). See Aguilar v. ICE, 510 F.3d 1, 20 (1st Cir. 2007); Spencer Enterprises,

Inc. v. United States, 345 F.3d 683, 689 (9th Cir. 2003). But see Van Dinh v. Reno, 197

F.3d 427, 433 (10th Cir. 1999). Accordingly, we conclude that § 1252(a)(2)(B)(ii) does

not strip courts of jurisdiction to review transfer decisions.

                                              11
                                              III

       On the merits, we, like the district court, have been unable to find a substantive

due process right to family unity in the context of immigration detention pending

removal. While the plaintiffs have sought support from a few cases in the constitutional

neighborhood of such a right, see, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2594

(2015) (lauding “Cicero, who wrote, ‘The first bond of society is marriage; next,

children; and then the family’”), we have found no precedent recognizing that there is a

right to “family unity” limiting detainee transfers. See Aguilar, 510 F.3d at 23 (“We have

scoured the case law for any authority suggesting that claims similar to those [made by

the plaintiffs] here are actionable under the substantive component of the Due Process

Clause, and we have found none”). To be sure, there are decisions that recognize the

“power of parents to control the education of their own” children, Meyer v. Nebraska,

262 U.S. 390, 401 (1923), and the “fundamental right to make decisions concerning the

rearing” of one’s children, Troxel v. Granville, 530 U.S. 57, 68 (2000), but those

decisions hardly support the asserted right to be detained in the same state as one’s

children, the right to be visited by children while in detention, or a general right to

“family unity” in the context of detention.

       Moreover, we are hardly free to create a new substantive due process right in view

of Supreme Court decisions cautioning courts from innovating in this area.             See

Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (observing that “[w]e must

therefore exercise the utmost care whenever we are asked to break new ground in this

field [of substantive due process], lest the liberty protected by the Due Process Clause be

                                              12
subtly transformed into the policy preferences of the Members of this Court” (internal

quotation marks and citation omitted)). And to do so would be even less appropriate in

this case when we recognize the “heavily subjective nature of [the] asserted right.” See

Hawkins v. Freeman, 195 F.3d 732, 748 (4th Cir. 1999). Plaintiffs would have us

recognize a right where there are virtually no objective criteria for assessing how strong

the familial ties must be, how short the distance between family and detention must be, or

how weak the countervailing governmental interests must be.            Like in Hawkins,

“enforcement of such a right would therefore rest almost entirely upon the subjective

judgments of judges applied to widely varying factual circumstances.” Id. This is just

the circumstance about which the Supreme Court advised utmost caution in Glucksberg.

       Plaintiffs’ allegations that they were denied procedural due process fares no better

because “[p]rocedural due process applies only to the deprivation of liberty and property

interests.” Rockville Cars, LLC v. City of Rockville, Md., 891 F.3d 141, 145 (4th Cir.

2018). While the plaintiffs do not allege that any property interest was implicated, they

do allege that a liberty interest in “family unity” — self-described as the same interest

that formed the basis of their substantive due process claim — was implicated. But this

is an interest that we find does not exist. Accordingly, their procedural due process claim

must likewise fail.

       For the reasons given, we affirm.

                                                                              AFFIRMED




                                            13
