Aguilar v. United States Immigration & Customs Enforcement Division of the Department of Homeland Security

United States Court of Appeals
For the First Circuit
No. 07-1819

NOLBERTA AGUILAR ET AL.,

Petitioners, Appellants,

v.

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION
OF THE DEPARTMENT OF HOMELAND SECURITY ET AL.,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]

Before

Boudin, Chief Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge.

Bernard J. Bonn, III and Harvey Kaplan, with whom Michael
Shin, Matthew M. Lyons, Dechert LLP, Kaplan, O'Sullivan & Friedman,
Nancy Kelly, John Willshire, Greater Boston Legal Servs., John
Reinstein, Laura Rótolo, American Civil Liberties Foundation of
Mass., Iris Gomez, Mass. Law Reform Inst., Ondine Sniffin, and
Catholic Social Servs. of Fall River were on brief, for
petitioners.
Thomas H. Dupree, Jr., Deputy Assistant Attorney General, with
whom Peter D. Keisler, Assistant Attorney General, Daniel J. Davis,
Counsel to the Assistant Attorney General, David J. Kline,
Principal Deputy Director, Office of Immigration Litigation,
Elizabeth J. Stevens, Attorney, Office of Immigration Litigation,
Michael J. Sullivan, United States Attorney, and Mark Grady,
Assistant United States Attorney, were on brief, for respondents.

November 27, 2007
 SELYA, Senior Circuit Judge. This appeal has its genesis

in a dramatic raid on a leather goods factory in New Bedford,

Massachusetts. Enforcement of the immigration laws is difficult

and oftentimes controversial work. So it was here: the raid led to

the detention of hundreds of undocumented aliens and put

significant strains on those involved and those who wished to help.

In short order, the detainees (many of whom were whisked away to

distant places) brought a civil action alleging abridgement of a

constellation of constitutional and statutory rights.

Confronted with a maze of issues, the district court

patiently sorted through them and, in a thoughtful rescript,

eventually dismissed the action for want of subject matter

jurisdiction. Aguilar v. U.S. Immigr. & Customs Enf. Div. of Dep't

of Homeland Sec., 490 F. Supp. 2d 42, 48 (D. Mass. 2007). The

detainees (whom we sometimes shall refer to as "the petitioners")

now challenge that ukase. Their appeal raises novel and important

questions concerning the scope, reach, and interpretation of the

immigration laws. In particular, it requires us to disentangle the

Gordian knot of jurisdictional provisions created by recent

amendments to the Immigration and Nationality Act (INA).

We discern no simple, one-size-fits-all answer to the

questions presented by the parties. After careful perscrutation of

a scumbled record, we conclude that some of the petitioners' claims

are unpreserved, some are subject to a jurisdictional bar, and

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others are simply not actionable. The common denominator is that

none of the claims can proceed in the district court. Thus, while

our reasoning differs somewhat from that of the court below — and

our opinion should not be read as an unqualified endorsement of the

way in which immigration officials handled the matter — we affirm

the judgment of dismissal. The tale follows.

I.

We rehearse here only those facts needed to place this

appeal in workable perspective. On March 6, 2007, federal officers

conducted a raid as part of "Operation United Front." The raid

targeted Michael Bianco, Inc., a Department of Defense contractor

suspected of employing large numbers of illegal aliens.

Immigration and Customs Enforcement (ICE) agents, armed with search

and arrest warrants, appeared unannounced at the factory, arrested

five executives on immigration-related criminal charges, and took

more than 300 rank-and-file employees into custody for civil

immigration infractions. The ICE agents cast a wide net and paid

little attention to the detainees' individual or family

circumstances.

The government's subsequent actions regarding the

undocumented workers who were swept up in the net lie at the

epicenter of this litigation. After releasing dozens of employees

determined either to be minors or to be legally residing in the

United States, ICE transported the remaining detainees to Fort

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Devens (a holding facility in Ayer, Massachusetts). Citing a

shortage of available bed space in Massachusetts, ICE then began

transferring substantial numbers of aliens to faraway detention and

removal operations centers (DROs). For example, on March 7, 90

detainees were flown to a DRO in Harlingen, Texas, and the next day

116 more were flown to a DRO in El Paso, Texas.

ICE attempted to coordinate its maneuvers with the

Massachusetts Department of Social Services (DSS) to ensure the

proper care of family members. It took steps to address concerns

about child welfare and released several detainees for humanitarian

reasons. Still, the petitioners allege (and, for present purposes,

we accept) that ICE gave social welfare agencies insufficient

notice of the raid, that caseworkers were denied access to

detainees until after the first group had been transferred, and

that various ICE actions temporarily thwarted any effective

investigation into the detainees' needs. As a result, a

substantial number of the detainees' minor children were left for

varying periods of time without adult supervision.

With respect to the detainees themselves, the petitioners

aver that ICE inhibited their exercise of the right to counsel.

According to the petitioners, a squad of volunteer lawyers who had

offered to provide the detainees with guidance was turned away from

Fort Devens on March 7. The next day, the lawyers were allowed to

meet with those detainees (some thirty in number) who had expressly

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requested legal advice. The petitioners allege that,

notwithstanding this largesse, some detainees were denied access to

counsel after they arrived in Texas.

On the afternoon of March 8, the Guatemalan consul,

acting as next friend of the detainees (many of whom were

Guatemalan nationals), filed a petition for a writ of habeas corpus

and a complaint for declaratory and injunctive relief in the United

States District Court for the District of Massachusetts. The

action sought the detainees' immediate release or, in the

alternative, a temporary restraining order halting further

transfers. The district court enjoined ICE from moving any of the

remaining detainees out of Massachusetts pending further order of

the court.

On March 13, the plaintiffs filed an amended complaint,

fashioned as a class action, and withdrew their plea for immediate

release. The amended complaint named ICE and various other federal

agencies and actors as respondents (for ease in exposition, we

sometimes refer to the defendants, collectively, as "ICE" or "the

government"). In that pleading, the petitioners alleged that ICE's

actions had violated certain of the petitioners' constitutional and

statutory rights, including: (i) the right to be free from

arbitrary, prolonged, and indefinite detention; (ii) the right to

a prompt bond hearing, that is, one held in Massachusetts prior to

any transfer; (iii) the right to counsel; and (iv) the right of

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family integrity. The amended complaint further alleged that it

was "the established policy and practice of the [government] to

conduct large scale 'sweeps' or 'raids' in which large numbers of

persons suspected of being unlawfully present in the United States"

are held "at facilities which are some distance from the site of

arrest and under conditions where access to counsel . . . is

impracticable, if not impossible."

On March 16, the government filed an omnibus motion to

dismiss for want of personal and subject matter jurisdiction and

for failure to state any claim upon which relief might be granted.

In due course, the district court allowed the motion to dismiss on

the ground that it lacked subject matter jurisdiction. Aguilar,

490 F. Supp. 2d at 48. The court also dissolved the temporary

restraining order that it previously had issued.

The linchpin of the lower court's decision was its

conclusion that the INA, as amended by the REAL ID Act of 2005,

Pub. L. No. 109-13, 119 Stat. 231, 302, stripped it of both habeas

and federal question jurisdiction to hear the petitioners' claims.

Aguilar, 490 F. Supp. 2d at 46, 48 (citing 8 U.S.C. § 1252(b)(9));

id. at 47-48 (citing 8 U.S.C. § 1252(a)(2)(B)(ii)). In its

rescript, the court rejected the petitioners' attempted re-

characterization of their remonstrances as pattern and practice

claims, that is, claims alleging a collective denial of rights

collateral to removal proceedings. Id. at 48. In that regard, the

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court concluded that the petitioners had failed to link these

class-wide pattern and practice claims to any specific

constitutional violation that might be ripe for review. Id.

The district court paid special heed to the absence of

any Sixth Amendment right to counsel in removal proceedings, the

absence of any constitutional right to release on bond, and the

absence of any constitutional right to have a removal proceeding

held in a particular venue. Id. And while acknowledging that the

petitioners were entitled to the due process guarantees of the

Fifth Amendment as well as to certain statutory protections, the

district court concluded that those rights were personal to the

petitioners and, as such, had to be exhausted administratively

before the courts could become involved. Id.

This timely appeal ensued. In it, the petitioners assign

error to the lower court's conclusion that it lacked subject matter

jurisdiction over their claims and relatedly, to its conclusion

that the petitioners are only entitled to judicial review on an

individualized basis after exhausting their administrative

remedies. Overall, the petitioners urge us to hold that they have

stated cognizable claims that are ripe for judicial review and that

their action should, therefore, be allowed to proceed in the

district court.

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 II.

Conscious of our role as a court of limited jurisdiction,

we begin our analysis with the multi-part question of whether and

to what extent the district court possessed subject matter

jurisdiction to hear the petitioners' claims. See Steel Co. v.

Citizens for a Better Env't, 523 U.S. 83, 88-89 (1998); Bell v.

Hood, 327 U.S. 678, 682 (1946). We then turn to the surviving

claims.

We review a district court's dismissal for want of

subject matter jurisdiction de novo. See, e.g., Dominion Energy

Brayton Point, LLC v. Johnson, 443 F.3d 12, 16 (1st Cir. 2006).

For that purpose, we give weight to the well-pleaded factual

averments in the operative pleading (here, the petitioners' amended

complaint) and indulge every reasonable inference in the pleader's

favor. See Muñiz-Rivera v. United States, 326 F.3d 8, 11 (1st Cir.

2003). Where, however, those facts are illuminated, supplemented,

or even contradicted by other materials in the district court

record, we need not confine our jurisdictional inquiry to the

pleadings, but may consider those other materials.1 See J.S. ex

1
This seems an appropriate place to mention that, before oral
argument in this court, the government moved to supplement the
record with copies of orders from immigration judges awarding
continuances, changes of venue, and other ancillary relief to
several of the petitioners. We grant the motion. Although we
generally limit appellate consideration to the record before the
district court, this submission comes within an exception to the
usual rule because we may take judicial notice of the proffered
orders. See, e.g., Fornalik v. Perryman, 223 F.3d 523, 529 (7th

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rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004);

Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002). Our

solution to the jurisdictional puzzle may be original, that is, we

may affirm an order of dismissal on any ground made apparent by the

record (whether or not relied upon by the lower court). See

InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st Cir. 2003).

A.

The petitioners contend that the district court possessed

subject matter jurisdiction over their claims pursuant to the

general grant of federal question jurisdiction, 28 U.S.C. § 1331,

and the statutory grant of habeas corpus jurisdiction, id. § 2241.

In outlining this contention, they concede that Congress, in

enacting 8 U.S.C. § 1252(b)(9), attempted to direct challenges to

removal through defined administrative channels. They argue,

however, that their claims lie beyond the reach of this channeling

statute.

Delineating the precise ambit of section 1252(b)(9) calls

for an exercise in statutory construction. Thus, our starting

point is the statutory text. See Richardson v. United States, 526

Cir. 2000) (taking judicial notice of INS actions); see also Fed.
R. Evid. 201 advisory committee note (stating that judicial notice
may be taken on appeal). As we explain later in this opinion, the
orders are highly relevant to a determination of whether the
petitioners have an adequate forum in which to present their
claims.

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U.S. 813, 816 (1999); Fed. Refin. Co. v. Klock, 352 F.3d 16, 25

(1st Cir. 2003).

Section 1252(b)(9) is entitled "Consolidation of

questions for judicial review." It reads in pertinent part:

Judicial review of all questions of law and
fact, including interpretation and application
of constitutional and statutory provisions,
arising from any action taken or proceeding
brought to remove an alien from the United
States . . . shall be available only in
judicial review of a final order under this
section. Except as otherwise provided in this
section, no court shall have jurisdiction, by
habeas corpus under Section 2241 of Title 28,
or any other habeas corpus provision . . . or
by any other provision of law (statutory or
nonstatutory), to review such an order or such
questions of law or fact.

The Supreme Court has described this provision as a "general

jurisdictional limitation" and as "an unmistakable 'zipper'

clause." Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 482-

83 (1999). By its terms, the provision encompasses "all questions

of law and fact" and extends to both "constitutional and statutory"

challenges. Its expanse is breathtaking.

Congress's purpose in enacting section 1252(b)(9) is

evident. As its text makes manifest, that proviso was designed to

consolidate and channel review of all legal and factual questions

that arise from the removal of an alien into the administrative

process, with judicial review of those decisions vested exclusively

in the courts of appeals. See 8 U.S.C. § 1252(a)(5) (ordaining

that "a petition for review filed with an appropriate court of

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appeals . . . shall be the sole and exclusive means for judicial

review of an order of removal"). In enacting section 1252(b)(9),

Congress plainly intended to put an end to the scattershot and

piecemeal nature of the review process that previously had held

sway in regard to removal proceedings. See H.R. Rep. No. 109-72,

at 174 (2005) (Conf. Rep.), reprinted in 2005 U.S.C.C.A.N. 240,

299.

While paying lip service to the breadth and purpose of

section 1252(b)(9), the petitioners endeavor to avoid its

strictures by reading section 1252(b)(9) narrowly as stripping

district courts of jurisdiction over challenges to ongoing removal

proceedings — nothing more. On this basis, the petitioners claim

that the district court's habeas jurisdiction remains intact for

all legal challenges that are unaccompanied by any challenge to a

particular removal proceeding. That is wishful thinking; as we

explain below, such a construct belies the statute's plain meaning

and runs contrary to Congress's discernible intent.

Undocumented aliens cannot escape the vise-like grip of

section 1252(b)(9) by the simple expedient of banding together

claims consigned by law to administrative channels, declining to

raise them within the ambit of removal proceedings per se, and

maintaining that those unexhausted claims do not implicate a

particular removal determination. The reach of section 1252(b)(9)

is not limited to challenges to singular orders of removal or to

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removal proceedings simpliciter. By its terms, the provision aims

to consolidate "all questions of law and fact" that "arise from"

either an "action" or a "proceeding" brought in connection with the

removal of an alien. See 8 U.S.C. § 1252(b)(9). Importantly, the

statute channels federal court jurisdiction over "such questions of

law and fact" to the courts of appeals and explicitly bars all

other methods of judicial review, including habeas. Id.

The petitioners cannot skirt the statutory channel

markers by lumping together a melange of claims associated with

removal, each of which would be jurisdictionally barred if brought

alone, and eschewing a direct challenge to any particular removal

proceeding. Such claim-splitting — pursuing selected arguments in

the district court and leaving others for adjudication in the

immigration court — heralds an obvious loss of efficiency and

bifurcation of review mechanisms. These are among the principal

evils that Congress sought to avoid through the passage of section

1252(b)(9). See H.R. Rep. No. 109-72, at 174, reprinted in 2005

U.S.C.C.A.N. at 299. It is our task to enforce the statute as

Congress wrote it, and we reject the petitioners' invitation to

read the statute in a way that would frustrate Congress's

unmistakable purpose.

In a somewhat related vein, the petitioners insist that

the challenged actions occurred prior to the institution of any

formal removal proceedings and, thus, are beyond the compass of the

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zipper clause. Although their factual premise is unarguably

correct, their conclusion is not; nothing in the statute limits its

reach to claims arising from extant removal proceedings. Reading

the statute to limit the exhaustion requirement to claims that

arise from ongoing removal proceedings would put an undue premium

on which party rushed to the courthouse first. More importantly,

such a reading would render the word "action" superfluous and

effectively excise it from the statute. Yet it is a familiar canon

of construction that, whenever possible, every word and phrase in

a statute should be given effect. See, e.g., United States v. Ven-

Fuel, Inc., 758 F.2d 741, 751-52 (1st Cir. 1985). That canon

demands our fidelity here.

None of this is to imply that section 1252(b)(9) is

limitless in its scope. The words "arising from" do not lend

themselves to precise application, see Hiroshi Motomura, Judicial

Review in Immigration Cases After AADC: Lessons from Civil

Procedure, 14 Geo. Immigr. L.J. 385, 424 (2000), and courts have

debated their meaning in other settings, see Humphries v. Various

Fed. USINS Employees, 164 F.3d 936, 943 (5th Cir. 1999) (collecting

cases). One thing is clear, however: those words are not

infinitely elastic. Cf. Louisville & Nashville R.R. v. Mottley,

211 U.S. 149, 152 (1908) (famously reading the analogous term

"arising under" more narrowly than plain meaning might suggest).

With respect to section 1252(b)(9), these words cannot be read to

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swallow all claims that might somehow touch upon, or be traced to,

the government's efforts to remove an alien.

To us, Congress's choice of phrase suggests that it did

not intend section 1252(b)(9) to sweep within its scope claims with

only a remote or attenuated connection to the removal of an alien.

Courts consistently have recognized that the term "arising from"

requires more than a weak or tenuous connection to a triggering

event. See, e.g., Franchise Tax Bd. v. Constr. Laborers Vacation

Trust, 465 U.S. 1, 27 n.32 (1983); Humphries, 164 F.3d at 943;

Pizarro v. Hoteles Cocorde Int'l, C.A., 907 F.2d 1256, 1259 (1st

Cir. 1990).

Furthermore, if Congress had intended to accomplish so

far-reaching a result, it could have used broader language. Cf.

McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 (1991)

(suggesting that if Congress intended a certain provision of the

INA to be read more expansively, it could have used more expansive

language). For example, Congress would have used the term "related

to" instead of "arising from." See Humphries, 164 F.3d at 943

(suggesting that "related to" signifies a somewhat looser nexus

than "arising from").

Such a bounded reading of the statute is also suggested

by the fact that certain claims are excluded from the sweep of

section 1252(b)(9) by virtue of legislative intent and judicial

precedent. To illustrate, the legislative history indicates that

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Congress intended to create an exception for claims "independent"

of removal. H.R. Rep. No. 109-72, at 175, as reprinted in 2005

U.S.C.C.A.N. at 300. Thus, when it passed the REAL ID Act,

Congress stated unequivocally that the channeling provisions of

section 1252(b)(9) should not be read to preclude "habeas review

over challenges to detention." Id. (indicating that detention

claims are "independent of challenges to removal orders"). In line

with this prescription, we have held that district courts retain

jurisdiction over challenges to the legality of detention in the

immigration context. See Hernández v. Gonzales, 424 F.3d 42, 42

(1st Cir. 2005) (holding that detention claims are independent of

removal proceedings and, thus, not barred by section 1252(b)(9)).

This carve-out seemingly encompasses constitutional challenges

regarding the availability of bail. See, e.g., Demore v. Kim, 538

U.S. 510, 516 (2003).

There is no reason to believe that section 1252(b)(9)'s

exception for independent claims is restricted to those related to

detention. Cf. Sissoko v. Rocha, 440 F.3d 1145, 1156-57 (9th Cir.

2006) (suggesting that the broad jurisdiction-stripping provisions

of 8 U.S.C. § 1252(g) do not foreclose aliens' claims for money

damages under the doctrine of Bivens v. Six Unknown Named Agents of

the Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971)). After

all, section 1252(b)(9) is a judicial channeling provision, not a

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claim-barring one.2 The provision, where applicable, only requires

exhaustion of administrative procedures and the consolidation of

claims for judicial review.

We say "where applicable" because removal proceedings are

confined to determining whether a particular alien should be

deported. See id. § 1229a(c)(1)(A). While legal and factual

issues relating to that question can be raised in removal

proceedings and eventually brought to the court of appeals for

judicial review, certain claims, by reason of the nature of the

right asserted, cannot be raised efficaciously within the

administrative proceedings delineated in the INA. See, e.g.,

McNary, 498 U.S. at 496; Jupiter v. Ashcroft, 396 F.3d 487, 492

(1st Cir. 2005). Requiring the exhaustion of those claims would

foreclose them from any meaningful judicial review. Given

Congress's clear intention to channel, rather than bar, judicial

review through the mechanism of section 1252(b)(9), reading

"arising from" as used in that statute to encompass those claims

would be perverse.

We thus read the words "arising from" in section

1252(b)(9) to exclude claims that are independent of, or wholly

2
Congress knows how to bar claims in the immigration context
when it desires to do so. See, e.g., 8 U.S.C. § 1252(g)(2)
(declaring that "no court shall have jurisdiction to hear any cause
or claim by or on behalf of any alien arising from the decision or
action by the Attorney General to commence proceedings, adjudicate
cases, or execute removal orders").

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collateral to, the removal process. Among others, claims that

cannot effectively be handled through the available administrative

process fall within that purview. This reading, we believe, is

consistent with the wise presumption that Congress legislates with

knowledge of longstanding rules of statutory construction. See

McNary, 498 U.S. at 496. That presumption traditionally requires

that there be clear and convincing evidence of legislative intent

before restricting access to judicial review entirely. See, e.g.,

Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967).

This holding fits comfortably with traditional legal

principles. Courts long have recognized an exception to the

exhaustion requirement for claims that are collateral to

administrative proceedings. See, e.g., Bowen v. City of New York,

476 U.S. 467, 482-83 (1986); Mathews v. Eldridge, 424 U.S. 319, 330

(1976). In that regard, courts have been most willing to deem

claims "collateral" when requiring exhaustion would "foreclose all

meaningful judicial review." Thunder Basin Coal Co. v. Reich, 510

U.S. 200, 212-13 (1994); see Leedom v. Kyne, 358 U.S. 184, 190

(1958) (upholding injunction against agency action when petitioners

lacked any other means to protect or enforce their rights).

As a further reflection of this same attitude, courts

have demonstrated a particular hostility toward requiring

exhaustion when adequate relief could not feasibly be obtained

through the prescribed administrative proceedings. See, e.g.,

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Mathews, 424 U.S. at 331. That hostility also manifests itself

when a party would be "irreparably injured" by adherence to an

exhaustion requirement. Bowen, 476 U.S. at 483.

B.

Against this backdrop, we now turn to the question of

whether section 1252(b)(9) requires administrative exhaustion of

some or all of the petitioners' claims. We deal sequentially with

the petitioners' assertions about their constitutional right to be

free from harsh and inhumane conditions of confinement, their

assertions anent the right to counsel, and their assertions

concerning the right to family integrity. We subsume in these

discussions the petitioners' attempt to package their offerings as

class-wide pattern and practice suits.

We need not linger long over the conditions-of-

confinement claims. We assume, for argument's sake, that claims

challenging the conditions of an alien's detention are independent

of removal proceedings. Cf. Hernández, 424 F.3d at 42 (holding

that the REAL ID Act does not bar claims that merely challenge the

length of an alien's detention). Here, however, the conditions-of-

confinement claims were not raised below. That is a significant

omission. "If any principle is settled in this circuit, it is

that, absent the most extraordinary circumstances, legal theories

not raised squarely in the lower court cannot be broached for the

first time on appeal." Teamsters, Chauffeurs, Warehousemen &

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Helpers Union, Local No. 59, v. Superline Transp. Co., 953 F.2d 17,

21 (1st Cir. 1992).

To elaborate, the amended complaint in this case makes no

mention either of harsh conditions of confinement or of cruel and

inhumane treatment during detention. It only challenges the

legality and duration of confinement — and neither of those

challenges are renewed on appeal.

Going beyond the pleadings, the lone mention in the

district court record of any oppressively harsh conditions of

confinement is in an affidavit attached to one of the petitioners'

preliminary motions. That cursory reference is insufficient to

preserve the issue for appeal. See Paterson-Leitch Co. v. Mass.

Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988) ("One

should not be allowed to defeat the system by seeding the record

with mysterious references to unpled claims, hoping to set the

stage for an ambush should the ensuing ruling fail to suit."). The

petitioners, who could have asked the district court for leave

further to amend their complaint, Fed. R. Civ. P. 15(a), have shown

no reason — let alone a compelling reason — that would prompt us to

relax the prudential rule limiting appellate consideration to

issues that were squarely raised below. The conditions-of-

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confinement claims are, therefore, procedurally defaulted. We

reject them on that basis.3

The petitioners' right-to-counsel claims stand on more

solid procedural ground. Those claims were adequately raised

below. We turn, then, to their viability.

As the government repeatedly reminds us, aliens have no

constitutional right to counsel in removal proceedings. See Lozada

v. INS, 857 F.2d 10, 13 (1st Cir. 1988); see also INS v. Lopez-

Mendoza, 468 U.S. 1032, 1038 (1984) (stating that since "[a]

deportation proceeding is a purely civil action to determine

eligibility to remain in this country . . . various protections

that apply in the context of a criminal trial do not apply in a

deportation proceeding"). But aliens nonetheless are entitled to

due process, Lozada, 857 F.2d at 13, and the INA provides that, in

removal proceedings, an alien "shall have the privilege of being

represented (at no expense to the Government) by such counsel,

authorized to practice in such proceedings, as he shall choose."

8 U.S.C. § 1362.

3
Although the petitioners' amended complaint asserts that ICE
violated their due process rights by removing them from
Massachusetts prior to holding bond hearings, that claim has not
been squarely raised on appeal. The petitioners' brief only
mentions the right to a bond hearing in passing, and it is settled
that "issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived." United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Consequently,
we need not probe this point more deeply.

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 In this instance, the petitioners claim that their

detention and subsequent transfer by the government infringed

their rights to counsel by barring their access to lawyers,

interfering with preexisting attorney-client relationships, and

making it difficult to secure counsel of their choosing. The

threshold questions are whether these claims arise from removal and

if so, whether they can be deemed independent of, or collateral to,

the removal process (and, thus, not subject to the channeling

effect of section 1252(b)(9)). Our answers to these questions

require us to hold that the petitioners' right-to-counsel claims

must be administratively exhausted.

The shorthand response to the petitioners' plaint is that

claims that are based upon an alleged deprivation of an alien's

right to counsel in connection with a removal proceeding, whether

pending or imminent, arise from the removal proceeding. By any

realistic measure, the alien's right to counsel is part and parcel

of the removal proceeding itself. See 8 U.S.C. § 1362. So viewed,

an alien's right to counsel possesses a direct link to, and is

inextricably intertwined with, the administrative process that

Congress so painstakingly fashioned.

The frequency with which right-to-counsel claims arise in

removal proceedings refutes any notion that such claims are

sufficiently separate from removal proceedings to be considered

either "independent" or "collateral." Challenges to removal orders

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premised on the government's putative violation of an alien's right

to counsel are commonplace, and such claims are often featured in

petitions for judicial review of removal orders. See, e.g., Michel

v. INS, 206 F.3d 253, 258 (2d Cir. 2000); Batanic v. INS, 12 F.3d

662, 667 (7th Cir. 1993); Rios-Berrios v. INS, 776 F.2d 859, 862-64

(9th Cir. 1985). Ultimately, allowing aliens to ignore the

channeling provisions of section 1252(b)(9) and bring right-to-

counsel claims directly in the district court would result in

precisely the type of fragmented litigation that Congress sought to

forbid.

In this instance, requiring the administrative exhaustion

of such claims does not, in the Supreme Court's phrase, "foreclose

all meaningful judicial review" of the claims. Thunder Basin, 510

U.S. at 212-13. The petitioners unquestionably have the right,

under the INA, to raise these claims before the immigration judge,

before the Board of Immigration Appeals (BIA), and ultimately

before the court of appeals. See, e.g., Mitchell, 206 F.3d at 256-

57. Thus, the petitioners — in contrast to the plaintiffs in cases

like Bowen and Mathews — can receive effective relief for their

alleged violations of the right to counsel simply by navigating the

channels deliberately dredged by Congress.

The proof of the pudding lies in the petitioners'

collective experiences. See supra note 1. In accordance with

applicable regulations, see 8 C.F.R. § 1003.29, each petitioner who

-22-
requested a continuance for the purpose of retaining counsel

received one. Many others have been granted changes in venue,

moving their cases from Texas to Massachusetts. See 8 C.F.R. §

1003.20(b). Each petitioner who raised an issue of this sort may

seek review, first by the BIA and then by the regional court of

appeals, of any adverse determination impacting his or her right to

counsel.

We note, moreover, that the petitioners, who assert that

they will be irreparably harmed if they are required to exhaust

their right-to-counsel claims administratively, have not

satisfactorily explained how or why this is so. We find

irreparable harm lacking in this instance. The absence of any such

harm places this case at a considerable remove from cases like

Bowen and Mathews, in which the delay attendant to the exhaustion

of administrative remedies likely would have engendered irreparable

injury. See Bowen, 476 U.S. at 483-84 (not requiring exhaustion of

administrative remedies because doing so might "trigger a severe

medical setback") (citation and internal quotation marks omitted);

Mathews, 424 U.S. at 331 (not requiring exhaustion because

plaintiff's physical condition and dependence on disability

benefits would, in the event, "damage him in a way not

recompensable through retroactive payments").

-23-
 C.

The petitioners have another string to their bow: they

invoke the doctrine of constitutional avoidance. See Ashwander v.

TVA, 297 U.S. 288, 341 (1936) (Brandeis, J., concurring); United

States v. Nascimento, 491 F.3d 25, 38 (1st Cir. 2007).

Specifically, they contend that requiring exhaustion of their

right-to-counsel claims will give rise to a substantive

constitutional question similar to that noted by the Supreme Court

in McNary. This contention cannot withstand scrutiny.

The McNary claimants alleged that the Immigration and

Naturalization Service (INS) — the predecessor agency to ICE —

arbitrarily conducted its special agricultural workers program and,

in so doing, violated their due process rights. 498 U.S. at 487.

In particular, they complained that the INS (i) precluded

applicants from presenting witnesses or otherwise challenging

adverse evidence on which initial benefit denials had been

predicated; (ii) failed to furnish competent interpreters; and

(iii) neglected to arrange for verbatim recording of interviews,

thus inhibiting meaningful administrative review of on-the-ground

decisions. Id. at 487-88.

The Supreme Court expressed understandable concern about

this procedural matrix. See id. at 496 (reasoning that because

review of agency action was "confined to the record made in the

proceeding at the initial decisionmaking level," the lack of an

-24-
adequate record ensured that there would be "no complete or

meaningful basis upon which to review application determinations");

see also id. at 497 (explaining that barring district court review

would deprive the claimants of needed "factfinding and record-

developing capabilities"). Given these deficiencies, the Court

questioned the application of INA's exhaustion requirements to

claims alleging a "pattern and practice" of such due process

violations. See id. at 496-97. The Court suggested that the

claims were "collateral" to the review of program status

determinations and, thus, not covered by the exhaustion

requirements. Id. at 492.

The petitioners' analogy to McNary is imperfect. In the

last analysis, McNary was a statutory construction case. The Court

held that the statute governing review of special agricultural

worker program status determinations did not bar district courts

from exercising jurisdiction over due process pattern and practice

claims that challenged the program's characteristic procedures.

Id. The Court noted that if Congress had intended to require

exhaustion of such claims, it could have used clear language to

that effect. Id. at 494 (stating that Congress "could have modeled

the [statute] on 38 U.S.C. § 211(a), which governs review of

veterans' benefits claims, by referring to review 'on all questions

of law and fact'").

-25-
 This holding is of little succor to the petitioners.

Section 1252(b)(9) sweeps much more broadly than the statute at

issue in McNary. Indeed, its text tracks the very language

suggested by the McNary Court as a means of consolidating claims

for review and channeling into removal proceedings. See 8 U.S.C.

§ 1252(b)(9) (providing for "judicial review of all questions of

law and fact" arising from removal). This language is expansive

enough to cover right-to-counsel claims brought by aliens in

connection with removal proceedings.

Here, moreover, the right-to-counsel claims do not give

rise to potential constitutional problems of the kind that troubled

the McNary Court. In contrast to McNary, the petitioners do not

challenge the manner in which an entire program — removal writ

large — is being implemented. They do not claim that the INA's

basic review procedures deny aliens the opportunity to call

witnesses or challenge adverse evidence. And, finally, they do not

denigrate the accuracy of the administrative record normally

compiled in the immigration court. Whereas in McNary, the lack of

a verbatim transcript made some degree of factfinding essential to

a determination of whether the initial hearing afforded due

process, id. at 497, no such problems are apparent here.

The bottom line is that immigration judges possess ample

evidence-gathering faculties, including the authority to administer

oaths, receive evidence, issue subpoenas, call witnesses, and

-26-
entertain cross-examination. See, e.g., 8 U.S.C. § 1229a(b)(1).

As previously noted, they routinely take evidence on, and

adjudicate, claims alleging violations of the right to counsel.

See, e.g., Wang v. Ashcroft, 367 F.3d 25, 28 (1st Cir. 2004);

Bernal-Vallejo v. INS, 195 F.3d 56, 63-64 (1st Cir. 1999). Thus,

the petitioners' individual right-to-counsel claims will need no

supplemental factfinding in order to create a solid platform for

further administrative and judicial review.

This means, of course, that reviewing tribunals, whether

administrative or judicial, can fairly hear and determine, on the

basis of the record compiled before the immigration judge, charges

that ICE's actions during and after the Bianco factory raid

transgressed a particular petitioner's right to counsel. Given

this reality, we are led inexorably to two conclusions. First,

McNary is distinguishable. Second, the doctrine of constitutional

avoidance is not in play in this case. See U.S. ex rel Att'y Gen.

v. Del. & Hudson Co., 213 U.S. 366, 408 (1909) (explaining that

constitutional avoidance canon applies only if "grave and doubtful

constitutional questions arise" from a particular statutory

construction).

The petitioners mount several other efforts to subvert

the INA's exhaustion requirements and the channeling mechanism of

section 1252(b)(9). The first of these consists of styling their

claims as class-wide pattern and practice claims. They argue that

-27-
their claims do not challenge any individual legal deprivation but,

rather, limn class-wide violations of constitutional and statutory

rights arising from an unwholesome, but institutionalized, pattern

and practice of conduct on the part of ICE.

This construct seems to suggest that class-wide pattern

and practice claims are always substantively different from

individual claims because the former challenge an established

policy of the agency, not an individual constitutional or statutory

deprivation. While there may be qualitative as well as

quantitative distinctions between class-wide pattern and practice

claims, on the one hand, and individual claims, on the other hand,

see, e.g., El Rescate Legal Servs., Inc. v. Exec. Office of Immigr.

Rev., 941 F.2d 950, 953 (9th Cir. 1991), merely conglomerating

individual claims and posturing the conglomeration as a pattern and

practice claim does not have talismanic effects. A pattern and

practice claim is not a freestanding cause of action but merely a

method of proving an underlying legal violation. See, e.g.,

Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 355 (5th Cir.

2001).

Nor do we think that aliens can dodge the channeling

machinery of section 1252(b)(9) simply by draping individual claims

in the mantle of a class action. Although the class action device

constitutes an important weapon in the modern litigator's

armamentarium, it is merely a procedural device governed by Federal

-28-
Rule of Civil Procedure 23, and Congress retains the power to

restrict its availability. See, e.g., 8 U.S.C. § 1252(e)(1)(B)

(forbidding the certification of class actions in cases under 8

U.S.C. § 1225(b)(1)); McKenna v. First Horizon Home Loan Corp., 475

F.3d 418, 423 (1st Cir. 2007) (holding that class action treatment

is not available for TILA rescission claims).

We add, moreover, that courts must always be wary of

strategic behavior designed to sidestep exhaustion requirements.

See, e.g., Booth v. Churner, 532 U.S. 731, 741 (2001); Coleman v.

Thompson, 501 U.S. 722, 732 (1991). That caveat has obvious

relevance when aliens seek to employ the class action format to

evade the INA's channeling requirements. Cf. Swan v. Stoneman, 635

F.2d 97, 105 n.9 (2d Cir. 1980) (suggesting that a district court

may consider whether a "class claim has been added merely to avoid

the exhaustion requirement").

Ultimately, then, we must discount nomenclature and

follow the time-honored precept that substance trumps form. See

Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 259 (1933);

Penhallow v. Doane's Adm'rs, 3 U.S. (3 Dall.) 53, 104 (1795); SEC

v. SG Ltd., 265 F.3d 42, 46-47 (1st Cir. 2001). Put bluntly, we

must look through such easy evasions as creative labeling and

consider the fundamental nature of the claims asserted. We cannot

allow collective end runs around congressional directives.

-29-
 Let us be perfectly clear. We do not suggest that

section 1252(b)(9) strips district courts of jurisdiction over all

pattern and practice claims. As the Supreme Court suggested in

McNary, 498 U.S. at 496, requiring exhaustion of certain pattern

and practice claims might result in a total denial of meaningful

judicial review. The trick is to distinguish wheat from chaff,

that is, to distinguish what must be exhausted from what need not

be exhausted. In that endeavor, the most salient questions involve

whether the underlying claims are cognizable within the review

process established by Congress, and if so, whether enforcement of

the exhaustion requirement will allow meaningful judicial review

without inviting an irreparable injury. Cf. Mathews, 424 U.S. at

331 n.11 (underscoring that "the nature of the claim being asserted

and the consequences of deferment of judicial review are important

factors in determining whether a statutory requirement of finality

has been satisfied"). When, as in this case, the answers to these

queries yield no persuasive reason for bypassing the channels that

Congress has created, the use of pattern and practice or class

action nomenclature cannot alter the result.

The petitioners' remaining effort to circumvent the

channeling requirements of section 1252(b)(9) rests on a contention

that the administrative and judicial review provisions of the INA

are constitutionally suspect because they foreclose the

availability of a particular type of remedy. In essence, they

-30-
suggest that channeling their right-to-counsel claims into the

immigration court might raise constitutional concerns because

broad-based declaratory and injunctive relief would not be

available in that forum. We reject this suggestion.

While "every right, when withheld, must have a remedy,

and every injury its proper redress," Marbury v. Madison, 5 U.S. (1

Cranch) 137, 147 (1803), Congress has wide latitude in choosing

which remedy or remedies are appropriate for the violation of a

particular constitutional right. See generally Henry M. Hart, Jr.,

The Power of Congress to Limit the Jurisdiction of Federal Courts:

An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1366 (1953).

Congress possesses the power to regulate the jurisdiction of the

lower federal courts, see, e.g., Cary v. Curtis, 44 U.S. (3 How.)

236, 245 (1845), and the Supreme Court has not found constitutional

difficulties in congressional abrogation of certain remedies as

long as others are left intact. See, e.g., Lauf v. E.G. Shinner &

Co., 303 U.S. 323, 330 (1938) (rejecting an argument that

restrictions on injunctive relief contained in the Norris-LaGuardia

Act offend the Constitution); Cary, 44 U.S. at 250 (upholding

Congress's abolition of a cause of action against a tax collector

based in part on the fact that the claimant "was not without other

modes of redress"); cf. Swain v. Pressley, 430 U.S. 372, 381 (1977)

(holding that "the substitution of a collateral remedy which is

neither inadequate nor ineffective to test the legality of a

-31-
person's detention does not constitute a suspension of the writ of

habeas corpus").

Courts also have rebuffed litigants' attempts to bypass

congressionally mandated exhaustion requirements by demanding

remedies that the administrative procedures cannot grant. See,

e.g., Booth, 532 U.S. at 741 (holding that prisoners must exhaust

administrative remedies under the Prison Litigation Reform Act

"regardless of the relief offered through administrative

procedures"); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 61 (1st

Cir. 2002) ("Exhaustion is beneficial regardless of whether the

administrative process offers the specific form of remediation

sought by a particular plaintiff.").

To sum up, while Congress probably cannot nullify rights

guaranteed in the Constitution by prohibiting all remedies for the

violation of those rights, see, e.g., Webster v. Doe, 486 U.S. 592,

603 (1988) (requiring clear expression of congressional intent to

preclude judicial review of constitutional claims); but see id. at

613 (Scalia, J., dissenting) (asserting that "it is simply

untenable that there must be a judicial remedy for every

constitutional violation"), this is not such a case. The remedies

left open by section 1252(b)(9) are neither inadequate nor

ineffective to protect the petitioners' rights. Cf. Swain, 430

U.S. at 381 (limning this test in the habeas context). Each

petitioner's right to counsel can be adequately addressed and

-32-
effectively vindicated before an immigration judge (who can grant

a continuance, order a change of venue, or take other pragmatic

steps to ensure that the right is not sullied). In turn, those

orders can be meaningfully reviewed, first by the BIA and then by

the court of appeals. No more is exigible to uphold the district

court's dismissal of the petitioners' right-to-counsel claims.

Before concluding this phase of our discussion, we deem

it advisable to add that, in an abundance of caution, we have

sifted through the petitioners' pleadings, briefs, and other

submissions. To the extent that they arguably have raised

procedural due process claims above and beyond their right-to-

counsel claims — such as their vaguely articulated plaints about

difficulties in calling witnesses and in presenting evidence at the

removal proceedings — we find that section 1252(b)(9) mandates

their exhaustion.

Our reasoning is by now familiar. The petitioners'

procedural due process rights "arise from" removal in that they are

part of the fabric of the removal proceedings themselves. This

imbrication is borne out by the fact that, like right-to-counsel

claims, claims alleging violations of the right to procedural due

process are commonplace in petitions for administrative and

judicial review of removal orders. See, e.g., Frech v. U.S. Att'y

Gen., 491 F.3d 1277, 1281-82 (11th Cir. 2007); Enwonwu v. Gonzales,

438 F.3d 22, 31 (1st Cir. 2006); see also Gandarillas-Zambrana v.

-33-
BIA, 44 F.3d 1251, 1255-56 (4th Cir. 1995) (considering virtually

identical due process claims on appeal from a final order of

deportation).

We conclude, therefore, that given the nature of those

claims and their wonted treatment, they cannot plausibly be viewed

as either independent of, or collateral to, removal proceedings.4

It follows that the channeling mechanism of section 1252(b)(9)

governs such claims (if, indeed, they have been properly pleaded

and adequately developed).

D.

This leaves only the petitioners' substantive due process

claims, which allege violations of the Fifth Amendment right of

parents to make decisions as to the care, custody, and control of

their children. See, e.g., Troxel v. Granville, 530 U.S. 57, 65

(2000). We conclude that, unlike most of the petitioners' other

claims, these claims are collateral to removal and, thus, outside

the channeling mechanism of section 1252(b)(9).

We set the stage. The petitioners were carted away

unceremoniously at the time of the factory raid. They allege that

4
To be sure, we have suggested that a "denial of due process
may, in certain limited circumstances, be exempt from the ordinary
exhaustion requirement," Jupiter, 396 F.3d at 492. Withal, we have
underscored that "[t]hese circumstances are rare and are restricted
to claims that are beyond the authority of the agency to
adjudicate." Id. The petitioners have not demonstrated that their
claims deserve such extraordinary treatment.

-34-
their immediate detention, the subsequent string of transfers (many

of them to distant climes), and ICE's inadequate efforts either to

notify or to work with social service agencies disrupted family

units. That alleged disruption forms the centerpiece of their

substantive due process claims.

To be sure, these claims bear some connection to removal.

But the link is tenuous: the right to family integrity is only

marginally related to removal, the harm from continuing disruption

may be irretrievable, and the issue is not one with which the

immigration court ordinarily would grapple. Thus, reading section

1252(b)(9) to mandate administrative exhaustion of a substantive

due process claim that asserts this kind of "family integrity"

violation likely would sound the death knell for meaningful

judicial review. The issue of family integrity is completely

irrelevant to the mine-run of issues that will be litigated in

removal proceedings, and the claims have no bearing on the aliens'

immigration status. To cinch matters, the petitioners have no

other means within their control through which to protect or

enforce the asserted right.

Holding that the district court lacked jurisdiction over

these substantive due process claims not only would be inconsistent

with the express purpose of section 1252(b)(9) — which is to

channel claims, not to bar them — but also would contradict the

presumption favoring judicial review of administrative actions.

-35-
See Abbott Labs., 387 U.S. at 141. And, finally, because the

petitioners would be left without any effective remedy, they would

be irreparably harmed by this proposed application of the

exhaustion requirement.

In reaching the conclusion that the family integrity

claims are collateral and, thus, not subject to the exhaustion

requirement, we do not break with precedent. Contrary to the

government's insinuations, this case is distinct from cases like

Payne-Barahona v. Gonzales, 474 F.3d 1 (1st Cir 2007). There, the

alien unsuccessfully attempted to wedge a family integrity claim

into a removal proceeding. Id. at 2. Here, unlike in Payne-

Barahona, the petitioners do not base their claims on the notion

that their removal will split the family unit and thus violate

substantive due process; rather, they contend more narrowly that

ICE's failure to allow them time to make arrangements for the care

of their children before hauling them off violated their rights to

family integrity (and, thus, worked a substantive due process

violation).

Because we hold that the district court should not have

dismissed this subset of claims for failure to exhaust

administrative remedies, we must address the government's alternate

argument that a different statutory provision, 8 U.S.C. §

1252(a)(2)(B)(ii), bars the district court from exercising subject

matter jurisdiction over all of the petitioners' claims (including

-36-
the substantive due process claims). That statute provides in

pertinent part:

Notwithstanding any provision of law .
. . and regardless of whether the judgment,
decision, or action is made in removal
proceedings, no court shall have jurisdiction
to review —

* * *

(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 [8 U.S.C. §§
1151-1381] to be in the discretion of the
Attorney General or the Secretary of Homeland
Security . . . .

Id. For present purposes, this language must be read in

conjunction with 8 U.S.C. § 1231(g)(1), which provides that "[t]he

Attorney General shall arrange for appropriate places of detention

for aliens detained pending removal or a decision on removal."

The government says that the latter statute entrusts both

the timing and placement of an alien's detention to the unfettered

discretion of the Attorney General. Building on that foundation, it

posits that those sorts of wholly discretionary decisions are

unreviewable under section 1252(a)(2)(B)(ii). Accordingly, the

government urges us to find that the district court lacked

jurisdiction over constitutional and statutory claims, such as the

substantive due process claims advanced by the petitioners, arising

out of the petitioners' detention and transfers.

-37-
 We reject the government's sprawling construction of

section 1252(a)(2)(B)(ii). As we have noted before, so broad a

reading is not evident from the statute's text. See Royal Siam

Corp. v. Chertoff, 484 F.3d 139, 143 (1st Cir. 2007). A more

natural reading would leave the petitioners' substantive due

process claims outside the reach of the statute.

In the first instance, there is considerable uncertainty

as to whether section 1231(g)(1) encompasses the authority to

transfer detainees. The first sentence of the provision — granting

the power to "arrange for appropriate places of detention for

aliens detained" — suggests that it might; the second sentence,

which authorizes the Attorney General "to acquire land and to

acquire, build and remodel, repair, and operate facilities,"

reflects more of a bricks-and-mortar orientation.

Here, however, this question of statutory interpretation

is of mainly academic interest. We need not resolve it because, in

all events, section 1231(g) fails to "specify" that individualized

transfer decisions are in the Attorney General's discretion. This

is in stark contrast to other sections of the INA. See, e.g., 8

U.S.C. §§ 1157(c)(1), 1181(a)(9)(B)(v), 1184(c)(6)(F),

1229b(b)(2)(D); see also Alaka v. Att'y Gen., 456 F.3d 88, 97 (3d

Cir. 2006) (stating that "there are no less than thirty-two

additional provisions in the very subchapter of the INA referenced

by 8 U.S.C. § 1252(a)(2)(B)(ii) that make explicit the grant of

-38-
'discretion' to the Attorney General or the Secretary of Homeland

Security"). If a statute does not explicitly specify a particular

authority as discretionary, section 1252(a)(2)(B)(ii) does not bar

judicial review of an ensuing agency action. See Alsamhouri v.

Gonzales, 484 F.3d 117, 122 (1st Cir. 2007).

We are aware that one respected court has stated that

section 1252(a)(2)(B)(ii) pretermits judicial review of the

Attorney General's decision to transfer detainees. Van Dinh v.

Reno, 197 F.3d 427, 433 (10th Cir. 1999). There, the panel said

that it was giving effect to the "literal meaning" of the statute.

Id. But this is a minority view: as other courts have recognized,

the plain language of the statute calls that statement into

question. See Zhao v. Gonzales, 404 F.3d 295, 303 n.6 (5th Cir.

2005) (concluding that "Van Dinh . . . misstates the statutory

text" and "analyze[s] statutory language that Congress did not

adopt"); Spencer Enters., Inc. v. United States, 345 F.3d 683, 691

(9th Cir. 2003) (finding Van Dinh's reasoning unpersuasive because

"the plain language of [section] 1252(a)(2)(B)(ii) requires that

discretionary authority be specified by the statute").

We share the view of the Fifth and Ninth Circuits.

Consequently, we reject Van Dinh and hold that section

1252(a)(2)(B)(ii) does not strip the district courts of

jurisdiction over substantive due process claims that are

collateral to removal proceedings when those claims challenge

-39-
decisions about the detention and transfer of aliens on family

integrity grounds.

E.

Although the petitioners' substantive due process claims

survive the INA's jurisdictional gauntlet, the government contends

in the alternative that these statements of claim fail to limn

causes of action on which relief may be granted. See Fed. R. Civ.

P. 12(b)(6). The district court did not reach this issue, but we

can affirm its order of dismissal on any alternative ground made

manifest in the record. See InterGen, 344 F.3d at 141. Thus, we

test the viability of the substantive due process claims, accepting

as true all the well-pleaded factual averments in the amended

complaint and drawing all reasonable inferences therefrom in the

petitioners' favor. Educadores Puertorriqueños en Acción v.

Hernández, 367 F.3d 61, 62 (1st Cir. 2004).

We begin with bedrock. The Fifth Amendment mandates that

no person shall "be deprived of life, liberty, or property, without

due process of law." U.S. Const. amend. V. The due process

guarantee has both procedural and substantive aspects. Amsden v.

Moran, 904 F.2d 748, 753 (1st Cir. 1990). Its substantive

component is at issue here. That component bars certain offensive

government actions "regardless of the fairness of the procedures

used to implement them." Daniels v. Williams, 474 U.S. 327, 331

(1986).

-40-
 The criteria for identifying whether government action

offends the guarantee of substantive due process hinge on the

nature of the challenged government action. See County of

Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998); DePoutot v.

Raffaelly, 424 F.3d 112, 118 (1st Cir. 2005). When challenging

executive action under the imprimatur of substantive due process,

"the threshold question is whether the behavior of the governmental

officer is so egregious, so outrageous, that it may fairly be said

to shock the contemporary conscience." Lewis, 523 U.S. at 847 n.8.

This mantra reflects a realization that challenges to executive

action must be viewed through the prism of "a particular need to

preserve the constitutional proportions of constitutional claims,

lest the Constitution be demoted to what we have called a font of

tort law." Id.

Consistent with this need to refrain from

constitutionalizing ordinary misfeasance or malfeasance, the "shock

the conscience" standard erects a high hurdle for would-be

claimants. As a result, "liability for negligently inflicted harm

is categorically beneath the threshold of [substantive] due

process." Id. at 849. Indeed, "the requisite arbitrariness and

caprice must be stunning, evidencing more than humdrum legal

error." Amsden, 904 F.2d at 754 n.5. That strain of exaggerated

arbitrariness historically has involved "deliberate decisions of

government officials to deprive a person of life, liberty, or

-41-
property." Daniels, 474 U.S. at 331. Thus, "[e]xecutive branch

action that sinks to the depths of shocking the contemporary

conscience is much more likely to find its roots in 'conduct

intended to injure in some way unjustifiable by any government

interest.'" DePoutot, 424 F.3d at 119 (quoting Lewis, 523 U.S. at

849).

Here, the petitioners claim in essence that their

immediate detention and swift transfer to distant DROs wreaked

havoc with their right to make decisions about the care, custody,

and control of their minor children, leaving many minors

unattended. But neither the petitioners' amended complaint nor

their briefs offer any reason to believe that ICE's actions were so

"extreme, egregious, or outrageously offensive" as to cross the

"shock the conscience" line. DePoutot, 424 F.3d at 119. We

elaborate below.

The petitioners state cursorily in their amended

complaint that the government "willfully" interfered with their

rights. But any claim of an intentional deprivation is belied by

the petitioners' concession that ICE took at least some measures to

alleviate any resultant harm.5 Moreover, the petitioners do not

5
This concession squares with the district court's supportable
findings that ICE attempted to coordinate with social services
agencies to assure the adequate care of dependent children and in
fact took affirmative steps before and after the raid to attend to
family needs. Aguilar, 490 F. Supp. 2d at 43-44. The district
court likewise found that ICE immediately released thirty-five
persons who had been apprehended due to "pressing humanitarian

-42-
make any showing that the amount of time during which they were

denied the ability to make arrangements for their children was

disproportionate to what was reasonably necessary to process the

large number of aliens detained during the factory raid. While

ICE's actions during and after the raid seem callous in certain

respects, the facts alleged suggest no more than negligence or

misordered priorities.

Our thinking is influenced by a realization that the

evenhanded enforcement of the immigration laws, in and of itself,

cannot conceivably be held to violate substantive due process. See

Payne-Barahona, 474 F.3d at 2; De Robles v. INS, 485 F.2d 100, 102

(10th Cir. 1973). Any interference with the right to family

integrity alleged here was incidental to the government's

legitimate interest in effectuating detentions pending the removal

of persons illegally in the country. See Demore, 538 U.S. at 523

(recognizing "detention during deportation proceedings as a

constitutionally valid aspect of the deportation process").

This is critically important because every such detention

of a parent, like every lawful arrest of a parent, runs the risk of

interfering in some way with the parent's ability to care for his

or her children. See Payne-Barahona, 474 F.3d at 3. That a

detention has an impact on the cohesiveness of a family unit is an

needs" (such as being the sole caregiver of one or more minor
children). Id. at 43 n.3.

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inevitable concomitant of the deprivation of liberty inherent in

the detention itself. So long as the detention is lawful, that so-

called deprivation of the right to family integrity does not

violate the Constitution.

We hold, therefore, that such an incidental interference,

standing alone, is not of constitutional magnitude. To rule

otherwise would risk turning every lawful detention or arrest of a

parent into a substantive due process claim. That would place new

and unprecedented constraints on law enforcement activities. Such

constraints would be unwarranted.

Applying the jurisprudence of substantive due process is

an exercise that is "highly dependent on context and detail."

DePoutot, 424 F.3d at 119. Were a substantial number of young

children knowingly placed in harm's way, it is easy to imagine how

viable claims might lie. But to state a cause of action for a

substantive due process violation, the petitioners' pleading would

have to allege facts that showed a plausible entitlement to relief.

Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1968-69 (2007). The

petitioners have not scaled this barrier.6

One further point is worthy of mention. While the "shock

the conscience" test comprises the threshold inquiry with respect

6
We take no view on whether an abandoned child might in
certain circumstances have a cause of action for damages against a
responsible government actor. See, e.g., White v. Rochford, 592
F.2d 381 (7th Cir. 1979). That issue is not before us.

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to substantive due process violations, the petitioners also must

show that the government deprived them of a protected interest in

life, liberty, or property. See Pagán v. Calderón, 448 F.3d 16, 32

(1st Cir. 2006); see also Lewis, 523 U.S. at 847 n.8 (asserting

that the "shock-the-conscience" inquiry "may be informed by a

history of liberty protection"). Here, the nature of the

underlying right asserted by the petitioners reinforces our

conclusion that they have not stated a viable substantive due

process claim.

We see the matter this way. Although the interest of

parents in the care, custody, and control of their offspring is

among the most venerable of the liberty interests protected by the

Fifth Amendment, see, e.g., Troxel, 530 U.S. at 65; Hatch v. Dep't

for Children, Youth & Their Families, 274 F.3d 12, 20 (1st Cir.

2001), the petitioners have not demonstrated that this guarantee of

substantive due process encompasses their assertions. After all,

the right to family integrity has been recognized in only a narrow

subset of circumstances.

To be sure, the petitioners cite cursorily to cases that

deal with this right but they conspicuously fail to build any

bridge between these cases and the facts that they allege. We do

not think that this is an accident. The petitioners' claims seem

markedly different from those scenarios that courts heretofore have

recognized under the rubric of family integrity. They have not

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alleged that the government has interfered permanently with their

custodial rights. See, e.g., Stanley v. Illinois, 405 U.S. 645,

649 (1972). Nor have they alleged that the government has meddled

with their right to make fundamental decisions regarding their

children's education, see, e.g., Meyer v. Nebraska, 262 U.S. 390,

400 (1923), or religious affiliation, see, e.g., Wisconsin v.

Yoder, 406 U.S. 205, 232 (1972). Taken most favorably to the

petitioners, the interference alleged here is transitory in nature

and in no way impinges on parental prerogatives to direct the

upbringing of their children.

We have scoured the case law for any authority suggesting

that claims similar to those asserted here are actionable under the

substantive component of the Due Process Clause, and we have found

none.7 That chasm is important because, given the scarcity of

"guideposts for responsible decisionmaking in this unchartered

area," courts must be "reluctant to expand the concept of

substantive due process." Washington v. Glucksberg, 521 U.S. 702,

720 (1997) (quoting Collins v. Harker Heights, 503 U.S. 115, 125

(1992)).

7
For example, the petitioners suggest that they had the right
to contact their family members immediately following their
detention. That is simply incorrect. Even one accused of
committing a crime does not have an absolute right to place a
telephone call immediately upon his apprehension. See Harrill v.
Blount County, 55 F.3d 1123, 1125 (6th Cir. 1995).

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 This unfortunate case is a paradigmatic example of an

instance in which the prudential principle announced by the Collins

Court should be heeded. Accordingly, we dismiss the petitioners'

substantive due process claims for failure to satisfy the

prerequisites of Federal Rule of Civil Procedure 12(b)(6).

III.

We are sensitive to the concerns raised by the

petitioners and are conscious that undocumented workers, like all

persons who are on American soil, have certain inalienable rights.

But in the first instance, it is Congress — not the judiciary —

that has the responsibility of prescribing a framework for the

vindication of those rights. When Congress speaks clearly and

formulates a regime that satisfies constitutional imperatives, the

courts must follow Congress's lead. In that sense, it does not

matter whether a court approves or disapproves of an agency's modus

operandi.

We add only two comments. First, we applaud the able

district judge for the skill and sensitivity with which he handled

this highly charged case. Second, we express our hope that ICE,

though it has prevailed, nonetheless will treat this chiaroscuro

series of events as a learning experience in order to devise

better, less ham-handed ways of carrying out its important

responsibilities.

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The judgment of dismissal is affirmed. All parties shall bear

their own costs.

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