concurring in the judgment in part and dissenting in part:
I agree with the majority that this case is particularly troubling. The thought of prolonged detention of children who have done nothing more than to be in this country illegally, and to be without a parent or relative willing to come to their rescue, touches a raw nerve in us all. Even so would we be sickened were one of these children to be precipitously released to abuse, neglect or worse.1 A constitutionally appropriate balance must therefore be struck between the alien minors’ interest in freedom from institutional restraint and the government’s responsibility for their safety.
I write separately even though I agree with much of the majority’s bottom line, because I believe the case can be decided more narrowly and in a way that will safeguard valuable rights more effectively than the district court’s order. I part company with both the district court and the majority to the extent they hold that the Constitution substantively requires release to any responsible adult who will promise to bring the minor to future hearings, and I disagree that a probable cause hearing is constitutionally required for juveniles held in deportation proceedings. Instead, I conclude that current INS procedures are constitutionally insufficient to afford an alien juvenile the process she is due when it has been determined that she may be released from INS custody, but that she has no parent, guardian, adult relative, or person designated by a parent or guardian to assume custody. Without assurance of an early determination by a neutral hearing officer of whether to release the juvenile under these circumstances, and absent an outside limit on the length of time the juvenile may continue to be held even though it has been determined that she is eligible for release, the risk that the child will be unduly detained outweighs the government’s remaining interests in maintaining custody and assuring well-being.
The Due Process Clause of the Fifth Amendment assures that “No person shall ... be deprived of life, liberty, or property, *1373without due process of law_” The Supreme Court has held that
the Due Process Clause protects individuals against two types of government action. So-called ‘substantive due process’ prevents the government from engaging in conduct that ‘shocks the conscience,’ Rochin v California, 342 US 165, 172, 96 L Ed 183, 72 S Ct 205 [209], 25 ALR 1396 (1952), or interferes with rights ‘implicit in the concept of ordered liberty,’ Palko v Connecticut, 302 US 319, 325-326, 82 L Ed 288, 58 S Ct 149 [152] (1937). When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner. Mathews v Eldridge, 424 US 319, 335, 47 L Ed 2d 18, 96 S Ct 893 [903] (1976). This requirement has traditionally been referred to as ‘procedural’ due process.
United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987).
The district court’s judgment does not indicate which component was violated. To the extent its order requires a substantive change in the regulation-directing release to a “custodian, conservator, or other responsible adult party” who promises to bring the minor to future hearings, I infer that the court believed § 242.24(b)(4) runs afoul of due process on substantive grounds; I assume it also found the regulation wanting on procedural due process grounds since it ordered an administrative hearing to determine probable cause for the minor’s arrest and need for restrictions on her release.
While Flores does contend that the minors’ interest in personal liberty is a fundamental constitutional right that substantively overrides the INS restriction on release of children, in her brief to this court and at oral argument she concedes that the district court’s order may be seen as wholly procedural and could be affirmed on procedural grounds. Because I agree that the INS’s regulation falters for lack of minimum procedures comporting with due process, I see no need to reach more broadly at this time.2
The fifth amendment protects physical freedom by requiring that the government satisfy rigorous procedural safeguards before taking it away. Procedural fairness has traditionally been tested under Mathews v. Eldridge, 424 U.S. 319, 334-335, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976). The Court restated the framework for analysis in Landon v. Plasencia, 459 U.S. 21, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982), an immigration case, as follows:
The constitutional sufficiency of procedures provided in any situation, of course, varies with the circumstances. In evaluating the procedures in any case, the courts must consider the interest at stake for the individual, the risk of an erroneous deprivation of the interest through the procedures used as well as the probable value of additional or differ*1374ent procedural safeguards, and the interest of the government in using the current procedures rather than additional or different procedures.
Id. at 34, 103 S.Ct. at 330 (citations omitted).
The alien juveniles’ interest has considerable weight: they stand to continue losing freedom from INS restraint even though the INS will not have determined that they need to be detained for reasons of flight or safety.3 On the other hand, the government’s interests in the well-being of minors in its custody and in assuring that these children not be entrusted to the care of an unqualified person are likewise strong. In addition,
[t]he Government’s interest in efficient administration of the immigration laws at the border also is weighty. Further, it must weigh heavily in the balance that control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature. The role of the judiciary is limited to determining whether the procedures meet the essential standard of fairness under the Due Process Clause and does not extend to imposing procedures that merely displace congressional choices of policy.
Id. at 34-35, 103 S.Ct. at 330 (citations omitted).
Flores challenges the regulation on four scores: (1) lack of a probable cause hearing on deportability; (2) lack of a prompt custody hearing; (3) failure to impose a burden of proof on the government; and (4) absence of independent review. She urges that the district court’s order, imposing limited procedural safeguards, be affirmed. While the INS agrees that the record permits Flores’s procedural due process claim to be resolved by this court without remand for further proceedings, it argues that the claim lacks merit because there is minimal risk of erroneous deprivation of the minors’ interest. It relies on 8 U.S.C. § 1357(a)(2), which provides that an alien must be taken for examination before an officer other than the one who arrested her “without unnecessary delay,” and on a regulation that requires the examining officer to be satisfied that there is prima facie evidence to believe the alien is deportable. 8 C.F.R. § 287.3 (1990). It therefore argues that even if Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), applies in a civil proceeding, the district court erred in mandating a probable cause hearing because the INS’s standard is higher and is subject to review by an examining officer as well as the arresting officer. For these reasons it contends that requisite standards of fairness are met.
Turning first to whether a probable cause hearing is required, I agree with the INS that importing Gerstein to a civil immigration proceeding is problematic, see INS v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984) (consistent with civil nature of deportation proceeding, protections such as exclusionary rule that apply in context of criminal trial are not applicable). No authority suggests that a probable cause hearing before a neutral magistrate, as distinguished from a prima facie evidence hearing before an examining officer, is constitutionally mandated in deportation proceedings. Our cases suggest the contrary, see, e.g., Trias-Hernandez v. INS, 528 F.2d 366, 368 (9th Cir. 1975) (declining to require Miranda warnings in deportation proceeding); Lavoie v. INS, 418 F.2d 732, 734 (9th Cir.1969) (sixth amendment safeguards not applicable in deportation proceeding), cert. denied, 400 U.S. 854, 91 S.Ct. 72, 27 L.Ed.2d 92 (1970), and there is no call to hold otherwise.
The INS’s argument, however, fails to come to grips with the absence of other, well-recognized ingredients of procedural fairness. Unlike the statutes at issue in Schall v. Martin, 467 U.S. 253, 104 S.Ct. *13752403, 81 L.Ed.2d 207 (1984), and Salerno, which survived due process challenges,4 the INS regulations provide no opportunity for the reasoned consideration of an alien juvenile’s release to the custody of a non-relative by a neutral hearing officer.5 Nor is there any provision for a prompt hearing on a § 242.24(b)(4) release. No findings or reasons are required. Nothing in the regulations provides the unaccompanied detainee any help, whether from counsel, a parent or guardian, or anyone else. Similarly, the regulation makes no provision for appointing a guardian if no family member or legal guardian comes forward. There is no analogue to a pretrial services report, however cursory. While the INS argues that it lacks resources to conduct home studies, there is no substantial indication that some investigation or opportunity for independent, albeit informal consideration of the juvenile’s circumstances in relation to the adult’s agreement to care for her is impractical or financially or administratively infeasible. Although not entirely clear where the burden of proof resides, it has not clearly been imposed on the government. And there is no limit on when the deportation hearing must be held, or put another way, how long the minor may be detained. In short, there is no ordered structure for resolving custodial status when no relative steps up to the plate but an unrelated adult is able and willing to do so.
Current procedures tend to deprive the minors of their interest in release in at least two major respects. First, there is no process there. While procedures provided by the executive in immigration matters are rarely held inadequate, Landon, 459 U.S. at 33, 103 S.Ct. at 329, some process is due. See Carlson v. Butterfield, 342 U.S. 524, 538, 72 S.Ct. 525, 533, 96 L.Ed. 547 (1952). Nothing in this regulation triggers any determination at any particular time of whether an alien juvenile who is presumptively eligible for release, but has no family, may be released to the custody of an unrelated adult who will agree to her care and appearance. Nor is there any light at the end of the tunnel; there is no time limit on continued detention, despite the child’s eligibility for release. For all that appears from the regulations, the juvenile without parent, guardian or relative is left in procedural limbo. Second, there is no provision for reasoned consideration by a neutral hearing officer. Time limits and impartiality are not uncommon procedures; both are basic safeguards against arbitrary action. See, e.g., Salerno, 481 U.S. at 751-52, 107 S.Ct. at 2103-04; Schall, 467 U.S. 257 n. 3, 270, 104 S.Ct. 2403 n. 3, 2413.6 To omit both increases the risk that the juvenile for whom detention is not needed and for whom there is a prospective adult willing to assume care and assure appearance will not be released because of inattention, inadvertence or intransigence.
With these protections in place, I see no problem with the regulation’s failure to put the burden of proof on the government. I do not construe § 242.24(b)(4)’s mention of *1376“unusual and compelling circumstances” as requiring the child to show anything unusual about herself or about the adult ready to care for her. I interpret the phrase to be simply a shorthand reference to the admittedly unusual and compelling circumstances of a juvenile who has no parent, guardian, or adult relative to take custody upon release, as contrasted with juveniles who have such parties to be released to under subsection (b)(1). The INS itself characterizes mandatory release under (b)(1) as “routine.”7 By contrast, release to an unrelated adult under subsection (b)(4) is neither mandatory nor routine, but rather it is an “unusual and compelling” circumstance in which discretion must be exercised so as to assure the child’s well-being as well as appearance. So construed, the “unusual and compelling” language does not infringe due process because it imposes no impediment to release that is unrelated to the juvenile’s status and the government’s interest.
Because immigration is involved, the government has a greater interest in using the procedures now in place than it might have in other civil matters, such as commitment proceedings, or in criminal cases. There is little question that the INS is not in the business of social work,8 and its disinclination to play probation officer as well as prosecutor is quite understandable. Yet the obvious value that the Court has seen in the array of safeguards built into the Bail Reform Act, and the New York Family Court Act authorizing pretrial detention of accused juvenile delinquents, which it considered in Salerno and Schall, must have great weight against the modest imposition that a reasonable time limit, hearing before a neutral officer and a level playing field would entail. An examining officer who is obliged to be impartial is obviously available because conduct of the prima facie evidence hearing is entrusted to such a person.
Moreover, apart from inconvenience and perhaps some expense, there is no readily apparent reason why the INS cannot discharge ii , parens patriae obligations by seeking appointment of a guardian ad litem for minors in its custody. See, e.g., Juvenile Justice and Delinquency Prevention Act, § 504, codified at 18 U.S.C. § 5034 (providing that magistrate may appoint guardian ad litem if parent or guardian of juvenile is not present, will not cooperate, or has adverse interests to the juvenile); Schall, 467 U.S. at 276 n. 25, 104 S.Ct. at 2416 n. 25 (noting that under § 320.3 of the New York Family Court Act, if juvenile’s parent or guardian fails to appear after reasonable and substantial efforts have been made to notify such person, court must appoint a law guardian for the child). The probable value of such a procedure would be appreciable, in that the otherwise unassisted juvenile would have some legally responsible adult to assist in making placement decisions—and the INS would correspondingly be relieved of the task of individualized decisionmaking that it does not want in any event. While it would be inappropriate for a court to impose such a procedure on the INS just because it makes sense to a judge, it is appropriate to consider the availability and practicality of different procedures in determining whether current procedures comport with minimum requirements of due process. See Landon, 459 U.S. at 35, 103 S.Ct. at 330.
Considering current procedures and alternatives in light of the juveniles’ interest in freedom from continued restraint and the government’s in their well-being and appearance leads me to conclude that the balance tips against constitutional sufficiency of the process used by the INS in determining whether to release a child under § 242.24(b)(4). At a minimum, the juvenile who is presumptively eligible for release but has no parent or relative should be afforded an early hearing before a neutral officer. Unlike the majority or the district court, I would not remove the hearing officer’s discretion, but that discretion *1377should be informed by the government’s interests in appearance and well-being and the juvenile’s in release to a fully responsible adult.
Accordingly, I would affirm the district court’s grant of summary judgment for Flores because the INS regulations fail to meet minimum requirements of procedural due process. I would strike those parts of the district court’s judgment that rewrite § 242.24(b)(4) to require release to a “responsible adult party” who promises to bring the minor to future hearings and that mandate a probable cause hearing in place of the prima facie evidence hearing. I believe subsection (b)(4) as written affords greater flexibility and protection to minors in this respect than the order, because it permits release to any adult so long as that adult agrees to care for the child’s well-being and to assure her presence. I would also strike the requirement of an administrative hearing to determine need for detention, and I would modify the order to require a prompt hearing before a neutral hearing officer to determine whether the minor should be released under § 242.-24(b)(4) construed consistently with the constraints of due process.
. Obviously amici present no such risk. Neither the district court’s order nor the majority's opinion, however, would limit release to organizations of their caliber. "Responsible adult party” is left undefined; a financially responsible adult may not be morally responsible, and vice versa. Nor does the order restrict release to a legally responsible adult, by contrast with 8 C.F.R. § 242.24(b)(4), which requires an unrelated adult to whom a juvenile may be released to execute an agreement to care for the juvenile’s well-being. See also § 242.24(b)(3) (imposing a similar requirement on a person designated by the parent or legal guardian to take custody of a detained juvenile in their absence). So the district court’s order also leaves open the possibility of release to an adult who appears to be morally and financially responsible, but whose legal responsibility for care and presence lacks teeth and is unenforceable.
. Section 242.24(b)(4) appears to assume that the INS has made no determination that detention is required to ensure timely appearance or safety. While release to an unrelated adult is not mandatory, as it is to a parent, guardian or adult relative under § 242.24(b)(1), the regulation itself creates a liberty interest in freedom from continued restraint. The dispositive question for us, therefore, is whether the procedures by which the INS decides if it should release a juvenile to the custody of an unrelated adult survive facial challenge.
Assuming that alien juveniles have a protected liberty interest in freedom from institutional restraint such that their failure to be released to a "responsible adult" who promises future appearances triggers substantive due process scrutiny, see Salerno, 481 U.S. at 750, 107 S.Ct. at 2103, their interest “must be qualified by the recognition that juveniles, unlike adults, are always in some form of custody.” Schall v. Martin, 467 U.S. 253, 265, 104 S.Ct. 2403, 2410, 81 L.Ed.2d 207 (1984). Thus, their real interest is not in freedom from restraint (detention), but in freedom from a particular kind of limitation on the conditions under which release will be permitted. Because the children are minors, the government’s parens patriae responsibilities are implicated and the juveniles' interest in freedom from restraint is therefore less substantial than an adult's and their interest in being released to any "responsible adult” is less substantial than their interest in being released to a parent, guardian or family member with whom they enjoy a natural or legal bond. By the same token, the government’s interests in exercising its nearly plenary power over immigration, and discharging its obligation to protect and promote the welfare of juveniles within its custody, are substantial.
. Flores also complains of the Catch-22 the regulation creates on account of the fact that parents or adult relatives of alien juveniles may be deterred from coming forward to the INS because they, too, may be here illegally. While there is nothing much for it, the conundrum does to some extent affect the juveniles’ opportunity to rejoin their family. See Landon, 459 U.S. at 34, 103 S.Ct. at 330 (right to rejoin immediate family ranks high among the interests of the individual).
. In Salerno, 481 U.S. at 751-52, 107 S.Ct. at 2103-04, the extensive safeguards under the Bail Reform Act included: judicial evaluation of likelihood of dangerousness; detainees had right to counsel and could testify and present information; the judicial officer's discretion was statutorily guided; the government bore the burden of proof by clear and convincing evidence; and the judicial officer had to make findings of fact and give reasons for a decision to detain, which was immediately reviewable on appeal. In Schall, 467 U.S. at 257 n. 3, 270, 104 S.Ct. at 2406 n. 3, 2413, preventive detention of juveniles suspected of a criminal offense promoted legitimate interests of society and the juvenile and did not amount to punishment such that it offended substantive due process when: the detention was limited in time; a neutral magistrate determined that detention was necessary; the time limits seemed suited to the limited purpose of providing the young person with a controlled environment and separating the juvenile from improper influences pending a speedy disposition of the case; and the conditions of confinement reflected regulatory purposes that were not inconsistent with parens patriae objectives.
. Subsection 242.24(b)(4) provides for a decision on release to an adult other than a parent, guardian or relative to be made by the district director or chief patrol agent. The INS suggests no reason why this determination could not be made in conjunction with the prima facie evidence hearing.
. See supra note 4.
. Supplemental Brief at 1 n. 2.
. Cf., e.g., Youngherg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (courts defer to decisions of qualified professionals, meaning a person competent to make particular decision at issue).