with whom Circuit Judges WIGGINS, BRUNETTI, and LEAVY join, dissenting:
The facts were adequately summarized in the majority panel opinion. See Flores v. Meese, 934 F.2d 991, 993-96 (9th Cir. 1990) (Flores). I have no quarrel with the majority’s assertion that alien children allegedly in this country illegally are impacted by the regulation at issue and have a right to challenge their detention. See Maj. op. at 1358-1360. But I find much of the majority’s discussion, such as that regarding habeas corpus review, irrelevant to the crucial issues in this case, and other portions of the opinion lacking in support. I believe that the majority errs in implicitly defining the right at issue here as a blanket denial of liberty, thereby granting it a fundamental character, and in ignoring the deference that courts have traditionally paid to immigration laws and regulations. Primarily for these reasons, I respectfully dissent.
I
My first disagreement with the majority is over the liberty right at issue. At oral argument, the alien children argued that the regulation impinged on their right to be free from physical restraint — a right to liberty which they allege is fundamental. The Immigration and Naturalization Service (INS), on the other hand, contended that the right at issue is a nonfundamental right to be released to unrelated adults. Without discussion, the majority adopts the former characterization, a characterization with which I disagree.
Perhaps the insistence on viewing the right at issue as a general “right to liberty” comes from the majority’s mistaken characterization of the regulation as a “blanket detention policy.” Maj. op. at 1354. As the facts demonstrate, however, the regulation results in no such blanket denial. The regulation does not bar the release of all alien juveniles, but merely those who do not have an identifiable parent, legal guardian or adult relative who can accept custody or designate an appropriate custodian. See 8 C.F.R. § 242.24 (1991). Even children whose release is not mandated under the regulation can, in the discretion of the INS, be released to other responsible adults. See id. § 242.24(b)(4). Thus, alien children awaiting deportation proceedings are eligible for release to a number of caregivers; the only liberty right denied them is the right to be released to unrelated adults without INS approval.
Given the limited scope of the regulation, I believe the majority errs by concluding that this case involves a “fundamental right to be free from government detention.” Maj. op. at 1360. This broad characterization of the right involved conflicts with the Supreme Court’s warning that rights and interests should be defined narrowly for the purposes of substantive due process balancing. See Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (Bowers) (defining the *1378right at issue as the right to engage in homosexual sodomy, rather than as the more general “right to be let alone”); Michael H. v. Gerald D., 491 U.S. 110, 121-27 & n. 6, 109 S.Ct. 2333, 2340-44, & n. 6, 105 L.Ed.2d 91 (1989) (plurality opinion). The majority fails to heed this warning in holding, without persuasive analysis, that the right implicated by the regulation is a general right to liberty.
The need to define the right narrowly is further supported by policy and precedent. No case has been cited to us (and I have found none) in which a court has ever recognized a fundamental substantive due process right to physical liberty. Instead, procedural due process analysis has traditionally provided adequate protection against any unwarranted deprivations of physical liberty. As Justice Scalia recently stated, “[t]he text of the Due Process Clause does not protect individuals against deprivations of liberty simpliciter. It protects them against deprivations of liberty ‘without due process of law.’ ” Cruzan v. Director, Missouri Department of Health, — U.S. -, 110 S.Ct. 2841, 2859, 111 L.Ed.2d 224 (1990) (Scalia, J., concurring). To hold otherwise, would subject all physical detentions — in both the immigration context and criminal context — to judicial review under strict scrutiny to insure that their fundamental substantive due process “right to liberty” was not being infringed. Such cannot be the law.
None of the cases cited by the majority support its novel holding that this case involves a “fundamental right to be free from government detention.” Maj. op. at 1360. For example, the majority cites a number of habeas corpus cases to establish the unremarkable proposition that aliens may challenge a detention through habeas corpus proceedings. See, e.g., Wing Wong v. United States, 163 U.S. 228, 233-38, 16 S.Ct. 977, 979-81, 41 L.Ed. 140 (1896) (sentence of one year of hard labor for all deportable aliens may be challenged through habeas corpus petition). However, the existence of a forum is quite separate from the definition or analysis of the right at issue, and these cases provide no support for the majority’s application of heightened scrutiny to invalidate the INS regulation. Compare id. at 235, 16 S.Ct. at 980 (“[w]e think it clear that detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens would be valid”).
The majority also relies heavily on Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952) (Carlson), and United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) {Salerno), for the proposition that this case implicates the “fundamental right” to be free from detention. However, in both of the cited cases, the Supreme Court upheld, rather than struck down, a challenged detention. In addition, neither support the conclusion that the limited detention policy at issue here need satisfy any form of heightened scrutiny.
In Carlson, the Supreme Court held that INS detention based on Communist party membership did not violate due process. To reach this conclusion, the Court first held that Congress had authorized the Attorney General to make discretionary decisions concerning detention pending deportation. 342 U.S. at 540, 72 S.Ct. at 534. Relying on the legislative history of the statute, the Court stated that “Congress [intended] to make the Attorney General’s exercise of discretion presumptively correct and unassailable except for abuse.” Id. Applying this test, the Court concluded that the discretion was “certainly broad enough” to justify the challenged detention. Id. at 541, 72 S.Ct. at 534.
The majority argues that Carlson holds that “the INS cannot detain individuals without a particularized exercise of discretion through which it determines that detention of an individual would prevent harm to the community or further some other important governmental interest.” Maj. op. at 1360. But such an inference is unsupported by either the reasoning, or the result in the case. As stated earlier, Carlson did not strike down the regulation, it found it well within the INS’s discretion. In discussing the factors that supported the INS’s exercise of discretion, the Court *1379explicitly stated that such discretion “[could] only be overriden where it is clearly shown that it ‘was without a reasonable foundation.’" Carlson, 342 U.S. at 541, 72 S.Ct. at 534; see also id. (detention need not be justified by “specific acts” performed by detained individual). Thus, Carlson actually undermines, rather than supports, the majority’s broad characterization of the right at issue in this case and consequent application of heightened scrutiny to invalidate the INS regulation.
The majority also cites Salerno in support of its holding that the INS must come forward with “significant” reasons to justify its limited detention policy. But Salerno, which upheld pretrial detention under the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., is not on point. First, Salerno involved a blanket detention of certain dangerous felons—the regulation at issue in this case is much narrower as it only prohibits release of alien minors to unrelated adults without INS approval. Compare 18 U.S.C. § 3142 with 8 C.F.R. § 242.24 (1991). Second, the Court’s due process analysis in Salerno was geared primarily toward the rights of adult citizens facing detention in the criminal context. See Salerno, 481 U.S. at 747-52, 107 S.Ct. at 2101-04. The situation before us in this case involves the rights of juvenile aliens facing detention in the civil context, whose rights are not necessarily coextensive with those of adults. See infra, sec. II. In addition, Salerno did not squarely hold that freedom from pretrial detention was a fundamental right. Instead, the Court stated that “we cannot categorically state that pretrial detention offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” 481 U.S. at 751, 107 S.Ct. at 2103 (quotations and citations omitted). Thus, Salerno also does not support the majority’s assumption that the detention policy implicates a “fundamental right” to liberty.1
The majority finally justifies its rejection of the INS’s characterization of the right at issue by arguing that “the right to be released to unrelated adults” is merely the remedy the district court imposed in striking down the regulation. Maj. op. at 1361— 1362. But the majority misses the point of its remedy analysis. The district court imposed the remedy of release to unrelated adults only because it concluded that a *1380right was being denied, the right to be released to such adults. I believe it makes more sense to view the right and consequent remedy as coexistent; if the right at issue was broader, the remedy imposed by the district court to correct for its denial would necessarily have been broader.
In light of these considerations, I analyze the regulation as resulting in a denial of the nonfundamental right to be released to unrelated adults unless the INS grants permission. See Bowers, 478 U.S. at 194-95, 106 S.Ct. at 2846 (warning against the expansion of the list of fundamental rights). Because no fundamental right is involved, we must apply minimal scrutiny to the regulation, and consider whether it is rationally related to any legitimate end of government. Christy v. Hodel, 857 F.2d 1324, 1329 (9th Cir.1988), cert. denied, 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1038 (1989). Both the INS’s desire to protect the safety of the detained children, as well as its concern for potential liability for harm that could befall a released child, are legitimate ends to which the regulation is rationally related. See Flores, 934 F.2d at 1009-10; see also infra, sec. II. I therefore disagree with the majority’s conclusion that the INS regulation violates substantive due process.
II
Aside from its characterization of the right at issue as the fundamental right to liberty, I am further troubled by the majority’s failure to recognize the special circumstances of this case. Two factors should influence our analysis of the constitutionality of the challenged regulation. First, the court’s analysis should focus on the immigration context of this case, where judicial review is extremely limited. Second, the court must deal with the accepted principle that liberty interest is weighed differently for minors in comparison with adults.
A.
Flores’s constitutional claims arise in the unique context of our immigration laws. The power over immigration is political in nature and therefore vested in the political branches. Mathews v. Diaz, 426 U.S. 67, 81-82, 96 S.Ct. 1883, 1892-93, 48 L.Ed.2d 478 (1976) (Diaz)) Jean v. Nelson, 727 F.2d 957, 965 (11th Cir.1984) (en banc) (Jean), aff'd on other grounds 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985). Although the executive and legislative branches in theory possess concurrent authority over immigration, “[i]n practice ... the comprehensive character of the INA vastly restricts the area of potential executive freedom of action, and the courts have repeatedly emphasized that the responsibility for regulating the admission of aliens resides in the first instance with Congress.” Jean, 727 F.2d at 965; see also United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950).
The Supreme Court has long recognized Congress’s paramount power to control matters of immigration. Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477, 52 L.Ed.2d 50 (1977) (Fiallo)) Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 742, 98 L.Ed. 911 (1954); Carlson, 342 U.S. at 534, 72 S.Ct. at 531; Harisiades v. Shaughnessy, 342 U.S. 580, 589-90, 72 S.Ct. 512, 519, 96 L.Ed. 586 (1952). Congressional power in this area is plenary; the Court has repeatedly stressed that “ ‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” Fiallo, 430 U.S. at 792, 97 S.Ct. at 1478, quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909). In exercising its broad power over immigration and naturalization, “ ‘Congress regularly makes rules that would be unacceptable if applied to citizens.’ ” Id., quoting Diaz, 426 U.S. at 80, 96 S.Ct. at 1891. Because Congress’s power over immigration is plenary and political in nature, the exercise of that power is subject “ ‘only to narrow judicial review.’ ” Id., quoting Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n. 21, 96 S.Ct. 1895, 1905 n. 21, 48 L.Ed.2d 495 (1976) (Hampton)) Diaz, 426 U.S. at 81-82, 96 S.Ct. at 1892-93.
*1381The plenary power of Congress and the narrowness of judicial review in the immigration context is reflected in the Supreme Court’s teaching that any substantive due process rights aliens might have are extremely limited. For example, in Hari-siades, the Court upheld the deportation, under the Alien Registration Act of 1940, of legally resident aliens who had been members of the Communist Party before passage of the Act. While acknowledging that the Act “stands out as an extreme application of the expulsion power,” the Court rejected the aliens’ argument that the Congress’s power to deport was “so unreasonably and harshly exercised” that the Act violated the due process clause. 342 U.S. at 588, 72 S.Ct. at 518. Similarly, in Galvan, the Court upheld a statute that authorized deportation of legally resident aliens on the grounds that they had once been members of the Communist party, stating that “[w]e cannot say that this classification by Congress is so baseless as to be violative of due process.” - 347 U.S. at 529, 74 S.Ct. at 742. In subsequent cases dealing with both equal protection and substantive due process challenges under the fifth amendment, the Supreme Court reaffirmed the limited judicial role in reviewing immigration decisions. Fiallo, 430 U.S. at 792-93 & n. 4, 97 S.Ct. at 1477-79 & n. 4; Hampton, 426 U.S. at 99-103, 96 S.Ct. at 1903-05.
As a result of the judiciary’s limited role in the immigration context, we have held that even if the right at issue is fundamental in character, the court should not apply strict scrutiny review to an immigration regulation. In Adams v. Howerton, 673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111, 102 S.Ct. 3494, 73 L.Ed.2d 1373 (1982), we considered the argument that substantive due process required the application of strict scrutiny to an immigration statute dealing with spouses. The homosexual plaintiffs argued that, as interpreted to apply only to heterosexual marriages, the statute violated their right to same-sex marriage, a right they contended was fundamental. We stated that “[w]e need not ... reach the question of the nature of the claimed right or whether such a right is implicated in this case. Even if it were, we would not apply a strict scrutiny standard of review to the statute. [In the immigration area] the decisions of Congress are subject only to limited judicial review.” Id. at 1041 (emphasis added and footnote omitted). Therefore, following Adams, and the extensive Supreme Court precedent in this area, even if I were to agree with the majority that this case involves a fundamental right, I would still apply rational review to evaluate the regulation.
The majority’s failure to defer to the INS is also demonstrated by its ready conclusion that neither of the INS’s articulated reasons are “significant” enough to support the regulation. The majority first rejects the INS’s belief that the regulation serves to protect the safety of the detained children. It assumes that release of the children to unrelated adults will be far preferable to detainment by the INS. Maj. op. at 1362-1363. But the majority fails to cite any evidence in the record to support its factual assumption. Indeed, there is none. More important, the INS thinks otherwise, and in keeping with prior precedent I would defer to its estimation of the risks involved. No one on this court can be sure there is no evil awaiting an unsuspecting alien minor in the custody of an unrelated adult. A concern about that possibility is not unreasonable. Simply put, the majority contends that it owes no deference to the INS’s views on child safety because “[c]hild welfare is not an area of INS expertise.” Maj. op. at 1362. This is a far too limited view of the deference owed to the INS, one that conflicts with the Supreme Court’s statement that “[ajny policy toward aliens is vitally and intricately interwoven” with matters that have “been committed to the political branches of the Federal Government.” Diaz, 426 U.S. at 81 & n. 17, 96 S.Ct. at 1892 & n. 17; see also Carlson, 342 U.S. at 538, 72 S.Ct. at 533 (pointing out that “[detention is necessarily a part of [the] deportation procedure”).
The majority ignores the fact that any judicial branch intrusion, even if explained by a belief that the INS has no special *1382expertise, severely undermines congressional power over immigration. The majority’s citation to Hampton, fails to support this intrusion, because that case dealt with the federal Civil Service Commission, not the INS. See 426 U.S. at 101, 96 S.Ct. at 1904 (recognizing political character of power over immigration, but rejecting argument that deference extends to “any agency of the National government”). I therefore disagree with the majority’s casual conclusion that the INS must put forth affirmative evidence to demonstrate “that detention serves the best interests of members of the plaintiff class.” Maj. op. at 1363. I would not strike down so easily the INS’s efforts to protect the detained children, and would consider those efforts significant enough to support the regulation.
The majority also casually dismisses the INS’s claim that releasing children to unrelated adults could result in tort liability. While acknowledging that the minors would have a cause of action against the INS for a violation of their rights, the majority finds the chance of tort liability “remote at best.” Maj. op. at 1364, quoting International Union, UAW v. Johnson Controls, Inc., — U.S.-, 111 S.Ct. 1196, 1208, 113 L.Ed.2d 158 (1991). The sole support for this assertion is DeShaney v. Winnebago County Social Services Department, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) {DeShaney), where the Supreme Court held that “a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” Id. at 197, 109 S.Ct. at 1004.
A careful reading of DeShaney reveals that the case has no bearing on the possibility that the INS will be held liable for releasing alien minors to unrelated adults. In holding that DeShaney could not recover against the state welfare agency for its failure to remove him from an abusive home environment, the Court repeatedly emphasized that “the State played no part in creating [the danger]” and was not liable merely for its failure to confer aid. Id. at 196-97, 201, 109 S.Ct. at 1003-04, 1006. However, the Court was careful to distinguish DeShaney’s case from one where the dangerous situation was created by the State action. In the latter situation, the Court was unwilling to foreclose liability, and instead stated that “[h]ad the State by the affirmative exercise of its power removed Joshua [DeShaney] from free society and placed him in a foster home operated by its agents, we might have a situation [that would] give rise to an affirmative duty to protect.” Id. at 201 n. 9, 109 S.Ct. at 1006 n. 9. Thus, DeShaney clearly does not foreclose the possibility of INS liability for injury to a released child, when the harm occurred after the INS placed him or her in the care of an unrelated adult. See id.
The majority’s assertion that the INS is unlikely to suffer any liability also seems odd in light of its holding that the INS must release minors to unrelated adults only after “mak[ing] the necessary determination of whether a party who is willing to assume custody is fit to do so.” Maj. op. at 1363-1364. In light of the majority’s apparent acceptance of the INS’s claim that it lacks the resources or expertise to conduct these studies, maj. op. at 1363, its imposition of a duty to do so seems likely to result in liability. At any rate, given our deferential review, I would defer to the INS’s rationale for the policy rather than seeking out reasons to discredit it.
B.
In addition to failing to give required deference to the INS regulation, the majority accords no significance to the fact that this case involves detention of children, rather than adults. Because the INS’s reasons for the policy relate directly to their responsibility to protect minors, I believe that the Supreme Court’s teachings regarding the constitutional rights of minors are relevant to our analysis.
As the majority correctly points out, there is no doubt that children are “ ‘persons’ under our Constitution” who possess “fundamental rights which the State must respect.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 511, 89 S.Ct. 733, 739, 21 L.Ed.2d 731 *1383(1969); In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967) (“whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone”). However, the majority fails to include in its analysis the Supreme Court’s often stated teaching that constitutional rights of children are not coextensive with those of adults. See, e.g., Schall v. Martin, 467 U.S. 253, 263-66, 104 S.Ct. 2403, 2409-11, 81 L.Ed.2d 207 (1984) (Schall); Bellotti v. Baird, 443 U.S. 622, 633-39, 99 S.Ct. 3035, 3042-46, 61 L.Ed.2d 797 (1979) (plurality opinion) (Bellotti); McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).
The Court has specifically recognized the narrower scope of juveniles' liberty interest. In Schall, the Court held that the state may restrict a child’s liberty interest in order to secure that child’s welfare. In upholding the constitutionality of a New York statute authorizing the pretrial detention of certain juveniles, the Court stated:
The juvenile’s ... interest in freedom from institutional restraints, even for the brief time involved here, is undoubtedly substantial.... But that interest must be qualified by the recognition that juveniles, unlike adults, are always in some form of custody. Children, by definition, are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents, and if parental control falters, the State must play its part as parens patriae. In this respect, the juvenile’s liberty interest may, in appropriate circumstances, be subordinated to the State’s “parens patri.ae interest in preserving and promoting the welfare of the child.”
467 U.S. at 265, 104 S.Ct. at 2410 (citations omitted), quoting Santosky v. Kramer, 455 U.S. 745, 766, 102 S.Ct. 1388, 1401, 71 L.Ed.2d 599 (1982); see also Bellotti, 443 U.S. at 634, 99 S.Ct. at 3043 (stating three reasons why “the constitutional rights of children cannot be equated with those of adults,” including “the peculiar vulnerability of children”).
In my view, the teachings of Schall and Bellotti are particularly relevant to the facts of this case. The INS’s regulation governing the detention of minors is based at least in part upon a concern for the “peculiar vulnerability” of alien minors. See Bellotti, 443 U.S. at 635, 99 S.Ct. at 3044 (“the State is entitled to adjust its legal system to account for children’s vulnerability”). Thus, the INS’s regulation is an exercise of governmental power which takes into account the need to provide for children “[when] parental control falters.” Schall, 467 U.S. at 265, 104 S.Ct. at 2410.
The majority ignores these cases, and instead relies on In re Gault, for the proposition that “children should be treated in a manner least restrictive of liberty.” Maj. op. at 1362. In re Gault dealt with a procedural, rather than substantive, due process challenge, and I am at a loss to find any categorical statement concerning the liberty rights of children in the text of the opinion. Compare In re Gault, 387 U.S. at 13, 87 S.Ct. at 1436 (stating that bill of rights does not apply in same manner to children as adults). Moreover, since In re Gault was decided, the Supreme Court has made it clear that childrens’ liberty interests are not identical to those of adults. Schall, 467 U.S. at 265, 104 S.Ct. at 2410.
The majority also relies heavily on federal and state policies which, it claims, “favor[] avoidance of institutionalization of juveniles.” Maj. op. at 1361. However, even assuming the existence of such policies, they are irrelevant to our analysis. The question presented here is what the Constitution requires, not what federal and state governments favor. See DeShaney, 489 U.S. at 202-03, 109 S.Ct. at 1006-07 (drawing distinction between duties imposed by state legislature and duties embodied in the Constitution). I therefore fail to see how legislative policy “compels the conclusion that” the plaintiffs’ status as minors is irrelevant to our assessment of their constitutional rights. Maj. op. at 1361.
Thus, I believe that the Supreme Court’s rulings regarding the diminished liberty in*1384terests of minors should be factored into our constitutional analysis. The majority therefore errs in asserting that there is “no legal basis” for the INS’s professed concern for the best interests of alien minors. Maj. op. at 1362. Because the INS’s statement of reasons for the limited detention policy are concerns that the Supreme Court has already found legitimate, this is additional evidence that the challenged regulation is reasonable.
Ill
In the final section of the opinion, the majority upholds the district judge’s ruling that a minor taken into custody must be given “an administrative hearing to determine probable cause for his arrest and the need for any restrictions placed upon his release.” Although the district judge’s ruling apparently rested on the procedural due process test embodied in Gerstein v, Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), see Flores, 934 F.2d at 1011, the majority sees no need to determine whether Gerstein applies in this case. Instead, the majority concludes that the new procedural requirements are logically connected to its holding that the INS may not detain minors solely on the ground that there is no adult or legal guardian to care for the child. Maj. op. at 1364.
The majority states that requiring detention hearings does not materially alter existing INS regulations. Maj. op. at 1364. In reaching this conclusion, the majority holds that the district judge’s order only imposes two additional requirements on the INS. First, the order makes detention hearings mandatory, when the hearings were previously only available at the request of the minor. Id.; see 8 C.F.R. § 242.2(c) & (d) (1991). Second, the order requires that the hearing include an inquiry into whether a nonrelative may be appropriate to take custody of the child. Maj. op. at 1364.
As stated earlier, I do not agree that the INS regulation at issue here violates substantive due process. I therefore cannot join in the majority's imposition of these new procedural requirements. However, the majority’s analysis is problematic for a second reason-it fails to acknowledge, much less analyze, the possible broader implications of the judge’s order. This issue needs to be clarified.
The district judge held that “[a]ny minor taken into custody” shall be given “an administrative hearing to determine probable cause for his arrest.” Under current INS procedures, minors arrested without a warrant are entitled to have probable cause reviewed by an immigration official “without unnecessary delay.” See 8 U.S.C. § 1357(a)(2). Because this procedure existed prior to the Flores litigation, the panel speculated that the district judge intended to impose an additional requirement that the probable cause hearing take place before an immigration judge. Otherwise, the majority pointed out that “the injunction [would be] deprive[d] of much practical effect.” Flores, 934 F.2d at 1011.
By holding that the judge’s order will not materially affect INS procedures, the majority implicitly rejects the panel’s original assumption and holds instead that the current arrest and probable cause requirements satisfy the judge’s order. Any other interpretation of the order is inconsistent with the majority’s refusal to engage in any due process analysis. Therefore, despite the broad language of the judge’s order, the majority’s affirmance of that order should not be read to require any change in these procedures.
I also do not read the majority’s opinion as imposing any additional requirements on the INS in terms of timing and execution of the detention hearings. The majority references the current hearing procedures as adequate to safeguard the interests of the minors. See maj. op. at 1364. Therefore, with the exception of the new requirement that such hearings be held automatically, the majority opinion does not entail any alteration in current INS procedure.
The procedural component of the district judge’s order is potentially quite sweeping. For this reason, I adhere to my original position, as stated in the panel majority opinion, that we should remand the case for a determination of what procedures are *1385constitutionally required under Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). See Flores, 934 F.2d at 1011-13 (discussing appropriate test for procedural due process analysis).
. The additional cases cited by the two separate concurrences also do not support the majority’s application of heightened scrutiny to invalidate the INS regulation. For example, DeShaney v. Winnebago County Social Services Department, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), only makes passing reference to “restraint[s] of physical liberty," when discussing situations where the state’s affirmative exercise of power gives rise to a duty to protect. Id. at 199-200, 109 S.Ct. at 1005-06, citing Youngberg v. Romero, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (state has duty to provide safe conditions to involuntarily committed mental patients). DeShaney cannot be read as establishing any general right to liberty; indeed, its holding only addresses the issue of whether the government’s failure to confer aid violates due process. Id. at 202, 109 S.Ct. at 1006. Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987), is also not on point, because it deals with procedural due process issues that arise after a statute has created a liberty interest. Id. at 372-73, 107 S.Ct. at 2417-18. Allen does not address any constitutionally-based substantive due process challenge. Other cases cited by the concurrences are similarly inapplicable here. See Parham v. J.R., 442 U.S. 584, 600, 99 S.Ct. 2493, 2503, 61 L.Ed.2d 101 (1979) (rejecting children’s procedural due process challenge to state’s procedures for involuntary commitment); Greenholtz v. Inmates, Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (rejecting procedural due process challenge to parole release hearings).
One case cited by the concurrences does address an issue similar to the one before this court. In Youngberg, the Court articulated a standard for evaluating deprivations of liberty that occur during the course of an involuntary commitment. After holding that the liberty, interest asserted by the inmate was protected by the due process clause, the Court stated that the challenged physical restraints would be upheld as long as the actions of the mental health therapists were reasonable. 457 U.S. at 316, 322, 102 S.Ct. at 2458, 2461. The Court stated: "the Constitution only requires that the courts make certain that professional judgment in fact was exercised ... this standard is lower than the ‘compelling’ or ‘substantial’ necessity tests the Court of Appeals would require.” Id. at 321-22, 102 S.Ct. at 2461 (quotations omitted). Thus, Youngberg actually undermines the position of the concurrences by demonstrating that deprivations of liberty need not be evaluated using heightened scrutiny.