Question: 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 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 averred 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 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.

The district court patiently sorted through them and, in a thoughtful rescript, eventually dismissed the action for want of subject matter jurisdiction. 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. That chasm is important because, given the scarcity of ‘guideposts for responsible decision-making in this uncharted area,' courts must be ‘reluctant to expand the concept of substantive due process.' 1 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). 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.

Case Questions: 1. The due process clauses of the Fifth and Fourteenth Amendments decree that "no person" may be deprived of life, liberty or property without due process of law. If the detainees in this case, who clearly are persons if not U.S. citizens, cannot secure their due process rights in a federal court, where do you think they will be secured?

2. Assuming that, following dismissal of their federal court case, the detainees are afforded an opportunity to be heard in some other forum, such as in front of an immigration judge,2 do you think it would be more fair to place the burden of proving their right to stay in the U.S., or lack of such a right, upon the detainees or the ICE agency?

3. In what ways, if any, do you think that the ICE agency (in the words of the court) was "ham-handed"?

4. If the detainees ultimately are found to be illegal aliens, what penalty should be imposed upon them? What if some of them are found to be repeat offenders? What if they can prove they have children who were born in the United States?

5. Does this case suggest to you that the U.S. system for dealing with illegal-alien workers requires reforming? If so, what policy recommendations would you make to President Obama, if asked?