The Trump administration is asking the Supreme Court to revive a major constitutional fight over whether certain criminal immigrants can be held without bond throughout their removal proceedings, after a pardon by New York Gov. Kathy Hochul derailed the case the justices had been preparing to hear.
Solicitor General John Sauer filed a petition asking the high court to take up Genalo v. D.C., a case still pending before the U.S. Court of Appeals for the Second Circuit. The move is procedurally unusual because the administration is seeking Supreme Court review before the appeals court has issued its own ruling.
At the center of the dispute is a Dominican national identified in court documents as D.C., who faces removal after a criminal history that includes drug trafficking and domestic violence charges. According to U.S. Immigration and Customs Enforcement, he had previously been removed from the United States on six occasions.
Federal law requires certain criminal immigrants to remain in custody while their deportation cases proceed. The Second Circuit, however, has ruled that when detention drags on too long, detainees are entitled to a bond hearing at which the government must justify keeping them locked up.
Other federal appeals courts have taken different approaches, creating a nationwide split over what constitutional protections apply to immigrants with criminal records who are held during removal proceedings.
«So the rights of these criminal aliens who were being detained, whether or not they're entitled to a bond hearing as of right now depends on which jurisdiction they happen to fall in,» Michael Morley, a Florida State University law professor, said. «And so the government is asking the Supreme Court to set one uniform interpretation for the entire country.»
The case the justices had been set to hear this term, Genalo v. Black, became moot after Hochul, a Democrat, pardoned the convicted felon whose detention was at issue. That pardon removed the live controversy the Supreme Court was preparing to resolve.
The administration's new petition also asks the justices to decide who bears the burden when a bond hearing is required. Under the Second Circuit's approach, the government must show that a detainee poses a flight risk or a danger to the community. The administration argues that if the Constitution requires such hearings, the burden should fall instead on the detainee seeking release.
Supporters of the administration contend that some detainees deliberately prolong their removal cases and then use the length of their detention to seek release on bond.
«The biggest issue that happens here is gamesmanship,» said Chad Mizelle, chair of litigation at the America First Policy Institute and a former acting associate attorney general. «A lot of times these aliens will file multiple applications for asylum, withholding removal. They'll get new attorneys, switch out attorneys, ask for continuances, ask for delays.»
Mizelle argued that if prolonged detention automatically gave detainees a right to seek bond, it would create an incentive to stretch proceedings long enough to reach that point. «They would make frivolous filings regarding asylum, regarding withholding of removal,» he said. «They'll do everything they can to try to stretch this out, six months, seven months, eight months, file a habeas petition, say that they're entitled to a bond hearing, and then if they are released, abscond.»
Carrie Severino, president of the Judicial Crisis Network, described the additional litigation as «a foot dragging, sand in the gears exercise.» She pointed to cases such as Demore v. Kim, in which detainees themselves sought additional time during proceedings before later challenging the length of their detention.
«So, it's often a situation where people are playing both sides of it,» Severino said. «But they're asking for more time on different things, but then at the same time complaining that the whole process is taking too long.» She cautioned that she could not speak to the motivations of every detainee.
The Supreme Court has previously upheld mandatory detention during removal proceedings, but Morley said the justices have left open the constitutional question now at the center of the administration's petition. The court's decision on whether to take up Genalo v. D.C. could determine how uniformly immigration detention rules apply across the country.