The Trump administration is asking the Supreme Court to revive a major constitutional fight over whether criminal noncitizens can be detained without bond throughout their removal proceedings, after a pardon by New York Gov. Kathy Hochul rendered the justices' original case moot.
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 administration is seeking to bypass the appeals court and have the Supreme Court resolve a nationwide split over what constitutional protections apply to noncitizens held in immigration detention.
The dispute centers on a Dominican national identified 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 noncitizens to remain in custody while their deportation cases proceed. But the Second Circuit has ruled that when detention drags on, detainees are entitled to a bond hearing at which the government must justify keeping them locked up. Other appeals courts have taken different approaches, leaving what one legal scholar described as a patchwork of rights that depends on where a detainee happens to be held.
«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 law professor at Florida State University, said. «And so the government is asking the Supreme Court to set one uniform interpretation for the entire country.»
The administration's petition is procedurally unusual because the Second Circuit has not yet issued a decision in the case. Sauer is asking the justices to intervene before the appeals court rules, a move Morley said would spare the court from going through the usual motions.
«Rather than making the court go through those motions, you just hear this case now, hear this case directly, even before the Second Circuit has had the opportunity to rule,» Morley said.
The legal fight could also determine who carries 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 instead fall on the detainee seeking release.
Supporters of the administration contend that some detainees could deliberately prolong their removal cases and then use the length of their detention to seek release on bond. Chad Mizelle, chair of litigation at the America First Policy Institute and a former acting associate attorney general, described the dynamic as «gamemanship.»
«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 said. «So all of a sudden they've been in detention now, six, seven, eight months, completely of their own making.»
Mizelle argued that if prolonged detention eventually gave a detainee the right to seek bond, it could create an incentive to stretch proceedings long enough to reach that point, including through what he called frivolous filings and repeated requests for delays. If released, he said, a detainee could abscond.
Carrie Severino, president of the Judicial Crisis Network, similarly 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.» Severino 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 case arrived at the high court after Hochul's pardon of a convicted felon in the original matter, Genalo v. Black, eliminated the live controversy the justices had been set to hear this term.
The administration's request now puts the question back before the Supreme Court, asking it to settle whether criminal noncitizens may be held without bond for the duration of their removal cases or are entitled to periodic hearings — and if so, which side bears the burden of proof.