The Trump administration is asking the Supreme Court to intervene in a major constitutional fight over whether criminal noncitizens can be detained without bond throughout their removal proceedings, reviving a legal battle that was upended earlier this year when New York Gov. Kathy Hochul pardoned the defendant in the original case.
Solicitor General John Sauer filed a petition asking the justices 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 a nationwide ruling on whether noncitizens with certain criminal convictions are entitled to a bond hearing when their detention becomes prolonged — a question that has divided federal appeals courts and left detention rules dependent on geography.
The dispute centers on a Dominican national identified in court filings as D.C., who faces removal after a criminal history that includes drug trafficking and domestic violence charges. According to Immigration and Customs Enforcement, he had previously been removed from the United States on six occasions. Federal law generally requires certain criminal noncitizens to remain in custody while their deportation cases proceed, but the Second Circuit has held that detainees held too long are entitled to a bond hearing at which the government must justify continued detention.
The Supreme Court had been set to hear the case this term as Genalo v. Black, but Hochul's pardon of the convicted felon at the center of that matter rendered it moot. The administration's new petition is procedurally unusual because the Second Circuit has not yet issued a decision in the parallel case. Sauer is effectively asking the justices to step in before the appeals court rules, a move that legal observers say reflects the administration's desire to resolve the split quickly.
«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.»
Morley described the petition as an effort to bypass the normal appellate process. «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,» he said.
The legal dispute also concerns which side bears the burden of proof at a bond hearing. 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 to trigger bond eligibility. «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. 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 automatically entitled a detainee to seek bond, it would create an incentive to stretch proceedings. «They would switch out attorneys. They would make frivolous filings regarding asylum, regarding withholding of removal. They would ask for delays and continuances upon delays and continuances,» 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 noted that the justices have left open the specific constitutional question now at the center of the administration's petition. The case could determine not only whether bond hearings are required but also how quickly immigration courts must process cases for detained noncitizens.