The Supreme Court this morning granted certiorari to hear Genalo v. Black, a petition by the Trump administration seeking to overturn a Second Circuit decision placing due process limits on how long the government can detain criminal aliens. As the solicitor general’s brief framed the question:
Under 8 U.S.C. 1226(c), certain criminal aliens are required to be detained pending a decision on whether they are to be removed from the United States. In Jennings v. Rodriguez, 583 U.S. 281 (2018), this Court held that Section 1226(c) prohibits the release of such aliens on bond. The Court reserved judgment on various constitutional issues on which it had ordered supplemental briefing, including whether the Due Process Clause requires bond hearings for certain Section 1226(c) detainees and, if so, what kind of bond hearing. Respondents here are two criminal aliens detained under Section 1226(c) for 7 and 21 months, respectively, pending their removal proceedings. The court of appeals held that each respondent’s detention had become “unreasonably prolonged,” such that due process entitled him to a bond hearing with the burden placed on the government to justify his continued detention by clear and convincing evidence. . . . The questions presented are:
1. Whether there is a point at which an alien’s detention under Section 1226(c), pending a decision on whether he is to be removed, becomes “unreasonably prolonged,” such that due process requires a bond hearing.
2. If so, whether, in such a bond hearing, due process requires placing the burden on the government to justify the alien’s continued detention by clear and convincing evidence.
As John Elwood of SCOTUSBlog summarized the dispute:
The cases involve two lawful permanent residents detained by ICE after criminal convictions: Carol Williams Black, who was detained for about seven months, and Keisy G.M., who was detained for about 21 months. A two-judge panel of the U.S. Court of Appeals for the 2nd Circuit (the third judge died while the opinion was being written) held that detention under Section 1226(c) can become “unreasonably prolonged,” triggering due-process protection . . . it concluded that both respondents were entitled to individualized bond hearings and, in Black’s case, that the government had to justify continued detention by clear and convincing evidence. . . .
The government seeks review, arguing that the 2nd Circuit’s decision (joined, the government argues, by the U.S. Court of Appeals for the 3rd Circuit) cements a split with the U.S. Court of Appeals for the 8th Circuit, which held that “[d]ue process imposes no time limit on detention pending deportation.” According to the government, the 2nd Circuit’s decision is simply wrong: respondents are raising substantive due process claims (whether the length of detention is constitutionally permissible), not procedural due process claims, and substantive due process affords no right to a bond hearing where, as here, detention bears a reasonable relation to legitimate immigration purposes such as preventing criminal aliens from fleeing or re-offending. And the government argues that even accepting the 2nd Circuit’s procedural framing, the clear-and-convincing burden it imposed is unjustified.
Black and G.M., represented by the American Civil Liberties Union, counter that the government forfeited its new first-principles argument that detention under Section 1226(c) implicates no fundamental liberty interest at all by taking a different position below; that the supposed split is shallow because the 2nd Circuit merely applied the familiar Mathews v. Eldridge procedural due process framework to unusually prolonged detentions; and that the cases are messy vehicles because Black has left the country and withdrew her appeal and G.M. has been out of ICE custody since 2022.
In this morning’s order, the Court specifically directed the parties to brief the question of “Whether G. M.’s case is now moot.” The case will be on the docket for next term, so a decision may not come for another nine to twelve months.