Solicitor General John Sauer asked the Supreme Court on Monday to take up Genalo v. D.C., seeking to revive a constitutional dispute over whether criminal aliens facing removal are entitled to bond hearings after prolonged detention. The petition revives a fight the justices were set to hear in Genalo v. Black before New York Gov. Kathy Hochul’s pardon of the detainee rendered that case moot.
At the center of the new petition is D.C., a Dominican national facing removal after a criminal history that includes drug trafficking and domestic violence charges. Immigration and Customs Enforcement (ICE) stated that he had previously been removed from the United States on six occasions. Federal law requires certain criminal aliens to remain in custody while deportation cases proceed, but the Second Circuit Court of Appeals has ruled that detainees held for an extended period are entitled to a bond hearing where the government must justify continued custody.
Other appeals courts have adopted different standards, creating a nationwide circuit split over the applicable constitutional protections. Michael Morley, a law professor at Florida State University, noted that whether a detained criminal alien is entitled to a bond hearing currently depends on the jurisdiction in which they are held. He explained that the administration is asking the Supreme Court to establish a uniform interpretation for the entire country.
The procedural posture of Genalo v. D.C. is unusual because the case remains active in the lower courts. Sauer is requesting that the High Court address the merits immediately, bypassing the need to await a final ruling from the Second Circuit. Morley described this approach as allowing the justices to hear the matter directly rather than waiting for the appeals court’s decision.
A key element of the dispute involves the burden of proof if a bond hearing is required. Under the Second Circuit’s approach, the government must demonstrate that a detainee poses a flight risk or danger to the community. The administration argues that if the Constitution mandates such hearings, the burden should shift to the detainee seeking release.
Supporters of the administration’s position contend that some detainees use litigation tactics to delay removal proceedings, thereby using the length of their detention as grounds to seek bond. Chad Mizelle, chair of litigation at the America First Policy Institute and a former acting associate attorney general, characterized these actions as "gamemanship." He cited examples where individuals file multiple asylum applications, switch attorneys, or request continuances to stretch detention into months, potentially leading to release and absconding.
Carrie Severino, president of the Judicial Crisis Network, described similar litigation as an exercise in stalling or "sand in the gears." She pointed to cases like Demore v. Kim, where detainees sought additional time during proceedings before later challenging the length of their detention. However, Severino cautioned that she could not speak to the motivations of every detainee involved in such cases.
While the Supreme Court has previously upheld mandatory detention during removal proceedings, Morley stated that the High Court left open the specific constitutional question now at the center of the administration's petition. He argued that the current case presents the same question as the mooted Genalo v. Black, allowing the justices to resolve the circuit split this term. Fox News Digital reached out to the Justice Department for comment.