The Supreme Court on Friday, Sept. 11, dismissed Genalo v. Black, an immigration detention case that had been scheduled for oral argument on Oct. 13, after the federal government and the remaining challenger agreed that the case was moot. The dismissal leaves unresolved when, if ever, certain noncitizens held for lengthy periods have a Fifth Amendment right to a bond hearing and what the government must prove to justify continued detention.
The case initially involved two men detained under Section 1226(c) of the Immigration and Nationality Act. That provision requires the detention of noncitizens, including green card holders, who have committed certain crimes and are awaiting removal proceedings, and it permits release only on narrow witness-protection grounds. U.S. Solicitor General D. John Sauer had asked the justices to review a ruling by the U.S. Court of Appeals for the 2nd Circuit that the men’s detention had continued long enough to entitle them to a bond hearing under the Fifth Amendment’s due process clause.
Sauer relied on the Supreme Court’s 2018 decision in Jennings v. Rodriguez, which held that Section 1226(c) itself does not require periodic bond hearings. That ruling considered but did not resolve whether due process eventually requires such hearings during a lengthy detention. In a letter to Supreme Court Clerk Scott Harris, Sauer said the Justice Department aims to return the issue to the court soon through a new petition for review.
One of the original challengers, Carol Williams Black, left the United States while the government’s petition was pending and told the court that he did not intend to return. The parties agreed that his claim was moot. When the justices granted review on June 15, they limited the case to Keisy G.M., who had been detained by immigration officials for 21 months after an assault conviction, while directing the parties to address whether his claim also remained a live controversy. G.M. had been released from custody in 2022.
The mootness issue changed in late August when New York Gov. Kathy Hochul pardoned G.M. with respect to the assault conviction. ACLU National Legal Director Cecillia Wang argued in G.M.’s merits brief that the pardon meant he was no longer deportable or subject to mandatory detention under Section 1226(c). Sauer subsequently told the court that the government agreed G.M.’s habeas case was moot, and he and Wang filed a joint stipulation to dismiss on Friday.
The court dismissed the case later that day. Its removal from the calendar leaves one argument scheduled for Oct. 13 and six arguments in total during the Supreme Court’s October sitting.