The Trump administration has asked the Supreme Court to decide when immigrants held during Removal proceedingsThe formal court process, formerly called deportation, in which the government seeks to remove a noncitizen from the United States.See it in the glossary are entitled to a Bond hearingA hearing in which an immigration judge decides whether a noncitizen detained by DHS may be released from custody and, if so, under what bond. Eligibility depends on which detention law applies to the person, and immigration judges have no authority over bond for some groups, such as those subject to mandatory detention.See it in the glossary, in a petition filed September 21 in Genalo v. D.C. The Court has not acted on the petition.
What the detention petition asks the Court
The petition raises two questions. The first is whether detention under 8 U.S.C. 1226(c), which covers certain noncitizens with criminal records while their removal cases are decided, can become “unreasonably prolonged” so that due process requires a bond hearing. The second is whether, at such a hearing, due process requires the government to justify continued detention by clear and convincing evidence.
The petition seeks CertiorariA request, called a petition for a writ of certiorari, asking the Supreme Court to review a lower court decision. The Court does not have to take the case and typically does so when it involves an unusually important legal principle or when federal appeals courts have read a law differently. In civil cases the petition generally must be filed within 90 days after judgment.See it in the glossary before judgment, which asks the justices to take the case before the court of appeals rules. The decision under challenge comes from the U.S. District Court for the Southern District of New York. Fox News reported that the filing came from Solicitor General John Sauer and that it asks the Court to act before the Second Circuit rules. Fox also reported that an earlier case on the same question, Genalo v. Black, became moot after a pardon by New York Gov. Kathy Hochul.
Where the Genalo petition stands
On October 8, the Court extended the deadline for a response from October 21 to December 8, according to the SCOTUSblog case page. An amicus brief from Iowa and other states was filed October 20.
How the case differs from Rhoney
The Court is already set to hear a separate detention case, as covered in our report on Rhoney v. Barbosa da Cunha. That case asks whether 8 U.S.C. 1225(b)(2)(A) requires detention of people who entered without inspection, which is a question about what the statute says. Genalo concerns detention under a different provision and asks when due process requires a hearing.
The constitutional question has also reached the appeals courts. The full Fifth Circuit held that detained immigrants who were never admitted have no constitutional right to a bond hearing, as covered in our report on the Fifth Circuit ruling. For how the Court decides which cases to hear, see our explainer on Supreme Court immigration cases.