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The Trump administration is asking the Supreme Court to revive a major immigration fight over whether criminal aliens can be held without bond throughout removal proceedings or are entitled to a hearing when their detention drags on.
Solicitor General John Sauer asked the Supreme Court on Monday to take up Genalo v. D.C., reviving a constitutional fight the justices had been set to hear this term in Genalo v. Black before New York Democratic Gov. Kathy Hochul’s pardon rendered that case moot.
At the center of the dispute is D.C., a Dominican national who is facing removal after a criminal history that includes drug trafficking and domestic violence charges. He had previously been removed from the United States on six occasions, according to ICE.
Federal law requires certain criminal aliens to remain in custody while their deportation cases play out. But the Second Circuit has ruled that if they are detained for too long, they are entitled to a bond hearing at which the government must make the case for keeping them in custody.
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Other appeals courts have taken different approaches, leaving the Supreme Court with a nationwide split over what constitutional protections apply.
“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 Florida State University law professor, told Fox News Digital. “And so the government is asking the Supreme Court to set one uniform interpretation for the entire country.”
The Trump administration’s petition is procedurally unusual because Genalo v. D.C. is still pending before the Second Circuit. Sauer is asking the Supreme Court to intervene before the appeals court issues its decision.
“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,” Morley told Fox News Digital.
The legal dispute could also determine who carries the burden when a bond hearing is required.
Under the Second Circuit’s approach, the government must show that a detainee poses a flight risk or danger to the community. The administration argued that if the Constitution requires such hearings, the burden should instead fall on the detainee seeking release.
Lawyers supporting the administration argue that some detainees could delay their removal cases, then use the length of their detention to seek release on bond.
“The biggest issue that happens here is gamemanship,” Chad Mizelle, chair of litigation at the America First Policy Institute and a former acting associate attorney general, told Fox News Digital.
“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,” Mizelle said. “So all of a sudden they’ve been in detention now, six, seven, eight months, completely of their own making.”
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Mizelle argued that if prolonged detention eventually gives a detainee the right to seek bond, it could create an incentive to stretch proceedings long enough to reach that point.
“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,” Mizelle 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, similarly described the additional litigation as “a foot dragging, sand in the gears exercise.”
“This is attempting to stall, attempting to run out the clock or just, you know, the question is whether there even is a clock,” Severino told Fox News Digital.
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.
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“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.”
However, Severino 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 said the High Court has left open the constitutional question now at the center of the administration’s petition.
“This is a question that the [Supreme Court] itself went out of its way, you can say, to leave open for adjudication in a future case,” Morley said.
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The administration is now asking the justices not to wait for another one.
“You wanted to resolve this case. Here’s another case that presents the same exact question that lets you resolve the circuit split this term,” Morley said. “So basically, substitute this case for the moot case.”
Fox News Digital reached out to the Justice Department for comment.