The Constitution’s due process clause famously limits the government’s power to detain people. Next month the Supreme Court is scheduled to hear arguments in a case about the clause’s relevance to long-time migrants. If it sides with the government, the court could allow immigration officials to detain thousands of long-term residents indefinitely, including lawful permanent residents (also known as green-card holders), convicted of a variety of crimes without allowing them to ask an immigration judge for release on bond. Recent developments might convince the court to remove the case from its docket. Even if that happens, however, the court has signaled that it is ready to consider a quarter-century long dispute about mandatory detention.
Read more Judge blocks Trump’s second birthright citizenship order
***
The Immigration and Nationality Act, which governs immigration, gives federal officials broad authority to detain migrants. In most instances, migrants can ask an immigration judge to reconsider their detention. By pointing out that they are neither a flight risk nor likely to endanger the public, migrants are often able to convince immigration judges to permit their release after paying a cash bond and agreeing to comply with any other restrictions.
Sometimes the INA goes further. Rather than simply allow immigration officials to detain someone, since 1996 Congress has required detention for migrants who have been convicted of a , from serious offenses like murder to non-violent crimes like forging a passport. Last year, Congress the list of offenses that result in mandatory detention. For example, now just being arrested on suspicion of shoplifting leads to detention. For anyone who comes within the mandatory detention law, neither ICE nor an immigration judge can permit their release except for a narrow, almost unheard-of exception related to protecting witnesses of crimes.
Throughout the last 25 years, courts have regularly grappled with the limits of mandatory detention. In Zadvydas v. Davis, a 2001 decision, the court loosened the detention of people who had already been ordered removed but government officials couldn’t actually get out of the United States, usually because of poor diplomatic relations with the individual’s country of citizenship. To avoid the “serious constitutional problem” of indefinite detention, the court announced, in an opinion by Justice Stephen Breyer, further detention wasn’t permissible “once removal is no longer reasonably foreseeable.”
However, two years later, in Demore v. Kim, Chief Justice William Rehnquist concluded that mandatory detention without the possibility of release on bond was permissible while immigration court proceedings were ongoing, no matter how long that might take. Unlike Zadvydas, which involved indefinite detention, while legal proceedings are pending, “not only does detention have a definite termination point, in the majority of cases it lasts for less than 90 days,” Rehnquist explained.
More recently, in 2018, the court returned to mandatory detention in Jennings v. Rodriguez. In an opinion by Justice Samuel Alito, the majority left no doubt that, in its view, immigration law gives ICE remarkable power to detain migrants without any oversight from immigration judges. Without overruling Zadvydas, the majority limited its relevance. Instead of imposing periodic bond hearings, the court stated that the immigration laws at issue in Jennings “unequivocally mandate that aliens falling within their scope ‘shall’ be detained.” Besides, Alito added, unlike the indefinite detention that concerned the Zadvydas court, mandatory detention while an immigration court case is ongoing has a “definite termination point” – the moment when an immigration judge issues a decision.
The court is scheduled to return to mandatory detention next month when it hears arguments in Genalo v. G.M., a constitutional challenge to the federal government’s power to detain migrants, without the possibility of release on bond, while legal proceedings are underway. A lawful permanent resident of the United States since 2011, G.M. was convicted of assault in New York in 2015. ICE began a deportation case and detained him five years later, that his assault conviction is defined as an aggravated felony that makes him deportable and subject to mandatory detention. The U.S. Court of Appeals for the 2nd Circuit held, in May 2024, that detaining a migrant for an “unreasonably prolonged” period without a bond hearing violates the Fifth Amendment’s guarantee of due process. Together with G.M., the 2nd Circuit also concluded that Carol Williams Black, who had been detained for 7 months, had been held longer than due process allows. Black has since , leaving nothing for the Supreme Court to decide. The court agreed to hear G.M.’s case in June, and oral argument is scheduled for Oct. 13.
Read more How William Howard Taft transformed from a portly president to a svelte chief justice
Like Jennings, G.M. addresses mandatory detention of migrants who have encountered the criminal legal system for a variety of reasons and whether they are entitled to periodic bond hearings. But unlike Jennings, G.M. focuses squarely on the due process clause’s relevance. Led by the ACLU’s Cecillia D. Wang, who successfully challenged President Donald Trump’s birthright citizenship executive order at the Supreme Court, G.M. that confinement “is at the core of the liberty protected by the Due Process Clause.” G.M. contends that mandatory, no-bond detention “is a modern aberration” to the longstanding tradition of allowing the government to deprive people of their liberty and that officials must “provide the individual an opportunity to be heard and present evidence challenging the justifications for detention.” Demore’s willingness to permit no-bond detention turned on the court’s conclusion that detention was brief, but the 21 months that he was detained was unreasonable, according to G.M.
The Trump administration . In its brief to the court, the solicitor general, which represents the federal government in Supreme Court litigation, that migrants detained on account of criminal activity have no due process rights. Even if they did, the solicitor general adds, the 2nd Circuit classified G.M.’s claim incorrectly. Rather than challenge the process that ICE used to detain him, as the 2nd Circuit treated G.M.’s claim, the solicitor general contends that G.M. is implicitly arguing that Congress can’t categorically determine “that permitting release on bond was too risky” when it came to migrants with the specified criminal history. By asking for a bond hearing, G.M., according to the solicitor general, is trying to substitute Congress’ judgment that there is too much risk involved with people like him asking for release with two factors that Congress did not choose: flight risk and dangerousness. In the solicitor general’s view, this is an attack on the substantive reason that ICE detained G.M. rather than the process by which ICE decided to detain him. For that reason, the 2nd Circuit was wrong to consider G.M.’s claim as a challenge to the detention process.
Significantly, the court might soon realize that there is nothing for it to decide. G.M. has been living freely since 2022 when ICE him under a pandemic-era court order in a separate case. That order is no longer in effect, and the government would like to “redetain G.M.,” and, in turn, G.M. “wishes to avoid redetention,” as the solicitor general to the justices this summer. Now neither might be true. On Aug. 28, the governor of New York, Kathy Hochul, granted G.M. a pardon for his assault conviction. Under immigration law, the government can’t deport someone based on a pardoned conviction. Since G.M. has never been convicted of any other offense, he is no longer deportable and he can’t be detained, and thus remains a lawful permanent resident entitled to live and work in the United States indefinitely.
In asking the court over the summer in this case, G.M.’s lawyers alerted the justices that he was waiting to hear about his pardon request. This week, they sent a copy of Hochul’s pardon to the court and pointed out that, “[g]iven the pardon, any decision in this case will have no direct consequence” for G.M. If it agrees, the court can dismiss the case as improvidently granted, a rarely used process that allows the justices to remove a case from its calendar even late in the process when the parties have submitted briefs and arguments have been scheduled. But just because they can dismiss the case doesn’t mean they have to. When they agreed to hear arguments in this case, the justices to address whether the case was moot – the legal term for a case in which there is no active legal dispute. Clearly, they anticipated that this might come up.
Even if the justices dismiss this case, their decision to add it to the court’s calendar signals that they are interested in revisiting the mandatory detention power that Congress has granted ICE and that the Trump administration is using aggressively. However Genalo turns out, this suggests that some justices are ready to grapple with what, if any, constitutional limits apply to mandatory detention.
Read more Why religion and education will be in the spotlight next term