Supreme Court to Consider Due Process Rights for Detained Migrants

Why it matters locally: While specific local impact is not directly detailed, decisions on federal immigration policy and due process rights for detained migrants can influence the operations of federal agencies like U.S. Immigration and Customs Enforcement (ICE) within West Virginia, potentially affecting the handling of cases involving individuals detained in the state.

---

WASHINGTON – The Supreme Court is scheduled to hear arguments next month in a case that examines the application of the Constitution's due process clause to the detention of long-term migrants. The case, *Genalo v. G.M.*, could clarify the extent to which immigration officials can detain individuals, including lawful permanent residents, without bond hearings, particularly those with past criminal convictions. The Immigration and Nationality Act grants federal officials broad authority to detain migrants. While most migrants can request release on bond from an immigration judge, certain provisions of the Act mandate detention for individuals convicted of specific crimes. Since 1996, Congress has required detention for migrants convicted of various offenses, ranging from serious crimes to non-violent violations. In the last year, Congress expanded the list of offenses triggering mandatory detention, including initial arrests for shoplifting. For individuals subject to mandatory detention, neither U.S. Immigration and Customs Enforcement (ICE) nor an immigration judge can authorize release, except in specific situations related to protecting witnesses. Over the past 25 years, courts have addressed the limitations of mandatory detention. In *Zadvydas v. Davis* (2001), the Supreme Court restricted the detention of individuals ordered removed but who could not be deported, citing concerns about indefinite detention. Justice Stephen Breyer, writing for the majority, stated that further detention was not permissible "once removal is no longer reasonably foreseeable." However, in *Demore v. Kim* (2003), Chief Justice William Rehnquist concluded that mandatory detention without bond was permissible during ongoing immigration court proceedings. Rehnquist noted that unlike *Zadvydas*, detention during legal proceedings generally has a "definite termination point" and often lasts less than 90 days. More recently, in *Jennings v. Rodriguez* (2018), Justice Samuel Alito's majority opinion affirmed ICE's authority to detain migrants without oversight from immigration judges. The court stated that relevant immigration laws "unequivocally mandate that aliens falling within their scope 'shall' be detained." Alito distinguished this from *Zadvydas* by emphasizing that mandatory detention during court cases has a "definite termination point" upon an immigration judge's decision. The upcoming case, *Genalo v. G.M.*, involves a lawful permanent resident, G.M., who was convicted of assault in New York in 2015. ICE initiated deportation proceedings and detained him five years later, classifying his conviction as an aggravated felony that makes him deportable and subject to mandatory detention. The U.S. Court of Appeals for the 2nd Circuit ruled in May 2024 that detaining a migrant for an "unreasonably prolonged" period without a bond hearing violates the Fifth Amendment's due process guarantee. The 2nd Circuit also found in a related case that Carol Williams Black, detained for seven months, had been held longer than due process permits. Black has since moved abroad. G.M. argues that mandatory, no-bond detention constitutes a "modern aberration" and that individuals should have an opportunity to challenge the justifications for their detention. The U.S. Solicitor General, representing the federal government, contends that migrants detained due to criminal activity do not possess due process rights in this context. The Solicitor General also argues that G.M.'s challenge concerns the substance of congressional judgment regarding risk, not the procedural aspects of his detention. Recent developments may affect the Supreme Court's consideration of the case. G.M. has been living freely since 2022, following a pandemic-era court order. On August 28, the governor of New York, Kathy Hochul, granted G.M. a pardon for his assault conviction. Under immigration law, a pardoned conviction generally prevents deportation. G.M.'s lawyers have informed the court of the pardon, stating that it eliminates direct consequences for G.M. in the case. The Supreme Court has the option to dismiss the case as improvidently granted, a procedure used to remove cases from its calendar. When the court agreed to hear the arguments, it specifically asked the parties to address whether the case was moot, indicating an anticipation of such a development. Despite potential dismissal, the court's decision to include this case on its calendar suggests an interest in examining the constitutional limits of mandatory detention powers granted to ICE.