On June 15, the Supreme Court granted DOJ’s petition for certiorari in Genalo v. Black, a request that the justices review a Second Circuit opinion finding criminal aliens have a constitutional right to a bond hearing once their removal proceedings become “unreasonably prolonged”. At issue is “mandatory detention” under section 236(c) of the Immigration and Nationality Act (INA), not the recent Trump II mandatory detention policy under section 235(b)(2) for all illegal entrants (which circuit courts are split over), but the Court’s ultimate decision will directly impact the administration’s “worst of the worst” deportation efforts.
Section 236(c) of the INA
Prior to Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), section 242(a) of the INA (1995) governed the arrest, detention, and release of deportable aliens who had “entered” the United States.
Aside from aliens convicted of aggravated felonies as defined in section 101(a)(43) of the act, that prior law permitted criminals in immigration custody to request a bond hearing before an immigration judge (IJ) to determine whether they should be released.
In IIRIRA, Congress moved the then-INS’s arrest, detention, and release authority to a newly amended section 236 of the act and limited the ability of criminal aliens (in particular) to seek release on bond.
Section 236(a), as amended, gave immigration officers authority to: (1) arrest an alien subject to removal from the United States on an administrative (not judicial) warrant; and (2) detain that arrested alien; or (3) release the alien on a bond of at least $1,500 or “conditional parole” (which is different from more common parole under section 212(d)(5)(A) of the INA).
As the Supreme Court later explained, Congress was also concerned that deportable criminal aliens who were not detained would “continue to engage in crime and fail to appear for their removal hearings in large numbers”, and accordingly amended section 236(c) of the INA to require INS (now DHS) to take them into custody, and all-but barred their release.
Under that provision, immigration officers must arrest all aliens removable on the criminal grounds of inadmissibility in section 212(a)(2) of the INA, admitted aliens deportable on most criminal grounds in section 237(a)(2) of the INA, and alien terrorists, when they are released from criminal custody, “without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense”.
In the “Laken Riley Act”, signed by President Trump in late January 2025, Congress expanded that list of aliens subject to mandatory detention to include any alien who entered illegally or without proper documents and who “is charged with, is arrested for, is convicted of, admits having committed, or admits committing acts which constitute the essential elements of any burglary, theft, larceny, shoplifting, or assault of a law enforcement officer offense, or any crime that results in death or serious bodily injury to another person”.
By its terms, section 236(c) of the INA bars the release of such aliens while they are in proceedings, subject only a narrow exception in section 236(c)(4) for what the Court has referred to as “witness-protection” purposes, and then only if those aliens show they don’t pose a danger to the community or a flight risk.
The Fights Over Mandatory Detention
Congress has increasingly over the past few decades limited the authority of IJs and immigration officers to release criminal aliens, and section 236(c) is just one example of this effort.
Section 241(a)(2) of the INA (also amended by IIRIRA and the Laken Riley Act), for example, requires immigration officers to take aliens under final removal orders into custody and detain them for a 90-day “removal period” pending deportation.
Pursuant to subparagraph (A) of that provision, “under no circumstance during the removal period shall” DHS release aliens who are removable on criminal or terrorism grounds during that 90-day period.
Further, section 241(a)(6) of the INA permits continued detention beyond the removal period of inadmissible aliens, nonimmigrant overstays, and aliens deportable on criminal and national-security grounds who are found “to be a risk to the community or unlikely to comply with the order of removal”.
In its 2001 opinion in Zadvydas v. Davis, however, the Supreme Court applied the “constitutional avoidance” doctrine in interpreting that latter provision, reading an implicit six-month “reasonable time” limit on the detention of aliens pursuant to section 241(a)(6) of the INA.
That decision was consistent with the Court’s longstanding “settled policy” of avoiding an “interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question”, and had the justices read section 241(a)(6) as allowing INS to lock away an alien under a final civil removal order forever, it would have had serious due process implications.
After that six-month period, the Court held, DHS may detain post-order aliens only if their deportation is “reasonably foreseeable”, but regardless, Zadvydas opened all immigration detentions to constitutional attacks — some reasonable, some not.
Two years later, in Demore v. Kim, the Court considered a challenge to section 236(c) of the INA by an alien who contended his continued detention without the opportunity for a bond hearing violated his Fifth Amendment substantive due process rights under the reasoning in Zadvydas.
The majority rejected that claim, finding that, unlike the post-order detention in Zadvydas, section 236(c) “governs detention of deportable criminal aliens pending their removal proceedings” and therefore “necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed” (emphasis in original).
Moreover, the Court held that unlike “potentially permanent” post-order detention of the sort at issue in Zadvydas, detention under section 236(c) “is of a much shorter duration”, lasting only to the end of removal proceedings. Keep those conclusions in mind as I discuss the government’s arguments in Black.
Finally, in its 2018 opinion in Jennings v. Rodriguez, the Court rejected the Ninth Circuit’s interpretation of section 236(c) under the constitutional avoidance canon as imposing a six-month limit on pre-order detention, concluding: (1) that doctrine only comes into play when courts are interpreting an equivocal statute; and (2) section 236(c) isn’t equivocal as it “imposes an affirmative prohibition on” releases of aliens described therein except under the witness-protection exception in section 236(c)(4).
Carol Black and Keisy G.M.
The Jennings Court, however, passed on the constitutionality of section 236(c), basing its opinion instead on statutory interpretation doctrines and setting the stage for a May 2024 opinion by a two-judge panel of the Second Circuit in Black v. Decker.
There were actually two unrelated aliens involved in the case, Carol Black (a Jamaican national) and Keisy G.M., a national of the Dominican Republic.
As per DOJ’s petition, Black was convicted in New York state court in 2000 for “first-degree sexual abuse under New York law for subjecting a minor, who was less than 11 years old, to sexual contact” and endangering the welfare of a child. He was sentenced to five years’ probation for each offense. In addition, he also has convictions for criminal contempt, violating sex-offender-registry requirements, and petit larceny.
Black was arrested and placed into removal proceedings in 2019, charged with removability under INA sections 237(a)(2)(A)(iii) (alien convicted of an aggravated felony) and 237(a)(2)(E)(i) (for a “crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment”), and detained pursuant to section 236(c).
The IJ found Black was removable as charged but allowed him to seek asylum and other humanitarian protection.
Black challenged his mandatory detention pursuant to section 236(c) in a “Joseph hearing” (after the Board of Immigration Appeals’s (BIA’s) 1999 opinion in Matter of Joseph), but in March 2020, the IJ upheld his continued custody.
In April 2020, Black filed a habeas petition in federal district court seeking release. The court held his “prolonged detention” of more than seven months violated his due process rights and remanded the case to the IJ to hold a bond hearing. The IJ granted him bond, and DHS released Black in early August 2020.
After he was released, an IJ denied his applications for asylum and withholding of removal, which Black has appealed to the BIA.
G.M., on the other hand, was convicted in 2015 of second-degree assault in New York, for which he was sentenced to two years’ imprisonment.
DHS placed him into removal proceedings in October 2020 and charged him with removability as an alien convicted of an aggravated felony under section 237(a)(2)(A)(iii) of the INA.
He didn’t request a Joseph review hearing, and that December the IJ found G.M. removable as charged. His application for deferral of removal under Article III of the Convention Against Torture (CAT) was denied by a different IJ in March 2021, a decision he appealed to the BIA (also still pending decision).
While that appeal was pending, he filed a habeas petition in U.S. district court seeking release from DHS custody, which the court denied in November 2021, finding “no unreasonable delay by the Government in completing” G.M.’s removal proceedings and no “reason to think that his continued detention is for any purpose other than to facilitate his deportation”.
Black v. Decker
Following these respective district court decisions, the government appealed the order in Black’s case to the Second Circuit, and G.M. appealed the denial of his habeas petition to the appellate court as well.
The circuit court panel agreed to hear the two cases in tandem, and on May 24, 2024, the two remaining judges on what had been a three-judge panel (one judge died while the case was being considered) affirmed the decision in Black’s case and reversed the district court’s denial of habeas in G.M.’s case.
Most saliently, the Second Circuit panel concluded section 236(c) would be unconstitutional under the Fifth Amendment’s Due Process clause as applied to aliens whose detention had become “unreasonably prolonged”.
At the point an alien had been held for an unreasonably prolonged period, the circuit court held, the alien would be entitled to a bond hearing at which the government would bear the burden of showing by clear and convincing evidence that the alien is a danger to the community and/or a flight risk.
The government requested a rehearing en banc of the panel’s opinion in Black from the Second Circuit as a whole, which the appellate court denied in an opinion issued last October.
Seven circuit judges formed the majority denying DOJ’s request for en banc rehearing, while five others issued one dissent from that opinion, four of those judges joined in a second dissent, and the two circuit judges who issued the initial opinion in question issued a statement.
On January 22, the government filed its certiorari petition, asking the Supreme Court to review both the panel opinion and the Second Circuit’s denial of its request for rehearing en banc.
The Government’s Arguments
DOJ specifically asked the Supreme Court to review two related questions: (1) whether there’s a point at which an alien’s detention during removal proceedings under section 236(c) of the INA “becomes ‘unreasonably prolonged,’ such that due process requires a bond hearing”; and (2) if there is such a point, whether DHS thereafter bears the burden of proving continued detention is appropriate by “clear and convincing evidence”.
Burden of Proof in Bond Hearings
The second question is more straightforward. “Clear and convincing evidence” is a heightened standard of proof, more onerous than “a preponderance of the evidence” (more likely than not) and requiring the bearer to offer proof that is “highly and substantially more likely to be true than untrue”.
It’s a standard IJs are familiar with, however, because under section 240(c)(3) of the INA, it’s the same burden DHS must satisfy to prove a lawfully admitted alien is deportable.
That said, the circuit’s directive turns the current IJ bond review scheme on its head because by regulation and precedent, aliens seeking release from detention under section 236(a) of the INA bear the burden of proving by a preponderance of evidence they don’t pose a danger and aren’t flight risks — meaning DHS isn’t required to prove the reverse is true.
While the Second Circuit’s proof standard in Black is in line with a July 2020 Third Circuit opinion issued in a similar context, both the Fourth and Ninth Circuits have held that requiring aliens seeking release under section 236(a) to bear that burden by a preponderance of the evidence is constitutionally acceptable, while the First Circuit has held the government should bear the burden of proving danger by clear and convincing evidence and flight by a preponderance of the evidence.
Given that immigration is the ultimate federal issue and that the INA should be applied uniformly across the country, the Supreme Court should set a uniform burden of proof for IJs to apply nationwide in bond cases, and since aliens are better informed on the question of whether they are dangers and flight risks than the government is, they should bear that burden.
The government’s constitutional argument is trickier, but start with the fact that the Second Circuit in Black essentially invalidated a statute (section 236(c) of the INA) that denies aliens convicted of certain crimes release from detention while they are in removal proceedings.
Then consider the fact that Black was only held for seven months before the courts concluded his detention was “unreasonably prolonged”.
Admittedly, most detained cases are completed much more quickly (the median completion time for a detained case was 42 days in FY 2023, up from 24 days a decade earlier), but seven months isn’t unusual, given most of the delay appears to have been caused by his applications for relief.
The Government’s Constitutional Claims
The meat of the government’s arguments, however, is that the Second Circuit misconstrued the aliens’ claims as “procedural due process” challenges to continued detention under section 236(c) instead of as “substantive due process” claims, which — DOJ argued — they essentially were.
That may sound confusing in the abstract, but as DOJ’s explained in its petition, Black and G.M.:
do not challenge the adequacy of the procedures for determining whether an alien falls within one of [section 236(c)’s] enumerated categories. Indeed, neither Black nor G.M. contested in his habeas petition that he is a criminal alien within the scope of [that provision]. Instead, respondents contend that a determination that they are criminal aliens is inadequate to justify the deprivation at issue — i.e., their purportedly “prolonged” detention under [section 236(c)]. In their view, such a deprivation can be justified only by a determination different from the one that Congress specified — a determination that they pose a flight risk or danger to the community.
Respondents' claims are thus substantive, not procedural, due-process claims. To be sure, respondents contend that due process requires additional procedures in the form of a bond hearing. But a bond hearing is merely a vehicle for making the substantive determination about flight risk or dangerousness that respondents believe is necessary to justify their “prolonged” detention. And because [section 236(c)] does not require such a determination, respondents' claim is a substantive due-process challenge, not a procedural one. [Emphasis in original; citations omitted.]
That’s an important point, as the Supreme Court already rejected a substantive due process challenge to section 236(c) detention in Demore.
Note that in Demore, the justices distinguished Zadvydas, finding that while in that earlier case the purpose of detention under section 241(a)(6) (ensuring aliens don’t flee before deportation) was “no longer practically attainable” because deportation wasn’t reasonably foreseeable, section 236(c) detention “necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed.”
Consequently, DOJ argued in its petition that detention under section 236(c) would only stop “bear[ing] a reasonable relation” to Congress’s purpose of ensuring aliens don’t flee before deportation “in the extraordinary circumstance in which the proceedings ceased to be a means of effectuating the alien's removal and became a ‘ruse’ to keep the alien in detention”.
“Here”, the government argued, Black and G.M.:
have not alleged, nor is there any evidence to suggest, that their ongoing removal proceedings are a sham. ... Removal thus remains a practically attainable goal, and while the proceedings remain pending, each respondent's detention under [section 236(с) of the INA] bears a reasonable relation to the legitimate purposes that this Court identified in Demore.
Consequently, the government reasoned, section 236(c) of the INA is constitutional as applied to both Black and G.M.
An Uncomfortable Truth
The Court in Demore stated what to many is an uncomfortable truth:
In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens. Although the Fifth Amendment entitles aliens to due process in deportation proceedings, detention during such proceedings is a constitutionally valid aspect of the process, even where ... aliens challenge their detention on the grounds that there has been no finding that they are unlikely to appear for their deportation proceedings. [Citations omitted.]
Despite the Supreme Court’s clear admonitions to the contrary, lower courts have crafted constitutional arguments to justify releasing aliens in removal proceedings, including criminals, and their inclination to do so is only increasing. The justices have an opportunity in Black to reverse that questionable trend — and to spare the High Court a lot more work in the future.