The Supreme Court Preserves Due Process for Detained Immigrants

When the Supreme Court formally dismissed Genalo v. G.M. on September 11, 2026, it did not issue a sweeping defense of the Fifth Amendment or resolve the deepening divide over federal detention power. Instead, the justices acted on a joint stipulation of mootness following an unconditional gubernatorial pardon, quietly canceling the oral argument scheduled for October 13, 2026, and leaving an essential constitutional safeguard intact by procedural default. For thousands of noncitizens held in civil custody across New York, Connecticut, and Vermont, the dismissal protects a vital legal shield: the government cannot hold immigrants indefinitely without proving to a judge that their continued physical caging is necessary.

The underlying controversy exposes a fundamental contradiction in federal immigration law. Under Section 1226(c) of Title 8 of the United States Code, enacted by Congress in 1996 as part of the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act, the executive branch must take into custody any noncitizen who has committed certain designated criminal offenses immediately upon their release from state or federal custody. The statute forbids immigration judges from granting release on bond while deportation proceedings unfold, transforming an administrative civil process into mandatory, automatic incarceration.

For Keisy G.M., who arrived from the Dominican Republic as a lawful permanent resident in 2011, this statutory mechanism operated with devastating absurdity. In 2015, he pleaded guilty to a single count of second-degree assault, the only criminal offense of his life. He served nineteen months in state prison, earned early release for good behavior, and returned to his home, his family, and his community. Four years after that sentence concluded, Immigration and Customs Enforcement (ICE) agents arrested him, asserting mandatory custody under Section 1226(c). Federal authorities transferred him to a county jail where he was held for twenty-one months—two months longer than his entire criminal sentence—without a single hearing before a judge to determine whether he posed any danger to the community or any flight risk.

“Mr. G.M. spent 21 months locked away by ICE, separated from his family and community, without any consideration of whether he actually posed a danger or a flight risk,” said Amit Jain, counsel for the Supreme Court and Appellate Program at the MacArthur Justice Center. “The Second Circuit saw that for what it was: a violation of due process.”

When the Second US Circuit Court of Appeals ruled in his favor in 2024, it held that when mandatory detention under Section 1226(c) becomes unreasonably prolonged, the Fifth Amendment’s Due Process Clause mandates an individualized bond hearing. Crucially, the appellate court placed the evidentiary burden where it belongs in any society governed by the rule of law: squarely on the government, which must prove by clear and convincing evidence that the individual poses a flight risk or a danger to the community before depriving them of physical liberty.

The Trump administration appealed that ruling to the Supreme Court in January 2026, advancing an extreme theory of executive authority. Department of Justice attorneys argued that noncitizens detained under mandatory statutory provisions possess no constitutionally protected liberty interest whatsoever against prolonged civil confinement while their removal cases crawl through backlogged administrative dockets. The government contended that subjecting mandatory detention to judicial review creates administrative burdens, incentivizes noncitizens to pursue appeals, and undermines the plenary power of the political branches to enforce immigration statutes.

That view reduces human freedom to a discretionary administrative concession. The Fifth Amendment does not limit its command to citizens; it provides unambiguously that no “person” shall be deprived of liberty without due process of law. When civil confinement stretches from weeks into years, it ceases to function as a regulatory instrument to ensure attendance at court hearings and becomes indistinguishable from carceral punishment.

The executive branch’s claims have long relied on empirical misdirection. When the Supreme Court narrowly upheld mandatory detention without bond in the 2003 case Demore v. Kim, Chief Justice William Rehnquist’s majority opinion rested on the government’s representation that such detention was exceptionally brief, lasting an average of forty-seven days in standard cases and roughly five months when appealed. Thirteen years later, in August 2016, Acting Solicitor General Ian Heath Gershengorn took the extraordinary step of sending a formal letter to the Supreme Court admitting that the Department of Justice had presented erroneous data in Demore. The real average detention time in appealed cases was 382 days—over twice the figure the court relied on—with a median duration of 272 days. Yet in 2018, in Jennings v. Rodriguez, the Supreme Court ruled that Section 1226(c) did not contain an implicit statutory six-month limit on detention, remanding the constitutional due process question back to the circuits.

The human consequence of that prolonged confinement is coercive by design. In an amicus curiae brief filed on September 8, 2026, the American Bar Association pointed out that freedom from physical confinement is “the most elemental of liberty interests.” When civil detention becomes indefinite, the association explained, it coerces individuals to “abandon bona fide, congressionally authorized claims for relief from removal, as individuals, increasingly desperate to be released from extended confinement, make the reasonable decision to abandon an uncertain future benefit for immediate release.” When the carceral state makes enduring indefinite imprisonment the price of asserting lawful defenses against deportation, due process becomes a hollow promise.

The administration’s assertion that detainees have no fundamental liberty interest shocked even veteran conservative jurists. A group of former senior Republican executive branch officials and a former federal judge filed an amicus brief stating that in their decades of service, they had “never asserted, nor ever heard the Government argue to this Court,” that noncitizens in mandatory detention lack a protected liberty interest under the Due Process Clause.

The constitutional showdown in Genalo v. G.M. vanished on August 28, 2026, when New York Governor Kathy Hochul granted Keisy G.M. a full and unconditional pardon for his 2015 conviction. Because that conviction was the sole legal predicate for his deportation and mandatory detention, the government had no remaining ground to hold or deport him, rendering the federal lawsuit moot. “This is a great outcome for our client who no longer faces the threat of deportation and future immigration detention,” said Cecilia Wang, national legal director of the American Civil Liberties Union. “The Second Circuit reached the correct decision in recognizing that prolonged immigration detention cannot continue without due process, and that decision will remain in place.” Amy Belsher, supervising attorney at the New York Civil Liberties Union, noted that the surviving precedent will continue to shield immigrants throughout the circuit from unchecked executive confinement.

Yet this procedural dismissal is a temporary reprieve, not a structural settlement. The Department of Justice has already signaled that it will not abandon its assault on judicial oversight. On September 21, 2026, the government filed a petition for certiorari in an alternative case, Genalo v. D.C., seeking the exact same holding: the nationwide eradication of individualized bond hearings for immigrants undergoing prolonged detention.

A durable legal order cannot rely on individual executive pardons to rescue the Constitution from statutory overreach. The alternative to indefinite civil incarceration is neither radical nor complicated. It requires establishing a universal procedural rule mandating automatic, prompt bond hearings whenever detention exceeds six months, with the government bearing the burden of proof by clear and convincing evidence. Beyond the courtroom, it requires replacing private, carceral detention facilities with community-based case-management programs, which maintain appearance rates above 90 percent at a fraction of the humanitarian and financial toll of imprisonment. Until federal statutes reflect that standard, the fundamental liberty of thousands will remain held hostage by an executive power that claims the right to cage people without ever having to justify itself before a judge.