Leadership1 publisher3 min readPublished
Hochul's pardon helped keep indefinite detention off the Supreme Court's docket
The Supreme Court will not hear Genalo v. Black. Both men at its center are out of detention, one by leaving the country and one by pardon, and the question of indefinite detention stays unanswered.
The Board Room · Leadership desk
What happened
- Late on Friday the Supreme Court announced it would not hear Genalo v. Black, the case asking whether certain immigrants can be held in detention indefinitely with no bond hearing or other route to release.
- The case began with two lawful permanent residents arrested during the first Trump administration over crimes they had committed years earlier and already served prison sentences for.
- With the case off the docket, the appeals court ruling that due process bars unreasonably prolonged detention without a bond hearing stands without Supreme Court review.
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Why it matters
- constraint The protection for detained immigrants now rests on an appeals court decision the justices never reviewed. The government can put the same question back to them whenever it finds a plaintiff whose case cannot be mooted.
- exposure The risk these two men escaped transfers to the next person held for a prolonged period. Vox writes that most of them will not be able to obtain a gubernatorial pardon.
- precedent Clemency has now shown it can dissolve the factual basis of a federal immigration case.
- contradiction Hochul's announcement rests the six pardons on remorse and rehabilitation, while Vox reports evidence she acted to resolve the immigration case; which reading holds decides whether this was strategy or coincidence.
A court drops a case when there is nothing left for it to decide, and by Friday neither man in Genalo v. Black still needed a ruling. Carol Williams Black had been released, and he said he "made the difficult decision to leave the United States" and has no intention to return [11]. Keisy Guerrero Mariano's conviction was erased in late August, when New York Gov. Kathy Hochul pardoned him and removed the basis the administration had used to hold him [12]. In the words of the law, both cases are moot [15].
Hochul pardoned six people at the time. In her official announcement she said they "have demonstrated remorse, exemplified rehabilitation and displayed a commitment to improving themselves and their communities" [13]. Vox reports there is a great deal of evidence indicating she acted in order to resolve Guerrero Mariano's immigration case [14]. Vox does not say who coordinated the two exits, though its headline calls the outcome "the successful campaign to make a terrifying Supreme Court immigration case disappear" [17][18].
Guerrero Mariano pleaded guilty to second-degree assault after a fight outside a New York City restaurant, then spent 21 months in immigration detention without a bond hearing or any other procedure for seeking release [9][10]. Those 21 months more than doubled the time he served in New York state prison for the crime [10]. The sentence he served was under roughly 10 and a half months [16]. Black spent seven months in detention [8].
The statute says the government "shall take into custody" noncitizens who committed certain crimes or are accused of involvement with terrorism, and bars them from challenging that detention while a deportation case is pending [5]. A federal appeals court held that "due process bars the Executive from detaining such individuals for an unreasonably prolonged period...without a bond hearing" [6]. That holding now goes unreviewed, and according to Vox, immigrants held indefinitely can still ask a court for a bond hearing, at least for now [7].
Two men are out, and the rule protecting everyone else rests on an appeals court decision the Supreme Court has not endorsed. Vox judges that, on the Court's recent immigration decisions, most of the justices may have blessed indefinite detention had they reached the merits [3]. That is why a non-decision counts as a win here, and the board-deck version of this story stops at the win. It is incomplete because the timing of the next case is not the advocates' to pick. Vox writes that the question stays unresolved until the Court takes up another case involving a similarly situated immigrant, and that most people detained for prolonged periods will not obtain a gubernatorial pardon [19].
What to watch
- Whether the government finds another similarly situated detainee's case to bring the indefinite detention question back before the justices.
- Whether other governors use clemency to strip the convictions that underlie prolonged federal immigration detention.
- Whether another circuit rules the other way on bond hearings, giving the Court a split it would be likelier to take.