Trump Revives Supreme Court Immigration Battle After Hochul Pardon Sank First Case [WATCH]

The Trump administration is asking the Supreme Court to revive a major immigration dispute over whether criminal aliens can remain detained without bond throughout removal proceedings.

The case also asks whether detainees are entitled to hearings when their detention stretches for months, as reported by Fox News.

Solicitor General John Sauer asked the justices Monday to take up Genalo v. D.C.

The request revives a constitutional battle the Supreme Court had been prepared to hear this term in Genalo v. Black before a pardon from New York Democratic Gov. Kathy Hochul rendered that case moot.

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The latest dispute centers on D.C., a Dominican national facing removal after a criminal history that includes drug trafficking and domestic violence charges.

According to ICE, he previously was removed from the United States six times.

Federal law requires certain criminal aliens to remain in custody while their deportation proceedings unfold.

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The Second Circuit, however, has ruled that detainees held for too long are entitled to a bond hearing where the government must justify their continued detention.

Other appeals courts have adopted different approaches, creating a nationwide split over the constitutional protections that apply.

The result is that the rules can depend on where a particular immigration case is heard.

“So the rights of these criminal aliens who were being detained, whether or not they’re entitled to a bond hearing as of right now depends on which jurisdiction they happen to fall in,” Florida State University law professor Michael Morley told Fox News Digital.

Morley said the administration wants the Supreme Court to establish one interpretation across the country.

The petition is unusual because Genalo v. D.C. remains pending before the Second Circuit, meaning Sauer wants the justices to intervene before that appeals court rules.

“Rather than making the court go through those motions, you just hear this case now, hear this case directly, even before the Second Circuit has had the opportunity to rule,” Morley said.

The dispute could also settle who must carry the burden when a bond hearing is required.

Under the Second Circuit’s approach, the government must prove that a detainee presents a flight risk or a danger to the community.

The administration argues that if the Constitution requires such hearings, the detainee seeking release should bear that burden instead.

Lawyers supporting the administration also contend that detainees could delay removal proceedings and then use the resulting detention period to pursue release on bond.

“The biggest issue that happens here is gamemanship,” Chad Mizelle, chair of litigation at the America First Policy Institute and a former acting associate attorney general, told Fox News Digital.

Mizelle said some aliens file multiple applications for asylum or withholding of removal, change attorneys, and seek continuances or other delays.

He argued that those steps can extend detention to six, seven, or eight months through the detainees’ own actions.

“They would switch out attorneys. They would make frivolous filings regarding asylum, regarding withholding of removal. They would ask for delays and continuances upon delays and continuances,” Mizelle said.

“They’ll do everything they can to try to stretch this out, six months, seven months, eight months, file a habeas petition, say that they’re entitled to a bond hearing, and then if they are released, abscond.”

Carrie Severino, president of the Judicial Crisis Network, similarly called the additional litigation “a foot dragging, sand in the gears exercise.”

She described it as an effort to stall or run out the clock, while also cautioning that she could not speak to every detainee’s motivation.

Severino pointed to cases such as Demore v. Kim, where detainees sought additional time during proceedings before challenging the length of their detention.

She said such cases can involve detainees requesting more time while simultaneously complaining that the process is taking too long.

“So, it’s often a situation where people are playing both sides of it,” Severino said.

“But they’re asking for more time on different things, but then at the same time complaining that the whole process is taking too long.”

The Supreme Court previously upheld mandatory detention during removal proceedings.

Morley said the justices nevertheless left open the constitutional issue now presented by the administration’s petition.

“This is a question that the [Supreme Court] itself went out of its way, you can say, to leave open for adjudication in a future case,” Morley said.

The administration is asking the justices to address that question without waiting for yet another case.

Its request effectively urges the Supreme Court to substitute Genalo v. D.C. for the case made moot by Hochul’s pardon and resolve the circuit split this term.

“You wanted to resolve this case. Here’s another case that presents the same exact question that lets you resolve the circuit split this term,” Morley said.

“So basically, substitute this case for the moot case.”

Fox News Digital reached out to the Justice Department for comment.

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