The successful campaign to make a terrifying Supreme Court immigration case disappear

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If you felt a gust of wind late on Friday, it came from hundreds of immigration lawyers who simultaneously exhaled after the Supreme Court announced it would not hear a case known as Genalo v. Black. That case asked whether certain immigrants could be held in immigration detention facilities indefinitely without ever receiving a bond hearing or other opportunity to seek temporary release. And if the Court had decided this case, its recent immigration decisions suggest that most of the justices may have blessed indefinite detention.

The Black case originally concerned two lawful permanent residents of the United States who were arrested during the first Trump administration because of crimes the two men committed years before, and that they had already served prison sentences for committing.

Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser.

These immigrants were arrested because of a federal law, which provides that the federal government “shall take into custody” noncitizens who committed certain crimes or who are accused of involvement with terrorism so that the government may begin deportation proceedings against these individuals. This law does not allow these noncitizens to challenge their detention while their deportation case is pending. (Notably, the relevant federal law sometimes allows an immigrant to be detained without hearing if they are merely suspected of terrorism, which means the person could be detained indefini

Both men sued, claiming that it is unconstitutional to hold them for too long without some kind of hearing to determine whether they should be released after paying a bond. And a federal appeals court agreed, holding that “due process bars the Executive from detaining such individuals for an unreasonably prolonged period…without a bond hearing.”

Thus, Black was more than just another flashpoint in America’s debates over immigration. It was a test of one of the most fundamental protections that a liberal society provides to its residents — the right not to be locked up, forever, without any way to challenge the basis of that detention.

Now that the Supreme Court has removed the Black case from its own docket, this appeals court decision will not be formally repudiated by the Supreme Court. So immigrants who are detained indefinitely may still ask courts to give them a bond hearing — at least for now.

Still, the Court’s non-decision in Black leaves a cloud of uncertainty hanging over similarly situated immigrants. The Trump administration will no doubt continue to detain people for prolonged periods of time (most of whom won’t be able to obtain a gubernatorial pardon, like one of the men was in this case). And the question of whether these immigrants can be detained forever will remain unresolved until the Supreme Court takes up another case involving a similarly situated immigrant.

Both men at the heart of the Black case spent significant amounts of time in immigration detention facilities years after serving sentences for crimes. One, a Jamaican citizen named Carol Williams Black, spent seven months in an immigration detention facility. The other, Keisy Guerrero Mariano, spent 21 months in detention without a bond hearing or other procedure that could allow him to seek release while his case was pending. These 21 months in immigration detention more than doubled the time he spent in New York state prison for his actual crime — he pled guilty to second-degree assault aft

But there is no longer a legal dispute about what should happen to either man — in the words of the law, both cases are now moot. Black has since been released from detention and says that he “made the difficult decision to leave the United States” and has no intention to return. And the Trump administration’s case against Guerrero Mariano went up in smoke in late August, after New York Gov. Kathy Hochul gave him a pardon — thus wiping away the conviction that allowed the Trump administration to detain Guerrero Mariano in the first place.