The Supreme Court has agreed to hear oral arguments in October on whether noncitizens detained for extended periods have a constitutional right to bond hearings and, if so, what standard the government must meet to keep them in detention. The case, Genalo v. Black, raises critical questions about due process protections for immigrants in ICE custody nationwide.
What changed
The Court will consider whether there is a point at which a noncitizen’s detention becomes “unreasonably prolonged,” so that he has a constitutional right to a bond hearing; whether, at such a hearing, a “clear and convincing evidence” standard applies; and whether this case is moot because the noncitizen was released from custody in 2022. A U.S. Court of Appeals for the 2nd Circuit ruled that when a noncitizen’s detention has been “unreasonably prolonged,” the government must hold a bond hearing to determine whether a noncitizen is either a flight risk or a danger to the community, and the government must justify the continued detention by “clear and convincing evidence.” The Trump administration appealed to the Supreme Court in January, noting that in 2018, in Jennings v. Rodriguez, the Supreme Court had rejected an argument that noncitizens held in detention while the government sought to deport them were entitled under federal law to periodic hearings to consider whether to release them on bail.
Why it matters
A decades-old practice changed in July 2025 when ICE announced that it would detain every migrant found anywhere in the United States who agents believed had not been granted permission to enter, and none of these migrants would be allowed to request release on bond from an immigration judge under the new policy. The U.S. Court of Appeals for the 6th Circuit determined that the government’s broad application of detention without the possibility of release on bond violates the Fifth Amendment’s due process clause, but only two circuits – the U.S. Courts of Appeals for the 5th and 8th Circuits – have sided with the Trump administration. This circuit split has left practitioners operating in different regions under conflicting legal standards.
The Supreme Court’s decision will establish nationwide whether immigrants held in ICE custody have a floor of constitutional protection against indefinite detention without judicial review. The government argued that a decision from the Supreme Court could resolve a split between the Second, Third, and Eighth circuits about what due process is owed to the “criminal alien” and how to determine if a long detention has become unreasonable.
Way forward
- Monitor the October oral arguments. The Court will hear arguments in seven cases over five days in October. Mark your calendar to track Genalo v. Black arguments and any written decisions the Court issues.
- Track circuit-level rulings. Until the Supreme Court decides, practitioners should remain familiar with how their local circuit applies the prolonged detention doctrine. Circuits now split on whether mandatory detention without a bond hearing violates due process.
- Brief all clients on risk. For clients in ICE custody, inform them that the legal landscape is in flux and your representation strategy may shift depending on the Supreme Court’s ruling.
- Prepare habeas corpus petitions. Depending on your circuit, a Fifth Amendment due process challenge to prolonged detention may remain available even under current administrations’ enforcement priorities.
Disclaimer
This article is for informational purposes only and is not legal advice. Fola is software, not a law firm. Immigration law is complex and changes frequently; USCIS, DOS, DHS, and the courts can modify policy and precedent without notice. Please consult with a licensed immigration attorney in your jurisdiction to discuss how these developments affect your specific situation, and always verify the current state of the law against primary sources, including the full SCOTUSblog case analysis and opinions from the Supreme Court and your local appellate court.