Amici Urge Supreme Court to Protect Due Process in Prolonged Immigration Detention
Represented by Yale Law School’s Peter Gruber Rule of Law Clinic and Jed Glickstein ’13 of Kaplan & Grady LLC, a group of prominent Republican former senior government officials, agency heads, a federal judge, and members of Congress, as well as members of the Society for the Rule of Law, filed an amicus brief on Sept. 8 in Genalo v. Black. Amici urged the Supreme Court to hold that noncitizens have a fundamental liberty interest in freedom from prolonged detention without an individualized hearing to determine dangerousness or flight risk. The brief challenged the Trump administration’s asserted power to detain immigrants for prolonged, indeterminate periods — in some cases, for years — while their removal proceedings are pending. Amici, who have decades of combined government experience, argued that the government’s asserted authority to keep noncitizens detained and deny them a bond hearing cannot be squared with the Constitution’s text and history or with the Supreme Court’s precedents.
Since the brief was filed, the parties filed a joint stipulation that the case is moot due to a pardon by the Governor of New York. Consequently, the Supreme Court dismissed the case. The government is not seeking Munsingwear vacatur, so the 2nd Circuit’s decision requiring due-process protections for individuals subject to prolonged detention will remain in force for now. The Government indicated to the Court that it is looking for alternative cases presenting the same issue this term, so the Court may decide the question soon.
The case concerned Keisy G.M., a lawful permanent resident held in mandatory detention for 21 months without any individualized hearing on whether he posed a flight risk or a danger to the community. In 2024, the U.S. Court of Appeals for the 2nd Circuit held that Mr. G.M. could not be detained further without such a hearing, ruling that once detention becomes unreasonably prolonged, the government must establish that continued confinement is warranted.
The government’s decision to not seek vacatur leaves the 2nd Circuit precedent intact. This result for individuals subject to mandatory detention under 8 U.S.C. § 1226(c) within the 2nd Circuit reinforces the principle that due process places limits on prolonged civil detention.
The amici’s brief argued that prolonged detention without an individual hearing to determine whether that detained noncitizen is a flight risk or a danger to the community — the sole purposes for which Congress authorized detention — has long violated the Due Process Clause. It explained that resistance to arbitrary detention was a central motivation of the American Revolution and that the original meaning of due process sets limits on the government’s detention power. The Court has consistently interpreted the Clause to limit the government’s authority to detain individuals, including noncitizens, for excessively prolonged periods. As a result, amici argued, the administration’s attempt to detain people for as long as removal proceedings drag on — without ever giving them a hearing to determine whether continued detention is needed — exceeds its constitutional powers.
“The Government’s assertion of nearly limitless authority to detain without an individualized review of whether continued detention remains justified strikes at one of the most fundamental rights the Constitution guarantees to all persons present in this country,” amici warned. “And if due process on such a fundamental matter can be so cavalierly denied to aliens, it risks eroding our commitment to fundamental rights more generally.”
Amici also pushed back against the Government’s claim that noncitizens can end their detention by self-deporting. Amici argued that this position offers no meaningful choice to the many detained individuals who would face torture, persecution, or indefinite detention upon removal to another country. “A person forced to ‘choose’ between two intolerable alternatives — remaining confined or returning to a country in which they would be in danger of being subjected to torture, or experience persecution — is not at ‘liberty’ simply because two options are theoretically available,” they wrote. “The Government cannot provide the requisite due process through coercion.”
The Society for the Rule of Law is a nonpartisan, nonprofit organization founded by lawyers and jurists who served at the highest levels of government in previous Republican administrations, including the first Trump administration. It is dedicated to bringing a traditionally conservative legal perspective to the defense of the Constitution and the rule of law. Among the individual amici who joined the brief are former White House lawyers, Department of Justice leaders, executive branch agency heads and senior appointees, and a retired federal judge appointed by a Republican president, as well as former members of Congress elected as Republicans.
Founded in 2016, the Peter Gruber Rule of Law Clinic addresses threats to the rule of law in the United States and around the world. The clinic was founded by Sterling Professor of International Law and former Dean Harold Hongju Koh and William O. Douglas Clinical Professor of Law Michael Wishnie ’93. The clinic is now led by Koh, Aharon Barak Distinguished Rule of Law Fellow Bruce C. Swartz ’79, Peter Gruber Senior Litigation Fellow Mary J. Hahn ’01, Peter Gruber Litigation Fellow Inbar Pe’er ’25, and Peter Gruber Academic Fellow Sonia Mittal ’13, as well as Visiting Clinical Lecturers in Law Eugene Fidell, Margaret Donovan, and Justin Cole ’23.
Current and former Yale Law students and clinic members who worked on the brief include Kit Beyer ’28, John David Cobb ’28, Riler Holcombe ‘26, Kevin Murphy ’28, Galia Newberger ’28, and Jorge Rosa Vidal ’28.
