Trump Revives Immigration Case After Hochul Pardon

The Trump administration is asking the Supreme Court to revive a major immigration dispute over whether criminal noncitizens may be held without bond during removal proceedings, after a pardon by New York Governor Kathy Hochul rendered the original case moot just weeks before it was to be argued.

On Sept. 21, U.S. Solicitor General D. John Sauer filed a new petition for review in Genalo v. D.C., asking the justices to take up the same core constitutional question at the heart of Genalo v. Black — the case the Court had agreed to hear this term before Hochul’s August pardon eliminated its legal predicate. The new petition is due for a response from the other side by Oct. 21, 2026.

A Case Erased by a Pardon

The Supreme Court had granted review in Genalo v. Black in June 2026 to resolve a long-open constitutional question: whether noncitizens detained for an extended period under Section 1226(c) of the Immigration and Nationality Act have a Fifth Amendment due process right to a bond hearing, and if so, what the government must show to justify continued detention. Oral argument had been scheduled for Oct. 13.

The case began to unravel almost immediately. One plaintiff, Carol Williams Black, had left the United States and filed a declaration that he would not return, mooting his portion. Then, in late August, Hochul granted a “full and unconditional” pardon to the other plaintiff, Keisy Guerrero Mariano — identified in court documents as Keisy G.M. — a Dominican national and lawful permanent resident convicted of second-degree assault in 2015.

Because a qualifying gubernatorial pardon eliminates certain grounds of deportability tied to the pardoned offense, Mariano was no longer deportable under the statute, removing the legal basis for his detention. On Sept. 11, the administration notified the Court that the case was moot, and it was dismissed. Sauer signaled at the time that the government would work to “identify[] alternative vehicles” to return the issue to the justices.

A New Plaintiff and an Unusual Procedural Move

According to SCOTUSblog, the replacement case, Genalo v. D.C., centers on a man identified only as D.C., a Dominican national born in 1963 who “unlawfully entered the United States” at an unknown time and has been convicted of multiple crimes, including drug trafficking and domestic violence charges. The Department of Homeland Security detained him under Section 1226(c) in September 2025. In March 2026, a federal district court agreed that he had a constitutional right to a bond hearing; after that hearing, he was released from DHS custody on March 31.

The administration’s petition is procedurally unusual because Genalo v. D.C. is still pending before the Second Circuit. Sauer is asking the Supreme Court to intervene before the appeals court rules — a maneuver known as “certiorari before judgment.”

“The Court has previously granted certiorari before judgment to allow a case to replace one that was dismissed,” Sauer wrote in the petition, urging the justices to “do the same here.” The SCOTUSblog case page lists the case as a pending petition under docket number 26-379.

The Legal Question at Stake

Section 1226(c) requires certain criminal noncitizens — including some green card holders — to remain in custody while their removal proceedings play out. The Second Circuit held in 2024 that when detention becomes “unreasonably long,” detainees are entitled to a bond hearing at which the government bears the burden of justifying continued detention by clear and convincing evidence. Other appeals courts have taken different approaches, producing a nationwide split.

As the Fox News report that first detailed the revival notes, the dispute could also determine who carries the burden when a bond hearing is required. Under the Second Circuit’s approach, the government must show that a detainee poses a flight risk or danger to the community. The administration argues that if the Constitution requires such hearings, the burden should instead fall on the detainee seeking release.

Michael Morley, a Florida State University law professor, told Fox News Digital that the practical effect of the split is that detainees’ rights vary by geography. “Whether or not they’re entitled to a bond hearing as of right now depends on which jurisdiction they happen to fall in,” he said. “And so the government is asking the Supreme Court to set one uniform interpretation for the entire country.”

Morley added that the Court had deliberately left the constitutional question open in its 2018 decision in Jennings v. Rodriguez, which held that Section 1226(c) itself did not require periodic bond hearings. “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,” he said. In his view, the new petition amounts to a request to “substitute this case for the moot case.”

The Politics of the Pardon

Hochul, a Democrat, is described as staunchly opposed to President Trump’s immigration enforcement crackdown, and the pardon drew fierce criticism from conservative legal figures who characterized it as a maneuver to prevent a ruling that could have overturned the Second Circuit precedent.

Eric Wessan, the Iowa Solicitor General, wrote on X that it was “pretty wild to fully pardon an aggravated felon to (1) stop the felon from getting deported and (2) stop the Supreme Court from ruling on an issue,” adding, “I wonder how many non-American felons Governors like Hochul will fully pardon and free to avoid them facing consequences for their actions.”

Supporters of the administration’s position argue that some detainees could deliberately prolong their cases to trigger bond eligibility. Chad Mizelle, chair of litigation at the America First Policy Institute and a former acting associate attorney general, told Fox News Digital that “the biggest issue that happens here is gamemanship.” He said detainees can file repeated applications, switch attorneys and request continuances, so that “all of a sudden they’ve been in detention now, six, seven, eight months, completely of their own making.” Carrie Severino, president of the Judicial Crisis Network, described such litigation as “a foot dragging, sand in the gears exercise,” while cautioning that she could not speak to the motivations of every detainee.

A direct statement from Hochul’s office justifying the pardon was not located in the initial coverage, and Fox News Digital said it had reached out to both Hochul’s office and the Justice Department for comment. Much of the reporting on the pardon has come from conservative-leaning outlets, with SCOTUSblog providing the most neutral procedural account.

What’s Next

The administration also filed a second petition on the same day, in Trump v. Suri, a separate case involving Georgetown University scholar Badar Khan Suri, who contends his detention during removal proceedings violated his free-speech and due-process rights.

For now, the central question is whether the justices will agree to bypass the Second Circuit and hear Genalo v. D.C. this term — effectively swapping it in for the case the pardon dissolved. D.C.’s response is due by Oct. 21, and the Court’s decision on whether to grant review will determine whether one of the most consequential immigration-detention questions of the term reaches the bench at all.