Two men were locked up by immigration officials while their deportation cases dragged on, one for seven months, one for twenty one. Neither ever got a hearing where a judge asked whether they should still be behind bars. On October 13, the Supreme Court will decide whether the Constitution required one in Genalo v. Black.

The case centers on a federal law that tells immigration officials they must detain certain noncitizens, including many with past criminal convictions, while their removal proceedings play out. There’s no bond hearing built into the process. Congress wrote it this way in the 1990s because lawmakers worried if they released people accused of deportable crimes, many of them would not come to their court dates.

Carol Black, a Jamaican national with a decades old sex offense conviction, was detained under this law in 2019 and held for about seven months before a federal judge intervened. Keisy G.M., a Dominican national convicted of assault, was detained starting in 2020 and held for roughly twenty one months. Both filed habeas corpus petitions, which is what people use to challenge unlawful detention, arguing that holding them this long without ever letting a judge weigh in violated due process. In 2024, a Second Circuit Court of Appeals panel agreed. It ruled that once detention under this law becomes “unreasonably prolonged,” due process kicks in and requires a bond hearing, one where the government has to prove by clear and convincing evidence (a demanding standard, which is well above “more likely than not”) that the person is dangerous or a flight risk. The Second Circuit later declined to rehear the case as a full court, so the Trump administration asked the Supreme Court to step in.

The constitutional question here is the Fifth Amendment’s due process clause, which says the government can’t deprive anyone, including noncitizens on U.S. soil, of liberty without due process of law. The Supreme Court has wrestled with what that means for immigration detention before. In Zadvydas v. Davis (2001), the Court worried that letting the government detain someone indefinitely, with no realistic chance of ever deporting them, raised serious constitutional problems, so it read a six month limit into a different detention statute. Two years later, in Demore v. Kim (2003), the Court upheld this same mandatory detention law, reasoning that it applies only while removal proceedings are actively moving forward, so it’s nothing like the open ended detention in Zadvydas. Then in Jennings v. Rodriguez (2018), the Court held that the text of the law itself doesn’t include any hidden time limit or right to a hearing, but it explicitly left the constitutional question for another day. Genalo v. Black is that other day.

The government’s core argument leans hard on Demore. Solicitor General D. John Sauer’s brief contends that Black and G.M. aren’t really raising a procedural complaint about missing paperwork or a missing hearing. They’re making what lawyers call a substantive due process claim, arguing that the government’s justification for holding them, essentially “we’re processing your case,” stops being good enough once enough time passes. The government says the Court already rejected that kind of challenge in Demore, and that detention stays lawful as long as removal proceedings are a genuine, ongoing process rather than what the brief calls a “ruse” to keep someone locked up. Since neither man claimed his proceedings were fake or intentionally dragged out, the government argues the law was applied to them exactly as Congress intended, and no bond hearing was constitutionally required.

Lawyers for Black and G.M., including the ACLU’s Cecillia Wang, see it differently. They frame this as a procedural due process claim: the constitutional violation isn’t that detention lasted too long, but that no neutral decision maker ever checked in to ask whether continued detention still made sense for this particular person. Their argument builds on Zadvydas’s core worry that a detention scheme with no off ramp and no individualized review starts to look less like a narrow tool for ensuring someone shows up to court and more like open ended punishment without a trial. They argue that a hearing, with the government bearing the burden of proof, is the safeguard that keeps mandatory detention from crossing that line.

Layered on top of all this is a wrinkle the Court itself added when it granted the case: whether G.M.’s claim is now moot. Moot means there’s no live dispute left for the Court to resolve, often because the underlying issue has already resolved itself. G.M. was released from custody in 2022, years before the case reached the justices, so the government will likely argue there’s nothing left to fix in his individual case, while his lawyers will argue the underlying legal question, capable of repeating for others while evading review, still deserves an answer.

Listen for the justices asking exactly where the line falls between a procedural and a substantive due process claim, since that framing could decide the whole case without the Court ever reaching the “how long is too long” question. Watch also for questions about what standard of proof should apply at any bond hearing, an issue where federal appeals courts are currently split, and for how the justices handle the mootness puzzle, since ducking the constitutional question entirely remains very much on the table.

This case won’t touch the separate, more sweeping detention policies making headlines for migrants stopped at the border. But its outcome will decide how much power the government has to detain lawful permanent residents and other longtime U.S. residents, including parents, students, and young people themselves, without ever getting a hearing before a judge.