Amicus Curiae Brief — Kenneth Genalo, Director of the New York Field Office of U.S. Immigration and Customs Enforcement, et al., Petitioners v. Carol Williams Black, et al.

Supreme Court briefAug 6, 2026

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No. 25-886

In the Supreme Court of the United States

__________

KENNETH GENALO, DIRECTOR OF THE NEW YORK

FIELD OFFICE OF U.S. IMMIGRATION AND CUSTOMS

ENFORCEMENT, ET AL.,

Petitioners,

KEISY G.M.,

Respondent.

____________________

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

_______________

BRIEF FOR AMERICA FIRST LEGAL

FOUNDATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

__________

JAMES ROGERS

America First Legal

Foundation

611 Pennsylvania Ave. SE

#231

Washington, DC 20003

CHRISTOPHER MILLS

Counsel of Record

Spero Law LLC

557 East Bay St.

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

Table of Authorities.................................................... ii

Interest of Amicus Curiae ........................................... 1

Summary of Argument................................................ 2

Argument ..................................................................... 4

I. The courts lack jurisdiction over Respondent’s

challenge to his detention. ................................. 4

II. Detention under § 1226(c) cannot—and does

not—violate due process. ................................... 7

A. Respondent’s detention does not implicate

the Due Process Clause. ............................... 8

B. The Due Process Clause does not require

release based on an alien’s voluntary

decision to delay removal. .......................... 10

C. Respondent’s theory would endanger

citizens and undermine removal. ............... 14

III. Aliens should bear the burden of proof at any

bond hearing. ................................................... 17

Conclusion ................................................................. 20

TABLE OF AUTHORITIES

Page(s)

CASES

Arizona v. United States,

567 U.S. 387 (2012)................................................ 15

Banyee v. Garland,

115 F.4th 928 (8th Cir. 2024) ................................ 13

Black v. Almodovar,

156 F.4th 171 (2d Cir. 2025) ................................. 13

Black v. Decker,

2020 WL 4260994 (S.D.N.Y. July 23, 2020) ...........6

Black v. Decker,

103 F.4th 133 (2d Cir. 2024) ....................... 5, 16, 17

Borden v. United States,

593 U.S. 420 (2021)..................................................6

Buenrostro-Mendez v. Bondi,

166 F.4th 494 (5th Cir. 2026) ................................ 15

Carlson v. Landon,

342 U.S. 524 (1952)..................................................9

Conn. Dep’t of Pub. Safety v. Doe,

538 U.S. 1 (2003).................................................... 10

Demore v. Kim,

538 U.S. 510 (2003)........ 5, 6, 7, 9, 10, 12, 14, 15, 19

Dep’t of Homeland Sec. v. Thuraissigiam,

591 U.S. 103 (2020)..................................................9

Dep’t of State v. Muñoz,

602 U.S. 899 (2024)............................................ 9, 11

iii

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022).......................................... 10, 11

Fiallo v. Bell,

430 U.S. 787 (1977)..................................................9

Fuld v. Palestine Liberation Org.,

606 U.S. 1 (2025)......................................................8

INS v. St. Cyr,

533 U.S. 289 (2001)..................................................7

Jennings v. Rodriguez,

583 U.S. 281 (2018).................................. 5, 7, 13, 18

Johnson v. Arteaga-Martinez,

596 U.S. 573 (2022)..................................................8

Kwong Hai Chew v. Colding,

344 U.S. 590 (1953)................................................ 12

Mathews v. Eldridge,

424 U.S. 319 (1976)................................................ 17

Matter of Guerra,

24 I. & N. Dec. 37 (B.I.A. 2006) ............................. 18

Matter of Joseph,

22 I. & N. Dec. 799 (B.I.A. 1999) ........................... 12

Matter of R-A-V-P-,

27 I. & N. Dec. 803 (B.I.A. 2020) ........................... 18

Medtronic, Inc. v. Mirowski Fam. Ventures, LLC,

571 U.S. 191 (2014)................................................ 17

Nasrallah v. Barr,

590 U.S. 573 (2020)..................................................7

Nielsen v. Preap,

586 U.S. 392 (2019)............................ 5, 7, 18, 19, 20

Nken v. Holder,

556 U.S. 418 (2009)................................................ 12

Parra v. Perryman,

172 F.3d 954 (7th Cir. 1999) ................................. 13

Reno v. Flores,

507 U.S. 292 (1993)..................................................9

Reynolds v. Fla.,

586 U.S. 1004 (2018).............................................. 12

Schaffer ex rel. Schaffer v. Weast,

546 U.S. 49 (2005).................................................. 17

Sessions v. Dimaya,

584 U.S. 148 (2018)..................................................8

Trump v. J.G.G.,

604 U.S. 670 (2025)..................................................8

United States ex rel. Turner v. Williams,

194 U.S. 279 (1904)..................................................8

United States v. MacCollom,

426 U.S. 317 (1976)................................................ 14

United States v. Raines,

362 U.S. 17 (1960)....................................................6

United States v. Vaello Madero,

596 U.S. 159 (2022)............................................ 8, 10

Zadvydas v. Davis,

533 U.S. 678 (2001).......................................... 15, 19

Ziglar v. Abbasi,

582 U.S. 120 (2017)..................................................7

STATUTES

8 U.S.C. § 1226 ................................ 2–8, 10, 11, 13–20

8 U.S.C. § 1252 ...................................................... 7, 12

Laken Riley Act, Pub. L. No. 119-1,

139 Stat. 3 (2025) ................................................... 16

REGULATIONS

84 Fed. Reg. 44,392 (Aug. 23, 2019) ......................... 15

OTHER AUTHORITIES

ICE Directive No. 11061.1, Facilitating the Return to

the United States of Certain Lawfully Removed

Aliens (Feb. 24, 2012) ............................................ 13

ICE, Fiscal Year 2024 Annual Report (2024),

https://perma.cc/YTU9-NR5K ............................... 15

Jonathan F. Mitchell, The Writ-of-Erasure Fallacy,

104 Va. L. Rev. 933 (2018).......................................6

U.S. Gov’t Accountability Off., GAO-25-106867,

Immigration Courts: Actions Needed to Track

and Report Noncitizens’ Hearing Appearances

(2024)...................................................................... 12

INTEREST OF AMICUS CURIAE

America First Legal Foundation (AFL) is a

nonprofit organization dedicated to promoting the

rule of law in the United States by ensuring due

process and equal protection for every American

citizen, and encouraging understanding of the law

and individual rights guaranteed under the

Constitution and laws of the United States.

AFL has a substantial interest in this case.

Ensuring compliance with our immigration laws,

protecting national sovereignty, and promoting the

rule of law are core institutional interests at the heart

of the organization’s mission. Members of AFL’s

Board of Directors and its staff have served in various

capacities in the federal government, most

prominently in the homeland security and

immigration policy areas, and know firsthand the

issues this case presents. *

* No counsel for a party authored this brief in whole or in part,

and no person other than amicus curiae, its members, or its

counsel made a monetary contribution to its preparation or

submission.

SUMMARY OF ARGUMENT

A criminal alien detained under 8 U.S.C. § 1226(c)

has the keys in his pocket. He can allow removal

proceedings to terminate and return to his native

land, ending his detention immediately—and

generally he can keep pressing his appeals from there.

What he cannot do is decline that choice, stretch the

proceedings out, and then ask a federal court to

release him into the United States because the

proceedings took too long. The Second Circuit held

that the Due Process Clause requires exactly that. It

was wrong—and it lacked the power to say so in the

first place.

Start with jurisdiction. Section 1226(e) bars any

court from setting aside an action or decision of the

Secretary regarding the detention of an alien.

Respondent asks for precisely that. This Court has

declined to apply § 1226(e) to challenges it read as

attacks on the statutory framework, but Respondent

disclaims any such challenge—he says he brings an

“as-applied challenge to continued detention.” BIO 2.

The statute bars review of such a challenge. In any

event, a challenge to a paper framework is no case or

controversy at all. Courts adjudge the legal rights of

litigants, not the wording of statutes. What injures

Respondent, if anything, is the Secretary’s action in

continuing to detain him. That is what § 1226(e)

places beyond judicial reach. This Court should not

extend prior dubious readings of § 1226(e). It should

vacate the decision below with instructions to dismiss.

Alternatively, the Court should reverse. The Due

Process Clause does not reach § 1226(c) detentions at

all. Historical evidence suggests that the Clause does

not apply to laws governing the removal of aliens.

More fundamentally, due process of law—especially in

the

immigration

context—safeguards

against

unlicensed executive action; it does not license courts

to second-guess what Congress has authorized. Even

if the Clause bound Congress here, it would guarantee

only the customary procedures carried over from

England. A bond hearing pending removal is not such

a procedure.

Respondent’s claim also fails on its own terms. He

does not attack the procedures for proving

removability. Rather, Respondent asserts a right to be

released, but that right must be defined with care.

Described accurately, the claimed right is a criminal

alien’s right to escape detention that his own decision

to delay removal has prolonged. No deeply rooted

tradition supports such a right. Detention under

§ 1226(c) has a definite termination point, and the

alien can decide not to delay that point. His choice to

delay earns no constitutional protection.

The consequences of Respondent’s theory are not

abstract. Congress enacted § 1226(c) because

deportable criminal aliens who remained here kept

committing crimes. Release also defeats removal;

most released aliens are never removed. And courtordered release rewards delay: an alien who knows

that six months of litigation buys him potential

release has every reason to stall. Respondent’s theory

would thus mean more crime against Americans,

fewer removals, and an immigration system swamped

by dilatory tactics. Congress weighed those risks and

chose detention. The Due Process Clause does not

forbid that choice.

Even assuming any bond hearing is required, the

alien must carry the burden of proof. The default rule

is that the party seeking relief bears the burden, and

nothing warrants the opposite rule here. Section

1226(c) itself requires an alien seeking release to

satisfy the Secretary that he is neither a danger nor a

flight risk. And aliens detained under the

discretionary provision of § 1226(a) already bear that

burden before an immigration judge. The law should

not be gentler on terrorists and other criminal aliens

than it is on others.

ARGUMENT

I. The

courts

lack

jurisdiction

over

Respondent’s challenge to his detention.

The federal courts lack jurisdiction over this

challenge under 8 U.S.C. § 1226(e), which (at the time

this challenge was filed) provided that “[n]o court may

set aside any action or decision by the [Secretary]

under this section regarding the detention or release

of any alien or the grant, revocation, or denial of bond

or parole.” 1 As Respondent himself characterizes his

claim, he argues that his “detention was unreasonably

prolonged in violation of the Due Process Clause.” BIO

4–5. That is a challenge to the Secretary’s “action”

1 In 2025, this language was amended to provide that “[n]o court

may set aside any action or decision by the [Secretary] under this

section regarding the detention of any alien or the revocation or

denial of bond or parole.” 8 U.S.C. § 1226(e). The jurisdictional

defect here remains the same, as actions “regarding the

detention of any alien” are still insulated from review.

“regarding the detention of any alien”—specifically,

the action of detaining him without a bond hearing.

Despite this clear statutory language, the Court

concluded in Demore v. Kim that § 1226(e) did not

preclude jurisdiction over a habeas claim alleging that

initial bond hearings are required under § 1226(c).

According to the Court, “respondent does not

challenge a ‘discretionary judgment’ by the Attorney

General or a ‘decision’ that the Attorney General has

made regarding his detention or release.” 538 U.S.

510, 516–17 (2003). “Rather, respondent challenges

the statutory framework that permits his detention

without bail.” Id. at 517. The Court would later invoke

the same rationale in adjudicating other § 1226

cases—reasoning that the challenges were to “the

statutory framework as a whole.” Nielsen v. Preap,

586 U.S. 392, 401 (2019) (citation modified) (quoting

Jennings v. Rodriguez, 583 U.S. 281, 296 (2018)).

That reasoning does not apply here and is dubious

anyway.

First, the Court in Demore appeared to treat the

issue as one of a facial “constitutional challenge to the

legislation authorizing . . . detention without bail.”

538 U.S. at 517; see id. at 532 (Kennedy, J.,

concurring) (suggesting the continued availability of

as-applied challenges); see also Black v. Decker, 103

F.4th 133, 143–44 (2d Cir. 2024) (stating that “in

Demore,”

“the

Court

upheld

the

facial

constitutionality of detention under section 1226(c)

without a bond hearing”).

Here, by contrast, Respondent says that his

challenge is “as-applied.” BIO 7. So he is not attacking

“the statutory framework” writ large. Demore, 538

U.S. at 517.

Second and relatedly, “[c]ourts have no authority

to strike down statutory text.” Borden v. United

States, 593 U.S. 420, 447 (2021) (Thomas, J.,

concurring in judgment) (citation modified). “A court

may only ‘adjudge the legal rights of litigants in actual

controversies.’” Id. (quoting United States v. Raines,

362 U.S. 17, 21 (1960)). What Respondent is

attacking—and what gives him an Article III injury,

if he has one—is his continued detention (or its

likelihood). That is an “action” by the Secretary. 8

U.S.C. § 1226(e). Likewise, to the extent any injury is

redressable, it is by forcing some other action by the

Secretary—namely, releasing him absent a bond

hearing, as one of the district courts below ordered.

See Black v. Decker, 2020 WL 4260994, at *9 (S.D.N.Y.

July 23, 2020). “[I]t is impossible for a court to

‘redress’ an injury that is inflicted entirely by words

appearing in a statute.” Jonathan F. Mitchell, The

Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 1005

(2018). Thus, Respondent is challenging the

Secretary’s “action” in continuing to detain him

absent a bond hearing; he does not and could not

challenge a paper “framework.” Demore, 538 U.S. at

517.

Third and in all events, Demore’s jurisdictional

holding was wrong from the outset. “There is simply

no reasonable way to read” the language in § 1226(e)’s

second sentence “other than as precluding all review,

including habeas review, of the [Secretary’s] actions

or decisions to detain criminal aliens pursuant to

§ 1226(c).” Demore, 538 U.S. at 534 (O’Connor, J.,

concurring in part and concurring in judgment, joined

by Scalia and Thomas, JJ.); see Preap, 586 U.S. at 424

(Thomas, J., concurring in part and concurring in

judgment, joined by Gorsuch, J.). 2 And “any argument

that § 1226(e) violates the Suspension Clause is likely

unavailing,” Demore, 538 U.S. at 537 (O’Connor, J.,

concurring in part and concurring in judgment); see

id. at 537–39, and Respondent has made no such

argument.

So whether this Court declines to “extend” Demore

to this “new context” or recognizes that it was

egregiously wrong from the start, it should not apply

that decision. Ziglar v. Abbasi, 582 U.S. 120, 135

(2017). Rather, it should vacate the decision below for

lack of jurisdiction. 3

II. Detention under § 1226(c) cannot—and does

not—violate due process.

Even if the courts had jurisdiction, Respondent’s

due process theory fails at every step. The Clause does

not reach detention incident to removal; it creates no

right to escape delay of the alien’s own making; and

reading it otherwise would endanger Americans and

undermine removal.

2 The contrary conclusion in Demore relied in part on INS v. St.

Cyr, 533 U.S. 289 (2001), which was likewise egregiously wrong

and later abrogated by Congress. See id. at 326–48 (Scalia, J.,

dissenting); Nasrallah v. Barr, 590 U.S. 573, 580 (2020).

3 The courts also lack jurisdiction under 8 U.S.C. § 1252(b)(9).

See Preap, 586 U.S. at 423–24 (Thomas, J., concurring in part

and concurring in judgment); Jennings, 583 U.S. at 315–23

(Thomas, J., concurring in part and concurring in judgment).

A. Respondent’s

detention

does

implicate the Due Process Clause.

not

The Due Process Clause cannot invalidate

detention under § 1226(c), for at least three

independent reasons.

First, “there is considerable historical evidence

that the Due Process Clause does not apply to laws

governing the removal of aliens.” Johnson v. ArteagaMartinez, 596 U.S. 573, 585 (2022) (Thomas, J.,

concurring) (citation modified) (quoting Sessions v.

Dimaya, 584 U.S. 148, 210 (2018) (Thomas, J.,

dissenting)); contra Trump v. J.G.G., 604 U.S. 670,

673 (2025). Significant historical evidence suggests a

public understanding that “[r]emoving a resident

alien from the country did not affect ‘life, liberty, or

property’ . . . until the alien became a naturalized

citizen.” Dimaya, 584 U.S. at 214 (Thomas, J.,

dissenting). This Court has long “agreed that civil

deportation statutes do not implicate ‘life, liberty, or

property,’” id.: “[T]he deportation of an alien who is

found to be here in violation of law is not a deprivation

of liberty without due process of law.” United States ex

rel. Turner v. Williams, 194 U.S. 279, 290 (1904).

Second and more fundamentally, “considerable

historical evidence supports the position that ‘due

process of law’ was a separation-of-powers concept

designed as a safeguard against unlicensed executive

action, forbidding only deprivations not authorized by

legislation or common law.” United States v. Vaello

Madero, 596 U.S. 159, 168 (2022) (Thomas, J.,

concurring); see Fuld v. Palestine Liberation Org., 606

U.S. 1, 33 (2025) (Thomas, J., concurring in

judgment).

The Court has repeatedly applied this

understanding in the immigration context. “Over no

conceivable subject is the legislative power of

Congress more complete.” Reno v. Flores, 507 U.S.

292, 305 (1993) (brackets omitted). “[T]he power to

admit or exclude aliens is a sovereign prerogative,”

and “the Constitution gives the political department

of the government plenary authority to decide which

aliens to admit.” Dep’t of Homeland Sec. v.

Thuraissigiam, 591 U.S. 103, 139 (2020) (citation

modified). This Court’s “cases have long recognized

the power to expel or exclude aliens as a fundamental

sovereign attribute exercised by the Government’s

political departments largely immune from judicial

control.” Dep’t of State v. Muñoz, 602 U.S. 899, 911

(2024) (citation modified) (quoting Fiallo v. Bell, 430

U.S. 787, 792 (1977)). Thus, “the decisions of executive

or administrative officers, acting within powers

expressly conferred by Congress, are due process of

law.” Thuraissigiam, 591 U.S. at 138.

The same rule should apply to removal. “[A]ny

policy toward aliens is vitally and intricately

interwoven with contemporaneous policies in regard

to the conduct of foreign relations, the war power, and

the maintenance of a republican form of government.”

Demore, 538 U.S. at 522. That criminal aliens like

Respondent “were made deportable after entry is

immaterial”: “[t]hey are deported for what they are

now, not for what they were.” Carlson v. Landon, 342

U.S. 524, 536 (1952). So long “as aliens fail to obtain

and maintain citizenship by naturalization, they

remain subject to the plenary power of Congress to

expel them under the sovereign right to determine

what noncitizens shall be permitted to remain within

our borders.” Id. at 534. Thus, if removal proceeds as

Congress’s statutes require, the alien has received all

the process he is due.

Third, even “to the extent that the Due Process

Clause restrains the authority of Congress” in this

context, at most it would “prohibit Congress from

authorizing the deprivation of a person’s life, liberty,

or property without providing him the customary

procedures to which freemen were entitled by the old

law of England.” Vaello Madero, 596 U.S. at 168–69

(Thomas, J., concurring) (citation modified). A bond

hearing pending removal proceedings is not such a

customary procedure. As this Court has explained,

“prior to 1907 there was no provision permitting bail

for any aliens during the pendency of their

deportation proceedings.” Demore, 538 U.S. at 523

n.7. That forecloses Respondent’s claim here.

B. The Due Process Clause does not require

release based on an alien’s voluntary

decision to delay removal.

Respondent’s theory suffers a fourth flaw.

Respondent does not challenge the procedures for

proving any element “relevant to the inquiry” of his

removability under § 1226(c). Conn. Dep’t of Pub.

Safety v. Doe, 538 U.S. 1, 7 (2003). Rather, he claims

a substantive right to freedom from detention pending

removal. Thus, his claimed right sounds in

substantive due process. But substantive due process

rights may not be defined “at a high level of

generality.” Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215, 257 (2022). Properly defined,

Respondent’s asserted right is for an alien subject to

removal to be presumptively free from prolonged

detention caused by his own decision to delay (and

appeal) removal. No deeply rooted historical tradition

supports that right.

A substantive due process claimant must first

provide “a careful description of the asserted

fundamental liberty interest.” Muñoz, 602 U.S. at 910

(citation modified). But Respondent invokes a “core

liberty interest in [his] bodily freedom from

detention.” BIO 19. That framing is far too “broad[],”

Dobbs, 597 U.S. at 255, as it would suggest that every

law authorizing detention is subject to strict scrutiny.

Described precisely, Respondent claims a right

against continued detention that a criminal alien’s

own choice to delay removal has caused. That choice,

not the statute, is what prolongs the detention. Any

prolonged detention—which is the focus of

Respondent’s alleged right—is attributable to the

alien’s voluntary choice to delay or appeal a

removability finding. See Pet. 7, 9 (reflecting that

Respondent was found removable two months after

being detained).

Having identified the claimed right, the second

inquiry under substantive due process is whether the

right is, “objectively, deeply rooted in this Nation’s

history and tradition.” Muñoz, 602 U.S. at 910. But no

deeply rooted right protects a criminal alien from

detention he has prolonged. As noted, no such right to

bond exists at all. And Respondent certainly cannot

show a deeply rooted right to obtain bond where any

delay was caused by the criminal alien himself.

Criminal aliens subject to detention under

§ 1226(c) “can avoid enduring an unconscionably long

delay by submitting to what the [laws of this country]

have deemed [them] to deserve”: removal. Reynolds v.

Fla., 586 U.S. 1004, 1010 (2018) (Thomas, J.,

concurring in denial of certiorari) (citation modified).

“It makes a mockery of our system of justice for a

convicted [alien], who, through his own interminable

efforts of delay has secured the almost-indefinite

postponement of his [removal], to then claim that the

almost-indefinite

postponement

renders

his

[continued detention] unconstitutional.” Id. (citation

modified).

Indeed, “prolonged detention” has little meaning in

this context. Respondent does not dispute that any

detained criminal alien can readily and quickly obtain

“a fair opportunity to be heard” on removability.

Kwong Hai Chew v. Colding, 344 U.S. 590, 598 (1953);

see Pet. 7, 9; accord BIO 21. The alien can be heard

practically “immediately” on any statutory reason to

avoid mandatory detention. Demore, 538 U.S. at 514

n.3; Matter of Joseph, 22 I. & N. Dec. 799 (B.I.A. 1999).

Removability can also be resolved speedily. 4 And

aliens who wish to appeal decisions by the IJ and BIA

can permit execution of the removal order and

continue to appeal from their home countries. See 8

U.S.C. § 1252(b)(3)(B); Nken v. Holder, 556 U.S. 418,

435 (2009); ICE Directive No. 11061.1, Facilitating the

See U.S. Gov’t Accountability Off., GAO-25-106867,

Immigration Courts: Actions Needed to Track and Report

Noncitizens’ Hearing Appearances 40–41 fig. 12 & n.70 (2024)

(reporting that, for detained removal cases generally, the median

period from the start of the case to the initial master-calendar

hearing was 16 days, with another 93 days until the first merits

hearing).

Return to the United States of Certain Lawfully

Removed Aliens ¶ 2 (Feb. 24, 2012).

So “the detention[] here ha[s] been prolonged not

because of the government’s inability to effectuate the

removal[] but because of the [Respondent’s] own

litigation conduct.” Black v. Almodovar, 156 F.4th

171, 184 (2d Cir. 2025) (Menashi, J., dissenting from

denial of rehearing en banc); see id. at 184–86.

Given these facts, at no point could a criminal

alien’s detention become “unreasonably prolonged,”

such that due process could require a bond hearing—

the alien is always free to consent to removal and end

his detention. “[D]etention under § 1226(c) has a

definite termination point: the conclusion of removal

proceedings.” Jennings, 583 U.S. at 304 (citation

modified). That “marks the end of the Government’s

detention authority under § 1226(c).” Id. So a

detained criminal alien “has the keys in his pocket.”

Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999)

(Easterbrook, J.). He “can withdraw his defense of the

removal proceeding and return to his native land,

thus ending his detention immediately.” Id. He can

even continue appealing removal in the courts from

there. An “insist[ence] on postponing the inevitable”

does not create a “constitutional right to remain at

large during the ensuing delay.” Id.; see Banyee v.

Garland, 115 F.4th 928, 933 (8th Cir. 2024).

A criminal alien’s choice to delay a removability

determination or appeal is his own—it receives no

constitutional protection. “The Due Process Clause of

the Fifth Amendment does not establish any right to

an appeal, and certainly does not establish any right

to” appeal an immigration judge’s removability

finding. United States v. MacCollom, 426 U.S. 317,

323 (1976) (plurality opinion) (citation omitted).

“[T]he legal system is replete with situations

requiring the making of difficult judgments as to

which course to follow, and, even in the criminal

context, there is no constitutional prohibition against

requiring parties to make such choices.” Demore, 538

U.S. at 530 n.14.

Respondent thus invokes no right the Due Process

Clause recognizes. That forecloses his claim.

C. Respondent’s theory would endanger

citizens and undermine removal.

As this Court has recognized, “detention of

deportable criminal aliens pending their removal

proceedings” “necessarily serves” several important

purposes. Demore, 538 U.S. at 527–28 (citation

modified). Each of these purposes would be

undermined by Respondent’s effort to free criminal

aliens pending removal.

First, § 1226(c) was enacted in the face of evidence

that “deportable criminal aliens who remained in the

United States often committed more crimes before

being removed.” Demore, 538 U.S. at 518. Given the

“high rates of recidivism for released criminal aliens,”

id. at 519, Respondent’s rule would expose citizens to

crimes by aliens who, in nearly all cases, should not

be here at all. Recently, ICE reported that 81,312

arrested aliens with criminal histories had a

combined total of 516,050 charges or convictions,

averaging 6.3 each. 5

Second, § 1226(c) serves “the purpose of

preventing deportable criminal aliens from fleeing

prior to or during their removal proceedings, thus

increasing the chance that, if ordered removed, the

aliens will be successfully removed.” Demore, 538 U.S.

at 528. In 1997, “the Department of Justice Inspector

General found . . . that ‘when aliens are released from

custody, nearly 90 percent abscond and are not

removed from the United States.’” Buenrostro-Mendez

v. Bondi, 166 F.4th 494, 508 (5th Cir. 2026). That

figure has remained largely unchanged. Of the

219,568 aliens DHS encountered between 2014 and

2018 who were free when their removal orders issued,

179,757—81.9%—remained in the country at the end

of 2018. 6 Only 3.2% of those detained had not been

removed. 7 Criminal aliens who remain here harm

citizens directly—through crime and much else. See

Arizona v. United States, 567 U.S. 387, 398 (2012)

(“The problems posed . . . by illegal immigration must

not be underestimated.”).

Third, “[c]ourt ordered release cannot help but

encourage dilatory and obstructive tactics by aliens.”

Demore, 538 U.S. at 530 n.14 (quoting Zadvydas v.

Davis, 533 U.S. 678, 713 (2001) (Kennedy, J.,

5 ICE,

Fiscal Year 2024 Annual Report 8 (2024),

https://perma.cc/YTU9-NR5K.

6 Apprehension, Processing, Care, and Custody of Alien Minors

and Unaccompanied Alien Children, 84 Fed. Reg. 44,392, 44,407

tbl. 4 (Aug. 23, 2019).

7 Id.

dissenting)). If Respondent were right that criminal

aliens can be released after six months, these aliens

would have a strong incentive to delay their

proceedings, seek bond, and abscond. So Respondent’s

theory would mean more crime, fewer removals, and

an immigration system swamped by delay.

Fourth, Congress revisited § 1226 in 2025 and

made an institutional judgment directly relevant to

the balance the Second Circuit struck. Laken Riley

Act, Pub. L. No. 119-1, 139 Stat. 3 (2025). The

amended statute requires a detainer for a new

category of covered aliens who are inadmissible and

commit certain crimes. 8 U.S.C. § 1226(c)(3). It also

authorizes a State attorney general or other

authorized State officer to seek expedited injunctive

relief when a federal decision to release an alien or

grant bond or parole harms the State or its residents.

Id. § 1226(f). Congress specified that financial harm

exceeding $100 is sufficient. Id. This recent congressional action refutes the panel’s premise that a courtcreated bond hearing would “do nothing to undercut”

governmental interests. Black, 103 F.4th at 153.

Congress has identified erroneous release as a source

of concrete public, fiscal, and sovereign injury, and the

panel’s clear-and-convincing rule (discussed more

next) necessarily increases the risk of that error.

In sum, the Court should not read the Due Process

Clause to extend a substantive right to a criminal

alien to escape detention that Congress mandated and

that continues only because of his own choices.

III. Aliens should bear the burden of proof at

any bond hearing.

Even if the courts had jurisdiction over

Respondent’s claim, and due process required a bond

hearing, the Second Circuit erred in assigning the

government a “clear and convincing evidence” burden

of proof at such a hearing.

To begin, the Second Circuit used the procedural

due process factors from Mathews v. Eldridge, 424

U.S. 319 (1976), “as our guide” for who had the burden

of proof. Black, 103 F.4th at 155. But “the burden of

proof is a substantive aspect of a claim” and “cannot

be considered a mere incident of a form of procedure.”

Medtronic, Inc. v. Mirowski Fam. Ventures, LLC, 571

U.S. 191, 199 (2014) (citation modified). That the

Second Circuit needed to fashion its own substantive

rule underscores that Respondent’s claim is one of

substantive due process.

Next, “[t]he ordinary default rule” is that the

burden of proof falls “upon the party seeking relief.”

Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 58

(2005). “Decisions that place the entire burden of

persuasion on the opposing party at the outset of a

proceeding—as [the Second Circuit did] here—are

extremely rare.” Id. at 57. The statute does not

support that “extremely rare” step here.

Section 1226(c)(4) provides circumstances in which

the Secretary “may release an alien” otherwise subject

to mandatory detention. That subsection requires the

alien to “satisf[y]” the Secretary “that the alien will

not pose a danger to the safety of other persons or of

property and is likely to appear for any scheduled

proceeding.” 8 U.S.C. § 1226(c)(4). Congress would not

have flipped that burden onto the Secretary for courtdevised hearings under § 1226(c).

BIA precedents are in accord. Those precedents

involve 8 U.S.C. § 1226(a), which gives the Secretary

discretionary authority to detain an alien pending

removal or release him on bond with “conditions

prescribed by” the Secretary. Even these aliens—

subject to mere discretionary detention—have the

burden “to show to the satisfaction of the Immigration

Judge that he or she merits release on bond.” Matter

of Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006). The IJ

generally “consider[s] whether an alien who seeks a

change in custody status is a threat to national

security, a danger to the community at large, likely to

abscond, or otherwise a poor bail risk.” Id. The BIA

has refused to make the government show the

propriety of continued detention “by clear and

convincing evidence.” Matter of R-A-V-P-, 27 I. & N.

Dec. 803, 804 (B.I.A. 2020).

The same burden that applies under § 1226(a)

should apply to any bond hearing under § 1226(c). The

critical difference between subsections (a) and (c) of

§ 1226 is that subsection (a) “sets out the default rule”

of discretionary detention, while subsection (c) “carves

out a statutory category of aliens who may not be

released.” Jennings, 583 U.S. at 288–89. Section

1226(c) “sprang from a concern that deportable

criminal aliens who are not detained continue to

engage in crime and fail to appear for their removal

hearings in large numbers.” Preap, 586 U.S. at 398

(citation modified). “To address this problem,

Congress mandated that aliens who were thought to

pose a heightened risk be arrested and detained

without a chance to apply for release on bond or

parole.” Id. The “heightened risk” Congress had in

mind was that “upon their release, [these criminal

aliens] would pose a danger to the community or risk

of flight.” Id. at 421 (Kavanaugh, J., concurring).

“[S]ubsection (a)—which generally authorizes the

Secretary to release an alien pending removal

proceedings—features an exception ‘as provided in

subsection (c).’” Id. at 410 (majority opinion) (citation

modified). And “Congress enacted mandatory

detention

precisely

out

concern

that”

“individualized hearings could not be trusted to reveal

which deportable criminal aliens who are not detained

might continue to engage in crime or fail to appear for

their removal hearings.” Id. at 412 (plurality opinion)

(citation modified).

Given this statutory context, an alien should have

to prove that he qualifies for an exemption from

Congress’s presumption that criminal aliens are too

dangerous to be released pending removal. It would

make little sense to put the burden on the alien under

§ 1226(a), where the Secretary’s detention authority

is merely discretionary, but on the government under

§ 1226(c). Under subsection (c), the default is that

dangerous criminal aliens stay detained. The law

itself sets out the presumption, grounded in reality,

that “‘a criminal record accumulated by an admitted

alien’ is a good indicator of future danger.” Demore,

538 U.S. at 525 n.9 (quoting Zadvydas, 533 U.S. at

714 (Kennedy, J., dissenting)); see Zadvydas, 533 U.S.

at 713 (Kennedy, J., dissenting) (noting “statistical

studies showing high recidivism rates for released

aliens”).

An alien who wishes to defeat this statutory

presumption should have the burden. And any bond

hearing should not “be gentler on terrorists” and other

criminals subject to § 1226(c) “than it is on” noncriminal aliens. Preap, 586 U.S. at 416. The law “does

not require such an odd result.” Id. at 421

(Kavanaugh, J., concurring).

Thus, the criminal alien seeking an extrastatutory right to release must bear the burden of

proof.

CONCLUSION

For these reasons, the Court should vacate the

decision below with instructions to dismiss or, in the

alternative, reverse.

Respectfully submitted,