Judge Criticized for Releasing MS-13 Suspect in California

James Percival, general counsel for the Department of Homeland Security, has voiced concerns over what he describes as an “epidemic of judicial activism.” This comment follows a federal judge’s decision in California to release an MS-13 murder suspect. Percival contends that those accused of murder should stay in immigration detention throughout their removal processes.

In another legal development, the Supreme Court has decided not to hear a case about bond rights for noncitizens who are detained for long periods. This decision came after Governor Kathy Hochul of New York pardoned Keisy Guerrero Mariano, a Dominican citizen who had previously pleaded guilty to second-degree assault.

This pardon effectively put an end to an appeal by the Trump administration, which argued that noncitizens—including those with green cards—do not have the right to a bond hearing during lengthy detentions, especially if they have committed crimes that warrant mandatory deportation. Hochul, who is known for her opposition to Trump’s strict immigration policies, granted the pardon just as the case was set to be briefed.

Solicitor General John Sauer acknowledged this case, Genalo v. Black, as now moot, yet indicated that the Trump administration is looking for another means to challenge the Second Circuit’s ruling that prolonged detention can trigger a constitutional right to a bond hearing.

The lawsuit involved Carol Williams Black, a Jamaican national with legal standing, and Mariano, both of whom have criminal records and were detained by ICE. Mariano had initially been arrested in 2020 due to a second-degree assault conviction from 2015, making him subject to deportation.

He spent nearly two years in ICE detention before being released in 2022 amid a nationwide injunction that mandated the release of detainees due to COVID-19 risks. Before his release, Judge John P. Cronan of the Southern District of New York denied Mariano’s habeas corpus request in November 2021.

However, in May 2024, the Second Circuit overturned Cronan’s ruling, declaring that noncitizens must be granted a bond hearing once their detention becomes “unreasonably long.” The court held that failing to do so would violate the due process clause of the Fifth Amendment.

The Supreme Court agreed to hear the case concerning Black but deemed it moot after Black left the U.S. and confirmed he would not return. Black had been convicted in New York in 2000 for sexually abusing a minor under the age of 11.

Hochul’s pardon of Mariano has drawn sharp criticism. For instance, Iowa’s solicitor general, Eric Wessan, remarked on social media that it was “pretty wild” to fully pardon a felon to avoid deportation and block the Supreme Court from making a ruling, especially given the extensive litigation on this topic. He also questioned how many non-American felons might be pardoned by governors like Hochul to escape consequences for their actions.

Fox News Digital reached out to Hochul’s office for further commentary.