Crucial Supreme Court cases could shape fate of Trump's deportation agenda

WASHINGTON (Reuters) - The U.S. Supreme Court will decide three cases in coming months that could help or hinder President Donald Trump's efforts to ramp up border security and accelerate deportations of those in the country illegally.

The three cases, which reached the court before Democratic President Barack Obama left office, all deal broadly with the degree to which non-citizens can assert rights under the U.S. Constitution. They come at a time when the court is one justice short and divided along ideological lines, with four conservatives and four liberals.

The justices will issue rulings before the end of June against the backdrop of high-profile litigation challenging the lawfulness of Trump's controversial travel ban on people traveling from seven predominantly Muslim countries.

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Demonstrators in support of the immigration rules implemented by U.S. President Donald Trump's administration, rally at Los Angeles international airport in Los Angeles, California, U.S., February 4, 2017.

(REUTERS/Ringo Chiu)

Pro-Trump demonstrators yell slogans during protest against the travel ban imposed by U.S. President Donald Trump's executive order, at Los Angeles International Airport in Los Angeles, California, U.S., January 29, 2017. REUTERS/Ted Soqui
A counter demonstrator holds a sign up as protesters gather in Battery Park and march to the offices of Customs and Border Patrol in Manhattan to protest President Trump's Executive order imposing controls on travelers from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen, January 29, 2017 in New York. / AFP / Bryan R. Smith (Photo credit should read BRYAN R. SMITH/AFP/Getty Images)
Demonstrators watch from an overpass as a counter-protester holds a sign outside Los Angeles International Airport (LAX) during a protest against U.S. President Donald Trump's executive order blocking visitors from seven predominantly Muslim nations in Los Angeles, California, U.S., on Sunday, Jan. 29, 2017. Court decisions temporarily blocked the U.S. administration from enforcing parts of Trump's order after a day in which students, refugees and dual citizens were stuck overseas or detained and some businesses warned employees from those countries not to risk leaving the United States. Photographer: Dania Maxwell/Bloomberg via Getty Images
A counter-protester, right, holds a sign and chants in front of other demonstrators outside Los Angeles International Airport (LAX) protesting against U.S. President Donald Trump's executive order blocking visitors from seven predominantly Muslim nations in Los Angeles, California, U.S., on Sunday, Jan. 29, 2017. Court decisions temporarily blocked the U.S. administration from enforcing parts of Trump's order after a day in which students, refugees and dual citizens were stuck overseas or detained and some businesses warned employees from those countries not to risk leaving the United States. Photographer: Dania Maxwell/Bloomberg via Getty Images

Demonstrators in support of the immigration rules implemented by U.S. President Donald Trump's administration, rally at Los Angeles international airport in Los Angeles, California, U.S., February 4, 2017.

(REUTERS/Ringo Chiu)

Demonstrators in support of the immigration rules implemented by U.S. President Donald Trump's administration, rally at Los Angeles international airport in Los Angeles, California, U.S., February 4, 2017.

(REUTERS/Ringo Chiu)

Demonstrators in support of the immigration rules implemented by U.S. President Donald Trump's administration, rally at Los Angeles international airport in Los Angeles, California, U.S., February 4, 2017.

(REUTERS/Ringo Chiu)

A demonstrator in support of the immigration rules implemented by U.S. President Donald Trump's administration, rallies at Los Angeles international airport in Los Angeles, California, U.S., February 4, 2017.

(REUTERS/Ringo Chiu)

Police officers stand guard as demonstrators in support of the immigration rules implemented by U.S. President Donald Trump's administration, rally at Los Angeles international airport in Los Angeles, California, U.S., February 4, 2017.

(REUTERS/Ringo Chiu)

Demonstrators in support of the immigration rules implemented by U.S. President Donald Trump's administration, rally at Los Angeles international airport in Los Angeles, California, U.S., February 4, 2017.

(REUTERS/Ringo Chiu)

Trump supporters demonstrate against a ruling by a federal judge in Seattle that grants a nationwide temporary restraining order against the presidential order to ban travel to the United States from seven Muslim-majority countries, at Tom Bradley International Terminal at Los Angeles International Airport on February 4, 2017 in Los Angeles, California.

(Photo by David McNew/Getty Images)

Arriving international travelers pass through a line of Trump supporters demonstrating against a ruling by a federal judge in Seattle that grants a nationwide temporary restraining order against the presidential order to ban travel to the United States from seven Muslim-majority countries, at Tom Bradley International Terminal at Los Angeles International Airport on February 4, 2017 in Los Angeles, California.

(Photo by David McNew/Getty Images)

Trump supporters argue with a man (R) who supports a ruling by a federal judge in Seattle that grants a nationwide temporary restraining order against the presidential order to ban travel to the United States from seven Muslim-majority countries, at Tom Bradley International Terminal at Los Angeles International Airport on February 4, 2017 in Los Angeles, California.

(Photo by David McNew/Getty Images)

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The most pertinent of the three cases in terms of Republican Trump administration priorities involves whether immigrants in custody for deportation proceedings have the right to a hearing to request their release when their cases are not promptly adjudicated.

The long-running class action litigation, brought by the American Civil Liberties Union (ACLU) on behalf of thousands of immigrants detained for more than six months, includes both immigrants apprehended at the border when seeking illegal entry into the United States and legal permanent residents in deportation proceedings because they were convicted of crimes. The case also could affect long-term U.S. residents who entered the country illegally and have subsequently been detained.

The Trump administration has said it wants to end the release of immigrants facing deportation and speed up the process for ejecting them from the country. A decision in the case requiring additional court hearings could have very direct implications for the administration's plans, said ACLU lawyer Ahilan Arulananthan, especially since immigration courts currently have a backlog of more than 500,000cases.

The ACLU estimates that up to 8,000 immigrants nationwide at any given time have been held for at least six months. A U.S. Immigration and Customs Enforcement official was unable to immediately confirm data on length of detention but said that in fiscal year 2016, the average daily count of detainees was just under 35,000.

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"If Trump wants to put more people in deportation but does not increase the number of immigration judges, then people are going to have to wait longer and longer to get a hearing," said Stephen Yale-Loehr, an immigration law professor at Cornell Law School.

The Trump administration has pledged to sharply curtail illegal immigration, with initiatives such as building a wall along the U.S-Mexican border and hiring thousands of federal agents to police the border and arrest and deport immigrants who live in the United States but entered the country illegally. Trump has also threatened to withhold federal funding from so-called "sanctuary cities" that offer protections to immigrants who could face deportation.

CROSS-BORDER SHOOTING

The other immigration cases to be decided concern whether U.S. government officials can be sued over mistreatment of non-citizens in two separate contexts.

One will decide whether the family of 15-year-old Mexican teenager Sergio Hernandez, who was killed while on Mexican soil by a U.S. agent firing from across the border in Texas, can sue under the U.S. Constitution.

It is a scenario that the lawyers for Hernandez's family say could become more frequent if the Trump administration acts on its proposal to increase the number of border guards by 5,000, raising the prospect of similar confrontations. The court hears arguments in that case on Feb. 21.

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A man from Yemen crosses the U.S.-Canada border into Hemmingford, Quebec, Canada February 14, 2017. REUTERS/Christinne Muschi
A Royal Canadian Mounted Police (RCMP) officer talks to a man exiting a taxi, who said he was from Yemen, as he walks towards the U.S.-Canada border into Hemmingford, Quebec, Canada February 14, 2017. REUTERS/Christinne Muschi
A man from Yemen looks over at a U.S. Customs and Border Protection officer as he walks towards the U.S.-Canada border into Hemmingford, Quebec, Canada February 14, 2017. REUTERS/Christinne Muschi
A man from Yemen is taken into custody by Royal Canadian Mounted Police (RCMP) officers after walking across the U.S.-Canada border into Hemmingford, Quebec, Canada February 14, 2017. REUTERS/Christinne Muschi
Royal Canadian Mounted Police (RCMP) officers stand on a hill looking over the U.S.-Canada border into Hemmingford, Quebec, Canada February 14, 2017. REUTERS/Christinne Muschi
A border marker is seen at the U.S.-Canada border into Hemmingford, Quebec, Canada February 14, 2017. REUTERS/Christinne Muschi
A man from Yemen is taken into custody by Royal Canadian Mounted Police (RCMP) officers after walking across the U.S.-Canada border into Hemmingford, Quebec, Canada February 14, 2017. REUTERS/Christinne Muschi
A man from Yemen is taken into custody by Royal Canadian Mounted Police (RCMP) officers after walking across the U.S.-Canada border into Hemmingford, Quebec, Canada February 14, 2017. REUTERS/Christinne Muschi
A family from Yemen crosses the U.S.-Canada border into Hemmingford, Quebec, Canada February 14, 2017. REUTERS/Christinne Muschi
A family from Yemen is taken into custody by Royal Canadian Mounted Police (RCMP) officers after walking across the U.S.-Canada border into Hemmingford, Quebec, Canada February 14, 2017. REUTERS/Christinne Muschi
A family from Yemen crosses the U.S.-Canada border into Hemmingford, Quebec, Canada February 14, 2017. REUTERS/Christinne Muschi
A man who told police he was from Mauritania is taken into custody by Royal Canadian Mounted Police (RCMP) officers after walking across the U.S.-Canada border into Hemmingford, Quebec, Canada February 13, 2017. Picture taken February 13, 2017. REUTERS/Christinne Muschi
A man who told police he was from Mauritania drops on his knees as he arrives at the U.S.-Canada border into Hemmingford, Quebec, Canada February 13, 2017. Picture taken February 13, 2017. REUTERS/Christinne Muschi
A man who told police that he was from Mauritania is helped up a hill and taken into custody by Royal Canadian Mounted Police (RCMP) officers after walking across the U.S.-Canada border into Hemmingford, Quebec, Canada February 13, 2017. Picture taken February 13, 2017. REUTERS/Christinne Muschi
A woman who told police that she and her family were from Sudan is taken into custody by Royal Canadian Mounted Police (RCMP) officers after arriving by taxi and walking across the U.S.-Canada border into Hemmingford, Quebec, Canada February 12, 2017. Picture taken February 12, 2017. REUTERS/Christinne Muschi TPX IMAGES OF THE DAY
A man who told police he was from Mauritania walks across the U.S.-Canada border into Hemmingford, Quebec, Canada February 13, 2017. Picture taken February 13, 2017. REUTERS/Christinne Muschi
A child is helped up a hill by Royal Canadian Mounted Police (RCMP) officers after a family arriving by taxi and claiming to be from Sudan are taken into custody after walking across the U.S.-Canada border into Hemmingford, Quebec, Canada February 12, 2017. Picture taken February 12, 2017. REUTERS/Christinne Muschi
A man who told police that he was from Sudan is taken into custody by a Royal Canadian Mounted Police (RCMP) officer after arriving by taxi and walking across the U.S.-Canada border into Hemmingford, Quebec, Canada February 13, 2017. Picture taken February 13, 2017. REUTERS/Christinne Muschi
A man walks down Roxham Road in Champlain, New York, with his luggage toward the U.S.-Canada border in Hemmingford, Quebec, Canada February 13, 2017. Picture taken February 13, 2017. REUTERS/Christinne Muschi
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The second is a civil lawsuit brought by immigrants, mainly Muslims, who were detained in New York after the Sept. 11, 2001 attacks and claim they were mistreated.

The group of Muslim, Arab and South Asian non-U.S. citizens say they were held as terrorism suspects based on race, religion, ethnicity and immigration status and abused in detention before being deported.

The long-running case focuses on whether senior officials in the administration of Republican President George W. Bush can be sued for their role in directing the action.

The Obama administration argued that the court should be wary of extending liability to the actions of senior officials, especially when it implicates national security and immigration.

Based on the skepticism of the justices during the Jan. 18 oral argument, the court seems likely to rule against the detainees. Chief Justice John Roberts expressed concern that permitting such lawsuits against senior U.S. officials would become "a way of challenging national policy" through litigation seeking monetary damages against the individuals who implemented the policy.

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The three cases are separate from litigation over the legality of Trump's travel ban, which could also ultimately be decided by the high court. The key case on that front is now pending before an appeals court in San Francisco after a three-judge panel upheld a lower court decision to put the ban on hold.

Language in the upcoming rulings that address the rights of non-citizens and analyzes how courts should review government action on immigration and national security could have relevance in that case, legal experts say.

Anil Kalhan, an immigration law professor at Drexel University's Kline School of Law, said the furor over the treatment of non-U.S. citizens affected by the travel ban could bleed over into how the court approaches the cases.

"It might be the atmospherics of what's going on now might lead to a closer look from the justices," he said.

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