U.S. top court to set guidelines for Trump treatment of non-citizens

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By Lawrence Hurley | WASHINGTON

WASHINGTON Feb 17 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.

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

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 Arulanantham, 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.

“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

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.


The other 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.

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.

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 govenrment
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.

(Corrects spelling of Ahilan Arulanantham in paragraph 6)

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