Immigration Law

Judge Sotomayor takes a non-ideological approach to immigration law matters. An independent study of her record by Professor Chad Westerland of the University of Arizona indicates that Judge Sotomayor frequently sides with the government in immigration cases, as do the federal courts of appeals generally. He reviewed a sample of Second Circuit cases on appeal from the Bureau of Immigration Appeals, and found that relief was denied in approximately 85 percent of cases. Judge Sotomayor voted to deny relief in 84 percent of cases.

Judge Sotomayor respects the limited role of the federal courts in immigration matters, and her exercise of judicial restraint is evident in this area of law. For example, in Mendez v. Mukasey, 525 F.3d 216 (2d Cir. 2008), Judge Sotomayor wrote an opinion holding that the court lacked jurisdiction to review an immigration judge’s decision that the petitioner was not entitled to a reprieve from a deportation order. The court noted that although the petitioner’s arguments were “persuasive,” the question of whether the immigrant’s deportation would cause hardship for his children, who were American citizens, was committed to the immigration judge’s discretion. Judge Sotomayor reasoned that as the panel was “bound by past decisions of th[e] Court,” it was not entitled to pass judgment on the question and denied the petitioner’s claim.

Further, Judge Sotomayor’s opinions indicate that she defers to the expertise of immigration judges and the Bureau of Immigration Appeals (“BIA”) where appropriate. For example, in Zheng v. Gonzales, 497 F.3d 201 (2d Cir. 2007), and Jiang v. Bureau of Citizenship and Immigration Services, 520 F.3d 132 (2d Cir. 2008), Judge Sotomayor authored opinions that granted petitions for review so that the BIA could have an opportunity to articulate a clear and uniform rule as to whether and under what conditions the forced insertion of an intrauterine device constitutes persecution. Similarly, in Lin v. U.S. Department of Justice, 494 F.3d 296 (2d Cir. 2007) (en banc), Judge Sotomayor’s concurring opinion chided the majority for reaching out to decide whether both spouses and unmarried partners of women subjected to forced abortion or sterilization were eligible for asylum even though the cases before the court involved only unmarried partners. Judge Sotomayor would not have decided the issue to the extent it applied to spouses, as doing so “constrict[ed] the BIA’s congressionally delegated powers.” In sum, Judge Sotomayor recognizes the limited nature of federal judicial review in immigration cases.

Judge Sotomayor votes to grant petitions for review, however, when the BIA or immigration judges have improperly administered the law. Several cases concerning asylum law fall into this category. Notably, in these cases, Judge Sotomayor grants the appropriate level of deference to BIA decisions by reviewing legal, but not factual, questions. In Edimo-Doualla v. Gonzales, 464 F.3d 276 (2d Cir. 2006), Judge Sotomayor authored an opinion granting a petition for review of a BIA decision that resulted from numerous legal errors. The immigration judge had failed to analyze or weigh the evidence adequately where the petitioner credibly testified as to his persecution by Cameroonian authorities. Similarly, in Lin v. Gonzales, 445 F.3d 127 (2d Cir. 2006), Judge Sotomayor authored an opinion that required the BIA to reconsider the evidence in a case where a Chinese woman and her husband were fined for failure to submit to sterilization after having a second child, and then presented a false certificate of sterilization to Chinese authorities. The immigration judge had incorrectly decided that presentation of the false certificate provided a proper basis for determining that the petitioners’ testimony was generally not credible. The court disagreed and instructed the BIA to consider the evidence under the proper standard.

In addition, Judge Sotomayor relies on precedent to determine whether petitioners are entitled to relief in cases that lie at the intersection of immigration and criminal law. In Blake v. Gonzales, 481 F.3d 152 (2d Cir. 2007), Judge Sotomayor wrote an opinion for a unanimous panel holding that the court could not review the deportation order of a petitioner because precedent counseled that his conviction for assault and battery on a police officer was an aggravated felony regardless of whether the crime was committed recklessly or intentionally. Because the government established that the petitioner had been convicted of an aggravated felony, the court lacked jurisdiction to provide any relief from the deportation order. Similarly, Judge Sotomayor’s opinion in Dos Santos v. Gonzales, 440 F.3d 81 (2d Cir. 2006), held that the court could not further review a deportation order of a lawful permanent resident who had been convicted of an aggravated felony. There, the petitioner, who had never served a prison sentence and was a child when he committed the crime at issue, argued that his conviction was not of a “crime of violence.” Judge Sotomayor’s opinion relied on precedent to hold that the petitioner’s conviction of a crime that involved substantial risk that physical force required the court to uphold the deportation order.

In sum, Judge Sotomayor follows precedent and takes a case-by-case approach to immigration law cases. In recognition of the deference that the law accords the discretion of the BIA and immigration judges, she exercises restraint to decide only the legal questions properly before her. Further, as confirmed by an independent review, Judge Sotomayor’s record in immigration law cases is well within the mainstream.