Charles Breiterman's picture


  by  Charles Breiterman

NOTE:  The confirmation of Judge Sonia Sotomayor is now virtually assured for the U.S. Supreme Court. What might we expect from her in immigration-related cases?  Attorney Charles Breiterman has reviewed the immigration cases of her past decisions and offers this first assessment.

In seeking to understand how Sonia Sotomayor will handle immigration-related cases that come before the Supreme Court, the decisions Sotomayor has actually authored are paramount. There are many cases in which Sotomayor was on the panel of judges that heard the case, but did not actually author the decision. Those cases don’t tell us very much about how she thinks. Therefore, I conducted a Westlaw search designed to retrieve only immigration-related opinions authored by Sotomayor.

In immigration cases, generally the government is the one that is trying to deport the alien, while the alien is trying to remain in the United States. In her judicial career, Sotomayor has authored opinions in 42 immigration-related cases. In 22 of these cases, Sotomayor ruled for the government, yielding a win rate of 53%. However, her record since September 11, 2001 runs decidedly against the government. Out of 29 cases she ruled only 9 times for the government, or 31% of the time. I did not have time to read all of Sotomayor’s immigration-related opinions. I read about half of them, and found problems with the reasoning or her interpretation of the law in 4 of the cases. In this blog, I will cover only 1 case. There may be future blogs exploring the other 3 cases.

I am not doing this as an endorsement or non-endorsement statement of Sotomayor. It is an analysis of one of her opinions.

Structure of Federal Court System

U.S. v. Hamdi 432 F.3d. 115 (2005)

Sotomayor’s Decision:

Ali Hamdi is a citizen of Tunisia who was residing in the United States. He was arrested for producing fraudulent visas and fake Yemeni birth certificates in his Brooklyn, New York travel agency. He pled guilty to a felony, served 2 years in jail, and was then deported.

On December 19, 2003, Hamdi filed an appeal of his sentence. He must have filed this appeal from a foreign country, and had a U.S. attorney working for him. Hamdi wanted the sentence reduced. Yes, he had already served his sentence, so any sentence reduction would only be on paper. But the shorter his sentence on paper, the more possible that the immigration authorities would exercise their discretion and allow him to be re-admitted to the United States on a tourist visa. It’s called a “discretionary waiver of inadmissibility” under the immigration laws, potentially resulting in Hamdi being re-admitted to the United States as a temporary, non-immigrant visitor (tourist).

This case had already been before a federal district judge, who ruled against Hamdi. Sotomayor, a federal appeals court judge, issued a ruling concluding that, yes, there is a specific provision in the immigration law allowing the government the discretion to admit somebody on a tourist visa even if they had been convicted of a felony. She sent the case back to the district court for further proceedings based on her ruling.

My Comment:

Hamdi had already been actively subverting the immigration laws, so I would strongly suspect that once he re-enters the United States on a tourist visa, he will overstay that visa and also begin more activities such as issuing fake visas and fake birth certificates. I would be a fool not to suspect. Therefore, I think no sane U.S. government would ever re-admit Hamdi to the United States.

Tourist visas last 30 or 90 days. Why would anybody trust Hamdi to behave lawfully while in the United States and then to leave the country when his 30 or 90 day tourist visa had expired? The U.S. government still has no way of making sure that people leave the country after their visa has expired. As a federal judge who hears immigration cases, Sotomayor should have known this; if not, she didn’t know her job.

Since no sane U.S. government would ever exercise its discretion to allow Hamdi to enter the country in the future, this entire case is “moot.” “Moot” means “of no importance” or “there is nothing to decide here.” Therefore, Sotomayor should have dismissed the case.

Instead, Sotomayor produced an 8 page, 6500 word decision (this blog is only 1000 words) and then sent the case back down to the district court for even more work. What a colossal waste of time and energy over nothing for somebody who is a criminal alien. The federal courts are overburdened, and whatever resources we have should be directed at more deserving litigants.

Additionally, in a post 9-11 world, it would be the height of government idiocy to allow Hamdi to re-enter the United States for any reason. Hamdi is a Tunisian. Tunisia has a strong Al Quaeda presence and has experienced several terrorist incidents since 9-11. The murderers of Afghan Northern Alliance Commander Ahmed Shah Masood, who operated on behalf of Osama Bin Laden, were both Tunisian. Hamdi was found in possession of 106 fake Yemeni birth certificates. Yemen is the birthplace of Bin Laden and remains a potent source of Al Quaeda recruits. The attack on the U.S.S. Cole occurred in Yemen. FBI agents sent there to investigate the attack found the environment to be extremely hostile. One has to wonder what Hamdi was doing as he conducted his immigration forgery operation in Brooklyn, New York. Was it some kind of poorly executed mechanism of implanting sleeper Al Quaeda operatives in the United States by swapping their Saudi, Tunisian, Pakistani, or other nationality for a clean Yemeni identity? It does sound like a poor idea, but then again the Al Quaeda is not a operationally perfect. Whatever the precise circumstances of Hamdi’s visa and birth certificate forgery operation, in a post 9-11 world, the United States simply must deal with that kind of activity harshly and no sane U.S. government would ever use its discretion to let Hamdi enter the country on a tourist visa.

For the reasons above, the Hamdi case was moot and should have been dismissed. Justice Sotomayor’s absolute ignorance of security concerns raised by the Hamdi case is astounding. Did she get the memo that 9-11 happened? She failed to dismiss the case and thereby stop the waste of her time, the taxpayers’ money, and the time taken away from more deserving litigants.

Legal Immigration
Interior Enforcement
Illegal Immigration
border control

Updated: Mon, Jul 24th 2017 @ 2:46pm EDT

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