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  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? This is the second installment of attorney Charles Breiterman's review of immigration decisions authored by Sotomayor. The first part appeared on Friday and can be accessed by clicking here.

Executive Summary: Judge Sonia Sotomayor interpreted a court rule in favor of a criminal alien so he could get his deportation case re-opened and given a third full hearing. Previously he had gone before an immigration law judge, and then before the Bureau of Immigration Appeals. This time the immigrant will get a hearing before a federal court of appeals, a prestigious court right below the Supreme Court of the United States. The problem is that Judge Sotomayor’s interpretation of the rule places an added burden on already overworked court clerks and therefore makes it more difficult for the federal court system in her jurisdiction to function. It seems to me that Sotomayor issued a poorly reasoned decision, and that usually happens when the judge is forcing the case to come out the way s/he wants it.

And what about all the citizen litigants who were waiting to have their cases heard while Sotomayor was reopening this case and then giving it a full hearing? What about the citizens who need to be protected in case this person commits another crime while he is in the country fighting his deportation? What about the fact that it had already taken at least 2 years to deport this criminal alien after his release from jail? When there are so many millions of people in the world who would like to emigrate to the United States, we should rapidly deport the ones who have already messed up their chance. But with this decision, it seems that Judge Sotomayor gums up workings of the system so that it is even harder to deport people who have committed a violent crime.

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


Paul v. INS 348 F.3d. 43, decided October 9, 2003.

A citizen of Jamaica, Richard Paul, lawfully present in the United States, had been found guilty of 2nd Degree Robbery under the New York Penal Law. That is a Class C felony (two steps below murder, which is a Class A felony). Robbery in the 2nd degree is using force to steal property with aggravating circumstances in addition to the force. Mr. Paul was therefore a criminal alien. Mr. Paul had a hearing before an immigration judge and was ordered deported. Paul then appealed to the Bureau of Immigration Appeals (BIA) and lost again, in January, 2001.

On February 4, 2001, Mr. Paul filed, without an attorney, what he called a “motion for extension of time,” but which was actually in substance an appeal, with the federal district court in New York. Mr. Paul’s appeal was not written by an attorney, but it did have the proper statements in it to be a valid document under court rules. But under the court rules, he should have filed it with the Federal Court of Appeals for the 2nd Circuit - filing it with the district court was an error.

According to the text of Judge Sotomayor’s decision, this is what was filed with the district court clerk:

“Richard Paul (pet.) V. INS; et al (resp.),” [I intend to challenge] “each and every aspect of the decision handed down in the [BIA and Immigration Judge] proceedings, including but not limited to my finding of ineligibility for relief pursuant to IIRIRA, my adjudication as an aggravated felon, the application of § 236(c) against me, and in general, the totality of the proceedings leading up to my order of removal.”

The District Court clerk reviewed what Mr. Paul submitted, then sent Mr. Paul a letter saying the court had no jurisdiction and he needed to file in the court that had proper jurisdiction. The letter was dated February 9, 2001. Under court rules, Mr. Paul only had until February 11, 2001 to file his appeal.

Mr. Paul did not file with the Court of Appeals until March 12, 2001, 30 days late. By the time he had filed the appeal with the proper court, the avenue for appeal was closed and he was still deportable.

Judge Sotomayor cites the applicable law, which is that if a motion or appeal is filed with the wrong court, the receiving court “shall, if it is in the interest of justice,” forward the motion or appeal to the proper court that has jurisdiction. Here is the provision of the United States Code:

TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE

Sec. 1631. Transfer to cure want of jurisdiction

Whenever a civil action is filed in a court ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.

Sotomayor writes, “As we read this statute, the district court was required to transfer Paul's petition for review to us unless it was not in the interest of justice to do so.” I agree with that. The statute says, “shall,” so if it is in the interest of justice to transfer it, then the court must do it. Sotomayor continues, “We review a district court's refusal to transfer an action or appeal pursuant to § 1631 for abuse of discretion.” What she is saying is that the district court has the power to make a reasonable decision (exercise discretion) about whether it is in the interest of justice to transfer the misfiled appeal to the proper court.

Sotomayor says that in Liriano v. U.S., the court of appeals, “reviewed the legislative history of § 1631 and found that Congress intended the provision to aid litigants who were confused as to the proper forum for review.” She continues, “Whether a new action filed by the litigant would be barred as untimely is one of the factors we identified as militating in favor of transfer.”

Sotomayor concludes that, “As there is no evidence in this case that Paul filed with the district court in bad faith, we hold that it was an abuse of discretion under § 1631 for the district court not to transfer the petition to this Court [the court of appeals] since the strict thirty-day statutory deadline would normally make it in the interests of justice to do so.”

Sotomayor is saying that since Mr. Paul was facing a 30 day deadline after which he would lose his right to appeal, the court clerk had an obligation to transfer the case.

She ruled that the district court clerks abused their discretion when they did not forward Mr. Paul’s appeal to the circuit court. She orders Mr. Paul’s deportation case reopened for a full review of the Bureau of Immigration Appeals’ decision, and that the case put on the calendar of the court of appeals.

Since Sotomayor is an appeals court judge, this becomes part of the statute as far as all the district courts in her jurisdiction are concerned. The following language is added to the statute (sec. 1631 of the United States Code) by her ruling: “It is in the interests of justice to transfer if somebody who is appealing a case files the appeal with the district court because they are confused, and if the litigant is in danger of missing the 30 day deadline, the district court clerk must transfer the appeal to the appeals court.”1

So what does her rule require the district court clerk(s) to do? A District Court clerk, who is not an attorney, would have had to read the man’s motion or appeal and figure out what it was about, then know where that type of action should be filed, then figure out when the prior action was decided, then determine what is the filing deadline for the type of action in question, then determine whether the litigant can meet that deadline if the court does not transfer the case to the proper court.

But remember Sotomayor wrote that,”Congress intended the provision to aid litigants who were confused as to the proper forum for review.”

The clerk must determine whether the litigant is confused as to where the action should be filed, or whether the litigant merely made an error. If the litigant is confused, the clerk should transfer the filing to the proper court; if it was merely an error, the clerk should not be so helpful as to transfer the case. How do we differentiate and what grounds do we have to treat them differently? What if we figure that litigants who file papers without attorneys are confused, while litigants who have an attorney have made an error- the attorney made an error. In the case of the confused, they get a free pass. In the case of those making an error, they are subject to the rule and they cannot appeal- they lose their case. That situation penalizes people who hire attorneys if the attorneys make a mistake. The person who had an attorney can sue the attorney, but that can take years.

What if the clerk gets it wrong and forwards the action to the wrong court? We have the Court of Claims, the Tax Court, the Court of Veterans Appeals, the Bankruptcy Court, the Court of International Trade, the District Court, the Court of Appeals, and the Supreme Court, to name a few. You can’t know where to file based on just the name of the court. Even attorneys can get confused.

Given that the judicial system in the New York area is overburdened as it is, with probably dozens of these types of motions filed every day, is there time or the staff for this?

It seems to me that Sotomayor doesn’t lay down a workable rule, and that she is imposing a massive burden on the district court clerks. I think this happened because she is forcing the case to come out the way she wants it – in favor of Mr. Paul, a criminal alien.

Now let’s consider the possibility that it wasn’t in the interest of justice for the district court clerk to transfer the case:

We have an already overburdened justice system and this is a non-citizen litigant, a criminal alien litigant, who has already had two bites at the apple: a hearing before an Immigration Law Judge, and another hearing before the Bureau of Immigration Appeals. We have filing rules in order to facilitate the administration of the courts. If the filing rules are to be bent in the service of people who don’t follow them, why have any rules at all? Let’s just have a free-for-all. Let’s see how long our court system lasts when we have to bend over backwards for people who don’t properly file their paperwork. Mr. Paul had been convicted of a felony probably in 1999, gone through 2 rounds of deportation hearings that ended in 2001, and now this decision comes down in October 2003- is it in the interests of justice that it takes over 4 years to deport a criminal alien? And with her decision she re-opens the man’s case. That means in 2004, he is going to get to state his case in the Court of Appeals, and then the Court of Appeals may order the case remanded to the Bureau of Immigration Appeals for proceedings consistent with her ruling, in which case it could drag out at least until 2005. That makes 6 years to deport a criminal alien. Is that travesty of an immigration system “in the interests of justice”? There are many millions of people who would like to emigrate to the United States. This man had his chance and messed it up. Horror of horrors that a person convicted of a violent felony might have to go back to a tourist destination such as Jamaica!

Under the law as I learned it, a court or agency only commits an abuse of discretion if no reasonable interpretation can be found for their action. However, I just made a strong case that it was not in the interest of justice to transfer Richard Paul’s case. Therefore, there was no abuse of discretion. It seems to me that Sotomayor’s decision is of extremely poor reasoning, and I wonder if the reason for that is because she was forcing the case to turn out the way she wanted it—to protect the immigrant, even if it means imposing unworkable rules on our judicial system.


1By the way, this exposes the fallacy that judges don’t make law. They make law that governs the lower courts and agencies over which their court has jurisdiction. And if a judge is on the Supreme Court of the United States, their rulings make law that governs everybody in the United States. Now if you followed the Sotomayor hearings, she avowed, “I don’t make law. Congress makes law.” That is false. But that is okay, all the Supreme Court nominees say that. They have to show deference to the legislative branch (Congress) in order get through the nomination process.


This was the second installment of attorney Charles Breiterman's review of immigration decisions authored by Sotomayor. The first part appeared on Friday and can be accessed by clicking here.

CHARLES BREITERMAN is an attorney and writer/researcher with NumbersUSA

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Interior Enforcement

Updated: Mon, Jul 20th 2009 @ 10:35pm EDT

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