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More on Judge Sotomayor

As part of our continuing coverage of the opinions of Judge Sonia Sotomayor, this post focuses on cases in which the question before the court was (or subsequently became) the basis for a circuit split or was later overruled by either the Second Circuit or the Supreme Court.  Notably, in five of the six circuit split cases that we reviewed, the position adopted by the Second Circuit had been (or later was) adopted by at least one other circuit; in the sixth case, although Sotomayor wrote for the panel in adopting a pro-immigrant rule, the panel ultimately ruled in the government’s favor on the facts. 

In Elkimiya v. DHS, 484 F.3d 151 (2007), Judge Sotomayor wrote for the panel in a case brought by Abdelaziz Elkimiya, a Moroccan citizen who was granted lawful permanent resident status in 1976 but subsequently left the U.S. for a four-year period, after which he returned to the U.S. and sought admission as a lawful permanent resident.  The INS denied his application for admission and ordered him to appear, contending that he was “removable” (i.e., deportable).  He was unsuccessful in a series of immigration proceedings that followed, bringing his case to the Second Circuit.  Because he had been detained by immigration officials, he sought bail pending that court’s consideration of his petition for review of the BIA’s decision against him.  Applying an earlier Second Circuit decision allowing courts to grant bail to immigrants seeking habeas relief, the panel extended that decision to apply to immigrants such as Elkimiya who were seeking bail while in federal custody pending the court of appeals’ consideration of their petition for review of a BIA order.  That conclusion, the panel explained, was “further buttressed by the fact that the REAL ID Act” – which postdated its earlier decision – “made no mention of the federal courts’ inherent authority to admit to bail those individuals detained by the INS.  Congress is presumed to be aware of a judicial interpretation of a statute such as AEDPA or IIRIRA . . .  and the Real ID Act’s silence regarding our holding . . . constitutes an implicit adoption of our interpretation . . . .”  But although the panel held that it had authority to grant an application for bail, it nonetheless denied Elkimiya’s application, reasoning that “he has failed to demonstrate extraordinary circumstances making the grant of bail necessary.”  The Seventh Circuit – in a panel comprised of Judges Posner, Easterbrook, and Kanne – reached the contrary conclusion a few months later in Bolante v. Keisler, 506 F.3d 618 (2007).  It acknowledged but rejected the Second Circuit’s decision in Elkimiya.  In its view, Congress had effectively prohibited courts from granting an alien bail:  immigration laws require an alien seeking asylum to be detained pending consideration of his application; although the Attorney General may grant the alien parole and release him, that decision is unreviewable.  “To allow a court to admit such an alien while he is challenging a removal order would be inconsistent with these provisions.” 

In Iavorski v. U.S. INS, 232 F.3d 124 (2000), cert. denied, 2001 U.S. LEXIS 5490 (2001), Sotomayor wrote for the panel in reaching a result similar to that in Elkimiya – leaving open the possibility of relief for a hypothetical alien, but denying that relief in the case before it.  The panel thus held that the filing deadline for motions to reopen a deportation proceeding may be equitably tolled based on the ineffective assistance of counsel, reasoning that it had found no evidence that Congress intended to create a jurisdictional bar to such motions.  However, it also found that Iavorski had not exercised due diligence during the two-year period that he sought to have tolled.    By contrast, eight years later in Afanwi v. Mukasey, 526 F.3d 788 (2008), the Fourth Circuit denied a motion to re-open based on the ineffective assistance of counsel, who had failed to check his mail until it was too late to file a petition for judicial review.  While acknowledging that other courts of appeals, including the Second Circuit in Iavorski, would allow the possibility of a motion to re-open based on ineffective assistance, the panel rejected those holdings, concluding instead that “retained counsel’s ineffectiveness in a removal proceeding cannot deprive an alien of his Fifth Amendment right to a fundamentally fair hearing.” 

In Gilchrist v. O’Keefe, 260 F.3d 87 (2001), Sotomayor wrote for the panel, which rejected an inmate’s claim that he was unconstitutionally deprived of his right to counsel during his state sentencing proceeding when the trial judge declined to appoint a new attorney to replace the attorney who withdrew after the inmate punched him in the head.  The panel acknowledged that it might have reached a different result on a direct federal appeal, and it encouraged courts to take “intermediate steps . . . [to] consider whether the protection of counsel can be thoroughly assured by other means,” but it explained that it could not “say, under the deferential standard applied in habeas review, that the state courts here acted in a manner that was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court.”  Seven years later, in Gray v. Moore, 520 F.3d 616 (6th Cir.), cert. denied, 2000 U.S. LEXIS 5767 (2008), the Sixth Circuit considered a similar issue – whether a defendant’s constitutional rights were violated by his removal from the courtroom without warning – and reached the opposite conclusion.  It explained that although the Second and Third Circuits had held that “trial courts may eschew the warning requirement when a defendant engages in extremely unruly behavior,” in its view the Court’s decision in Illinois v. Allen, 397 U.S. 337 (1970), established precisely such a “warning requirement.”  

In Dulal-Whiteway v. U.S. DHS, 501 F.3d 116 (2007), the panel (in an opinion by Judge Sotomayor) held that the Board of Immigration Appeals – and, before it, an immigration judge – erred when, in finding that Dulal-Whiteway was removable, it relied on a restitution order to determine that he had been convicted of an offense “involv[ing] fraud or deceit in which the loss to the victim or victims exceeds” ten thousand dollars.  “By permitting the BIA to remove only those aliens who have actually or necessarily pleaded to the elements of a removable offense,” the panel explained, “our holding promotes the fair exercise of the removal power.”  In Arguelles-Olivares v. Mukasey, 526 F.3d 171 (2008), the Fifth Circuit “recognize[d] . . . disagreement among the circuit courts as to how the amount of loss involved in a prior criminal conviction may be ascertained in civil removal proceedings.”  It rejected the position taken by the Ninth Circuit and the Second Circuit in Dulal, holding instead that a pre-sentence report could be used as evidence of the amount of loss when there was clear and convincing evidence that it accurately reflected that amount.  The question is currently before the Supreme Court in Nijhawan v. Holder (No. 08-495); the case was argued in April, and a decision is expected by the end of June.

In Parker v. Columbia Pictures, 204 F.3d 326 (2d Cir. 2000) (covered in more detail here), she was the author of an opinion that followed decisions of several other circuits applying Title VII’s “mixed motive” analysis to the Americans with Disabilities Act (ADA); the Sixth Circuit has reached a contrary holding.  See, e.g., Hedrick v. Western Reserve Care System, 355 F.3d 444 (6th Cir.), cert. denied, 2004 U.S. LEXIS 5634 (2004).

 In Campusano v. United States, 442 F.3d 770 (2006) (covered in more detail here), the court held that a defendant who waives his right to appeal in a plea agreement is presumed to receive ineffective assistance when his counsel disregards his request to file an appeal.  Two circuits – the Third and Seventh – reached a contrary result, but the Seventh Circuit in Nunez v. United States, 546 F.3d 450 (2008), acknowledged that their holdings were at odds with the decisions of seven other circuits, including the Second in Campusano.

In In re Visa Check, 280 F.3d 124 (2001) (discussed in more detail here), Judge Sotomayor wrote for the panel in holding that a district judge considering a motion for class certification should not “weigh conflicting expert evidence” but instead determine only whether the plaintiff’s expert testimony was “fatally flawed” and “thus inadmissible.”  That standard was subsequently overruled in In re IPO, 471 F.3d 24 (2d Cir. 2006), which held that the trial court may resolve factual disputes that go to the elements required for class certification, even if the issues overlap somewhat with the merits of the claim. 

We have previously discussed here and here Judge Sotomayor’s opinions for the Court in the Malesko, Riverkeeper, and Dabit cases, which were subsequently reversed by the Supreme Court, as well as the opinion in Rudkin, in which the Supreme Court affirmed the result reached by the Second Circuit but rejected that court’s reasoning.   The Supreme Court also overruled the pro-government position adopted by the Second Circuit in United States v. Gallego, 191 F.3d 156 (1999), cert. denied, 2000 U.S. Lexis 754 (2000).  In that case, Judge Sotomayor wrote for the panel, which rejected the defendants’ argument that the district court’s admission of a plea allocution violated their rights under the Confrontation Clause.  Relying on existing Supreme Court precedent, the panel agreed with the majority that the plea allocution – which prosecutors used to help establish the existence of a conspiracy – “possessed sufficient guarantees of trustworthiness to justify its admission into evidence.”  And in any event, the panel continued, even if the admission of the allocution were error, “any such error would have been harmless.”  Five years later, the Supreme Court overruled its own precedent to hold in Crawford v. Washington, 541 U.S. 36 (2004), holding that when testimonial statements are at issue, confrontation is the only indicum of reliability that can satisfy constitutional demands.  The Court cited Gallego – among others – as a case that “add[s] insult to injury” by “find[ing] reliability in the very factors that make the statements testimonial.”  The Court continued:  “That inculpating statements are given in a testimonial setting is not an antidote to the confrontation problem, but rather the trigger that makes the Clause’s demands most urgent. It is not enough to point out that most of the usual safeguards of the adversary process attend the statement, when the single safeguard missing is the one the Confrontation Clause demands.”