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  1. New Sup. Ct. Choice Views President As Emperor. This May Protect Trump From Mueller, But Be Devastating For Immigrants - And Democracy. Roger Algase

    It should be easy for even a casual observer of the Supreme Court and of what passes for the "Rule of Law" in the Trump administration to see why Trump picked D.C. Circuit Judge Brett Kavanaugh for the Supreme Court stop made vacant by Justice Anthony Kennedy's retirement. The most likely immediate reason for this appointment can be summed up in two words: Robert Mueller.

    As Slate's legal analyst Dahlia Lithwick writes on July 10:

    "...Kavanaugh has been extraordinarily transparent - perhaps even too transparent - about his affinity for broad constructions of executive power. Nevertheless, the president - whose administration is currently the subject of a wide-ranging criminal investigation - somehow chose the judge who's most likely to endorse the Trumpian view that this is all a massive with hunt, this despite the gamble that Kavanaugh's selection makes him [Trump] look guilty."

    https://slate.com/news-and-politics/...ts-a-gift.html

    However, the issue involved in Kavanaugh's selection goes far beyond what Lithwick pungently - and accurately - describes as follows:

    "The president picked a guy he hopes will hand him a get-out-of-jail-free-card."

    The broader issue is what having Kavanaugh, with his view of virtually unlimited presidential power, on the High Court could mean for America's immigration system - especially the officially color-blind, race and religion neutral one which America has had for the past half century and which Trump, with the support of his two top immigration advisers and enforcers, Stephen Miller and Jeff Sessions, is now fighting so furiously to overturn.

    And beyond that, America's democracy itself could be in acute danger from a president supported by a Supreme Court majority which may now be even closer to putting that president completely above the law, not only with respect to immigration policy, but with respect to to our Constitution, Separation of Powers and our entire system of government.

    To illustrate how confused Kavanaugh appears to be about the difference between a US president and an emperor, here is a quote (from Lithwick's article) from his dissent in a 2011 D.C. Circuit Court case involving the Affordable Care Act:

    "Under the Constitution...the President may decline to enforce a statute that regulates private individuals when the President deems that statute unconstitutional, even if a court has held or would hold that statute constitutional."

    George Mason University law professor Ilya Somin writes the following about Trump's choice of Kavanaugh on July 9:

    "I am far less enthusiastic about Judge Kavanaugh's support for broad executive power in the national security realm. History shows that excessive judicial deference in this field has led to serious abuses. I am also skeptical of Kavanaugh's advocacy of the 'unitary executive' theory - the idea that nearly all executive power must be concentrated in the hands of the president."

    Professor Somin continues:

    "This theory was sound in a period where the scope of executive power was confined to its comparatively narrow original bounds. But it is both dangerous and contrary to the original meaning to concentrate so much authority in one person's hands in an era when the executive wields vastly greater power than was granted at the time of the founding."

    https://reason.com/volokh/2018/07/09...on-the-kavanau

    How might this imperial view of executive power play out in the area of immigration policy in the "Donald Trump Era", especially now that the Supreme Court has just, in effect, ruled that it is acceptable for the president to use "national security" as a fig leaf to cover his program of overt religious discrimination against immigrants seeking to enter the US in its latest Muslim Ban decision?

    What effect would this doctrine of concentrating such great power in the hands of a single Leader have in the case of a president who has criticized America's entire immigration system as the "dumbest" in the world and has threatened to "close up our country" against immigrants from Central America and other places which he blasts as "shithole countries" which are "not like Norway"?

    What happens, for example, if the president, in exercise of this imperial executive power, decides to stop issuing legal visas to immigrants seeking entry in immigration categories which he doesn't happen to favor and is trying to force Congress to abolish, but which are still valid according to the law of the land?

    I refer specifically to the extended family immigration and Diversity visas which Trump obviously hates and has denounced in speech after speech (because they permit immigrants with darker skins than Trump prefers to come to the US), but which cannot by any rational argument be shown to pose the slightest danger to national security.

    I will explore this and other similar questions about the prospect of uncontrolled one-man presidential power over immigration, and its relation to the continued viability of the United States as a democracy, in further detail in a forthcoming comment.
    _________________________
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants obtain work visas and green cards. His practice focuses on specialty occupation (H-1B) and extraordinary ability (O-1) work visas; and green cards through Labor Certification, and though marriage or other family relationships.

    Roger also writes about immigration law from the standpoints of racial equality, equal justice before the law and fundamental human rights, all of which are now under unprecedented attack. Roger's email address is algaselex@gmail.com








    Updated 07-12-2018 at 10:59 AM by ImmigrationLawBlogs

  2. An Update on LIFO and the Asylum Backlog (or, The Fix that Wasn’t)

    On January 29, 2018, the Asylum Division changed the way it prioritizes cases. Since 2015, asylum applicants were being interviewed in the order that their cases were filed. Oldest cases first, followed by newer cases (“first in, first out” or FIFO). During this period, the number of people waiting for an interview—the backlog—grew and grew.

    Now, under the new system, cases are interviewed on a “last in, first out” basis or LIFO. This is basically the same system we had prior to 2015. The backlog began under the pre-2015 LIFO because the Asylum Offices did not have the people-power to interview everyone who applied for asylum. The result: Some cases were interviewed, while others “disappeared” into the backlog. Because this was unfair to “disappeared” applicants, the Asylum Division eventually switched to FIFO, which had the virtue of being more fair, but did nothing to ameliorate the backlog.


    Most experts believe the backlog will be resolved by the late 25th century. Biddi biddi biddi.

    Under the Trump Administration, what’s old is new again, and so we are back to LIFO. How is LIFO working out? Some new data from USCIS gives us an idea. The short answer, if you don’t have time to read this whole post, is that the backlog is not about to be resolved any time soon. So if you are currently stuck waiting for an asylum interview, you might want to get comfortable, as you’ll probably be waiting for a while (or you can try to expedite your case). If you have time to keep reading, let’s look at where we are, and how you can best navigate through LIFO-land.

    First, as of March 31, 2018, there were 318,624 asylum applications pending in the backlog. That’s “applications” not “applicants.” Since some applications include multiple family members, the number of people stuck in the affirmative asylum backlog is probably quite a bit higher than 318,624.

    In response to the backlog, the Asylum Division has taken several actions. For years now, they’ve been staffing up. According to a recent report from the USCIS Ombudsman, since FY 2016, the number of Asylum Officers has increased from 533 to 686 (and they continue to hire – if you want to sign up, check out this job posting). Since we've dramatically reduced the number of refugees coming to the U.S., Refugee Officers have more free time, and so they are being rotated through the Asylum Offices on 12-week stints. We are also expecting a new National Vetting Center (in 2019 or 2020) that will deal with security checks and fraud issues, in order to free up more time for Asylum Officers to do their work. All these changes should allow the Asylum Offices to process more cases.

    We also now have LIFO. Under this system, the Asylum Offices prioritize cases as follows: First priority are rescheduled interviews, whether the interview was rescheduled by the Asylum Office or the applicant. Second priority are asylum applications that have been pending less than 21 days. This does not mean you will receive an interview within 21 days of filing. Rather, cases less than 21 days old will receive priority to be scheduled for an interview. Third priority are all other affirmative cases, including the 318,624 currently in the backlog.

    According to the Ombudsman’s report, not all new cases will receive priority for an interview:

    Cases subject to interviews at “circuit ride” locations (generally a USCIS field office situated closer than the asylum office to an applicant’s residence) will not fall under the 21-day time frame. Rather, the Asylum Division will schedule these cases for interviews as resources permits.

    This means that if you want a quick interview, you have to live in a location that is covered by one of the main offices or a sub-office (Arlington, Boston, Chicago, Houston, Los Angeles, Miami, Newark, New York, New Orleans or San Francisco), as opposed to a “circuit ride” location, which is a USCIS field office that is visited periodically by Asylum Officers (there are many, but some examples are Atlanta, Buffalo, and Seattle). I do not know of an on-line listing of areas covered by circuit ride locations, but I suppose you can email your Asylum Office to ask. If you live in a circuit-ride area, you can ask to be interviewed in a main office--sometimes they accommodate such requests.

    Assuming you file at one of the main or sub-offices, the likelihood of actually receiving an interview (as opposed to disappearing into the backlog) varies by office. The chart below is based on very preliminary data from the Asylum Division. It shows the (very approximate) likelihood of having your case interviewed in each office.

    In the chart, “New Cases Filed” is the number of asylum cases filed in that particular office for March 2018. “Interviews” is the number of interviews actually conducted in March 2018 (as opposed to the number of interviews scheduled and then canceled, which is quite a bit higher). The percentage figure is the rough likelihood that an applicant in that particular office would have received an interview in March 2018. And the “Completed” column shows how many cases were completed during the month, which—when compared to the number of cases filed—gives an idea of how much the backlog grew or shrunk in that office for March 2018 (the +/- in the Completed column).

    Office New Cases Filed Interviews Completed
    Arlington 920 494 / 54% 408 / +512
    Boston 289 132 / 46% 178 / +111
    Chicago 550 675 / 100% 550 / +0
    Houston 751 583 / 78% 504 / +247
    Los Angeles 997 708 / 71% 1,243 / -246
    Miami 2,219 798 / 36% 920 / +1,299
    Newark 668 792 / 100% 865 / -197
    New York 802 690 / 86% 883 / -81
    New Orleans 206 166 / 81% 280 / -74
    San Francisco 653 529 / 81% 687 / -34

    There are some caveats to this chart. First, I compare new cases filed with cases interviewed to determine the likelihood that you will receive an interview in that particular office. This is an apples/oranges comparison since we don’t know how many of the interviews were newly filed cases, as opposed to rescheduled interviews or expedites. Worse, the cases interviewed were probably filed in January or February, since it takes some time to actually schedule the interview. This makes the comparison even less reliable. Second, this data is for only one month, and March was probably not a “normal” month, in that the system was still adjusting to the change from FIFO to LIFO. So how useful this chart is for predicting the likelihood of an interview going forward, I do not know. Finally, this chart was prepared by me. Using math. Since I’m no Ramanujan, you should take all this with a big grain of salt.

    That said, this is the best data we have, and maybe we can draw some tentative conclusions. For one, the backlog is generally growing, not shrinking. However, this varies by office. If your case is stuck in an office where the backlog is growing, it is unlikely that you will get an interview any time soon. If you are in an office where the backlog is shrinking, maybe you will eventually receive an interview. Also, if you are a new applicant and you want an interview quickly, you may be better off filing in Chicago or Newark, since they seem to be interviewing pending cases faster than they are receiving new cases (conversely, if you want a slower interview schedule, you are better off living in an area covered by a circuit ride location or an office where the backlog is growing). Again, all this is quite preliminary, and we will have to see how things progress when they release the next batch of data in a few months.

    Another bit of information we can glean from the Ombudsman report is that local asylum offices “report a 25 percent drop in affirmative receipts in the immediate aftermath of the change to LIFO scheduling." The implication/hope is that the new LIFO system is deterring people from filing frivolous asylum claims. I think there is another, more likely explanation, however. In my office, for example, when the Asylum Division switched from FIFO to LIFO, we stopped filing cases for a few months in order to adjust how we filed (under FIFO, we filed a bare-bones application, consisting of the I-589 form and the passport; under LIFO, we file a complete case, which takes much longer to prepare). My guess is that once people adjust to LIFO, there will be little change in the number of cases being filed (of course, since fewer aliens are coming to the U.S. these days, we can expect fewer asylum applications for that reason).

    One final piece of news is a pilot program to refer one-year bar cases directly to the Immigration Court without an interview. The Asylum Division has identified up to 50,000 pending cases where the applicant entered the U.S. more than 10 years before filing for asylum. Such people may have filed for asylum in order to be referred to Court, where they will seek other relief (most notably, Cancellation of Removal). So far, the Asylum Division has contacted about 1,500 such people, and given them the option to skip the interview and go directly to Court. Depending on the case, and the person's goals, this may be an attractive option for some, though I suspect anyone with a real fear of returning to the home country will prefer to have an asylum interview.

    So there you have it. It is probably too soon to draw any firm conclusions from the data at hand, but based on what we know so far, it seems likely that the backlog will be with us for the long term. Keeping informed about the Asylum Office's statistics and policies may allow some applicants to increase their chance for an interview. As more data becomes available, I will try to post that information here.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, backlog Add / Edit Tags
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