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  1. Bloggings: Republicans, the birther madness and immigration, by Roger Algase

    Now that the Republicans, led by the Tea Partiers, have persuaded a large part of the mainstream media to take their attacks on unions, social security, medicare and the other gains in social progress that America has made in the past one hundred years seriously under the pretext of fiscal responsibility, while successfully exploiting anti-immigrant prejudice in a time of high unemployment, it might make sense to think that the GOP would try to take advantage of the new respectablilty it has gained for its radical right wing political and economic agenda.  This is why it seems inexplicable that the Republicans would pick this particular time to cast themselves as clowns and buffoons by raising the birther issue over President Obama's legitimacy once again.
    The birther antics of people like Donald Trump and Sarah Palin almost seem designed to mock American voters for having taken their party too seriously. But there is nothing funny in the results of a poll that Ed Schultz mentioned on MSNBC on April 21, puportedly showing that 67 per cent of Republican voters are either not sure that President Obama was born in the US or firmly believe that he was not. If that poll is accurate, the Republicans, and the country, could be in deep trouble. Democracy itself depends on an informed public, not one that can be easily manipulated by the Big Lie into believing somethig that is patently absurd.
    This is, no doubt, why some Republicans leaders are choosing the side of sanity, at least on this issue. Governor Jan Brewer of Arizona, by vetoing a birther bill in her state, evidently realized that if she had signed it, critics would lump that law together with the state's immigration law as two examples of the Republicans' taking leave of their senses. By continuing to defend Arizona's immigration law while vetoing the birther bill, Governor Brewer is at least able to preserve her contention that the Arizona immigration law is a serious attempt to deal with an important issue, whether one agrees with the law or not. This would have been much more difficult for her if she had signed the birther bill. Some other Republicans, even extreme Tea Party radicals like Michele Bachmann, are reportedly having second thoughts about supporting the birther lunacy.
    Therefore, why are some Republicans still attempting to bring up the issue of President Obama's legitimacy, an issue which should have been stillborn? Because they cannot help themselves.  The birther controversy is about one thing and one thing only - whether a black person can be a legitimate US president.  This issue would never have arisen, much less gained so much publicity, if President Obama were white. The birther movement is nothing more than one more indication of how much at least some Republican leaders are so addicted to racist politics that they cannot change, even when the birther controversy threatens to do severe damage to their party and, in the case of Donald Trump at least, to their own personal reputations.
    It is also noteworthy that the birther issue is one that President Obama cannot resolve by his usual instinct of trying to split the difference with his opponents. Either he was born in the US or he was not - there is no middle ground. Or is there? If one looks east on a map starting from the western part of the Pacific Ocean, is not Hawaii somewhere in the broad middle between Indonesia and Kenya (give or take a few thousand miles)? The revival of the birther issue so close to next year's election also shows how slim the chances are of obtaining any Republican cooperation on immigration reform. Despite Governor Brewer's veto, birther politics and anti-immigrant politics are joined together at the hip - from the moment of birth.
  2. Are Well-Fed Judges More Likely to Grant Asylum?

    A recent study of parole judges in Israel demonstrates that the judges tend to issue more favorable decisions on a full stomach.  The study, by Shai Danzuger of Ben Gurion University, examines 1,112 parole board hearings in Israeli prisons.  In the chart below, the vertical axis represents the proportion of cases where the judges granted parole.  The horizontal axis shows the order that cases were heard throughout the day.  The dotted lines represent the points where the judges went away for a morning snack and a lunch break.

    The study controls for various factors, such as gender, ethnicity, and type of crime, and its conclusion-that the judges' decisions are strongly influenced by whether they've eaten-seems pretty convincing.  My question is: Does this study have any applicability to Immigration Judges or Asylum Officers?
    One reason to think that the study is not applicable to IJ's and Asylum Officers is that the Israeli judges ruled on 14 to 35 parole cases per day.  While IJs in Master Calendar Hearings often rule on more than 35 cases per day, such cases are rarely final decision where the alien is contesting removal.  Most final decisions occur during Individual Hearings, and IJs generally do not adjudicate more than four or five individual hearings per day (especially when those hearings involve asylum applications, which tend to take more time than other types of immigration cases).  Asylum Officers also have a much lower daily caseload than the Israeli judges.  Thus, the challenges faced by the Israeli parole judges are quite different from those faced by Asylum Officers and IJs in the United States.
    On the other hand, the study does point to the problem of fatigue as a factor in decision-making, and it makes sense that fatigue would affect IJs and Asylum Officers, all of whom are overworked and under pressure.  How-or whether-that fatigue affects asylum cases is not known.      
    Studies of asylum cases have shown that the results can be arbitrary (see, for example, this posting about the article Refugee Roulette) and that "unobservable factors," such as gender and education, may affect asylum decisions.  However, as far as I know, there has not been a study of how fatigue affects decision-making.  There is, however, significant evidence that IJs (and presumably Asylum Officers) are stressed out by the heavy case load and the difficult types of cases. 
    What, then, is the solution?  I suppose the easy answer is to hire more IJs and more Asylum Officers.  EOIR has been expanding the number of judges, but given our current budgetary woes and the vast number of cases, it is doubtful that a handful of new IJs will make a great difference in the overall stress level.  Another solution (which I don't love) is to simplify the system and eliminate some layers of review (for example, combine the Immigration Courts and the Asylum Offices into one body, which would handle all cases at the trial level).  A final thought is to encourage the BIA to issue more decisions (I have written about this before in the cleverly titled (if I do say so myself) blog post-The Unbearable Lightness of BIA-ing).  This would create more certainty and regularity in the system.  It certainly won't solve the problem, but it does seem like a reasonably easy way to improve efficiency.
    Fatigue, stress, and overwork are all factors that negatively affect decion-makers in the asylum system.  The more we can do to alleviate those problems, the better decisions we can expect.  In the mean time, I recommend that you bring the IJ a nice sandwich before your trial.  It couldn't hurt.
    Originally posted on the Asylumist:
  3. Bloggings by Roger Algase: Obama comes under pressure to curb deportations

    An April 21 article in the New York Times ("Latinos and Democrats Press Obama to Curb Deportations")  reports that the White House is coming under increased pressure from Congressional Democrats, Latinos and immigrant groups to slow down the rate of deportations by giving exemptions to certain classes of people, including those in same sex marriages with US citizens, students who would have benefited from the DREAM Act if it had passed and even, according to one proposal, parents of US citizen children.  The Republicans, led by anti-immigrant Senator Charles E. Grassley, are reacting with predictable fury against the supposed evils of "amnesty". The country is being split more than ever on racial lines, something that cannot bode well for the future of the Republicans, given the fact that Latinos and other minorities are increasing more rapidly than whites.
    One might think that purely out of strategic self-interest, the Republicans would at least try to slow down their lemming-like rush over the immigration cliff. The most likely explanation of their refusal to do this is that the GOP is so used to exploiting racial politics that it does not know how to change its course. The Republicans' pro-segregation "Southern Strategy" dating from the Nixon era is not so far in the past, and the transition from targeting African-Americans to targeting Latinos and other non-white immigrants has been almost seamless.
    But where is the Obama administration in all of this? As usual, the White House is trying to equivocate, split the difference and reach some kind of an accommodation with opponents who have no interest in compromise. Even though, to be fair, the administration claims to have given 34,448 exemptions from deportation, according to the same New York Times article, the White House insists that its goal is to push for an overhaul of the immigration laws, rather than to use its administrative powers to try to reduce the injustice and hardship of mass deportation.
    There is only one problem with this approach. It is as likely to succeed as the Roman poet Juvenal would have been in finding a "rara avis in terris, nigroque simillima cycno" ("a rare bird on earth, just like a black swan") in his Satire written 2,000 years ago, when black swans were not just rare, but completely unknown. With the 2012 election approaching and the Tea Party radicals in the ascendancy in Congress, the chances of compehensive immigration reform passing are more remote now than ever.
    The hypocrisy of the administration's approach is also apparent from the litigation over Arizona's immigration law. The administration has argued, so far successfully, that Arizona's effort to interfere with the federal government's discretion over immigration enforcement is unconstitutional. How can the president fight in court to uphold federal discretion over enforcement policy, while at the same time denying that he has the administrative power to slow down the mad rush toward deportation which is threatening to tear this country apart and betray its fundamental values as a nation of tolerance, fairness and opportunity for all?
  4. NPR Reports: A Year Later, Arizona Still Split Over Immigration

    by , 04-21-2011 at 05:28 AM (Matthew Kolken on Deportation And Removal)
  5. Early Season H-1B Musings

    by , 04-20-2011 at 11:32 AM (The H-1B Visa Blog by Siliato and Malyk)
    The early returns are in and projections for when the  H-1B cap will be reached for the 2011 season (FY 2012) have already begun.

    Unlike the April filings in 2007 and 2008, when the H-1B cap was reached during the first week (if not the first days), the last three (3) H-1B cap filing seasons (April 2009, 2010 and 2011) have seen a steady drop in early filings.  Indeed, in the first week of April 2009 there were approximately 42,000 cap subject petitions filed; in 2010, approximately 13,500; and this year, only 10,400 were filed in the first week.

    So, this begs the question of when will the FY 2102 cap be reached?  Based on the number of filings in the previous two (2) years, unless there is a dramatic economic turnaround in the U.S., a best guess would be sometime in February or March 2012. 

    Of course, the rate of cap subject filings over the last several years signifies that there is no real need for an H-1B cap in the first place. Outside forces, other than an arbitrary cap set by Congress years ago, now drive new H-1B usage, e.g. the fragile status of the U.S. economy and its direct effect on the high unemployment rate; increased scrutiny by USCIS regarding IT consulting companies who place H-1B workers at client sites (as a result of the "Neufeld Memo"); recent amendments to the H-1B regulations which have increased the fees for high users of the H-1B program; the limited period of authorized stay in such classification; the increased outsourcing of work from the United States to elsewhere abroad; increased opportunities to prosper in growing economies like India and China which have traditionally used large numbers of H-1B visas in the past; increased enforcement against those who do not abide by the rules of the H-1B program; and, of course, the increased availability of U.S. workers due to the steady 8 to 9% unemployment rate in the United States.

    As has been furthered by the authors of this blog on many occasions, as well as by many others far more erudite, the H-1B cap should be eliminated.  Of course, in today's political climate where Congress cannot even agree that passage of the Dream Act would be a sensible and compassionate form of relief for thousands of young foreign nationals of college age with nowhere to turn, it is more than wishful thinking that the H-1B cap will be eliminated anytime soon.
    Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP
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