Advocate Groups Challenge Legitimacy of Immigration Fee Hikes

In this Tuesday, July 16, 2019, file photo, people wait to apply for asylum in the United States along the border in Tijuana, Mexico. (AP Photo/Gregory Bull)

OAKLAND, Calif. (CN) — Drastically heightened fees for immigrants applying for U.S. citizenship, asylum and work permits will go into effect next week, absent a federal court order barring the move immigration officials claim is necessary to cover operational costs.

The Department of Homeland Security’s final rule, published in the federal register on Aug. 3, will more than double the citizenship application fee, from $700 to $1,710, or $1,610 for online applications, and make it harder to qualify for a fee-waiver.

The agency also created the first-ever nonwaivable $50 fee for asylum applications, increased work permit application fees from $410 to $550 and added new biometric services fees of $30 to $85 to multiple immigration-related applications.

Immigration advocacy groups have challenged the rule in California, Massachusetts, and in the District of Columbia, where they asked a federal judge for an injunction in a hearing Thursday.

On Friday, it was U.S. District Judge Jeffrey White’s turn to hear arguments on whether the rule should be invalidated.

In addition to weighing the competing financial interests at stake, White said the fee hike “raises series issues on constitutional checks and balances and the limit to executive power.”

Immigrant advocates say the final rule is invalid because it was proposed by former acting Homeland Security Secretary Kevin McAleenan and later finalized by Chad Wolf, the current acting Homeland Security Secretary. 

The Government Accountability Office, an independent watchdog, concluded that McAleenan and Wolf were improperly appointed to their posts following the resignation of DHS Secretary Kirstjen Nielsen in April 2019. 

Just 24 hours before she resigned, Nielsen declared McAleenan as her successor, though he was third in the line of succession in his post as commissioner of Customs and Border Protection.

Wolf, who replaced McAleenan as the head CPB, became acting secretary of Homeland Security upon McAleenan’s resignation in November.

In March, a federal judge ruled the Trump administration also unconstitutionally selected co-defendant Ken Cuccinelli to head the U.S. Citizenship and Immigration Services. 

Attorney Samina Bharmal with Sidley Austin LLP, representing the San Francisco-based non-profit Immigrant Legal Resources Center, argued that McAleenan and Wolf violated the order of succession. Bharmal said “acting” officials serving in their positions long-term has been an ongoing issue with the Trump administration.

President Donald Trump is currently in the process of officially naming Wolf as head of DHS. 

When White asked whether Wolf was validly in office, Justice Department lawyer Brian Craigmyle said Wolf’s recent nomination allows him to skirt the 210-day time limit imposed on acting service by the Federal Vacancies Reform Act. The nomination, Craigmyle said, effectively “resets the clock.”

The immigrant groups claim the government is attempting an “end run around the FVRA” so Wolf can continue to serve.

Apart from questioning Wolf’s legitimacy, the groups claim the department failed to “cogently explain” why the fee hikes are necessary.

“The agency has not provided enough information for us to know if these extremely high costs are for statutory purposes,” Bharmal said. “It’s not clear what these costs are being used for.”

“Is this money going for a [border] wall?” White joked to Justice Department lawyer Julie Straus Harris.

 “Respectfully your honor, no,” said an unamused Straus Harris, who said U.S. Citizenship & Immigration Services is a fee-funded agency.

“There is a growing backlog in adjudication. The funds coming in are not sufficient to staff and process all those adjudications as promptly as the plaintiffs’ service populations would like. The increased fees are intended to address that,” she said.

While Bharmal said her clients would like White to set aside the entire rule, White may go through each fee individually to determine to what extent each causes irreparable harm. White said he counted 52 fees at issue.

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