SAN FRANCISCO (CN) – A federal judge said Monday she will issue a nationwide injunction to block a Trump administration rule that makes it harder for immigrants to qualify for waivers of the citizenship application fee.
Following a nearly 3 1/2-hour hearing, Senior U.S. District Judge Maxine Chesney found the United States Citizenship and Immigration Services violated the law by failing to provide notice and an opportunity for public comment before finalizing the rule, which took effect Dec. 2.
Under prior agency policies, legal permanent residents could qualify for a waiver of the $725 application fee by proving they receive a “means-tested benefit” such as food stamps or Medicaid. The new rule, proposed in September 2018 and finalized on Oct. 25, requires applicants submit documentation showing their household income is within 150% of the federal poverty line or proving a financial hardship such as job loss or high medical bills.
Opponents say the rule will result in fewer immigrants applying for naturalization and becoming citizens, which will also harm the financial security and missions of organizations that serve them.
The city of Seattle and five organizations that help immigrants sued the Trump administration on Oct. 29, arguing the rule would force them to divert scarce resources, cause them to serve fewer clients and lose grant funding, and frustrate their missions to support those seeking U.S. citizenship.
Chesney rejected the Justice Department’s argument that such harms were “speculative” and based on the potential acts of third parties, such as institutions that fund the organizations or immigrants that may choose not to apply for citizenship because of the fees.
“They are showing how they are going to have to really cut back on who they are serving,” Chesney said.
Chesney also shot down the government’s argument that the rule was merely interpretive or procedural and therefore not subject to public notice and comment requirements under the Administrative Procedure Act.
Justice Department lawyer Julie Straus Harris insisted the government has wide discretion in deciding what “inability to pay” means because the term is undefined in the federal code of regulations.
Chesney was not convinced an ambiguous term gives the administration unfettered power to change what “inability to pay” means without a required rulemaking process.
“It seems you could call inability to pay anything you want,” Chesney said.
The judge concluded the agency’s policy change was a “substantive rule” that required notice and comment, rather than a simply “interpretive or procedural one” free from such conditions.
Chesney did not address alternate claims that the rule was arbitrary and capricious because the agency failed to provide a reasoned explanation on why the change was necessary.
The judge also made no findings on whether the rule was invalid for a different reason – because it was finalized under the leadership of Ken Cuccinelli, the acting director of Customs and Immigration. Opponents say Cuccinelli’s appointment in June was invalid because the Federal Vacancies Reform Act of 1998 requires a deputy director or Senate-confirmed official assume leadership of an agency when a vacancy occurs.
Cuccinelli’s appointment is being challenged in a separate lawsuit filed in Washington, D.C.
Though she made no findings on Cuccinelli’s legitimacy as acting director, Chesney gave strong hints as to her opinion on the subject.
“I’m not trying to create a palace coup here,” Chesney said. “I think there’s a problem with what happened there.”
Turning to the issue of irreparable harm, Chesney found the evidence convincing that plaintiff organizations have incurred costs and diverted resources in response to the new rule. In one example, the groups say they can no longer assist a large volume of fee waiver-eligible clients in one-day workshops “because those clients will require time-consuming and complex help with income- or hardship-based fee waiver applications,” according to their motion for a preliminary injunction.
Acknowledging the Ninth Circuit’s reluctance to permit nationwide injunctions in recent immigration-related cases, Chesney said she would be open to narrowing the injunction’s scope if such a limitation was practical.
Harris urged Chesney to curb the injunction’s reach, citing the Ninth Circuit’s recent decision to nix a nationwide injunction against a rule that makes it easier to deny immigrants green cards based on their use of public assistance programs such as Medicaid or Section 8 housing
The plaintiffs replied that anything short of a nationwide block would fail to prevent harms, including a future loss of funding resulting from fewer clients being served.
One of the plaintiffs, Catholic Legal Immigration Network Inc., serves clients in 49 different states and the District of Columbia.
“When the harm is nationwide, the relief should also be nationwide,” argued Niketa Patel, an attorney for the plaintiffs with Mayer Brown in New York.
Chesney was sympathetic to arguments against a nationwide injunction, but ultimately found no viable alternative to prevent harm to the plaintiffs.
“I’d be happy to limit it if I could,” Chesney said. “I understand the concern about one judge telling the whole country what they can do.”
Chesney asked the plaintiffs to draw up a proposed preliminary injunction order for the Justice Department to review and provide feedback. She said the injunction would likely be issued by Wednesday.
Other plaintiffs involved in the lawsuit were the Immigrant Legal Resources Center, Self-Help for the Elderly, OneAmerica and Central American Resources Center of California.