SAN FRANCISCO (CN) — Drastic hikes on fees paid by immigrants to apply for asylum, work permits and U.S. citizenship should be voided, immigrant advocates claim in a new lawsuit, because the fee increases were enacted under two department heads who had been improperly appointed to their positions.
In a final rule published in the federal register Aug. 3, the Department of Homeland Security more than doubled the fee to apply for U.S. citizenship, from $700 to $1,710 — $1,610 for online applications — and narrowed fee-waiver eligibility. 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.
Immigrant Legal Resources Center, a San Francisco based nonprofit, and seven other immigrant advocacy groups challenged the fee hikes in a lawsuit filed against acting Homeland Security Secretary Chad Wolf and acting U.S. Citizenship and Immigration Services (USCIS) director Ken Cuccinelli on Friday.
“With DHS’s new fee rule, the Trump administration has demonstrated its willingness to disregard the rule of law in pursuit of its anti-immigrant and xenophobic agenda,” said Melissa Rodgers, programs director for the Immigrant Legal Resource Center, in a statement Friday.
The immigrant advocates say the final rule is invalid because it was proposed by former acting Homeland Security Secretary Kevin McAleenan and finalized under Wolf, both of whom were found to have been improperly appointed by a government watchdog last week. The Government Accountability Office found McAleenan and Wolf did not follow the proper order of succession after former Homeland Security Secretary Kirstjen Nielsen resigned in April 2019. That report followed a federal judge’s ruling in March that concluded Cuccinelli’s appointment was also invalid.
Beyond challenging the legitimacy of the agency’s leaders, the groups also claim Homeland Security was motivated by “racial animus” toward people from nonwhite-majority nations. They say the agency also failed to provide a “cogent explanation” as to why the fee hikes are needed.
USCIS said it had to increase fees by 20% on average to help cover operational costs because its previous fee schedule would have left the agency underfunded by $1 billion per year.
“These overdue adjustments in fees are necessary to efficiently and fairly administer our nation’s lawful immigration system, secure the homeland and protect Americans,” said Joseph Edlow, USCIS deputy director for policy, in a July 31 statement.
The immigrant advocates say Homeland Security failed to explain what happened to its $400 million budget surplus, how it spent a $1 billion carryover from fiscal year 2017, why it expects a $1.4 billion increase in costs, or how the extra revenue from fee hikes will be spent.
The department said the extra revenue will pay for new hires, salary raises and “net additional costs.” The plaintiffs say Homeland Security leaves 63% of new revenue spending “completely unexplained.”
Immigrant advocates say the fee hikes are also illegal because Homeland Security plans to use them to cover things like immigration enforcement, which is outside the scope of USCIS’s mission of processing and adjudicating immigration applications.
Additionally, the plaintiffs complain that imposing nonwaivable fees on asylum applicants contradicts the protections Congress intended to provide for those fleeing persecution in foreign countries and seeking refuge in the United States.
“USCIS is trying to impose a fee for first-time asylum seekers in contrast to what Congress has specified — that filing for asylum should be free,” said Kaveena Singh, managing attorney for co-plaintiff East Bay Sanctuary Covenant. “Asylum seekers often have been forced to flee for their lives to escape persecution and arrive in the U.S. with nothing more than the clothes on their backs.”
The lawsuit claims Homeland Security violated the Due Process Clause of the Fifth Amendment by failing to consider the financial circumstances of asylum applicants. It further accuses the agency of violating the Regulatory Flexibility Act by reaching the “unsupported and irrational” conclusion that the rule will have no significant impact on small businesses.
Homeland Security was also motivated by a “discriminatory purpose” to impose hardships on people of color when it passed the rule in violation of the Equal Protection Clause of the Fifth Amendment, the plaintiffs say.
Other claims include violations of the Federal Vacancies Reform Act, appointments clause of the Homeland Security Act, and Administrative Procedure Act.
The plaintiffs seek a preliminary and permanent nationwide injunction to deem the rule invalid.
Other plaintiffs in the lawsuit include the Coalition for Humane Immigrant Rights, Catholic Legal Immigration Network Inc., International Rescue Committee, OneAmerica, Asian Counseling and Referral Service, and Illinois Coalition for Immigrant and Refugee Rights.
A USCIS spokesperson declined to comment on the litigation.