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Immigration Law

Coalition Sues DHS Over USCIS Fee Rule

ILRC, Aug. 21, 2020

"The Immigrant Legal Resource Center (ILRC) today announced it had joined a coalition of 8 of the nation’s leading immigrants’ rights organizations in filing a lawsuit against the Department of Homeland Security (DHS), Chad Wolf, the United States Citizenship and Immigration Services (USCIS), and Kenneth Cuccinelli  over DHS’s new Fee Rule increasing application fees for immigration benefits, including citizenship and asylum. The coalition is seeking a nationwide injunction of the rule to prevent it from going into effect October 2, 2020. 

In their lawsuit, the coalition noted that DHS’s new Fee Rule violates the Administrative Procedure Act because it is contrary to law, and constitutes arbitrary and capricious agency action. The Rule raises application fees for many essential immigration benefits by 30 to 266 percent, while eliminating most fee waivers for qualifying low income immigrants. DHS justified the rule in part based on what it claims are the costs of processing applications. But during the notice and comment period, many criticized DHS for failing to explain how it calculated its skyrocketing costs and burned through ample cash reserves it had on hand just a few years ago. 

“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, Director of Programs for the Immigrant Legal Resource Center. “By failing to address the rule’s obviously flawed revenue modeling projections, the Trump administration has not only undercut its own legal rationale for finalizing the rule, it has contradicted USCIS’ own leaderships’ statements to Congress about the financial condition of the agency. Once again, the historic racism and bigotry of this administration is matched only by its staggering incompetence.”

DHS’s Fee Rule has been widely condemned for its exclusionary impact on vulnerable immigrant families, and particularly people of color. By raising naturalization fees by an unprecedented 83 percent, DHS has made the cost of obtaining citizenship prohibitively high for millions of eligible permanent residents, effectively imposing the United States’ first ever wealth test for citizenship. Through establishing the nation’s first-ever fee for asylum seekers, the Trump administration has also made the United States just one of four countries in the world to impose such a fee on people fleeing dangerous situations such as war or political persecution.

In their lawsuit, the coalition noted that the Immigration and Nationality Act prioritizes family unity and diversity. By deliberately making the cost of securing essential immigration benefits unobtainable for millions of immigrant families, the Trump administration’s policy makes family separation inevitable, and violates statutory and constitutional law. The coalition’s lawsuit also noted that neither Kevin McAleenan nor Chad Wolf, who is currently serving as Acting Secretary of the Department of Homeland Security, had valid authority to propose or promulgate the Rule under the Federal Vacancies Reform Act (FVRA). This makes the rule unlawful under the Administrative Procedure Act. On Friday, August 14 the Government Accountability Office issued a decision confirming that Acting Secretaries Wolf and McAleenan were invalidly appointed to their positions. The coalition argues that their invalid appointments render the Fee Rule void and without effect."