The federal courts step in again to halt the executive branch from harming the interests of immigrants and organizations that serve them.
Eight non-profit organizations[1] dedicated to serving immigrants sued to stop the Department of Homeland Security (“DHS”) from increasing its filing fees for immigration benefits. Today, September 29, 2020, Judge White of U.S. District Court for the Northern District of California issued a preliminary injunction against the fee increase, which was scheduled to take effect on October 2, 2020.
The rule would have nearly doubled the fees for naturalization, and eliminated reduced fee options for those with lower income. It would have made the U.S. one of only four countries in the world to charge a fee to apply for asylum, and the only country to make it non-waivable. It would have more than doubled the cost of applying for permanent resident status by requiring separate filing fees for a work permit and the permission to travel while the application is pending; and by requiring additional filing fees for renewals of the work permit and travel permission. This would have put legal immigration financially out of reach for many.
The Plaintiffs’ first argument is that the rule is invalid because it was issued by people who were not properly in power. Kevin McAleenan was the acting Secretary of DHS when the rule was proposed, and Chad Wolf was (and remains) the acting Secretary of DHS when the rule was finalized. Their appointments violated the laws on what are supposed to be Senate-confirmed positions. “Defendants conceded at the hearing that if this Court rejects their arguments on this issue, which it does, the Final Rule would have been promulgated without lawful authority. Defendants arguments have been considered and rejected by two district courts and by the Government Accountability Office.”
The Plaintiffs’ other argument that was persuasive to the court is that the rule violated procedural law. DHS offered insufficient data to explain the need for the fee increase, and failed to consider important negative impacts. The fee increases could jeopardize their organizational mission to assist low-income immigrants to seek immigration benefits including naturalization and asylum. The fee increases also have a negative effect on the public interest, by delaying the ability of people to naturalize, vote, and serve on juries.
The court enjoined the rule from going into effect nationwide. If DHS appeals, it could file a motion to stay, meaning it could ask the court to allow the rule to go into effect while the appeal is decided. The situation remains fluid, so SGG encourages you to check with us for updates on the litigation and how it may affect your case. In the meantime, SGG congratulates and thanks ILRC, EBSC, CHIRLA, CLINIC, IRC, OneAmerica, ACRS, and ICIRR.
[1] Immigrant Legal Resource Center (“ILRC”), East Bay Sanctuary Covenant (“EBSC”), Coalition for Human Immigrant Rights (“CHIRLA”), Catholic Legal Immigration Network, Inc. (“CLINIC”), International Rescue Committee (“IRC”), OneAmerica, Asian Counseling and Referral Service (“ACRS”), and the Illinois Coalition for Immigrant and Refugee Rights (“ICIRR”).