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Second Court Blocks Visa Fee Rule, Doubts DHS Chief’s Authority

Oct. 9, 2020, 3:59 PM

A second federal court has blocked U.S. Citizenship and Immigration Services from implementing its new visa fee rule, signaling another likely win for immigrant assistance groups that have challenged the measure.

The Northwest Immigrant Rights Project, Ayuda Inc., and Casa de Maryland demonstrated “a substantial likelihood that they will succeed on the merits” and that they will “suffer irreparable harm if the Final Rule is allowed to take effect,” U.S. District Judge Randolph D. Moss said in a ruling issued Thursday.

Moss also found that acting Homeland Security Secretary Chad Wolf acted “without authority” when he approved the visa fee final rule, released in July, and then later attempted to ratify that action and former acting DHS Secretary Kevin McAleenan’s issuance of the proposed rule. The judge sits on the U.S. District Court for the District of Columbia.

His ruling echos that of Judge Jeffrey S. White of the U.S. District Court for the Northern District of California, who blocked the visa fee rule from going into effect Sept. 29. Plaintiff groups in both cases claimed that the new fees for asylum seekers and increased costs for naturalization, in combination with the near elimination of fee waivers, effectively priced out the low-income immigrants these groups assist.

“DHS’s rule is an inhumane attack on low-income immigrants,” Rebecca Smullin, the Public Citizen attorney serving as lead counsel for the plaintiffs, said in an emailed statement. “We applaud the Court’s decision, which will protect immigrants’ ability to seek lawful status and become citizens.”

Moss granted the plaintiffs’ motion for a preliminary injunction and stayed the effective date of the regulation, except for those fees set by statute, pending resolution of this matter or further order of the court.

Scope of Injunction

The new regulation increased visa fees an average of 20%, and for the first time imposed fees on those seeking asylum in the U.S. Beginning Oct. 2, people filing for asylum would have had to pay a $50 fee, and if they wanted employment, they would have faced an additional $550 fee to apply for work authorization.

USCIS has said the fee increases are necessary to address a projected over $1 billion annual deficit the fee-funded agency faces, and that adjustments in fees are necessary to efficiently and fairly administer the country’s legal immigration system.

Moss found that the rule should be stayed in its entirety, because even with the shift from the “ability-to-pay” model to the “beneficiary-pays” model, some fees for more vulnerable immigrants are subsidized by other fees set at above full costs.

Moss agreed with the plaintiffs’ argument that the rule’s provisions are “‘intertwined,’” and that enjoining some but not all of the rule’s provisions would “‘severely distort’ DHS’s fiscal program,” he said.

A USCIS spokeswoman declined to comment on Moss’s opinion, but directed Bloomberg Law to the agency’s statement following the California ruling.

“This unfortunate decision leaves USCIS underfunded by millions of dollars each business day the fee rule is enjoined,” acting USCIS head Joseph Edlow said in September. “As required by federal law, USCIS conducted a comprehensive biennial fee review and determined that current fees do not recover the cost of providing adjudication and naturalization services. This is nothing new or abnormal.”

Attorneys from the Northwest Immigrant Rights Project and the Public Citizen Litigation Group represented the plaintiffs. The Justice Department represented USCIS.

Wolf has been formally nominated by President Donald Trump to serve as Homeland Security secretary. His confirmation hearing was last month. The Senate has not yet voted on it.

The case is Northwest Immigrant Rights Project et al. v. USCIS et al, 2020 BL 390226, D.D.C., No. 19-3283 (RDM), opinion 10/9/20.

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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