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U.S. Judge Blocks New Visa Fees Ahead of Oct. 2 Implementation

Sept. 30, 2020, 1:46 AM

The U.S. Citizenship and Immigration Services has been blocked from implementing its new visa fee rule, which was to go into effect Oct. 2.

Judge Jeffrey S. White of the U.S. District Court for the Northern District of California found the plaintiffs, advocacy organizations for vulnerable immigrants, are likely to succeed on the merits of their claims that acting Secretary of Homeland Security Chad Wolf is unlawfully serving in his role.

The judge also found the plaintiffs met their burden to show that the rule would have a negative impact on low-income immigrant populations. The ruling was issued late Tuesday.

White concluded that the rule should be blocked in its entirety, and that the heads of DHS and USCIS are enjoined from implementing or enforcing the final rule or any portion of it.

The Immigrant Law Resource Center and seven other organizations sued Aug. 21 over the finalized fee rule set to go into effect Oct. 2. The groups claimed that the new fees for asylum seekers and increased costs for naturalization effectively priced out the low-income immigrants those groups assist.

The rule was “a blatant attempt by the Trump administration to create financial barriers for asylum seekers, families, and would-be citizens in order to prevent them from obtaining United States residence or U.S. citizenship,” Melissa Rodgers, ILRC program director, said in a statement on the decision. “The injunction will ensure that millions of low income immigrants, applicants for naturalization, asylum seekers, survivors of domestic violence and survivors of human trafficking will be able to affordably apply for the immigration benefits they are eligible for.”

A spokesperson for USCIS said the agency was reviewing the ruling and had no further comment at this time.

DHS Succession

The groups’ arguments against Wolf’s legitimacy as acting Homeland Security secretary focused on a U.S. Government Accountability Office decision, issued by its Office of General Counsel Aug. 14, which said the incorrect official—Kevin McAleenan—assumed the title of acting DHS Secretary when the last U.S. Senate-confirmed secretary, Kirstjen Nielsen, resigned in April 2019.

At that time, according to the GAO decision, subsequent amendments to the order of succession made by McAleenan were invalid, and officials who assumed their positions under those amendments, including Wolf and Kenneth Cuccinelli, who briefly led the USCIS, were named by reference “to an invalid order of succession.”

DOJ attorney Bradley Craigmyle conceded in oral arguments on Sept. 25 that if White rejected the government’s reading of Nielsen’s April 9 order of succession document, then the fee rule “would have been promulgated without lawful authority.”

Plaintiffs’ attorney Samina Bharmal contended at the hearing for preliminary injunction that the agency’s defense of Wolf’s legitimacy was an “ad hoc justification” in violation of the Administrative Procedure Act, because the issue was brought up in public comments that the agency failed to take into consideration before promulgating the final rule.

She said opposing counsel was “cherry picking” the parts of the Federal Vacancies Reform Act that work in their favor, while ignoring provisions that don’t.

Relief for Asylum Seekers

For the first time, the final rule 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.

But individuals fleeing persecution or violence don’t have those kinds of resources when they first arrive in the U.S., advocates said, and without applicants, the organizations wouldn’t be able to continue their work.

The lawsuit also cited an 83% increase in fees for naturalization, from $640 to $1,170, and in some cases from $0 to $1,170 for applicants from the lowest income levels.

The plaintiffs sought to block the fee rule in its entirety because “flaws that are inherent in one fee are inherent in all,” Bharmal said at the hearing. “There are issues that permeate the entire rule.”

Bharmal cited the fee rule recounting of agency solvency, where before 2018 USCIS had “hundreds of millions in carryover,” then in 2019 and 2020 “we see a precipitous drop.”

To facilitate “meaningful comment” under the APA, the public needed to know where the money was going and what the agency was doing, Bharmal said. “And they failed to show that.”

Sidley Austin LLP is representing the plaintiffs. The Department of Justice is representing DHS.

The case is Immigrant Legal Resource Center et al v. Wolf, N.D. Cal., No. 4:20-cv-05883, opinion 9/29/20.

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

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com