This case is about the legality of a rule change proposed August 3, 2020 by the Department of Homeland Security (DHS), which was set to go into effect October 2, 2020. The Final Rule (specifically, the USCIS Fee Schedule & Changes to Certain Other Immigration Benefit Request Requirements, 85 Fed. Reg. 46,788) increased the cost of applying for immigration benefits, including naturalization and asylum. The plaintiffs, eight non-profit organizations that provide a variety of services for low income applicants for immigration benefits, filed this lawsuit on August 20, 2020 in the U.S. District Court for the Northern District of California against the acting secretary of the DHS, the senior official performing the duties of deputy secretary of the DHS, and the United States Citizenship and Immigration Services (USCIS).

Represented by the American Immigration Lawyers Association and private counsel, the plaintiffs sued under the Administrative Procedure Act (5 U.S.C. § 706) and sought an injunction against the enforcement of the Final Rule, a stay against its enforcement, and declaratory relief. The plaintiffs asserted that the Final Rule was procedurally defective, contrary to law, and arbitrary and capricious under the Administrative Procedure Act (“APA”). The plaintiffs further asserted the Final Rule violated the Fifth Amendment’s Due Process Clause and the Fourteenth Amendment’s Equal Protection Clause by denying indigent people the right to access a statutory process for seeking immigration benefits. Finally, the plaintiffs alleged violations of the Homeland Security Act, the Federal Vacancies Reform Act of 1998 and the Appointments Clause of the United States Constitution. Specifically, they argued that the two individual defendants had assumed their positions without constitutional or statutory authority, so the rule was void.

In their complaint, the plaintiffs outlined the fee increases proposed by the Final Rule, and in particular, they highlighted the increase in price for asylum seekers: from $0 to $630. The rule, for the first time in U.S. history, would charge a non-waivable fee of $50 to apply for asylum plus $580 to obtain their first employment authorization for all asylum seekers. The USCIS and DHS’s budgets would increase by 21% as a result of these and other changes in the rule. By switching from ability-to-pay principles on which the plaintiff’ organizations relied to a beneficiary-pays principle, the plaintiffs contended the Final Rule would transform the purpose of the USCIS from “adjudicating immigration benefits to one that serves this Administration’s goals of reducing immigration and naturalization for low-income applicants and deterring asylum seekers.” 2020 WL 4930113.

On August 25, 2020, the plaintiffs filed a motion for a preliminary injunction.

Judge Jeffery S. White granted the motion on September 29, 2020. While he pointed out that “the Immigration and Nationality Act (“INA”) permits USCIS to impose a fee “for the consideration of an application for asylum [and] for employment authorization” so long as the fees do not “exceed the Attorney General’s costs in adjudicating the applications,” 8 U.S.C. § 1158(d), he held that the plaintiffs’ claim that the Acting Secretary of DHS was not validly serving in office was likely to succeed. Moreover, the court held that the plaintiffs were likely to succeed on at least some of their APA claims. The court agreed with the plaintiffs’ allegation that “a more detailed justification” was required for the “significant departure” from the ability-to-pay principle to the beneficiary-pays principle. Because the defendants only looked at past data, and the U.S. had never charged a fee for asylum seekers before, the defendants failed to consider the effect of the decrease in ability to pay both on the plaintiffs’ organizations and the asylum seekers themselves. 2020 WL 5798269.

The court also held that the plaintiffs successfully established a likelihood of irreparable harm. The haste with which the plaintiffs filed their complaint after the rule change was proposed (within three weeks) supported their claim of urgency, and their showing of the need to significantly alter their programs to the determent of the population they served supported their claim of harm. Finally, the court found that the public interest would be served by the injunction. The court found that the public interest would be served both by not exposing vulnerable and low-income applicants to further danger and, in regard to the probable invalidity of the appointment, by avoiding an overreach of executive power. 2020 WL 5798269.

As the validity of the entire Final Rule was called into question by the court’s findings, Judge White held it “appropriate to stay the effective date of the Final Rule pending resolution of the merits in this case.” 2020 WL 5798269.

The case is currently ongoing.

Madeline Buday - 10/29/2020


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