The Department of Homeland Security charges significant application fees for vital immigration benefits. Over the past year, DHS has taken a series of actions that could put immigration benefits such as naturalization, asylum, and employment authorization out of reach for low-income immigrants by making applications cost more. The first actions, in October 2019, were changes to forms and manuals adopted by DHS component U.S. Citizenship and Immigration Services (USCIS) to restrict the ways in which individuals could qualify for fee waivers. Then, on August 3, 2020, DHS finalized a new rule that reiterates many of the changes that USCIS had sought to make through the form and manual changes—and goes farther. The new rule will eliminate fee waivers for low-income immigrants in most circumstances, significantly increase existing fees for many important immigration benefits, and impose new fees on applications for other essential immigration benefits.
In October 2019, representing Northwest Immigrant Rights Project (NWIRP), Public Citizen challenged the first set of actions in the U.S. District Court for the District of Columbia. The complaint alleged that USCIS’s new form should have undergone notice-and-comment rulemaking; that the agency did not comply with the requirements of the Paperwork Reduction Act, and that the changes to the form, its instructions, and manuals are arbitrary and capricious. NWIRP filed a motion for summary judgment, and the government filed a cross-motion to dismiss and for summary judgment.
In August 2020, while the parties’ motions were still pending, DHS issued a new regulation. Public Citizen then sought to amend and supplement the complaint to challenge this latest DHS action, and to add Ayuda and CASA de Maryland as plaintiffs. The supplemental complaint alleges that the new rule also was adopted in violation of notice-and-comment requirements, is arbitrary and capricious, and violates provisions of the Immigration and Nationality Act. It also alleges that both the October 2019 actions by USCIS and the 2020 fee rule are invalid because they were adopted by individuals who were purporting to serve as acting DHS officials in violation of the Federal Vacancies Reform Act and the Homeland Security Act.
The Court allowed the new complaint to be filed. A few days later, we moved for a postponement of the rule’s effective date and a preliminary injunction.
On October 8, 2020, the court granted plaintiffs’ motion for a preliminary injunction and a stay of the rule’s effective date. In issuing the stay and preliminary injunction, the court concluded that plaintiffs were likely to succeed on their claim that the rule was arbitrary and capricious, because DHS failed to account for the harm it would cause and failed to grapple with the evidence that high fees will price immigrants out of applying for important benefits. In addition, the court concluded that plaintiffs were likely to succeed on their claim that Chad F. Wolf, who approved the final rule, was unlawfully serving as acting secretary of Homeland Security.