Immigrant Legal Res. Ctr. v. Wolf

• Decision Date: 29 September 2020
• Docket Number: Case No. 20-cv-05883-JSW
• Citation: 491 F.Supp.3d 520
• Court: U.S. District Court — Northern District of California
• Parties: IMMIGRANT LEGAL RESOURCE CENTER, et al., Plaintiffs, v. Chad F. WOLF, et al., Defendants.

491 F.Supp.3d 520

IMMIGRANT LEGAL RESOURCE CENTER, et al., Plaintiffs,

v.Chad F. WOLF, et al., Defendants.

Case No. 20-cv-05883-JSW

United States District Court, N.D. California.

Signed September 29, 2020

Chelsea B. Davis, Naomi Ariel Igra, Brian Joseph Stretch, Sidley Austin LLP, San Francisco, CA, Jesse Matthew Bless, Pro Hac Vice, American Immigration Lawyers Association, Samina M. Bharmal, Pro Hac Vice, Sidley Austin LLP, Washington, DC, for Plaintiffs Immigrant Legal Resource Center, East Bay Sanctuary Covenant, International Rescue Committee, OneAmerica, Illinois Coalition for Immigrant and Refugee Rights.

Chelsea B. Davis, Naomi Ariel Igra, Brian Joseph Stretch, Sidley Austin LLP, San Francisco, CA, Samina M. Bharmal, Pro Hac Vice, Sidley Austin LLP, Washington, DC, for Plaintiffs Coalition for Humane Immigrant Rights, Catholic Legal Immigration Network, Inc., Asian Counseling and Referral Service.

Julie Straus Harris, Bradley Craigmyle, Charles E.T. Roberts, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND REQUEST FOR STAY OF EFFECTIVE DATE OF RULE AND DENYING REQUEST FOR ADMINISTRATIVE STAY

Re: Dkt. No. 27

JEFFREY S. WHITE, United States District Judge

Now before the Court for consideration is the motion for a preliminary injunction filed by Plaintiffs¹ , eight non-profit organizations that provide a variety of "services benefitting low-income applicants for immigration benefits." Compl. ¶¶ 7, 14-21; see generally Dkt. Nos. 27-4 through 24-7, 27-10, and 27-12 through 27-14: Declarations of Lawrence Benito (ICIRR), Olga Byrne (IRC), Michael Byun (ACRS), Jeff Chenoweth (CLINIC), Michael Smith (EBSC), Melissa Rodgers (ILRC), Angelica Salas (CHIRLA), and Rich Stolz (One America); see also Docket No. 95 (describing populations served and types of services provided).

Defendants are Chad Wolf ("Mr. Wolf"), in his capacity as Acting Secretary of the United States Department of Homeland Security ("DHS"), DHS, Kenneth T. Cuccinelli ("Mr. Cuccinelli"), in his capacity as Senior Official Performing the Duties of Deputy Secretary of Homeland Security, and USCIS.²

Plaintiffs move to enjoin implementation of the USCIS Fee Schedule & Changes to Certain Other Immigration Benefit Request Requirements, 85 Fed. Reg. 46,788 (Aug. 3, 2020) ("Final Rule") and to stay its effective date of October 2, 2020.³ See Dkt. No. 74-1, Reply Declaration of Brian Stretch ("Stretch Reply Decl."), ¶ 2, Ex. 35 (Final Rule). The Court has considered the parties’ papers, including all supplemental submissions, relevant legal authority, the record in this case, and the parties’ arguments at the hearing held on September 25, 2020.⁴ For the reasons that follow, the Court GRANTS Plaintiffs’ motion. The Court also determines that a brief administrative stay of this ruling pending any decision by Defendants to appeal this Order is not warranted. However, if Defendants do file an appeal, nothing in this Order shall preclude them from filing a motion to stay before this Court.

BACKGROUND

USCIS is funded primarily by the fees it collects, rather by Congressional appropriations, and its budget is separate from the budgets for the agencies that provide DHS's enforcement services, Immigration and Customs Enforcement ("ICE") and Customs and Border Protection ("CBP"). See 6 U.S.C. § 296 ; 8 U.S.C. §§ 1356(h), (m) ; see also Compl. ¶¶ 47-49, 56. Fees collected by USCIS are deposited in the Immigration Examinations Fee Account ("IEFA") to provide "adjudication and naturalization services." 8 U.S.C. § 1356(m). Those fees

may be set at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants. Such fees may also be set at a level that will recover any additional costs associated with the administration of the fees collected.

Id.

USCIS conducts biennial fee reviews and, during the review for Fiscal Years ("FY") 2019/2020, "determined that current fees do not recover the full cost of providing adjudication and naturalization services." Final Rule, 85 Fed. Reg. at 46,788; see also id. at 46,789 (stating "[f]ee schedule adjustments are necessary to recover the full operating costs associated with administering the nation's lawful immigration system and safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefit[s], while protecting Americans, securing the homeland, and honoring our values"); see also Stretch Reply Decl., ¶ 5, Ex. 38 (2019-2020 IEFA Fee Review Supporting Documentation with Addendum, May 2020 ("May IEFA Fee Review")).

On November 14, 2019, following that biennial fee review, DHS issued a notice of proposed rule-making signed by Kevin K. McAleenan ("Mr. McAleenan") as "Acting Secretary". Stretch Reply. Decl., ¶ 3, Ex. 36 (USCIS Fee Schedule & Changes to Certain Other Immigration Benefit Request Requirements, 84 Fed. Reg. 62,280, at 62,280 and 62,371 (Nov. 14, 2019) ("NPRM")). DHS stated that the current fee levels "are insufficient to recover the full cost of [USCIS's] operations funded by the IEFA" and stated that if USCIS "continues to operate at current fee levels, it would experience an average annual shortfall (the amount by which expenses exceed revenue) of $1,262.3 million." Id. at 62,282. DHS required written comments to be submitted before December 16, 2019, although DHS extended the comment period twice. The comment period eventually closed on February 10, 2020. See Stretch Reply Decl., ¶ 4, Ex. 4 ( 84 Fed. Reg. 67,243 (Dec. 19, 2019) ); see also 85 Fed. Reg. 4,243 (Jan. 24, 2020). DHS published the Final Rule on August 3, 2020.

DHS initially proposed to adjust fees by a weighted average increase of 21 percent. NPRM, 84 Fed. Reg. at 46,280. In the Final Rule DHS adjusts "USCIS fees by a weighted average increase of 20 percent, add[s] new fees for certain immigration benefit requests, establish[es] multiple fees for non-immigrant worker petitions, and limit[s] the number of beneficiaries for certain forms." Final Rule, 85 Fed. Reg. at 46,788. The Final Rule also makes changes to fee waivers by eliminating the ability to seek a waiver for some fees and by changing the criteria used to determine if an individual is eligible for a waiver. Id. at 46,789.

While Plaintiffs challenge the validity of the Final Rule in its entirety, they highlight that DHS will require a $50.00 non-waivable fee to apply for asylum. See id. at 46,844. 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). Until this rule was proposed, the United States did not charge a fee to apply for asylum.⁵ Instead, the cost of applying for asylum has been subsidized by "other fee-paying benefit requestors[.]" NPRM, 84 Fed. Reg. at 62,318. In addition to the application fees, immigrants seeking asylum also will be required to pay a $550.00 for their first Employment Authorization Document ("EAD"), as well as a $30.00 biometric fee. None of these three fees can be waived. The Final Rule does provide for "a $50 reduction in the fee for Form I-485, Application to Register Permanent Residence or Adjust Status, filed in the future, for principal applicants who pay the $50 fee for Form I-589 and are subsequently granted asylum." Final Rule, 85 Fed. Reg. at 46,790.

On the same day DHS issued this NRPM, it also initiated a proposed rule-making procedure regarding Asylum Application, Interview, and Employment Authorization for Applicants. See 85 Fed. Reg. 38,532 (June 26, 2020). Under prior rules, applicants for asylum had to wait 180 days before they could work in the United States, but DHS extended that waiting period to 365 days. See 85 Fed. Reg. at 38,626 (to be codified at 8 C.F.R. § 208.7(a)(1)(ii) ) ("An applicant for asylum cannot apply for initial employment authorization earlier than 365 calendar days after the date USCIS or the immigration court receives the asylum application[.]"), enjoined, in part, by Casa de Maryland, Inc. v. Wolf, No. 8:20-cv-02118-PX, 486 F. Supp. 3d 928, 937 (D. Md. Sept. 11, 2020) (" Casa de Maryland ") (noting that "[i]n the last year," DHS has pursued rulemakings that "would make it more difficult to secure asylum" and citing, inter alia , NPRM, 84 Fed. Reg. 62,280 ).

Plaintiffs also highlight the fact that DHS increased the application fee for naturalization from $640 to $1,170, increased other fees associated with naturalization, and eliminated the option to obtain fee waivers for those fees. Final Rule, 85 Fed. Reg. at 46,791 -792, Table 1 (noting fee increases for Forms N-300, N-36, N-400, N-470). DHS did reduce the fee associated with renewing lawful permanent resident ("LPR") status, but it "unbundled" fees for three applications associated with obtaining LPR status: the application for permanent residency (Form I-485), the application for an EAD (Form I-765), and an application for travel document (Form I-131.) Id. , at 46,791 -792 & Table 1. Plaintiffs allege that, since 2007, there has been flat fee of $1,140 for those applications ($750 for children under 14). DHS will now charge $1,130 for Form I-485, $550 for Form I-765, and $590 for Form I-131. Id.

Plaintiffs also highlight the changes to fee waivers in the Final Rule. "The 2011 Fee Waiver Policy" provided that an applicant could qualify for a fee waiver if: (1) they received a means-tested benefit; (2) had household incomes at or below 150% of the Federal Poverty Guidelines ("FPG"); or (3) could establish extreme financial hardship. See NPRM, 84 Fed. Reg. at 62,298. The NPRM noted that the proposed rule would "further limit[ ] forms eligible for a fee waiver and the criteria to establish eligibility for a fee waiver. Id....