Unless a federal judge intervenes after a hearing Thursday, a new Trump administration rule will dramatically increase the court fees asylum seekers and other immigrants must pay to defend themselves from deportation.
Four nonprofit legal service providers, in California and elsewhere, sued last month to block the new rule by the U.S. Department of Justice's Executive Office for Immigration Review (EOIR), which houses immigration courts.
The changes, scheduled to take effect the day before President-elect Joe Biden takes office, would triple the filing costs for some forms and motions in deportation — also known as “removal” — proceedings. Other types of forms could be even seven or eight times as expensive.
The fee for green card holders and other immigrants to apply to immigration courts for cancellation of removal, for example, would rise from $100 to $305 if the changes are implemented. But the biggest fee hike would be for appealing an immigration judge’s ruling, which would jump from $110 to $975.
If the fee hikes are adopted, low-income immigrants will be priced out of a fair day in court, said Cristina dos Santos, who directs the immigration program at Community Legal Services in East Palo Alto, one of the organizations that sued to block the new rule.
“We have clients who struggle even to pay the bus fare that it would take to get to our offices to receive our services,” said dos Santos. “We are really concerned about our clients not being able to meet the fee, and even worse, not being able to access the rights that are in our laws.”
The rule would also introduce a new $50 fee to apply for asylum in immigration court, according to the complaint.
Plaintiffs argue EOIR’s new rule is “arbitrary and capricious,” and fails to adequately consider the impacts on immigrants fighting deportation, particularly those who are indigent.
The agency defended the changes, saying it had not conducted a thorough review of its fees for more than 30 years, and that the new prices better reflect the actual costs of processing those applications.
EOIR Director James McHenry said the agency aims to save taxpayers nearly $45 million per year.
“The proposed fee increases are marginal in terms of inflation-adjusted dollars and would mitigate the significant taxpayer subsidization of these forms and motions,” said McHenry in a statement when the agency first proposed the changes last year. “EOIR is long past due for a review of its fee-based filings, especially as its caseload and costs have increased substantially since 1986.”
But Robin Goldfaden, a San Francisco-based attorney with the National Immigration Law Center, who is representing plaintiffs, said EOIR does not need to increase the fees because its budget is primarily funded by Congress.
“This is not a fee-based agency. This is not a services agency where one comes forward and says, ‘I would like to apply for this benefit,’ ” said Goldfaden, noting that all individuals in immigration court are fighting removal proceedings that the federal government initiated.
“This is essentially a judicial body and it serves a public interest and it is funded with hundreds of millions of dollars of congressional appropriation,” she said.
Immigrants will still be able to apply for fee waivers under the new rule. But Goldfaden and other attorneys said seeking a waiver can be risky. In some cases a court's decision on whether to waive a fee comes too late — after the deadline to file the associated form has passed, she said.
There are no clear standards for who is eligible for a waiver, added dos Santos, and approvals can vary widely from court to court.
U.S. District Court Judge Amit P. Mehta will hear the case Thursday afternoon in Washington, D.C.
Last fall, a federal judge for the Northern District of California blocked another Trump rule that would have nearly doubled the fee to become a U.S. citizen and would have sharply increased the cost of other immigration benefits, such as work permits.
Immigration courts in California received more than 71,000 new deportation cases in fiscal year 2018, with an additional 73,000 cases pending, according to the most recent available EOIR figures.
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