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Federal judge suspicious of Trump officials hiking immigration fees

Fees paid by immigrants applying for asylum, work permits and U.S. citizenship will skyrocket next month, advocates warned in Washington Thursday, arguing the increases are unlawful because the two federal officials who signed off on the hikes were not Senate confirmed. 

“The proper place for DHS to seek these funds is Congress, not the pockets of immigrants,” Public Citizen Litigation Group attorney Rebecca Smullin said in the hearing. 

The Department of Homeland Security argued Thursday that overturning the rule set to go into effect on Oct. 2 would only swell the backlog of immigration applications and likely result in higher fees down the road. 

The hikes will more than double the fee to apply for naturalization, bringing the total cost to $1,710, or $1,610 for online applications. The rule also creates a never-before-seen nonwaivable $50 fee for asylum applications — making the United States one of only four countries in the world with such a charge for humanitarian protection — and will require biometric services fees of $30 to $85 for multiple immigration-related applications. 

The preliminary injunction argument heard in Washington Thursday was the first of three such legal challenges brought against the DHS rule, with hearings scheduled in California on Friday and Massachusetts next month. 

The weight of the case by immigrant advocates focuses on former acting Homeland Security Secretary Kevin McAleenan proposing the final rule, later finalized by Chad Wolf, the current acting Homeland Security Secretary. 

A government watchdog recently concluded that both officials’ appointments were invalid. President Donald Trump is currently in the process of officially naming Wolf as head of DHS. 

While Wolf has ratified the rule developed under McAleenan, the move amounts to nothing more than “smoke and mirrors on the agency’s behalf,” Smullin said, representing the immigrant advocates. 

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DHS directing the funds to cover expenses outside naturalization and adjudication, specifically intelligence work, fraud deterrence and an interagency program providing information on immigrants, is equally problematic, the attorney argued. 

The Government Accountability Office said both McAleenan and Wolf evaded the lawful order of succession after former Homeland Security Secretary Kirstjen Nielsen stepped down in 2019. Months prior, a federal judge ruled the Trump administration also unconstitutionally selected Ken Cuccinelli, a co-defendant in the case heard Thursday, to head the U.S. Citizenship and Immigration Services. 

Critics of the new DHS fees say they reflect a “willingness to disregard the rule of law in pursuit of its anti-immigrant and xenophobic agenda.” 

But the Justice Department argued Thursday that both McAleenan and Wolf were well within their authority as acting officials to roll out the new policy. 

U.S. District Judge Randolph D. Moss drilled the government with detailed questions on the constitutionality of their argument.

Harkening as far back as the initial debates on the appointments clause at the Constitutional Convention, the judge said Trump’s succession of immigration leadership does not seem to be what the Framers had in mind.

The government argued that as acting secretary, McAleenan had the power to designate Wolf as his successor, pointing to a 2019 D.C. Circuit decision that “an acting officer is vested with the same authority that could be exercised by the officer for whom he acts.” 

But Moss questioned whether that “same authority” covers appointing successors to be head of an agency. 

“I’m not aware of any precedent that says that can be done. But maybe you can point me to some,” the judge said.

However, the government failed to provide a prior case to back the argument that McAleenan and Wolf were vested with the same full power as an official approved by the Senate. 

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An Obama appointee, Moss said there also needed to be more explanation on the budgets outlined in the final rule issued Aug. 3.

Justice Department attorney Chetan Patil said the agency laid out how each cost equated to a fee increase, arguing against the “plaintiffs’ claim that what the agency is saying is ‘just trust our budget.’” 

But Smullin said the spending breakdown was difficult for the average person to interpret during the mandated notice-and-comment period of the rulemaking process and “sheds no light on how the budget was built in the first place.”

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Acting Homeland Security Secretary Chad Wolf, in a May 30 file photo.