Yesterday I began my analysis of public comments and responses by the Department of Homeland Security about the new $50 fee for asylum seekers, which is up from $0. Today I continue the analyses of comments and responses.

A brief recap of the process, though I recommend reading the related posts: Proposed changes to some laws are open for comments from the public before the laws take effect. The government can use the comments to make changes to the proposal or say why the comments don’t matter. So far, the Department of Homeland Security has revealed that the $50 fee on asylum seekers is to let their employees recover from the backlog of applications, which sounds a lot like they’re trying to get in the way of letting people in.

Now for the new stuff (with links added by me):

Comment: Additional commenters on the asylum fee generally opposed the proposed fees for asylum indicating that the proposal runs counter to U.S. ideals, and stated:
-The United States has no precedent in international law to charge for asylum, the fee does not support the humanitarian interests of the United States, would be against the values of the United States and Congressional intent, and our moral and constitutional obligation to provide sanctuary to those who need it.
-The United States would become one of only four countries to charge such a fee if DHS implemented the proposal.
-Processing asylum requests is a fundamental right guaranteed by international agreements to which the United States adheres.
-The United States should endeavor to resolve, rather than exacerbate, humanitarian crises and the U.S. is required under domestic and international law to provide refuge to people fleeing violence and seeking protection in the United States.
-Significant changes to the conditions of asylum services should be carried out by Congress, and not through administrative processes.
-Charging a fee for asylum requests is discrimination and an attempt to block legal immigration of people of color and/or non-wealthy backgrounds.
-The right to seek and to enjoy asylum from persecution is enshrined in the United Nations Universal Declaration of Human Rights of 1948 and supported by the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.
-The United States is obligated to accept asylum seekers under international and domestic law, and therefore should not refuse asylum seekers because of an inability to pay the fee. Thus, the proposed asylum fees would be a dereliction of legal duty and violate the 1951 Refugee Convention, which prevents signatory countries from taking any action that would “in any matter whatsoever” expel or return a refugee to a place where his or her life or freedom would be threatened.”
-The creation of an asylum fee suggests that the United States will shy away from international problems rather than confront them.
-One commenter said that under the Universal Declaration of Human Rights, the United States is obligated by international law to accept refugees and accord them certain rights and benefits, such as access to courts.
-A fee for asylum violates the INA and that Congress did not intend to authorize fees for asylum applicants, but instead intended that the cost services to asylum seekers should be paid by fees from the IEFA.

My analysis:

I’ve mentioned a lot of these things in the past few posts, but I’m happy there are new things for me to consider.

The idea that these changes should be carried out by the legislative branch and not the executive branch is important. Kicking this decision to Congress means slowing it way down. However, if this is a rider in a bill, maybe we don’t get to see it at all before it becomes law, and it may be harder to repeal if there’s no set expiration. I’m not a legal scholar, so if you’ve got a legal background, please, please weigh in on this.

Regarding the United Nations points, those likely fall on deaf ears, based on what Donald Trump thinks of the UN.

The Department of Homeland Security Responds (emphases mine):

Response: DHS disagrees with commenters’ assertions that an asylum fee violates the INA, that there is no precedent in international law for charging a fee for asylum applications, and that charging a fee is discriminatory and against the values, morals, and Constitution of the United States. DHS also disagrees that the United States is required to provide asylum to those fleeing violence and seeking protection, as the United States’ non-refoulement obligations are met by the statutory withholding of removal provisions at INA section 241(b)(3). Asylum is a discretionary benefit available to those who meet the definition of a refugee and who are not otherwise ineligible.
Although the United States is a party to the 1967 U.N. Protocol Relating to the Status of Refugees (“1967 Refugee Protocol”), which incorporates Articles 2 through 34 of the 1951 U.N. Convention Relating to the Status of Refugees (“1951 Refugee Convention”), the Protocol is not self-executing. See INS v. Stevic, 467 U.S. 407, 428 n.22 (1984). The asylum statute at INA section 208 and withholding of removal statute at INA section 241(b)(3) constitute the U.S. implementation of international treaty obligations related to asylum seekers. The asylum provisions of the INA do not preclude the imposition of a filing fee for asylum applications. INA section 208(d)(3), 8 U.S.C. 1158(d)(3) specifically authorizes the Attorney General to impose a fee for the consideration of an asylum application that is less than the estimated cost of adjudicating the application.

Furthermore, DHS believes that the asylum fee may arguably be constrained in amount, but a fee is not prohibited by the 1951 Refugee Convention, 1967 Refugee Protocol, United States constitution, or domestic implementing law. Article 29(1) of the 1951 Refugee Convention and the 1967 Refugee Protocol, as incorporated by reference, refers to the imposition of fees on those seeking protection, and limits “fiscal charges” to not higher than those charged to nationals of a given country for similar services, but does not bar the imposition of such fiscal charges. The $50 fee is reasonably aligned with the fees charged to United States nationals for other immigration benefit requests. Thus, a $50 fee for asylum applications is in line with international and domestic law.

DHS also considered the asylum fees charged by other nations, including Australia, Fiji, and Iran. A $50 fee is in line with the fees charged by these other nations. DHS further believes that the $50 fee would not require an applicant to spend an unreasonable amount of time saving to pay the fee.

DHS declines to make changes in this final rule in response to these comments.

My analysis:

It’s true that asylum is discretionary. Determination of eligibility is a judgment call. Are the claims legitimate? Are the claims accurate? Are the claims valid? Someone has to determine that.

The INA section referenced does allow for a fee. It doesn’t advise for there to be a fee, but it’s not against the rules that are in place.

But then we’re back to how reasonable the $50 fee is. My conclusion is that it is unreasonable. See yesterday’s post for the analysis of this first question.

Australia is our friend, but they even charge us a fee to visit their country. I’m skipping over Fiji because I don’t feel like researching them right now. But when we put our country in the same category as Iran, which has all kinds of human rights violations, that doesn’t make me too comfortable.

And then the DHS finishes their response by saying too bad.

More tomorrow.