Day 7 of this fee-on-asylum-seekers series.

The first comment of today’s post is kind of snarky, and it makes me a little happy that snarky made the cut:

“Comment: One commenter stated that USCIS is promising the same inadequate service it has been providing in the past few years and is asking immigrant and refugee families to pay more to not get their applications processed.”

The comment then addresses a fee change schedule under Bush 43 that affirms the asylum seekers shouldn’t be charged.

But DHS, as it has been doing, responds that they’re allowed to charge a fee and that it will help out with the backlog.

While they say that the $50 will offset some costs, we’ve well established that the amount is less than 14% of those costs. Also we’re back to slowing down applicants by charging a fee.

They nod to the snark by acknowledging the delays and by posting that part of the comment.

Skipping down to the next non-repeat, a commenter points out an issue with an asylum-seeker not being able to apply for the work authorization (because there’s a mandatory delay of a year until eligibility to file a work authorization form. Since the person won’t be able to make money legally, illegally performed work could be grounds for deportation.

You know, unless that person is financially stable. In that case, the person totally can take time to hang out for a year without employment.

But DHS has a simple solution: don’t work illegally.

This type of stonewalling is not what we need from our government. This is a cruel response to rational, reasonable discourse. Let’s get this approach out of the Executive Branch in this election.

Now in the sixth post of this series about how this country has recently started charging asylum seekers to enter this country, we get comments that I will summarize but that you can click on to read on your own.

First off is a comment about how there shouldn’t be fees to seek asylum because asylum seekers work and pay taxes.

I think this is a terrible argument. An easy rebuttal is that if that were the case, there should be no fees. For anything. And no restrictions. Like if someone comes from Europe as a tourist, that person should not be able to work as long as taxes are paid and the money earned is spent in this country. That’s crazy talk. The idea of this is that asylum seekers are special.

The response agrees with my point by starting out with: “DHS acknowledges that asylum seekers invest in their educations and pay taxes like other immigrants do.” But these aren’t the same as other immigrants. These aren’t people moving here because it’s a thing they want to do because they think it would be cool to live in America. They’re escaping for fear of not being safe. There’s no other option for them.

It continues with the same old line: “USCIS has experienced a continuous, sizeable (sic) increase in the affirmative asylum backlog and explored ways to alleviate the pressure that the asylum workload places on USCIS.” And this, of course, sounds like if we put a fee on it and make it tough, fewer people will want to file new cases. Yet they maintain fees are not being imposed as a deterrent.

The next comment is about gender-based violence. Women whose right are limited in their countries flee to this one because it’s their only hope of survival. This relates to things including sex trafficking and domestic abuse. Having to pay a fee would make it impossible to pay a fee when they have control over no money.

But it gets worse than that because financial plight is a way for the asylum seekers to remain victims all the way through the immigration process: The $50 fee can be paid by smugglers and traffickers as a way to extort (whose etymology is essentially arm-twisting) those seeking asylum. We don’t need that kind of quid pro quo or even to worry about that kind of quid pro quo.

But the DHS responds that it’s just $50–an amount that isn’t prohibitively expensive. And that’s a big problem with this entire process. A $50 fee is a clear barrier to those who cannot afford it while being an amount that’s palatable to the public at large. And this is new under Donald Trump. But at least now we know the cost of the process for each case: $366.

I’ve yet to be convinced that this fee is a good idea. And a recoup of less than 14% of the cost seems so negligible that it’s unreasonable to demand it.

More tomorrow and with the new summary format so you can click through to the full text.

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.

Yesterday we left off with the question of why they would charge a $50 fee on asylum seekers if it wouldn’t even cover the processing cost, their justification for the hikes on all kinds of other fees.

Even The Kingston Trio sang about how if you’re a stranger in a strange land who has nothing, you’re going to be stuck in your situation because you can’t reach out to anyone who will give you the money you need.

We’ve long heard misinformation from Donald Trump about people crossing our border, including Mexico sending its bad people to us and that there are too many immigrants from shithole nations rather than good places like Norway.

Despite repeated claims by the Department of Homeland Security to the contrary (as we’ll go into through the upcoming posts), this sure sounds like a barrier too high for the poor and no problem for the rich.

And that’s bad.

Asylum cases should be determined independent of wealth. Asylum is a humanitarian effort after all.

Something cool about our government’s process is the incorporation of public comments into lawmaking. There’s even a government website somewhat dedicated to it.

The changes to immigration fees, including the implementation of the asylum charge was no exception to this process.

I was just late to the party. By a lot. But other people weren’t, and that is encouraging that people care.

(Also there’s so much new to me as I continue to find real answers for this series. I hadn’t known about the proposed changes, and I didn’t know that things were open to public comment. Sure, there have been community meetings, planning commission meetings, city council meetings, etc. that allow for public comment, but I didn’t really consider that this was a thing that existed for something on this scale. I figure that if I care enough about this to do research for myself, I might as well clue you in on where to find the information, too. So I’ve been ramping up on the citations.)

I’ve decided to analyze comments and responses because people used to this process and much more knowledgeable about these issues than I wanted to stop this. I think it’s important to know what they think and if their points are better and more coherent than mine.

The comments start off with the following main points:

Comment: Multiple commenters generally opposed charging asylum applicants a fee. Commenters stated:
DHS should not expect people fleeing harm and in need of protection to pay a fee.
-These individuals often have few economic resources, the few resources that they do have are necessary for survival.
-They should not endure the added burden of a fee to gain asylum and other immigration services.
-Asylum seekers joining family in the United States are often financially dependent on their family members, and an asylum fee would create an additional burden on their families.
-Asylum should not be based on an applicant’s socio-economic status.
-Fees would be detrimental to survivors of torture, impacting their mental health and well-being by obstructing access to live and work in the United States.
-A $50 fee would further endanger asylum seekers’ health and safety.
-DHS should consider asylum seekers’ humanity and suggested that the rule dehumanized the issue.
-Commenters rejected the notion that those seeking asylum represent a cost that the nation must recoup.
-If the revenue from these fees were being used to assistance to those seeking asylum, they would be less opposed to the fee increases.
-DHS did not provide adequate justification for charging an asylum fee.

My analysis of this comment:

This is pretty much exactly what I’ve been saying, but it adds that some people are seeking asylum to be with their families, and I hadn’t considered that. However, the idea that it would be fine to charge a fee if the fee were to be used to help people who are seeking asylum isn’t a feeling I share.

But then the Department of Homeland Security replies (emphases mine):

Response: DHS acknowledges the humanitarian plight of legitimate asylum seekers. In recognition of the circumstances of many of these applicants, DHS establishes a $50 fee for Form I-589 for most applicants (unaccompanied alien children in removal proceedings who file Form I-589 with USCIS are not required to pay the fee). DHS expects that charging this fee will generate some revenue to offset adjudication costs, but DHS is not aligning the fee with the beneficiary-pays principle, because the estimated cost of adjudicating Form I-589 exceeds $50. As DHS stated in its NPRM, it does not intend to recover the full cost of adjudicating asylum applications via the Form I-589 fee. See 84 FR 62318. Instead, DHS establishes a $50 application fee to generate some revenue to offset costs. DHS will recover the additional costs of asylum adjudications (via cost reallocation) by charging other fee-paying applicants and petitioners more, consistent with historical practice and statutory authority. See INA section 286(m), 8 U.S.C. 1356(m). DHS does not intend to discourage meritorious asylum claims or unduly burden any applicant, group of applicants, or their families.

In the NPRM, DHS provided substantial justifications for establishing an asylum application fee. DHS explained that USCIS has experienced a continuous, sizeable increase in the affirmative asylum backlog over the last several years. DHS explored ways to alleviate the pressure that the asylum workload places on the administration of other immigration benefits and determined that a minimal fee would mitigate fee increases for other immigration benefit requests. See 84 FR 62318. DHS estimated the cost of adjudicating Form I-589 and considered asylum fees charged by other nations. DHS also considered the authority provided in INA section 208(d)(3), various fee amounts, whether the fee would be paid in installments over time or all at once, if the fee would be waivable, and decided to establish a minimal $50 fee.

As stated in the NPRM, DHS believes that the fee can be paid in one payment, would generate revenue to offset costs, and not be so high as to be unaffordable to an indigent applicant. See 84 FR 62319. Further, DHS has provided the advance notice of and the reasons for the change in its longstanding policy as required by the APA. This change will only apply prospectively to asylum applications filed after the effective date of this final rule.Nevertheless, as a result of the concerns raised by commenters, DHS is providing in this final rule that Form I-485 filed in the future for principal asylum applicants who pay the Form I-589 fee of $50 and are granted asylum and apply for adjustment of status will pay a fee that is $50 less than other Form I-485 filers. See new 8 CFR 106.2(a)(17)(ii). DHS will provide only one reduced fee per Form I-589 filing fee paid. If a Form I-485 filing with a $50 reduced fee is denied, USCIS will not accept future discounted I-485 filings from the same applicant. That is because DHS anticipates a one-to-one relationship between the fees collected and discounts provided. If an approved principal asylee were to file multiple Forms I-485 with the reduced fee, it could illogically result in the $50 fee for Form I-589 causing a net revenue loss to USCIS. DHS will not deviate from its primary objective of this final rule to set fees at a level necessary to recover estimated full cost by allowing multiple I-485 reduced fee filings. Unaccompanied alien children in removal proceedings who filed Form I-589 with USCIS, and thus did not pay the $50 Form I-589 fee, are not eligible to file Form I-485 with the reduced fee.

My analysis:

Although there is a lot of text here, the main point seems to be this: “DHS explained that USCIS has experienced a continuous, sizeable increase in the affirmative asylum backlog over the last several years.“

Translation: There are too many people to process! Let’s make it so there are fewer people to process!

That goes against all the claims DHS has made that this fee is not to serve as a deterrent.

More in tomorrow’s post.

Second installment of the series about asylum seekers and how the new fee structure makes it harder for eligible people to seek asylum. This is intended to be a daily series.

Let’s start out with USCIS’s description of eligible asylum seekers from the instructions for Form I-589, Application for Asylum and for Withholding of Removal:

To qualify for asylum, you must establish that you are a refugee who is unable or unwilling to return to his or her country of nationality, or last habitual residence if you have no nationality, because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. This means that you must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for your persecution or why you fear persecution. (See section 208 of the INA; 8 CFR sections 208 and 1208, et seq.)

Essentially you’re running for your life because the place where you were does not subscribe to the freedoms we have here as described in terms that sound a lot like our first amendment.

My personal take is that this is a reminder that we shouldn’t be complacent. That is to say that we have a right to challenge overwhelming beliefs, and our country is strong enough to be able to withstand criticism, change in cases it’s right to, and respond where it isn’t. And even if change for the better doesn’t happen immediately, open discussion/expression of dissatisfaction leads to future growth.

I mean Susan B. Anthony was a suffragette, and women didn’t get the right to vote until decades after she was dead. She was allowed to speak up, and it’s good she did so.

People who are escaping a situation that isn’t ours who would have been protected here may bring along with them ideas from outside our system that will make our country better. And if the ideas would make our country worse, and we’re strong as a country, not only are we not forced to buy in, but if those people do things that are against our rules, they are subject to the same punitive actions we are.

(Of course this assumes uniform application of legal action, which we know isn’t a real thing, but this asylum series is based in theory with acknowledgment of reality.)

With those things established, we can go into this new $50 fee in more depth.

As it stands right now, our country has joined only three others in the world that charge a fee for asylum seekers. The others are Iran, Fiji, and Australia. Russia charges a fee for a mandatory medical evaluation, but if we have to compare our country to Russia, something has gone horribly awry.

So what’s the rationale for putting a fee on asylum now?

DHS says (emphases mine):

DHS proposed adjustments to USCIS’ fee schedule to ensure full cost recovery. DHS did not target any particular group or class of individuals, or propose changes with the intent to deter requests from low-income immigrants seeking family unity or deterring requests from any immigrants based on their financial or family situation or to block individuals from accessing immigrant benefits. With limited exceptions as noted in the NPRM and this final rule, DHS establishes its fees at the level estimated to represent the full cost of providing adjudication and naturalization services, including the cost of relevant overhead and similar services provided at no or reduced charge to asylum applicants or other immigrants. This rule is consistent with DHS’s legal authorities. See INA section 286(m), 8 U.S.C. 1356(m). DHS proposed changes in fee waiver policies to ensure that those who benefit from immigration benefits pay their fair share of costs, consistent with the beneficiary-pays principle as described in the Government Accountability Office report number GAO-08-386SP.²⁴

In certain instances, DHS deviates from the beneficiary-pays principle to establish fees that do not represent the estimated full cost of adjudication. For example, DHS proposed a $50 fee for Form I-589, Application for Asylum and for Withholding of Removal, when filed with USCIS. This fee deviates from the beneficiary-pays principle by holding the fee well below the estimated cost of adjudication. The $50 fee for affirmative asylum filings is not intended to recover the estimated full cost of adjudication. Instead, it is intended to limit the increase of other fees that must otherwise be raised to cover the estimated full cost of adjudicating asylum applications. Fee adjustments are not intended to advance any policy objectives related to influencing the race or nationality of immigrants, deterring immigration and naturalization, or affecting voting.

24 GAO, Federal User Fees: A Design Guide (May 29, 2008), available at https://www.gao.gov/products/GAO-08-386SP. (last accessed Feb. 24, 2020).

This has been a recurring theme from Trump: We’re making bad business deals, and I’m going to make everyone pay us. Whether it’s stating that Saudi Arabia agreed to pay us to use our military as though we’re for hire and not only for the public good or to get Mexico to pay for the wall or prompt NATO nations to pay for defense.

But if the “$50 fee for affirmative asylum filings is not intended to recover the estimated full cost of adjudication,” why charge for it at all?