USCIS recently announced plans to dramatically increase fees for most immigration applications. The fee increase includes a dubious first for the United States--a fee for asylum.

If the rule goes into effect as is, the fee for an affirmative asylum application will be $50.00. For defensive applications (asylum applications filed in Immigration Court), there is no proposed fee--at least not yet. Also, for aliens who are unaccompanied minors, there is no asylum fee. For everyone else, the fee is mandatory and cannot be waived. This means that applicants who cannot come up with the fifty smackers cannot file for asylum. Fees will also go up indirectly, since USCIS will now charge asylum applicants for the initial Employment Authorization Document ("EAD"), which has been free. The proposed fee for an EAD is $490.00. People who are granted asylum will still receive their first EAD for free.

USCIS offers a number of justifications for the new fee. First, DHS has the statutory authority to charge a fee for asylum, as long as "Such fees [do] not exceed the Attorney General's costs in adjudicating the applications." See INA § 208(d)(3). The $50.00 fee is well below the cost of adjudicating an asylum application, and so DHS posits that they are within their power to impose the fee.

Second, DHS notes that other countries which are party to the Refugee Convention, charge comparable fees. This is technically true. Of the 147 countries that have signed the treaty, three (Australia, Fiji, and Iran) charge a similar fee for asylum. Of those three countries, however, two (Fiji and Iran) allow applicants to waive the fee.

Third, DHS apparently wants to cut other immigrants a break. Currently, asylum is funded through USCIS user fees, so when an applicant pays for her green card, part of that fee supports the asylum system. DHS claims that the agency "is exploring ways to alleviate the pressure that the asylum workload places on the administration of other immigration benefits." DHS calculates that "the proposed $50 fee for Form I-589 mitigates the proposed fee increase of other immigration benefit requests by approximately $5 or $10." Looked at another way, the asylum fee will "generate an estimated $8.15 million in annual revenue" for USCIS. This represents less than 0.2% of total fees earned by USCIS from users.

Fourth, DHS views the fee as another way to "discourage frivolous filings." Of course, this is the justification for every action taken by DHS (and other agencies) against asylum seekers, and to me, it is not at all convincing. If our goal is to administer the system fairly, we should look for ways to protect legitimate asylum seekers and discourage fraudulent claims. The Trump Administration's only solution here is to punish every asylum seeker equally, as if they are all fraudsters. This approach defeats the whole purpose of having an asylum law (or any law) and should be antithetical to any country that values Justice.

Why is the fee mandatory? According to the agency, "If DHS permits fee waiver requests, it assumes that the costs of administering the fee waiver request review process may exceed the revenue, thereby offsetting any cost recovery achieved from the fee." In other words, the cost of adjudicating fee waivers will exceed the revenue generated by the asylum fee. Hence, everyone--with the exception of unaccompanied minors and people in Immigration Court--must pay the fee.

What about those who cannot afford the fee? Or those who need more than a year to raise the money (remember, if an asylum application is not filed within one year of the alien's arrival in the U.S., the alien is generally barred from asylum)? "DHS acknowledges that an alien who is not placed in removal proceedings will have no means of applying for recognition as a person in need of refugee protection and its attendant benefits such as asylum or withholding-based employment authorization, travel documents, or documentation of immigration status, if they do not pay the proposed $50 fee." However, DHS believes that the $50.00 fee is "not... so high as to be unaffordable to even an indigent alien." For that same reason, DHS would not consider the inability to raise the fee within a year of arrival as an exception to the one-year asylum bar.

What to make of all this? On the one hand, the fee is not so great that many people will be blocked from filing for asylum. Unlike refugees who are waiting (mostly in vain) overseas for resettlement and who are often without any resources, affirmative asylum seekers have managed to reach the U.S. on their own. Whether they paid for a plane ticket or a smuggler, or just traveled here by themselves, most such people needed resources to get here, and probably have the money to pay $50.00 to file for asylum.

On the other hand, to me at least, DHS's justifications ring hollow. Is the agency really so concerned about saving other immigrants five or ten bucks per form? Do they really think charging $50.00 will somehow discourage fraudulent applicants? Is the $8.15 million in estimated revenue really needed, especially given the $4.69 billion that USCIS expects to earn from all user fees? And, by the way, according to DHS's own estimate, user fees will exceed costs by over $42 million per year. Heck, with a surplus like that, DHS could actually pay each asylum seeker $250.00 as a bonus for joining our great country!

I simply don't believe that this new fee is about saving money or discouraging fraud. Instead, I think it's meant to send yet another message to asylum seekers: You are not welcome here. It's petty and it's mean. It's kicking people who are already down. I suspect it's also designed to harm non-profits, some of which will pay these new fees for their clients. In short, the Trump Administration is doing everything it can to stop asylum seekers from coming to our country. This new fee is just one more piece of that effort.

If you'd like to submit a comment to the U.S. government about the new fee for asylum, or the new rules to delay and block work permits for asylum seekers, you can do so here (enter "asylum" in the search bar and you will find a link indicating where to submit your comment - comments can be submitted anonymously).

Originally posted on the Asylumist: