Outrage over Trump imposing fees for asylum applications is misplaced

Outrage over Trump imposing fees for asylum applications is misplaced
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Unlike most government agencies, U.S. Citizenship and Immigration Services (USCIS) is fee-funded. The fees it collects for processing immigration and naturalization benefit requests fund nearly 96 percent of its budget.

USCIS has determined that the fees it currently charges will leave the agency underfunded by approximately $1.3 billion per year if they are not increased. Accordingly, on Feb. 14, 2019, it published a proposed rule that would adjust the fees by a weighted average increase of 21 percent and add new fees for certain applications. The previous fee schedule adjustment in 2016 also made a weighted average increase of 21 percent.

The most controversial item in the most recent proposal is a fee for filing asylum applications.  The funding needed for processing asylum applications has always been taken from the fees charged for processing the other benefit applications.

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Filing fees for asylum applications are very uncommon.

Only three of the 147 countries that signed the 1951 Convention and/or the 1967 Protocol charge a filing fee for asylum applications (Australia, Fiji, and Iran).

According to Jessica Bolter, an analyst at the Migration Policy Institute, filing fees for asylum applications are rare because "it's more important to protect someone from persecution than it is to receive payment for the services you are providing."

Doug Rand, who was an Obama White House official, claims that this is "an unprecedented weaponization of government fees."

And Barbara Strack, a former chief of the USCIS’ Refugee Affairs Division claims that, “The only way to understand this is as a part of the administration’s campaign of hostility against the asylum program.”

I disagree with these comments.

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Proposed charge would only apply to affirmative asylum applications

An alien who is not in removal proceedings may file an asylum application with USCIS unless he has been in the United States for more than a year. This is considered an affirmative application. Asylum request are categorized as "defensive" when they are made in removal proceedings as a defense against being deported.

The one-year time limit comes from section 208(a)(2)(B) of the Immigration and Nationality Act, which requires aliens to apply for asylum within one year of the date of their last arrival in the United States, unless they can establish "changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application."

The affirmative asylum application process can be risky for an alien who does not have lawful status. If USCIS denies his application, a notice to appear before an immigration judge in removal proceedings will be issued, and his case will be referred to the immigration court.

The immigration judge will do his own review of the asylum application without regard to the decision USCIS made. But if he denies the application and the alien does not have lawful status, he will order the alien's deportation unless the alien establishes eligibility for some other form of relief from deportation.

The cost of processing affirmative asylum applications

USCIS can impose application fees equal to the full cost of the services it provides. It costs $366 to process an affirmative asylum application, and USCIS is proposing a $50 filing fee, which is only 13.6 percent of the full cost.

USCIS expects to receive 163,000 affirmative asylum applications in the coming year, so the $50 fee would generate approximately $8.15 million in revenue. However, this would leave a deficit of about $52 million that would have to be taken from the fees for other benefit applications.

Frankly, I can't think of a single reason why people filing employment and family-based visa petitions or naturalization applications should have to pay for processing the affirmative asylum applications of people they don't even know.

But I can think of reasons why they shouldn't have to do it.

For instance, most of the aliens who file affirmative asylum applications don't have legitimate persecution claims. Very few of their applications are granted.

According to statistics from the Executive Office of Immigration Review, 61,453 affirmative asylum applications were filed in fiscal 2019 and only 5,372 of them were granted. This means that only 8.7 percent of them were granted. And the number of affirmative asylum applications has been increasing every year since fiscal 2016, when only 12,706 were filed.

Although aliens who have just arrived may not be able to pay for processing an affirmative asylum application, there is no reason why the ones who have received work authorization and found employment here can't reimburse USCIS for the cost of processing their applications.  The funds this would provide could reduce the burden on the people who are covering their processing expenses for them.

In any case, if the aliens who file affirmative asylum applications are not going to be required to pay for processing them, that cost should be covered by congressional appropriations, not by the people who file employment and family-based benefit visa petitions or naturalization applications.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him on Twitter @NolanR1