The Trump administration wants to make people fleeing persecution in their home countries pay for something they’ve long gotten for free: the right to apply for asylum in the United States.
As an immigration attorney and a law professor who has represented people seeking asylum for over a decade, I believe this change, which could go into effect as soon as mid-December following a monthlong comment period, would be not just cruel but also unusual.
At present, only Iran, Australia and Fiji charge fees to would-be asylum-seekers.
Fees for everything
Making immigrants escaping harm and persecution shoulder the cost of processing their paperwork is in line with other trends in U.S. immigration law over the last several decades. Fees for everything from green cards to naturalization are not only common but increasingly costly and mandatory.
“You must submit the correct fees or we will reject your form,” U.S. Citizenship and Immigration Services, the Department of Homeland Security agency that oversees these applications, warns on its website. It relies primarily on revenue from these fees to cover its entire budget.
The proposed rule would make applying for asylum, which has always been free, cost $50. While that might not seem like much, asylum seekers do not initially have work authorization, and many, if not most, have fled their home countries with just the clothes on their backs.
In my experience, charging a fee would create a significant barrier for people who flee to the United States to escape trauma and persecution. I’m also concerned that the government plans to make no exceptions. Without any possibility of a fee waiver, those who can’t pay this fee would be unable to seek asylum.
In addition to introducing an asylum application fee, the government wants to hike the cost of other immigration petitions and applications by as much as 532%. Most proposed increases are much smaller than that, and fees for a few services would decline slightly.
The Trump administration says it would use the additional revenue generated to help fund U.S. Citizenship and Immigration Services, a government agency that processes immigration applications, as well as Immigration and Customs Enforcement, another agency that handles enforcement actions.
Immigrants who have suffered past persecution, or who fear future persecution, on account of their race, religion, nationality, political opinion or particular social group may qualify for asylum. The process can take months or years. The nation’s immigration courts currently have a backlog of more than 1 million cases.
President Donald Trump often denigrates the asylum system and asylum applicants.
Yet the United States is bound by both domestic and international law to provide protection to those fleeing persecution.
The U.S. is a signatory of United Nations treaties forged in 1951 and 1967 that spell out the rights of refugees and asylum-seekers. Immigration directives issued and laws passed after millions of Jews, Roma and others perished during the Holocaust established frameworks and systems for asylum applications and processes.
In short, the nation has legal obligations to allow noncitizens to seek asylum and to vet and process those cases in accordance with domestic and international laws.
The U.S. asylum rules and regulations on the books originated in 1974 and were refined in 1980. Asylum law has evolved since then, explicitly without fees – even as fees became routine for other immigration applications.
The rationale for keeping it that way is simple: The ability to pay should never stand in the way of refugees and asylum-seekers obtaining the protection to which they are legally entitled.
Meanwhile, fees for other kinds of immigration applications have been rising for years, becoming increasingly onerous.
Applying for naturalization, the process by which immigrants with legal status become citizens, cost $35 in 1985 – the equivalent of $83 today after accounting for inflation. But the price tag for that same application is now $640 – eight times as much.
Under changes proposed in November 2019, naturalization fees would nearly double to $1,170.
Waivers are available in some cases. But as a result of this sticker shock, many longtime lawful permanent residents – that is, immigrants with green cards – can’t afford to become citizens despite their eligibility, interest and strong ties to this country through their families, businesses, religious engagement and community involvement.
While some immigration lawyers, like those at our clinic at Boston University School of Law, represent clients for free, such services are scarce. Lawyers’ fees, therefore, can add to the burden as well.
What happens next
Are asylum fees inevitable? Not necessarily.
The proposed changes are subject to official rule-making procedures, scheduled to last 30 days. Implementation could be delayed or blocked, however, by lawsuits filed on behalf of immigrants by advocacy groups.
Likewise, many of the other obstacles the Trump administration has placed in the paths of asylum-seekers, such as forcing them to wait in Mexico for their hearings and instructing authorities responsible for screening applicants to become more confrontational during preliminary interviews, might not withstand court challenges.
Through it all, one thing is clear. Most asylum-seekers come with nothing. What little savings they have are often used to pay for their journey to the United States and their basic needs upon arrival.
If they are detained by Immigration and Customs Enforcement and are fortunate enough to have the opportunity and ability to get out on bail, any funds they have remaining are quickly depleted.
Making it harder for asylum-seekers to access protection is sure to leave many in dire straits.
Sarah R. Sherman-Stokes is a lecturer and clinical instructor of law and associate director of the Immigrants’ Rights and Human Trafficking Clinic at Boston University.