By the time the woman’s asylum hearing came around, she had already been stuck in the purgatory of immigration custody for about nine months.
Exhausted from detention conditions that are allegedly oppressive at best and deadly at worst, she nevertheless arrived at her court date in Laredo, Texas, with hope in the shape of strong evidence for her claim to asylum in the US. Yet before she could make her case for refuge, the immigration judge demanded she turn over a new and unexpected $100 asylum application fee.
According to her lawyers, that fee did not even apply to the woman, whom the Guardian is not naming for her own security. But without it upfront, the judge refused to move forward – not even giving her a chance to explain why she shouldn’t have to pay.
Traumatized and utterly depleted, she acquiesced to return to an extremely dangerous situation in Latin America instead of languishing longer in US detention.
The seemingly arbitrary fee is just one of a host that are suddenly being imposed, many so expensive that they render justice and relief completely out of reach for low-income immigrants already struggling through headwinds to make it through the US legal process.
The charges are being implemented as a result of the giant legislative package that Donald Trump signed on Independence Day, which bolsters his anti-immigration agenda even further.
In a cruel irony, even if the woman in question had offered up the money on the spot, it was unclear then how she would pay as the immigration courts had yet to establish a clear procedure for doing so. The federal government had been rejecting attempts to file the new fees, attorneys said. More recently, it expanded an online portal where asylum seekers can submit their payments – but for many of them, the damage had already been done.
“It’s not too strong to say that these fees have been devastating, not only because many and maybe most refugees and asylum seekers don’t have access to those funds, but because there’s not a way to actually pay the fees,” said Lisa Koop, national director of legal services at the National Immigrant Justice Center, before the payment system went live. Her organization represented the woman in her asylum claim.
People are being “assigned a new requirement, but it’s impossible to fulfill it”, Koop said. Amid the catch-22, she added, they’re “taking removal with the intent to immediately flee again to find whatever country will emerge as a place of refuge for the persecuted, because people are feeling that is no longer the United States. And maybe that’s the intent. It’s certainly the practical reality.”
One of the fees requires abandoned, abused or neglected children and youth to pay hundreds of dollars to apply for a special classification that can lead to a green card. Another raises the expense for Temporary Protected Status – a safeguard from deportation for people who cannot return home because of a natural disaster, war or other turmoil – from $80 to over $500. Several others can make it so that appealing an immigration decision or trying to reopen a case brings a court fee of more than $1,000.
“These fees are meant to be a deterrent for people to not access benefits and, you know, rights that they are entitled to,” said Nicole Johnson, deputy attorney-in-charge of the immigrant law unit at the Legal Aid Society in New York. “They really want to kind of push people out of this country and not have people, you know, meaningfully be able to participate in these proceedings, be able to present their claims.”
Meanwhile, the new asylum fee – $100 at the time of application, then another $100 for each year the case remains pending, which can be a long time given the immigration courts’ 3.75m case backlog – has proved a particular source of confusion and chaos for asylum seekers and their attorneys.
Immigration judges have responded in a wide variety of ways across the country to asylum petitions filed through the immigration courts, an arm of the Department of Justice (DoJ) in the executive branch of government, not the judicial branch.
Risk and stress appear to be ratcheting up for petitioners whose own judges cannot provide clarity.
“Generally, folks that are undergoing removal proceedings in immigration court are already quite anxious, trying to make sure that they fulfill all requirements their immigration judge has asked for. And so being in this grey area where even the court does not yet have clear guidance only heightens that anxiety that people are feeling,” said Gabriela Lopez, a DoJ-accredited representative with the El Paso-based Las Americas Immigrant Advocacy Center.
The situation has been confusing and even terrifying for many, with the new payment portal including strict rules that will be especially challenging to navigate for asylum seekers without attorneys and those in custody.
And then there is the simple question of affordability.
“Imagine you’re coming here for the first time,” said Johnson. “You want to file this asylum application. You literally have been, you know, traveling through the desert and you don’t have money. So where are you supposed to have the hundred dollars to even preserve your ability to, you know, to file for asylum?”
These new costs are compounded when asylum seekers try to apply for work authorization for the first time, which used to be free. Now, the fee is $550 and cannot be waived.
Yajaera, her husband and two children – whom the Guardian is not identifying by full names because of their fears of immigration enforcement – fled political persecution under Nicaragua’s dictatorship and entered the US last year. They applied for asylum about four months ago and are living in a shelter in New York.
Soon, their family will be eligible for work permits, which could mean stable jobs for the parents and access to social security numbers for their kids. But they have no way to pay after months without legal permission to work, barely able to afford food.
When Yajaera sought out legal advice about the permits, she learned that if her family applied without paying, their submissions would be rejected automatically, yet they can’t afford a total of $2,200 to complete the applications.
“The goal was to obtain the work permits to start to work legally, right?” she said. “But we can’t. It’s hard for us, that very high amount. I think $550 per person is very high. And we’re four in total, so it’s out of our hands.”
Lopez, from Las Americas, compared the new fees to a filter, siphoning off people in crisis who don’t have enough money to preserve their legal rights.
“Usually, by the time people reach our borders to seek asylum, they are at the lowest point in their lives,” she said. “They have been through so much violence, they have been through so much trauma, that setting up this filter is a clear indication that doing things the legal way is not for them. That there is no room for them here any more.”
