On December 9, 2019, Judge Maxine Chesney of the Northern District of California issued a nationwide preliminary injunction barring USCIS from implementing changes that would limit access to citizenship for lawful permanent residents (green card holders). The ruling, issued from the bench, halts changes to the naturalization application process that would present significant barriers to citizenship for tens of thousands of non-wealthy applicants each year. The rule went into effect on December 2.

Judge Chesney ruled that Plaintiffs were likely to succeed in their claim that USCIS failed to properly engage in the notice-and-comment rulemaking required by the Administrative Procedure Act and that the agency’s new rules making it much harder for low-income residents to apply for fee waivers for naturalization and other immigration benefits are invalid as a result.

BACKGROUND

In October, 2019, the US Department of Homeland Security (DHS) announced changes to the naturalization process that will present significant barriers to citizenship for tens of thousands of non-wealthy applicants each year. 

The new rules would have made it much harder to qualify for a fee waiver, and would have severely curtailed naturalization applications, particularly from low-income applicants. Recent research from Stanford University’s Immigration Policy Lab suggests that the new rules could have reduced the number of naturalization applications filed each year by as much as 10 percent.

Immigrants are typically not eligible to naturalize until they have lived as lawful permanent residents in the United States for five years, speak English, understand U.S. history and civics, and demonstrate a commitment to the U.S. Constitution. There is also a $725 application fee. U.S. Citizenship and Immigration Services currently waives the fee for those who cannot afford to pay it, which is approximately 40% of applicants. Under rules in place since 2010, lawful permanent residents (also commonly referred to as green card holders), who receive means-tested benefits from another government agency, are automatically entitled to a fee waiver, making the process easy for USCIS to administer and for applicants and service providers to complete. The new policy significantly increased the burden on applicants who wished to apply for a fee waiver, and made it impossible for some poor lawful permanent residents to apply at all.

On October 30, 2019, Protect Democracy, Advancing Justice-AAJC, the Seattle City Attorney’s Office, and Mayer Brown LLP filed suit in California on behalf of organizations and communities who will be irreparably harmed by the proposed changes to the naturalization process.

Plaintiffs are the City of Seattle and five naturalization legal service providers who serve low-income, citizenship-eligible legal permanent residents: Catholic Legal Immigration Network, Inc. (CLINIC), Central American Resource Center of California (CARECEN), Immigrant Legal Resource Center (ILRC), OneAmerica, and Self-Help for the Elderly.

On November 6, 2019, the organizations and communities challenging changes to the naturalization fee waiver process asked a federal court to immediately bar USCIS from implementing those changes until the pending lawsuit is resolved. They also added new claims to the case, asking the court to find that Ken Cuccinelli’s installation as acting head of USCIS was unlawful and that the proposed new rules are invalid as a result.

Cuccinelli was placed in the role of acting director in violation of the Federal Vacancies Reform Act (FVRA), which governs the process for filling a vacant executive branch position that is subject to Senate confirmation. The FVRA has been in the news lately as it also governs who will succeed Kevin McAleenan as acting Secretary of the Department of Homeland Security.

“Congress passed the FVRA to ensure that the President could not prevent the Senate from playing its constitutional role as a check on the executive branch when vacancies arise,” said Rachel Goodman, counsel at Protect Democracy. “It gave the FVRA teeth by making all actions taken by illegally-appointed officials void.”

The Northern District of California heard oral argument on Plaintiffs’ Motion for Preliminary Injunction on Dec. 9, 2019.