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We're in court today -- right now! -- via Zoom!
A few weeks ago, RTR filed our first ever amicus curiae brief in a federal court case, meaning that we're not the Plaintiff/Petitioner, but we're supporting them.
We're trying to stop the USCIS "Genealogy Program" fee increases!
A few weeks ago, RTR filed our first ever amicus curiae brief in a federal court case, meaning that we're not the Plaintiff/Petitioner, but we're supporting them.
We're trying to stop the USCIS "Genealogy Program" fee increases!
It's case number 4:20-cv-05883-JSW. The presiding Judge is Jeffrey S. White.
The case "caption" (title) is very long, because it's a lot of mostly immigrant rights groups versus a lot of government agencies and government officials. But the list is...
The case "caption" (title) is very long, because it's a lot of mostly immigrant rights groups versus a lot of government agencies and government officials. But the list is...
IMMIGRANT LEGAL RESOURCE CENTER;
EAST BAY SANCTUARY COVENANT;
COALITION FOR HUMANE IMMIGRANT
RIGHTS; CATHOLIC LEGAL
IMMIGRATION NETWORK, INC.;
INTERNATIONAL RESCUE COMMITTEE;
ONEAMERICA; ASIAN COUNSELING AND
REFERRAL SERVICE; ILLINOIS
COALITION FOR IMMIGRANT AND
REFUGEE RIGHTS
EAST BAY SANCTUARY COVENANT;
COALITION FOR HUMANE IMMIGRANT
RIGHTS; CATHOLIC LEGAL
IMMIGRATION NETWORK, INC.;
INTERNATIONAL RESCUE COMMITTEE;
ONEAMERICA; ASIAN COUNSELING AND
REFERRAL SERVICE; ILLINOIS
COALITION FOR IMMIGRANT AND
REFUGEE RIGHTS
...versus...
CHAD F. WOLF, UNDER THE TITLE OF
ACTING SECRETARY OF HOMELAND
SECURITY; U.S. DEPARTMENT OF
HOMELAND SECURITY; KENNETH T.
CUCCINELLI, UNDER THE TITLE OF
SENIOR OFFICIAL PERFORMING THE
DUTIES OF THE DEPUTY SECRETARY OF
HOMELAND SECURITY; U.S. CITIZENSHIP
& IMMIGRATION SERVICES,
ACTING SECRETARY OF HOMELAND
SECURITY; U.S. DEPARTMENT OF
HOMELAND SECURITY; KENNETH T.
CUCCINELLI, UNDER THE TITLE OF
SENIOR OFFICIAL PERFORMING THE
DUTIES OF THE DEPUTY SECRETARY OF
HOMELAND SECURITY; U.S. CITIZENSHIP
& IMMIGRATION SERVICES,
In other words, we at RTR signed on as amicus to support a lawsuit against USCIS/DHS raising (or even instituting for the first time) all kinds of fees for immigrants, refugees, etc. -- and also raising fees by hundreds of percentages on the USCIS Genealogy Program.
As per court rules, we are not allowed to capture audio, video, or screenshot of the Zoom proceedings. Sorry!
But they're arguing right now, and we're watching at home in pajamas, with coffee.
But they're arguing right now, and we're watching at home in pajamas, with coffee.
We're allowed to live-tweet the proceedings, though!
So right now, the lawyers are arguing (if we understand this correctly) that Chad Wolf at DHS and Ken Cuccinelli at USCIS are both *Acting Directors* at those agencies. They were never approved! So the rule isn't valid?!
So right now, the lawyers are arguing (if we understand this correctly) that Chad Wolf at DHS and Ken Cuccinelli at USCIS are both *Acting Directors* at those agencies. They were never approved! So the rule isn't valid?!
Note that we're not the only group who filed an amicus brief in this case, not by far. Bigwigs like @CatoInstitute and several states signed on, too!
But we're the only group who mentioned the issue of the Genealogy Program, which was required by statute to only do fee recovery.
But we're the only group who mentioned the issue of the Genealogy Program, which was required by statute to only do fee recovery.
While USCIS' other proposed fee hikes (for filing for a green card, or applying as a refugee, or whatever) might have more leeway about setting those fee levels, the Genealogy Program is unusual in that it is only supposed to collect the actual costs of running that one program.
But USCIS is trying to hike fees on their Genealogy Program by hundreds of percentages, which is *hundreds of dollars per historical document request*!
And they didn't show *any* work to explain why this program supposedly costs so much more than it did, say, two years ago.
And they didn't show *any* work to explain why this program supposedly costs so much more than it did, say, two years ago.
Want to know more about this USCIS "Genealogy Program" and why it's so so so important that their records remain accessible? This website, which we at RTR helped create in tandem with lots of genealogy heroes at "Records, Not Revenue", should explain all: https://www.recordsnotrevenue.com/
We especially urge people to check out the "Example Files" on that website, which are fascinating.
They're real files donated by fellow genealogists, taken from their own family records or client work. They include Visa files, A-Files, C-Files, Alien Registration files, etc.
They're real files donated by fellow genealogists, taken from their own family records or client work. They include Visa files, A-Files, C-Files, Alien Registration files, etc.
And even a Naturalization File for an American Woman Who Lost Her Citizenship Upon Marriage to a Foreigner. (Yes, that was a thing!)
And a Chinese-American "paper son" documentation file.
And a Japanese-American internment camp and then expatriation and then repatriation file.
And a Chinese-American "paper son" documentation file.
And a Japanese-American internment camp and then expatriation and then repatriation file.
And all of these incredible, unique, meaningful, amazing files, full of family information and sometimes photos and detailed interviews...
Public access to all of these historical files are at risk if USCIS indeed hikes the fees by hundreds of dollars per file.
Public access to all of these historical files are at risk if USCIS indeed hikes the fees by hundreds of dollars per file.
And that's why we signed on as an amicus to this case! We're trying to stop the fee hikes.
Will it work? We don't know. But someone has to try, right?
And no other group in the genealogy community (non-profits, companies, etc.) has signed up for the legal fight. But we did.
Will it work? We don't know. But someone has to try, right?
And no other group in the genealogy community (non-profits, companies, etc.) has signed up for the legal fight. But we did.
The most meaningful part of co-writing the amicus was where we wrote about how better access to historical and genealogical files was very much in the public interest -- and how having worse access to records about our national and family histories could lead to more ignorance.
And because the best and subtlest legal shaaaade is always found in the footnotes, we mentioned @CleverTitleTK's amazing article about a certain defendant in this very case having his own ancestors labeled as 'Likely Public Charge' at Ellis Island. 
https://medium.com/@CleverTitleTK/their-own-two-feet-8ddd1dbb1602
https://medium.com/@CleverTitleTK/their-own-two-feet-8ddd1dbb1602
Okay, so now the lawyers have finally moved on from the issue of "can Acting Directors who never got formally confirmed even make these kinds of rules in the first place?" and they're onto the actual issues of the fairness of the fees themselves.
Yes! First mention of the Genealogy Program forms!
Court now taking ten minute break.
Main issues in play:
(1) DHS/USCIS maybe cannot legally enact these rules at all because Wolf/Cuccinelli weren't confirmed
(2) even if that issue is set aside as irrelevant, can *certain* fee hikes be emergency stayed (not enacted) because they would cause irreparable harm?
(1) DHS/USCIS maybe cannot legally enact these rules at all because Wolf/Cuccinelli weren't confirmed
(2) even if that issue is set aside as irrelevant, can *certain* fee hikes be emergency stayed (not enacted) because they would cause irreparable harm?
Would enacting a multi-hundred-dollar fee hike per *each* historical document requested through the Genealogy Program be considered "irreparable harm"?
Well, if you're a professional genealogist and this fee hike badly affects your business, one could make that argument!
Well, if you're a professional genealogist and this fee hike badly affects your business, one could make that argument!
Oh no. The lawyer for the Plaintiffs is having serious Internet issues and apparently needs to quit Zoom and come back in to continue her argument.
Justice in a time of covid. *sigh*
Justice in a time of covid. *sigh*
Okay, she's back. (whew)
Judge is asking about the claimed "arbitrary and capricious nature" of each of the proposed fee hikes.
She is talking about failure to mention price elasticity, failure to do X, failure to do Y, etc.
Judge is asking about the claimed "arbitrary and capricious nature" of each of the proposed fee hikes.
She is talking about failure to mention price elasticity, failure to do X, failure to do Y, etc.
Another sticking point: the fee waiver policy, or lack thereof.
Government attorney for DHS/USCIS is saying that even if there were irreparable harm for the fee hikes, a better way to address the issue is a fee waiver for those fees, not by just enjoining the entire rule.
Government attorney for DHS/USCIS is saying that even if there were irreparable harm for the fee hikes, a better way to address the issue is a fee waiver for those fees, not by just enjoining the entire rule.
So that would seem to be a slight admission from government attorney that fee waivers must be allowed... 
Government attorney admitting now that the originally-proposed rule didn't even want to raise USCIS fees to fund USCIS! But rather the original fee hike was meant to raise money...for ICE.
They were going to raise USCIS fees for access to historical documents...to fund ICE.
They were going to raise USCIS fees for access to historical documents...to fund ICE.
Now, the proposed rule as currently stated no longer wants to divert money from USCIS to ICE. And yet, they're still trying to raise hundreds of millions of dollars from all these fees. Well then, where is this new money going?! Plaintiff lawyer is hammering this point right now.
Plaintiff attorney: "...so we have six hundred million [dollars] unexplained..."
Us:
Plaintiff attorney: "...so what we end up with is over 60% of the budget is unexplained."
Us:
Us:
Plaintiff attorney: "...so what we end up with is over 60% of the budget is unexplained."
Us:
Judge White: "So, Ms. Straus Harris, does this money go to build the wall, or something?"
Now they're fighting about math.
Now they're discussing about whether proposed USCIS fee hikes for things like "applying for naturalization" can cover the processing of forms, or whether the fees can be used for totally different things the agency does, like judgements and national security investigations, etc.
Plaintiff lawyer is now patiently explaining that if you greatly raise the fees to become a naturalized citizen and totally remove the fee waiver (which is what USCIS is proposing), it would negatively affect the number of people who seek to naturalize.
Judge White admits to Hamilton fandom, drops a Hamilton reference "since you're all in the room [where it happens]". 
He's asking whether the government could possibly agree to a deal to have a 1-2 week stay (a pause) on the new rules.
He's asking whether the government could possibly agree to a deal to have a 1-2 week stay (a pause) on the new rules.
Plaintiff attorney (who, let us remember, works for a small not-rich immigrant rights group) is now kindly offering to act as makeshift IT support for the government attorney and the judge, to figure out how to help them get documents sent around safely, via secure file transfer.
Now discussing whether FedEx has changed their service hours during the pandemic and whether that affects the delivery of bulky files that they want to get in tomorrow.
They're about to wrap up the hearing. But if you've read this far, let us remind you that we genealogists would not even really be involved in this issue if these amazing historical documents had been transferred over to @USNatArchives AS THEY SHOULD HAVE: https://twitter.com/ReclaimTheRecs/status/1203004351536451585
Court's adjourned. We have a feeling that we'll hear about whether the preliminary injunction is granted against the the new USCIS fee hikes pretttty soon. Maybe Monday. Stay tuned.
