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"Stealth" Provision of Homeland Security Act Ends Funding for Asylum and Refugee Processing

by Carl Baldwin

Could this have been fully intended by Congress, or did it just happen by inadvertence? The United States, a haven for the persecuted, is now giving the persecuted the back of its hand?

If Congress really meant to do it, can we persuade the new chief of Homeland Security to undo it? Letís take a look and see what happened.

My source for this article is Interpreter Releases, Vol. 80, No. 4, January 27, p. 128. Let us start by reminding ourselves of the use to which INS fees for petitions and applications is put. Fees cover the cost of the work involved in adjudication, and a portion of each fee goes for asylum/refugee processing, and for the processing of fee exemptions/waivers. Believe it or not, the INS has this tripartite calculation worked out for each and every petition and application. For example, the I-130 Petition for Alien Relative, for which the current fee is $130, allocates $19.11 for asylum/refugee processing, and $15.32 for fee exemptions/waivers, for a total of $34.43. If asylum/refugee processing and fee exemptions/waivers were eliminated, the fee would drop from $130 to $95.57, which is rounded off to $95.

And thatís exactly what happened as a result of what I call a "stealth" provision of the Homeland Security Act of 2002, and all other INS fees will descend in like manner. Here is what the INA used to provide at Section 386(m): "Fees for providing adjudication and naturalization services may be set at a level that will ensure recovery of the full cost of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants." Along came Section 457 of the Homeland Security Act, and these fifteen words were excised: "including the costs of similar services provided without charge to asylum applicants or other immigrants." On reflection, I guess this was no accident. Some members of Congress--or was it Mr. Ashcroft or Mr. Ridge?--decided that it was time to end the "free lunch" for asylum/refugee applicants or aliens looking for fee exemptions/waivers.

Does this mean that an alien cannot file for asylum any more? Not quite. According to The Washington Post for January 24, A14, INS officials say they have enough money on hand to continue asylum/refugee processing. But one has to wonder: For how long?

Here is another question: Why couldnít Congress have honestly faced the issue of asylum/refugee and fee exemptions/waivers processing, and listened to the pros and cons? Did Senators Kennedy and Leahy, both stalwart advocates for refugees, have a chance to weigh in, or did this provision go right past them?

Some U.S. founder said "eternal vigilance is the price of liberty," and I guess this applies to advocates who care about issues like asylum/refugee processing, especially in this era of "Ashcroft-isms" (Jose Latourís phrase).

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be reached by e-mail at

He has written a book on immigration law, called "Immigration Questions and Answers," Allworth Press, 2002. The book, which contains essential background information about how the immigration law works, can be ordered online from Allsworth Press at:

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.