EOIR Final Rule Drastically Increasing EOIR Filing Fees and How That May Impact Asylum Seekers, Undocumented Children and Other Vulnerable Groups

EOIR Final Rule Drastically Increasing EOIR Filing Fees

Written by Taher Kameli & Chathan Vemuri

On January 19, 2021, a Final Rule issued by the  Executive Office for Immigration Review EOIR will become effective that will “increase the fees for those EOIR applications, appeals, and motions that are subject to an EOIR-determined fee, based on a fee review conducted by the EOIR.”[1] These fee increases apply to Forms EOIR-26, 29, 40, 42A, 42B, 45 and motions to reopen or reconsider before the Office of the Chief Immigration Judge (OCIJ) and the Board of Immigration Appeals (BIA).[2]

 

Notably, this Rule was first Proposed back on February 28, 2020, by the Department of Justice.[3] Since its proposal, it has raised serious concerns about the obstacles it poses to non-citizens wading their way through the appeals process of the American immigration system.[4] Previously, the fees for the enumerated forms and motions above were either $100 or $110.[5]

 

Under the Final Rule, the EOIR-26 Form filing fee has increased from $110 to $975; the EOIR-29 Form filing fee has increased from $110 to $705; the EOIR Form-40 filing fee has increased from $100 to $305; the EOIR Form-42A filing fee has increased from $100 to $305; the EOIR-42B Form filing fee has increased from $100 to $360.

 

The Motion to Reopen or Reconsider before the OCIJ filing fee has increased from $110 to $145; the Motion to Reopen or Reconsider before the Board of Immigration Appeals filing fee has increased from $110 to $895; and the EOIR-45 Form filing fee has increased from $110 to $675.[1]

 

Hence, these fee changes represent increases from the original fees ranging from 32% to 786%.[2]

 

Important to realize, the EOIR justifies these fee increases in part by pointing to the total costs for processing and ruling on these particular motions and applications, including costs for legal assistants, paralegals, attorneys, digital image processors, administrative staff, those involved with case screening and preparation as well as those involved with making the decision and adjudicating proceedings, among other such costs.[3]

 

Because these costs far exceed the current fees for these application forms and motions, the EOIR expects the increased fees to balance the proportion between payment and the costs taken to adjudicate those forms.[4]

 

Furthermore, the EOIR expects a substantial increase in fee revenue for the fiscal year without any effect on the volume of filings, due in part to the availability of fee waivers.[5] Indeed, while the EOIR anticipates additional costs to the alien in question filing these forms, they expect these individuals to seek fee waivers to relieve them of the burden of these costs.[6]

 

Overall, one of the stated justifications of these fee increases is to lessen the burden on taxpayers.[7]

 

Nevertheless, despite these stated justifications and expectations, these fee increases continue to pose challenges to those aliens who are most economically vulnerable and may not be able to afford potentially prohibitive filing fees and the process that goes with adjudicating them.

 

When this rule was still a proposal subject to notice and comment, critics raised alarm at how these proposed fee increases would exclude frequently impoverished applicants such as asylum seekers, children, and other vulnerable groups who left their countries without means and lack authorization to work.[8]

 

In fact, given the complex and intimidating nature of the US immigration court system, not being able to afford a lawyer or pay the proper fees to file the proper forms can lead to disastrous consequences for non-citizens going through this system,  effectively denying them quality representation and due process under the law.[1]

 

Nevertheless, many of these non-citizens tend to be victims of torture and domestic violence, survivors of severe trauma, and, very often, large numbers of undocumented children.[2] Specifically increasing the fees for appealing immigration decisions to the Board of Immigration Appeals (BIA) would create a financial barrier to appellate review, furthering the government’s crackdown on immigration, even though these policies are the very ones that call for review.[3

 

By effectively denying large swathes of non-citizens access to the BIA, this would also bar them access to the federal court system, thereby precluding independent judicial review of the Government’s immigration policies. [4]

 

Therefore, The Final Rule report acknowledges concerns about the burden that the fee increases would impose on applicants but still insists that overall levels of filings and motions would be relatively steady and similar to before due to what it characterizes as the “modest nature of the increases (i.e. less than $1000), their comparative similarity with fees imposed by USCIS, and the ability of many aliens to obtain access to financial resources which may be used to pay for them.”[5]

 

In that case, this makes very bold assumptions about the financial capacities of aliens to pay for legal resources and file these motions and applications, which look unbelievable when you consider the types of people who have to use this appeals process such as undocumented children, asylum seekers, survivors of domestic or political violence and other forms of trauma, more often than not without such means and without the authorization to work to get such means.

 

In addition, the Final Rule also talks about applicants without means making use of fee waiver applications but does not go into detail as to whether they would be granted so generously given that one of the stated purposes is to save the tax dollars.[6]

 

Thus, these fee increases made by the Department of Justice’s Executive Office for Immigration Review (EOIR) continue the Trump Administration’s final push to create a more exclusive and less accessible immigration system meant to deter “illegal immigration” and favor economic concerns of US citizens, without any attention as to the specific circumstances of immigrant applicants seeking to make use of the appeals process.

 

More dangerously, it sets up a fee-paying scheme that effectively blocks noncitizens from bringing their concerns before the very court system that could provide a serious review of the Administration’s policies.

 

Please fill out the form below or give us a call at +1 (312)-233-1000 if you have any questions about the fee increases and how they may impact your potential cases before the BIA, the OCIJ, or your filing one of the enumerated forms above.

[1] Id.

[2] Id.

[3] Id.

[4] Id.

[5] Final Rule: Executive Office for Immigration Review: Fee Review 8 CFR Parts 1003, 1103, 1208, 1216, 1240, 1244, and 1245, 43 (Dec. 18, 2020) available at https://www.govinfo.gov/content/pkg/FR-2020-12-18/pdf/2020-27506.pdf

[6] Committee on Immigration and Nationality Law Report: Comment Letter Urging EOIR to Withdraw Rule That Would Dramatically Increase Fees for Immigration Court Filings and Appeals, New  York City Bar  (Mar. 30, 2020) available at https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/opposition-to-drastic-eoir-fee-increases-comments (Although this report by the New York City Bar’s Immigration & and Nationality Law Committee was released prior to the publication of the Final Rule, the language of the Rule hasn’t changed much from the Proposed Rule and still makes assumptions about bypassing the fees via simple applications for fee waivers, without making the considerations raised by this report.)

[1] Id.

[2] Id. at 43. (For EOIR Form 26, it’s an increase of 786%; Form 29 – an increase of 541%; Form 40 – an increase of 205%; Form 42A – an increase of 205%; Form 42B – an increase of 260%; Form 45 – an increase of 514%; Motion to Reopen or Reconsider before OCIJ – an increase of 32%; and Motion to Reopen or Reconsider before the BIA – an increase of 714%).

[3] Id. at 38-42.

[4] Id. at 42.

[5] Id. at 42-43

[6] Id. at 44.

[7] Id. at 2.

[8] Committee on Immigration and Nationality Law Report: Comment Letter Urging EOIR to Withdraw Rule That Would Dramatically Increase Fees for Immigration Court Filings and Appeals, New  York City Bar  (Mar. 30, 2020) available at https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/opposition-to-drastic-eoir-fee-increases-comments

[1] Final Rule: Executive Office for Immigration Review: Fee Review 8 CFR Parts 1003, 1103, 1208, 1216, 1240, 1244, and 1245, 1 (Dec. 18, 2020) available at https://www.govinfo.gov/content/pkg/FR-2020-12-18/pdf/2020-27506.pdf

[2] Id. (1.) an EOIR-26 form is used to appeal an immigration judge’s decision; 2.) an EOIR-29 form is a Notice of Appeal to the Board of Immigration Appeals from a DHS Officer’s decision; it is used to appeal a USCIS decision on a Form I-130 (Petition for Alien Relative) or Form I-360 (Widower); 3.) an EOIR-40 form is an Application for Suspension of Deportation; 4.) an EOIR-42A is an Application for Cancellation of Removal for Certain Permanent Residents; 5.) an EOIR-42B form is an Application for Cancellation of Removal an Adjustment of Status for Certain Nonpermanent Residents; 6.) an EOIR-45 is a Notice of Appeal From a Decision of an Adjudicating Official in a Practitioner Disciplinary Case; 7.) Motion to Reopen or Reconsider cases filed with the Office of the Chief Immigration Judge (OCIJ) and the Board of Immigration Appeals (BIA)).

[3] Id.

[4] Bray, Ilona, EOIR Fee Schedule Increases: How to Take Action in Opposition to Proposed Changes Ahead, Catholic Legal Immigration Network, Inc. (Clinic) (last seen on Jan. 7, 2020) available at https://www.nolo.com/legal-updates/immigration-court-eoir-filing-fees-going-up-in-january-2021.html

[5] Final Rule: Executive Office for Immigration Review: Fee Review 8 CFR Parts 1003, 1103, 1208, 1216, 1240, 1244, and 1245, 35 (Dec. 18, 2020) available at https://www.govinfo.gov/content/pkg/FR-2020-12-18/pdf/2020-27506.pdf