AYUDA

Cite as 26 I&N Dec. 449 (BIA 2014) Interim Decision #3820

Matter of AYUDA, Applicant

Request for Recognition

Decided November 20, 2014

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

When assessing an organization’s application for recognition, the Board of

Immigration Appeals makes an individualized determination whether the applicant’s fees

qualify as “nominal charges” and whether its fee structure is true to the goal of providing

competent low-cost legal services. Matter of American Paralegal Academy, Inc., 19 I&N

Dec. 386 (BIA 1986), clarified.

BEFORE: Board Panel: NEAL, Chairman; ADKINS-BLANCH, Vice Chairman;

HOLMES, Board Member.

NEAL, Chairman:

The Falls Church office of Ayuda has applied for recognition pursuant

to 8 C.F.R. § 1292.2(a) (2014).1 A copy of the application was served on

the appropriate offices of the Department of Homeland Security (“DHS”),

which has not responded to the request for a recommendation regarding

the application. The application for recognition will be approved.

According to the application for recognition, the applicant, a nonprofit

organization, offers immigration and family law assistance, as well as

social services, to low-income immigrants. The applicant organization

provides its legal services through licensed attorneys and seeks partial

accreditation for one representative.

To be recognized, a nonprofit organization established in the

United States must show that it makes only “nominal” charges, assesses no

excessive membership dues for persons given assistance, and has at its

disposal adequate knowledge, information, and experience in immigration

and nationality law and procedure. 8 C.F.R. § 1292.2(a); see also Matter of

EAC, Inc., 24 I&N Dec. 556, 557−58 (BIA 2008).

1

Ayuda’s principal office, which is located in Washington, D.C., was recognized by the

Board in 1979. An organization must file a separate application for recognition of each

branch office. Matter of Florida Rural Legal Services, Inc., 20 I&N Dec. 639, 640

(BIA 1993).

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We are satisfied that the applicant has established that it is a nonprofit

social service organization dedicated to serving the low-income immigrant

community. Its experienced attorney staff has adequate knowledge in

immigration and nationality law, as well as access to online and print legal

resources. The organization does not assess membership dues, but its list of

charges for immigration legal services includes fees ranging from a couple

of dollars for ministerial services to more than a thousand dollars for

complex litigation. The only concern raised by this application is whether

the applicant’s charges for legal services are nominal in accordance with

8 C.F.R. § 1292.2(a)(1).

We last discussed the meaning of “nominal charges” in Matter of

American Paralegal Academy, Inc., 19 I&N Dec. 386 (BIA 1986). At that

time, we concluded that nominal charges are not defined in terms of

specific dollar amounts. Rather, the term contemplates that a recognized

organization would charge very small fees or “something existing in name

only as distinguished from something real or actual.” Id. at 387. Since

there is no set calculation or arithmetical table to ascertain whether fees are

nominal, we analyze each application for recognition on its own facts,

relying on the information that the applicant organization and its local DHS

offices have provided. The mere fact that an organization’s fees “may be

substantially less than those charged by law firms is not a proper standard

for consideration.” Id. The fees must be consistent with the purpose and

spirit of the recognition and accreditation program, which is to provide

competent immigration services to low-income and indigent persons.

Matter of Baptist Educational Center, 20 I&N Dec. 723, 735 (BIA 1993).

In the almost 30 years since we issued Matter of American Paralegal

Academy, Inc., the landscape of legal representation in immigration matters

has changed significantly, particularly for nonprofit organizations. The

evolution of immigration law, the emerging pressure to specialize within

the field, and the limited availability of pro bono legal services in the

communities that need them most make recognized organizations even

more valuable than in the past. The confluence of these factors puts

increasing administrative and financial strain on the ability of nonprofit

organizations to provide affordable legal services to underserved

populations. Juxtaposed to these changes are both the rising demand for

competent legal services and a corresponding increase in opportunities for

unscrupulous, unlicensed individuals to prey on the poorest of those

seeking legal advice. In short, the need for representation has increased,

but the availability of trustworthy low-cost and no-cost legal services has

not.

Not surprisingly, client fees may play a greater role today in the

budgeting process of nonprofit organizations than they did three decades

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ago. For that reason, our long-standing definition of “nominal charges” has

recently created some confusion for new applicants for recognition. Given

the changing realities of immigration practice and client fees, we now

update and clarify our interpretation of the term “nominal charges” for

recognition applications.

First, the word “nominal” as a term of art is intentionally vague, and

“nominal fees” have never been specifically defined. See Representation

and Appearance, 60 Fed. Reg. 57,200, 57,200 (proposed Nov. 14, 1995)

(Supplementary Information). There is no “one-size-fits-all” mathematical

formula that can account for the discrepant fees charged in the

legal services marketplace, which depend on such wide-ranging factors as

geography, client demographics, availability of services, and local overhead

costs for service providers. Also, mechanically applying a static method

of computation, without regard for organizational idiosyncrasies and

exigencies, would certainly exclude worthy nonprofit organizations from

recognition. For example, a modest fee in one locale may be considered

costly in another; but a higher fee may be appropriate for the organization’s

location or the special needs of the population it serves. Given the

considerable breadth of communities, missions, and configurations of

nonprofit organizations, an individualized assessment is necessary to

determine whether an applicant’s fee structure complies with the letter and

spirit of the regulations’ nominal charges requirement. In fact, such

case-by-case adjudications give us greater flexibility and discretion to

approve those applicants deserving of recognition.

It therefore follows that what constitutes nominal charges is entirely

dependent on the circumstances of the applicant organization, including

where it operates and what type of practice it has. This consideration of an

organization’s individual situation, however, does not mean there are no

guidelines for determining what constitutes nominal charges. For example,

a nominal charge can never be the actual dollar value of the service; it must

always be something substantially less. Furthermore, while fees may be

adjusted to help offset some of the organization’s actual costs, the fee

schedule must be oriented to accommodate the client’s ability to pay. The

fee structure must be true to the goal of providing competent low-cost legal

services and may not be designed simply for the purpose of financially

sustaining or serving the interests of the organization. See Matter of EAC,

Inc., 24 I&N Dec. at 557 (“[S]ome reputable organizations seek recognition

of their agencies . . . not for the purpose of providing adequate legal

representation to aliens who cannot afford private attorneys, but rather as

a means to obtain government endorsement of their efforts to provide

aid, education, and other services to the immigrant population. The

recognition and accreditation process is not designed for this purpose.”);

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Representation and Appearance, 60 Fed. Reg. at 57,200 (stating that the

nominal fees requirement exists to ensure that “recognized organizations

are in fact charitable” and “are serving low-income or indigent clients”)

(Supplementary Information).

In addition, the application as a whole must persuade us that the

organization truly charges all its clients nominal fees for immigration

services. 2 Unlike a law firm, a recognized organization cannot charge

actual costs or market fees for legal services; nor may it require some

clients to pay full market fees and charge others reduced or nominal fees.

As we held in Matter of American Paralegal Academy, Inc., 19 I&N Dec.

at 388, by allowing a recognized organization to charge nominal fees, the

regulations did not intend to provide “a means by which those who are able

to pay for assistance help off-set the expenses of those who cannot.”

Although a nonprofit organization may expect clients with larger incomes

to contribute more based on a sliding fee scale, none of its clients may be

charged more than nominal fees. See Representation and Appearance,

60 Fed. Reg. at 57,200 (noting that the purpose of recognizing

organizations is to address the need for pro bono representation)

(Supplementary Information); see also Matter of Baptist Educational

Center, 20 I&N Dec. at 735. If we are not confident that nominal fees will

be charged in every instance, the application for recognition will not be

approved.

Finally, to demonstrate that it makes nominal charges, an applicant

organization should provide its budget, its sources of funding or financial

support, and a list of its fees. The applicant should also describe how it

determines its charges for immigration legal services. The more

information and documentation the application for recognition includes, the

better able we are to assess whether the organization’s charges are nominal.

We will not approve an application with vague or incomplete information

about an organization’s fees, budget, or funding.

As a practical matter, the Board will consider certain factors when

analyzing whether an applicant’s charges are nominal. These factors

include but are not limited to: (1) the type of clerical services offered

(translations, notarizations, or fingerprints); (2) the type and scope of

legal representation (providing a consultation, filing a form with the

DHS, appearing at an interview, or litigating complicated issues in

2

A request for recognition is a continuing application, so an organization has the

obligation to continue meeting the requirements for recognition, including charging only

nominal fees to its clients. See 8 C.F.R. § 1292.2(b). Accordingly, the organization

should be aware that any increases to its fee schedule must still comport with the

requirement that the fees it charges be nominal.

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Immigration Court or before the Board); (3) the manner of delivery of legal

services (office type and location, use of telecommunications); (4) the

fees imposed, if any, for each visit, consultation, clerical item, or service

(charges per office visit, per page for translations, or per stage of

representation); (5) the actual costs to provide such services in a particular

geographic area (rural community or major metropolitan area); and (6) the

circumstances under which the organization will waive fees for clients who

are unable to pay for services, adjust fees based on the client’s income,3 and

assess fees on an individual or family basis.4

The applicant is located in the Washington, D.C., metropolitan area.

The list of charges for the organization’s immigration legal services shows

that fees vary depending on the location where the services are to be

performed and on the type and complexity of the legal services offered.

The fees for basic services are modest, and the organization adjusts its fees

for more complex services (such as court appearances, applications for

courtroom relief, and appellate work), according to where its clients fall

within the Federal poverty guidelines. The organization clearly explains its

fee waiver policy and indicates that no individual will be denied services

for inability to pay. Moreover, the organization’s budget and funding

demonstrate that it is substantially supported by grants and is not dependent

primarily on client fees for its operations.

Considering the entire application for recognition, we are persuaded that

the applicant organization imposes only nominal charges for its

immigration legal services. The application for recognition will therefore

be approved. Any pending application for accreditation will be addressed

by separate order, because the approval of recognition does not

automatically authorize an individual associated with the organization

to practice before the Board, the Immigration Courts, or the DHS.

See 8 C.F.R. § 1292.2(d).

ORDER: The application for recognition is approved.

3

Organizations may use the Federal poverty guidelines to assess a client’s ability to pay.

See Asst. Sec’y for Planning and Evaluation, U.S. Dep’t of Health & Human Services,

2014 Federal Poverty Guidelines, http://aspe.hhs.gov/poverty/14poverty.cfm.

4

Depending on the specifics of the organization, we expect the applicant to submit such

fee-related documents as a fully developed fee schedule (with dollar amounts), a sample

retainer agreement, a written fee waiver and/or sliding scale policy, a sample client

handout regarding fees and fee waivers, and clear statements of funding and financial

support on appropriate letterhead.

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