# Executive Office for Immigration Review; Fee Review

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2020-27506

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** December 18, 2020
- **Citation:** 85 FR 82750

## Text

DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1003, 1103, 1208, 1216, 1240, 1244, and 1245
[EOIR Docket No. 18-0101; A.G. Order No. 4929-2020]
RIN 1125-AA90
Executive Office for Immigration Review; Fee Review

AGENCY:

Executive Office for Immigration Review, Department of Justice.

ACTION:

Final rule.

SUMMARY:

On February 28, 2020, the Department of Justice (“the Department” or “DOJ”) published a notice of proposed rulemaking (“NPRM” or “proposed rule”) that would increase the fees for those Executive Office for Immigration Review (“EOIR”) applications, appeals, and motions that are subject to an EOIR-determined fee, based on a fee review conducted by EOIR. The proposed rule would not affect fees established by the Department of Homeland Security (“DHS”) with respect to DHS forms for applications that are filed or submitted in EOIR proceedings. The proposal would not affect the ability of aliens to submit fee waiver requests, nor would it add new fees. The proposed rule would also update cross-references to DHS regulations regarding fees and make a technical change regarding requests under the Freedom of Information Act (“FOIA”). This final rule responds to comments received in response to the NPRM and adopts the fee amounts proposed in the NPRM without change.

DATES:

This rule is effective on January 19, 2021.

FOR FURTHER INFORMATION CONTACT:

Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Falls Church, VA 22041, telephone (703) 305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Summary of the Proposed Rule

On February 28, 2020, the Department published an NPRM that would 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 EOIR. Executive Office for Immigration Review; Fee Review, 85 FR 11866 (Feb. 28, 2020). The proposed rule would not affect fees established by DHS with respect to DHS forms for applications that are also filed or submitted in EOIR proceedings. The proposal would not affect the ability of aliens to submit fee waiver requests, nor would it add fees for any EOIR forms or applications other than those which currently have a fee imposed. The proposed rule would also update cross-references to DHS regulations regarding fees to match changes to the organization and structure of DHS's regulations regarding fees for applications and make a non-substantive correction to the regulatory cross-reference for requests under the FOIA.

A. Authority and Legal Framework

The Department published the proposed rule pursuant to its authority to charge fees, also referred to as user charges. 85 FR at 11866-67.

Pursuant to section 286(m) of the Immigration and Nationality Act (the “Act” or “INA”) (8 U.S.C. 1356(m)), the Attorney General and the Secretary of Homeland Security may charge fees for adjudication and naturalization services at a rate that would ensure recovery of both the full cost of providing all such services, including similar services that may be provided without charge to certain categories of aliens, and any additional administrative costs associated with the fees collected.
1

85 FR at 11867. Accordingly, adjudication fees, as designated in the regulations, are deposited into the Immigration Examinations Fee Account (“IEFA”) in the Treasury of the United States and “remain available until expended to the Attorney General [or the Secretary] to reimburse any appropriation the amount paid out of such appropriation for expenses in providing immigration adjudication and naturalization services and the collection, safeguarding and accounting for fees deposited in and funds reimbursed from the [IEFA].” INA 286(n), 8 U.S.C. 1356(n);
see also
85 FR at 11867.
2

The Act authorizes the Attorney General and Secretary of Homeland Security to promulgate regulations to carry out this authority. INA 286(j), 8 U.S.C. 1356(j).

1
Following the Homeland Security Act of 2002 (“HSA”), the Attorney General retained the same authority and functions related to immigration and naturalization of aliens exercised by EOIR or the Attorney General prior to the HSA's effective date. Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135;
see
INA 103(g)(1) (8 U.S.C. 1103(g)(1)). Further, the Attorney General retained the authority to perform actions as necessary, including promulgating regulations, in order to carry out authority under the immigration laws.
See
INA 103(g)(2), 8 U.S.C. 1103(g)(2).

2
All other payments received for fees and administrative fines and penalties are deposited into the Treasury as miscellaneous receipts, not including some exceptions that are irrelevant for the purposes of this final rule.
See
INA 286(c), 8 U.S.C. 1356(c); 85 FR at 11867.

In addition, the Department notes that this rule is also authorized by title V of the Independent Offices Appropriations Act of 1952 (“IOAA”), Public Law 82-137, 65 Stat. 268, 290 (1951) (codified at 31 U.S.C. 9701). The IOAA provides government-wide authority to charge fees to individuals who receive special services from an agency. 31 U.S.C. 9701(a)-(b).
3

Those fees must be “fair” and based on government costs, value provided to the recipient, the public policy or interest served, and other relevant factors.
Id.

3
Title V of the IOAA was first codified at 31 U.S.C. 841. In 1982, the language from title V of the IOAA was subsequently codified, with minor changes and the addition of paragraphing, at 31 U.S.C. 9701. Act of Sept. 13, 1982, Public Law 97-258, 96 Stat. 877, 1051 (revising, codifying, and enacting without substantive change certain general and permanent laws, related to money and finance, as title 31, United States Code, “Money and Finance”).

The proposed rule is likewise consistent with Circular No. A-25 Revised,
4

which has been determined to be a “proper construction” of the IOAA,
5

and provides guidance to executive branch agencies regarding the scope and types of activities that may be covered by user fees and how to set such fees. Covering all Federal activities, including agency programs, that convey special benefits to recipients beyond those that the general public receives, it instructs agencies to review user charges for such activities biennially.
See
Circular No. A-25 Revised at sec. 8(e);
see also
31 U.S.C. 902(a)(8) (directing an “agency Chief Financial Officer” to “review, on a biennial basis, the fees, royalties, rents, and other charges imposed by the agency for services and things of value it provides, and make recommendations on revising those charges to reflect costs incurred by it in providing those services and things of value”).

4
Circular No. A-25 was published in 1959. Circular No. A-25 Revised rescinded and replaced Circular No. A-25 and its accompanying Transmittal Memoranda 1 and 2.
See
Office of Management and Budget (“OMB”) Circular A-25, 58 FR 38142, 38144 (July 15, 1993).

5

See Fed. Power Comm'n
v.
New England Power Co.,
415 U.S. 345, 349-51 (1974).

B. Purpose of the Proposed Rule

Before the proposed rule's publication, the Department had fallen out of compliance with Circular No. A-25 Revised and 31 U.S.C. 902(a)(8) regarding the review of EOIR's fees on a biennial basis. For over 30 years the Department did not either review or update the fees charged for applications, appeals, and motions for which EOIR levies a fee.
See
85 FR at 11869.

Accordingly, in order to ensure compliance with the IOAA (31 U.S.C. 9701), section 286(m) of the Act (8 U.S.C. 1356(m)), 31 U.S.C. 902(a)(8), and Circular No. A-25 Revised, “EOIR conducted a comprehensive study using activity-based costing to determine the cost to EOIR for each type of application, appeal, and motion for which EOIR levies a fee under 8 CFR 1103.7(b).”
Id.

Through the 3-phase study, EOIR determined the cost for each form and motion by allocating average direct salary costs to each step in an average process map for how the fee, application, or motion works through the adjudicatory process.
See
85 FR at 11869. In other words, EOIR totaled the total salary costs for the different EOIR staff involved in the processing and adjudication for each form and motion, based on the average time each type of official spends on that processing and adjudication, to determine an average processing cost.
See id.
Despite EOIR's authority to recover the full cost of providing adjudication services, EOIR's study did not include costs aside from the direct salary costs for the involved staff. Specifically, the study did not include: (1) Overhead costs, which the Department determined would occur regardless of how many applications, appeals, or motions to which a fee applies are filed; (2) non-salary benefits, which may vary greatly from person to person depending on which benefits, if any, are selected; or (3) costs associated with filing related documents that may be submitted with the application, appeal, or motion to which a fee applies.
Id.

Despite including only the direct salary costs in this cost study, the results clearly demonstrated that the processing costs for the applications, appeals, and motions to which a fee applies under 8 CFR 1103.7(b) significantly exceed the fees imposed in 1986. 85 FR at 11870. Accordingly, the Department issued the NPRM to begin rulemaking to update the fees in accordance with the processing costs identified by the EOIR fee study so that the fee amounts “more accurately reflect the costs for EOIR's adjudications of these matters.”
Id.

Because the proposed rule roughly matched the new fee amounts with the processing costs that were identified by a study that did not consider the complete cost to the agency, as explained above, the proposed rule inherently subsidized the costs of adjudicating these applications, appeals, and motions. In other words, the updated fee amounts balance “the public interest in ensuring that U.S. taxpayers do not bear a disproportionate burden in funding the immigration system” with the fact that “these applications for relief, appeals, and motions represent statutorily provided relief and important procedural tools that serve the public interest and provide value to those who are parties to the proceedings by ensuring accurate administrative proceedings.”
Id.
Put more simply, the proposed rule intentionally put forth fee amounts that were less than the cost to the agency in order to effectively serve the public interest.

C. Provisions of the Proposed Rule

In determining the fees to charge, the agency considered the various public policy interests involved, including ensuring that immigration courts continue to be accessible for aliens seeking relief and that U.S. taxpayers do not bear a disproportionate burden in funding the immigration system.
See id.
Based on the cost study and these considerations, the NPRM proposed the following changes to EOIR's fees:

1. Increase the fee for Form EOIR-26 from $110 to $975.

2. Increase the fee for Form EOIR-29 from $110 to $705.

3. Increase the fee for Form EOIR-40 from $100 to $305.

4. Increase the fee for Form EOIR-42A from $100 to $305.

5. Increase the fee for Form EOIR-42B from $100 to $360.

6. Increase the fee for Form EOIR-45 from $110 to $675.

7. Increase the fee for filing a motion to reopen or reconsider from $110 before both the immigration courts within the Office of the Chief Immigration Judge (“OCIJ”) and the Board of Immigration Appeals (“BIA” or “Board”) to $145 if either motion is filed before the OCIJ, and $895 if either motion is filed before the BIA.

The NPRM also proposed numerous technical corrections to fee-related citations to both DHS's regulations in chapter I and EOIR's regulations in chapter V of title 8 of the Code of Federal Regulations following DHS's publication of an NPRM regarding DHS-imposed fees. U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 84 FR 62280 (Nov. 14, 2019). The Department's NPRM included proposed changes to cross-references to those DHS regulations as used in EOIR's regulations to ensure that all cross-references were accurate in accordance with DHS's proposed rule.
See
85 FR at 11871-72.

Finally, the proposed rule made additional technical corrections to EOIR's regulations to correct cross-references, both to a provision regarding requests pursuant to FOIA and to EOIR's own fee-related regulations. 85 FR at 11872.

More specifically, the NPRM proposed the following changes to EOIR's regulations.

a. Part 1003—Executive Office for Immigration Review

First, the NPRM proposed to amend 8 CFR part 1003 by updating citations contained in this part. In accordance with DHS's rulemaking, the NPRM proposed to change “8 CFR 103.7(a)” to “§ 1103.7(b)” in § 1003.8(a)(4)(ii), and it proposed to change “8 CFR 103.7” to “8 CFR 103.7 and 8 CFR part 106” in § 1003.24(a) and (c).

b. Part 1103—Appeals, Records, and Fees

Also, in accordance with DHS's rulemaking, the NPRM proposed to amend 8 CFR 1103.7 by changing (1) the citation “8 CFR 103.7(a)(1)” to “8 CFR 103.7(a)” in paragraph (a)(3); (2) the citation “8 CFR 103.7(a)(2)” to “8 CFR 103.7(c) and 8 CFR 106.1” in paragraph (a)(3); and (3) the citation “8 CFR 103.7” to “8 CFR 103.7 and 8 CFR part 106” in paragraph (b)(4)(ii). In addition, the NPRM proposed revising paragraph (b)(4)(ii) of § 1103.7 to clarify that despite DHS's proposed assignment of a $50 fee for filing a Form I-589, Application for Asylum and for Withholding of Removal, such fee would not apply for a Form I-589 filed with an immigration judge “for the sole purpose of seeking withholding of removal under section 241(b)(3) of the Act or protection under the Convention Against Torture regulations.”

Next, the NPRM proposed to revise paragraphs (b)(1), (b)(2), and (b)(4)(i) to reflect the updated fee amounts. Paragraph (b)(1) would contain updated fees for Forms EOIR-26, -29, and -45. Paragraph (b)(2) would contain updated fees for motions to reopen or to reconsider before the immigration court and motions to reopen or to reconsider before the BIA. Paragraph (b)(4)(i) would contain updated fees for Forms EOIR-40, -42A, and -42B.

The NPRM also proposed to revise paragraph (d) to correct a cross-reference to the regulations regarding FOIA. The current regulation incorrectly stated that the FOIA regulation is located at 28 CFR 16.11, and the NPRM corrected that cross-reference to 28 CFR 16.10.

c. Part 1208—Procedures for Asylum and Withholding of Removal

The NPRM proposed to amend 8 CFR 1208.7 to change the citation “§ 103.7(c)” to “8 CFR 106.3” in paragraph (c), in accordance with DHS's proposed rule.

d. Part 1216—Conditional Basis of Lawful Permanent Residence Status

Also in accordance with DHS's rulemaking, the NPRM proposed to amend 8 CFR part 1216. In § 1216.4, the NPRM proposed to change the citation “§ 103.7(b)” to “§ 106.2” in paragraph (a)(1). It also proposed to change the citation “§ 103.7(b)” to “§ 106.2” in paragraph (b). In § 1216.6, the NPRM proposed to change the citation “§ 103.7(b)(1)” to “§ 106.2” in paragraph (a)(1).

e. Part 1235—Inspection of Persons Applying for Admission

Also in accordance with DHS's rulemaking, the NPRM proposed to amend 8 CFR 1235.1 to change the citation “§ 103.7(b)(1)” to “§ 103.7(d)” in paragraphs (e)(1)(iii), (e)(2), and (f)(1). This final rule, however, does not adopt that change because an intervening rulemaking, Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, signed by the Attorney General and the Acting Secretary of Homeland Security on December 2, 2020, removed and reserved 8 CFR 1235.1 altogether.

f. Part 1240—Proceedings to Determine Removability of Aliens in the United States

The NPRM proposed to amend 8 CFR part 1240 to correct cross-references to EOIR's own regulations. In § 1240.11, the NPRM proposed to change the citation “§ 103.7(b)(1) of 8 CFR chapter I” to “§ 1103.7(b)(1) of this chapter” in paragraph (f). In § 1240.20, the NPRM proposed to change the citation “§ 103.7(b) of 8 CFR chapter I” to “§ 1103.7(b) of this chapter” in paragraph (a).

g. Part 1244—Temporary Protected Status for Nationals of Designated States

The NPRM proposed to amend 8 CFR part 1244 in accordance with DHS's proposed rulemaking. In § 1244.6, the NPRM proposed to change the citation “§ 103.7 of this chapter” to “8 CFR 106.2”. Further, in § 1244.20, the NPRM proposed to change the citation “8 CFR 103.7(b)” to “8 CFR 106.2” in paragraph (a).

h. Part 1245—Adjustment of Status to that of Person Admitted for Permanent Residence

The NPRM proposed to amend 8 CFR part 1245 in accordance with DHS's proposed rule.

In § 1245.7, the NPRM proposed to change the citation “§ 103.7 of this chapter” to “8 CFR 103.7 and 8 CFR 103.17” in paragraph (a).

In § 1245.10, the NPRM proposed to change the citation “§ 103.7(b)(1) of this chapter” to “8 CFR 106.2” in paragraph (c).

In § 1245.13, the NPRM proposed to change the citation “§ 103.7(b)(1)” to “§ 106.2” in paragraphs (e)(1), (g), (j)(1), and (k)(1), and it proposed to change the citation “§ 103.7(b)(1)” to “§ 103.7(a)(2)” in paragraph (e)(2).

In § 1245.15, the NPRM proposed to change the citation “§ 103.7(b)(1) of this chapter” to “8 CFR 106.2” in paragraph (c)(2)(iv)(A), and it proposed to change the citation “§ 103.7(c)” to “§ 106.3” in paragraph (c)(2)(iv)(B). Further, in 1245.15, the NPRM proposed to change the citation “§ 103.7(b)(1)” to “§ 106.2” in paragraph (h)(1), (n)(1), and (t)(1), and it proposed to change the citation “§ 103.7(b)(1)” to “§ 103.2(a)(2)” in paragraph (h)(2).

In § 1245.20, the NPRM proposed to change the citation “§ 103.7(b)(1)” to “§ 106.2” in paragraphs (d)(1), (f), and (g).

In § 1245.21, the NPRM proposed to change the citation “§ 103.7(b)(1) of this chapter” to “8 CFR 106.2” in paragraph (b)(2), and it proposed to change the citation “8 CFR 103.7(b)(1)” to “8 CFR 106.2” in paragraphs (h) and (i).

II. Public Comments on the Proposed Rule

A. Summary of Public Comments

The comment period for the NPRM closed on March 30, 2020, with 601 comments received.
6

Organizations (including non-governmental organizations, legal advocacy groups, non-profit organizations, and religious organizations), congressional committees, and groups of members of Congress submitted 157 comments, and individual commenters submitted the rest. Most individual comments opposed the NPRM. All organizations but one opposed the NPRM.

6
The Department reviewed all 601 comments submitted in response to the rule; however, the Department did not post five of the comments to
regulations.gov
for public inspection. Of these comments, three were duplicates of another comment written by the same commenter, one was a blank comment without any attachment, and one was a comment specific to a prior agency rulemaking.

B. Comments Expressing Support for the Proposed Rule

Comment:
Some individuals and one organization expressed support for the NPRM. Some supportive commenters noted the length of time since EOIR last reviewed and updated its fees and agreed that the fee amounts should be brought more in line with the modern processing costs to the agency and the costs imposed by United States Citizenship and Immigration Services (“USCIS”) for similar forms or services.

One commenter noted that the criminal and civil court systems also impose fees and fines. Commenters expressed gratitude that the rule would protect taxpayer dollars and stated that taxpayers should not have to be burdened by or pay for immigration-related costs and the immigration court system for non-citizens. Instead, commenters stated that immigrants need to pay for their own immigration-related expenses.

Two commenters characterized the current status quo without the rule as allowing some form of “free” immigration, which commenters stated should not be allowed.

Commenters also expressed a belief that the United States cannot afford the current immigration system any longer.

One commenter noted that the commenter's father was an immigrant who paid all his own immigration-related costs.

Response:
The Department appreciates the commenters' support for the rule.

Comment:
Four commenters who supported the Department's reasoning for increasing EOIR's fees suggested that the Department should consider a more modest fee increase instead of the full amounts proposed. These commenters were concerned that the proposed amounts might be too large and too sudden for people to afford, could render services unattainable, or are simply too high. On the other hand, two commenters suggested that the fees should instead be set at a higher amount.

One commenter suggested that the Department should require supporting documents for any fee-waiver requests. One commenter suggested in the future the Department should propose smaller increases every few years instead of waiting a lengthy period of time to impose such a substantial fee increase.

Response:
The Department appreciates the commenters' suggestions and has taken the suggestions under advisement. Regarding suggestions about the proposed changes to the fee amounts, further discussion on the

specific fee amounts to be imposed is contained below in Section II.C.4 of this preamble and further discussion on fee waivers is contained below in Section II.C.5. The Department also acknowledges the comment regarding not waiting thirty years to increase fees again in the future and, going forward, expects to adhere more closely to the biennial fee review timetable established by the Office of Management and Budget (“OMB”) and Congress.

C. Comments Expressing Opposition to the Proposed Rule

1. General opposition

Comment:
Numerous commenters expressed general opposition to the NPRM and provided little to no reasoning for their opposition.
7

Many commenters asked the Department to withdraw the NPRM with no supporting rationale. Other commenters expressed opposition to the NPRM based generally upon their belief that it undermines American values. One commenter opposed the NPRM as “rule by executive decree” that eroded the separation between Congress and the Executive Branch.

7
Several comments expressed various USCIS-related concerns, such as opposition to USCIS-imposed fees for appeals and waiver requests. As a component of DHS, USCIS is a distinct agency from EOIR, a component of DOJ. This rule does not affect fees established by DHS.
See
85 FR at 11866. Therefore, such concerns are outside the scope of this rulemaking.

Response:
The Department is unable to provide a detailed response to comments that express only general opposition without providing reasoning for such opposition, but the Department reiterates the need to implement this rulemaking in accordance with authority under section 286 of the Act (8 U.S.C. 1356) and the IOAA, especially in light of the length of time since EOIR's fees were last reviewed, notwithstanding Circular No. A-25 Revised and 31 U.S.C. 902(a)(8). In subsequent sections of this final rule, the Department responds to comments that provided specific points of opposition or reasoning underlying their opposition.

Further, the Department disagrees that the rule undermines American values. The rulemaking is promulgated in accordance with the IOAA and section 286(m) of the Act (8 U.S.C. 1356(m)), which statutorily authorize DOJ to charge fees for immigration adjudication and naturalization services. Accordingly, since promulgation of this rule is squarely within the Department's congressionally authorized purview, the Department believes that this rule furthers American values, including the rule of law.

The rule does not constitute “rule by executive decree.” Section 286(j) of the Act (8 U.S.C. 1356(j)) authorizes the Attorney General to promulgate regulations to carry out section 286 of the Act. The Administrative Procedure Act (“APA”) establishes rulemaking procedures that agencies must follow when engaging in regulatory activity.
See generally
5 U.S.C. 553. The Department properly exercised its regulatory authority under section 286(j) of the Act (8 U.S.C. 1356(j)) and followed all relevant APA procedures. Further, the IOAA provides additional authority for this action. See Section II.C.9. of this preamble for further discussion.

2. Opposition to Current United States Immigration System

Comment:
Numerous commenters expressed general opposition to the current U.S. immigration system as a whole and included the following perceived concerns: Inefficiencies throughout the system; problems with agency management and personnel; poor treatment of refugees and immigrants in comparison to the United States' wealth and the inscription on the Statue of Liberty; funding for a border wall; politicization of immigration-related issues; and implementation of recent immigration policies, such as the Migrant Protection Protocols (“MPP”) and immigration judge performance measures, which commenters described as “case completion quotas.”

Many commenters emphasized the positive contributions of immigrants to American society and the economy; relatedly, commenters stated that taxpayers should share some of the cost burden for the forms, applications, or motions affected by this rule because the United States benefits from immigration. These commenters supported simplifying the immigration system so that immigrants may more readily immigrate to the United States and join American communities. Commenters also alleged that, if implemented, the rule would result in a decline in immigration, promote inequality within the immigration system, and overall harm the country.

Response:
Commenters' concerns regarding the immigration system as a whole and interest in more sweeping changes to the immigration system are far outside the scope of this rulemaking. The rule amends EOIR regulations specifically in regard to fees for applications, motions, and forms before EOIR. More specifically, and in accordance with EOIR's fee review, the rule increases fees for EOIR applications, appeals, and motions in accordance with the authority discussed in Section I.A of this preamble and EOIR's 2018 fee study; updates cross-references and discussion of DHS regulations regarding fees in response to DHS's rulemaking regarding its immigration fees; and makes technical changes regarding FOIA requests and other internal cross-references.
See generally
85 FR 11866. Accordingly, comments concerning Federal immigration policy across the Government and the immigration system as a whole are outside the rule's limited scope of EOIR fees.

3. Objections to Fee Increases as a Funding Mechanism for EOIR

Comment:
Commenters opposed the NPRM by stating that fees should not serve as a funding mechanism for EOIR's adjudication costs for various reasons: The Department is not statutorily required to recover the full cost of adjudications; the Department lacks authority to recover the full cost; and the Department, as a congressionally appropriated agency (rather than a fee-based agency), should be funded through such appropriations rather than fees. Further, commenters found the Department's determination that it was necessary to update its fees despite being an appropriated agency inadequate and conclusory. Commenters stated that congressional appropriations could adequately support EOIR operations. Some commenters stated that congressional appropriations would have been sufficient, but asserted that the President had diverted EOIR funding toward building a wall on the Southern border with Mexico.

Some commenters explained that fees need not recover the full cost because taxpayers should subsidize the fees in order to keep the relevant forms, applications, or motions “affordable” and “accessible” for certain people, such as asylum seekers, who would be unable to cover the full proposed fees. One commenter suggested the Department should in fact impose no fees. Another commenter suggested that EOIR should request additional congressional appropriations if the agency is concerned about the budgetary impacts of filing processing.

One commenter alleged that the Department exceeded its statutory authority because section 286(m) of the Act (8 U.S.C. 1356(m)) does not authorize “[r]aising fees that were previously sufficient, or near sufficient, by seven, eight, and even nine times their current amount.”

Response:
As an initial matter, commenters are correct that the Department, including EOIR, is funded by congressional appropriations.
See, e.g.,
Consolidated Appropriations Act, 2020, Public Law 116-93, 133 Stat. 2317, 2396 (Dec. 20, 2019) (appropriating to EOIR “$672,966,000, of which $4,000,000 shall be derived by transfer from the Executive Office for Immigration Review fees deposited in the `Immigration Examinations Fee' account, and of which not less than $18,000,000 shall be available for services and activities provided by the Legal Orientation Program”). It retains authority, however, to charge fees for immigration adjudications to recover up to the full costs expended by the agency in providing such services. INA 286(m), 8 U.S.C. 1356(m);
see also
Circular No. A-25 Revised (available at 58 FR 38142 (July 15, 1993)); 31 U.S.C. 9701(a)-(b) (encouraging agencies to be as self-sustaining as possible). Although the statutory authority requires consideration of various relevant factors, it is not restricted by a strict limit or cap, conditions related to taxpayer contributions or congressional appropriations, or principles of “affordability” or “accessibility”; therefore, the Department's authority to impose fees is not limited in the ways proposed by the commenters. Despite its statutory authority and a rise in caseload and adjudication costs, EOIR's fees have not been updated since 1986—over thirty years ago.

While the Department agrees with commenters that some agency costs are covered by appropriation, this does not obviate the purpose of the rulemaking, which is to lower costs to the taxpayers while still ensuring access to the immigration courts, as appropriated funds reflect costs to taxpayers. Commenters are incorrect that any of EOIR's appropriated funds have been diverted outside the agency to fund construction of a border wall. Moreover, some of EOIR's funding—
e.g.,
the funding for the general Legal Orientation Program (LOP)—cannot be re-purposed to offset costseven though a portion of that funding itself has been found to be financially wasteful.
See
LOP Cohort Analysis (Phase I) (Sept. 5, 2018),
https://www.justice.gov/eoir/file/1091801/download;
LOP Cohort Analysis Addendum (Phase I) (Jan. 29, 2019), and
https://www.justice.gov/eoir/file/1125596/download.

The sufficiency of EOIR's congressional appropriations is irrelevant for the purpose of this rule, which is to ensure EOIR fees more accurately reflect the costs for EOIR's adjudications, consistent with the Department's authority to impose fees under the IOAA (31 U.S.C. 9701) and section 286(m) of the Act (8 U.S.C. 1356(m)). These authorities demonstrate a congressional intent that, to the extent possible, agencies should levy a fee designed to ensure maximum self-sufficiency, even if the overall budget is supported and funded via congressional appropriations.

The updated fees are based on an assessment that accounted only for direct salary costs required for processing those documents subject to the rule.
See
85 FR at 11869 (explaining that the survey did not consider overhead costs, costs of non-salary benefits, or costs associated with processing corresponding applications or documents that may be filed with the applications, appeals, and motions subject to the rule). Accordingly, the updated fees are based on a reduced estimate of the processing costs and, thus, inherently do not cover all related costs. The proposed rule did not, and the final rule does not, purport to cover all costs; instead, the rule seeks to update fees so that the fee amounts “more accurately reflect the costs for EOIR's adjudications of these matters” while at the same time balancing “both the public interest in ensuring that the immigration courts are accessible to aliens seeking relief and the public interest in ensuring that U.S. taxpayers do not bear a disproportionate burden in funding the immigration system.” 85 FR at 11870.

The Department never intended for this rulemaking to update fees in order to recover the entirety of processing costs or to fully fund EOIR's adjudication costs. On the contrary, the Department balanced the public policy interest maintaining accessibility of the immigration courts for aliens while ensuring that U.S. taxpayers do not pay a disproportionate amount to fund the immigration court system. 85 FR at 11870. Indeed, as explained in the NPRM, the Government seeks to “recoup some of its costs when possible and . . . also protect the public policy interests involved.”
Id.

4. Objections to Amount of Fee Increases

Comment:
Commenters generally objected to the amount of fee increases, stating that the fee increases were too high.

Commenters asserted that one of the Department's justifications for its proposed adjusted fees was premised on a miscalculation. Specifically, commenters stated that the Department calculated what the estimated increase in fees would have been if the Department had raised its fees on an annual basis since it last adjusted fees in 1986 by calculating the compound annual growth rate (“CAGR”), but asserted that the Department miscalculated the CAGR in some of the filings addressed in the NPRM: The Forms EOIR-40 and -42A and motions to reopen before the immigration court.
See
85 FR at 11874. Commenters asserted that although these alleged miscalculations were small, they called the Department's computational accuracy into question in arriving at the proposed fees.

Commenters asserted that the Department calculated the CAGR for Form EOIR-40 and Form EOIR-42A as 3.33 percent by inputting the $305 proposed fees, $100 current fees, and the 33-year time period. Commenters asserted that the Department was 0.11 percent too low in its calculation, which should have yielded 3.44 percent CAGR for these forms. Likewise, commenters asserted that the Department miscalculated the CAGR for Form EOIR-42B, at a 3.84 percent CAGR. Commenters asserted that to reach this CAGR, the Department should have input the $360 proposed fee for the Form EOIR-42B, as well as the $100 current fee for the form, and the 33-year time period passing between 1986 and 2019 to get a 3.96 percent CAGR. Instead, DOJ calculated a 3.84 percent CAGR for this form. Commenters also asserted that the Department miscalculated the CAGR for motions to reopen before the immigration court, which it calculated as 0.82 percent. Commenters stated that the Department should have input the proposed $145 fee to file a motion to reopen before the immigration court, the $110 current fee for this motion, and the 33-year timespan to reach a 0.84 percent CAGR.

Commenters similarly criticized the Department's methodology in calculating the costs for each application because the Department did not provide justification or explanation on how the Department determined the estimated costs. Additionally, commenters objected to the fees based on the assertion that the fee increases are unrelated to the cost of inflation.

Commenters further objected to the Department's estimates of the costs associated with processing applications because they were based on current processing methods and failed to account for foreseeable changes in future processing costs. As an example of a consideration the Department failed to include, commenters cited the increased prevalence of affirmances without opinion (“AWO”) on appeals to the BIA following the publication of the

final rule, Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents, 84 FR 31463, on September 3, 2019. Commenters also asserted that the Department failed to consider that the proposed rule would have the effect of reducing the number of case filings, which would result in a decrease to the Department's expenses. Commenters objected to the Department's inclusion of $327.83 of administrative costs in the total costs of appeal, which they stated was one third of the overall calculated cost.

Commenters expressed concern regarding the Department's reliance on a spring 2018 study conducted within the Department. Commenters asserted that the Department failed to provide necessary detail about the survey process and therefore the commenters were concerned because they were unable to verify the validity of the study.

Commenters suggested that, at a minimum, the Department should have addressed whether aliens who are currently making the relevant filings are able to afford the filing fees and should have set fees at a level that most individuals are able to pay.

Commenters also suggested that recently implemented “case completion quotas” would affect the EOIR cost analysis, because immigration judges would take less time to make decisions.

Response:
The Department notes that some commenters believe that the Department miscalculated the CAGR for Form EOIR-40, Form EOIR-42A, and motions to reopen before the immigration court. Regardless of any miscalculations with respect to the CAGR, as commenters recognized, the Department's calculations differed from the commenters' recommended calculations to a small degree (.11, .12, and .02 percent differentials, respectively) such that they could be attributed to differences in rounding estimates. Even assuming, arguendo, that the commenters' assertions are correct, the Department notes that such calculations need not be exact, so long as the “fees are no greater than
the rough actual cost
of providing the services.”
Ayuda, Inc.
v.
Att'y Gen.,
661 F. Supp. 33, 36 (D.D.C. 1987) (“
Ayuda I”
) (emphasis added),
aff'd,
848 F.2d 1297 (D.C. Cir. 1988) (“
Ayuda II”
);
see also Nat'l Cable Television Ass'n
v.
FCC,
554 F.2d 1094, 1108 (D.C. Cir. 1976) (“To be valid, a fee need only bear a
reasonable
relationship to the cost of the services rendered by the agency.” (emphasis in original)). In addition, these calculations were provided for illustrative purposes only and are unrelated to the underlying calculations of the new fee amounts based on the agency's adjudicatory costs.
8

The Department notes, for example, its decision to round several of its fees to the nearest five-dollar increment and its decision to round the average of actual costs for motions to reopen and reconsider before the immigration courts. 85 FR at 11870. The Department notes that it did not receive any comments objecting to this decision. Accordingly, the Department believes that its calculations are reasonable and fair given the rough actual cost of providing the services and will not make any alterations to the proposed fees on this basis.

8
Further, the CAGR calculations have been updated below in section IV.D.

The inclusion of administrative costs in EOIR's cost calculations when determining the new fees was appropriate. Administrative costs are essential to the processing and, in turn, the adjudication of these applications, appeals, and motions and are part of a long-standing process necessary to handle the volume of appeals with expediency, appropriate case management, and ensuring that parties before the BIA receive appropriate notice that is essential for due process.
See Board of Immigration Appeals Practice Manual,
Board of Immigration Appeals,
https://www.justice.gov/eoir/page/file/1250701/download
(last updated Oct. 5, 2020) (describing duties of Clerk's Office at 1.3(e)). Further, while the Department agrees with commenters that some costs are covered by appropriations, this does not obviate the purpose of the rulemaking, which is to lower costs to the taxpayers while still ensuring access to the immigration courts, as appropriated funds necessarily reflect costs to taxpayers. Moreover, regardless of appropriations, OMB Circular No. A-25 Revised and 31 U.S.C. 902(a)(8) instruct agencies to review fees biennially and to recommend revisions to fees to reflect costs incurred.

The Department disagrees with commenters' concerns that it did not adequately explain its methodology or justification for increasing costs. The Department has clearly stated that its purpose for the rulemaking is to ensure that U.S. taxpayers do not bear a disproportionate burden in funding the immigration system while also ensuring that immigration courts remain accessible to aliens seeking relief. 85 FR at 11870. Neither OMB Circular No. A-25 Revised nor 31 U.S.C. 9701 indexes or otherwise limits a government agency's ability to increase fees only to the level of inflation. Moreover, the underlying costs that go into EOIR's fee calculations—
e.g.,
salary costs—are not necessarily indexed to inflation, making an inflation percentage a poor metric for calculating appropriate fees. Additionally, the Department has explained its methodology in calculating the CAGR and its consideration of the availability of fee waivers. 85 FR at 11874 (“Taken over the 33-year timespan from 1986 to 2019, the proposed fee increases would represent compound annual growth rates ranging from 0.82 percent to 6.84 percent. As demonstrated in the chart above, these increases are marginal in terms of inflation-adjusted dollars. While EOIR recognizes that the new fees will be more burdensome, fee waivers are still possible for those who seek them.”). However, in light of numerous comment requests, the Department is publishing the data collected in its spring 2018 study, accompanied by an updated dataset that was applied to that study when finalizing this rule, upon which it has based its calculations in the docket of this rulemaking. This data should further illustrate the Department's careful process and data-driven consideration behind setting the new fees. The Department disagrees with commenters' statements that the Department has failed to consider future changes to foreseeable processing costs. Commenters' suggestions that processing costs would change as a result of more AWO decisions, fee waiver adjudications, three-member BIA decisions, and use of video teleconferencing (VTC) are too speculative, illogical, or not supported by evidence. For example, regarding the use of VTC, EOIR must engage in the same adjudicatory steps, which would presumably result in the same processing costs as with in-person hearings. Similarly, EOIR engages in the same adjudicatory steps to determine whether a decision is issued by one Board member or a three-member panel, so the processing costs of those steps would be largely unaltered.
See
8 CFR 1003.1(e). Moreover, although the number of appeals has increased significantly in the past three years, and is expected to continue increasing, the specific mix of decisions produced by those appeals—
e.g.,
AWO, summary dismissals, single-member decisions, three-member panel decisions—is impossible to predict and depends on the facts of each appeal applied to the relevant regulatory criteria.

See Exec. Office for Immigration Rev. Adjudication Statistics: All Appeals

Filed, Completed, and Pending,

Exec. Office for Immigration Rev., July 14, 2020,
available at https://www.justice.gov/eoir/page/file/1248506/download;
8 CFR 1003.1(d)(2); 8 CFR 1003.1(e)(4)-(6). Commenters opined that because of the higher fees associated with filings, there might be a possible reduction in case filings; however, neither the projection that a significant number of aliens would be unable to afford filing fees nor the projection that there would be a reduction in filings is supported by evidence. Some commenters stated that the Department did not appropriately consider whether cases decided by the BIA would be precedential or non-precedential; however, the Department fails to see how the precedential impact of a case would affect processing costs for an individual case. Moreover, as the fee charged for an appeal is unrelated to the subject-matter of that appeal, there is no basis to expect that the changes to the appeal fees will cause more or fewer decisions to be designated as precedential.

With respect to comments that the Department should have set the filing fees at a rate that most aliens would be able to pay, the Department notes that it does not generally have an alien's financial records at its disposal for review. In those circumstances in which the agency might have such information available, it is due to the information's submission in support of fee waivers filed under the current fee schedule—submissions made by a group of people who would be in the same circumstance under the new amounts. Moreover, to the extent the Department possesses information that may serve as a proxy for an alien's financial status—
e.g.,
the ability of an alien to retain representation or the ability of an alien to pay application fees set by DHS, which are generally much higher than those set by EOIR—that information suggests that most aliens would be able to afford EOIR's proposed fees.

Comment:
Commenters also stated that the Department's calculations are flawed because its calculations are based on the cost to the taxpayer per adjudication, but the Department does not break down the number of appeals filed by the Government as compared with the number of appeals filed by the alien. The commenters asserted that it is fundamentally flawed logic to calculate the cost to the taxpayer of the current number of appeals without specifying how many appeals are filed by DHS, particularly in light of anecdotal evidence that DHS has recently filed appeals in a higher percentage of cases than in the past. Commenters noted that DHS does not have a filing fee associated with its appeals, so there is no incentive for DHS to limit its filings to meritorious appeals. Similarly, commenters averred that if the Department's concern relates to the high pending case load, then DHS should bear some financial responsibility in the process because DHS has control over the number of cases filed and therefore initiated before immigration courts.

Response:
Commenters misconstrue the Department's analysis regarding the basis for the new fees. As explained in the NPRM, EOIR conducted a comprehensive study using activity-based costing to determine the cost to EOIR for each form and motion for which EOIR imposes a fee under 8 CFR 1103.7(b). 85 FR at 11869. This study was completed to comply with the IOAA and section 286(m) (8 U.S.C. 1356(m)) of the Act; it was not a response to the high pending case load, though the increased volume in recent years highlights the Department's failure to bring the fees more in line with the current costs. Through the 3-phase study, EOIR determined the cost for each form and motion by allocating average direct salary costs to each step in an average process map for how the fee, application, or motion works through the adjudicatory process.
See id.
In other words, EOIR totaled the total salary costs for the different EOIR staff involved in the processing and adjudication for each form and motion, based on the average time each type of official spends in that processing and adjudication, to determine an average processing cost.
See id.

The processing costs identified by the fee study, and in turn the new amounts to be charged for these forms and applications, are, as a result, not tied to the volume of the forms or motions filed, either in total or by DHS. Instead, for example, the identified cost for the adjudication of a Form EOIR-26 for an appeal to the BIA from an immigration judge decision, as determined by the study, would be the same if the Department received one appeal as it would be if EOIR received any other number. This is because it would take the same time, considered as an average, for the different BIA staff members to process each individual appeal. Accordingly, the relative volume of appeals (or other forms or motions) DHS files, including trends in those filings, is irrelevant to the Department's determination to update the fee amounts. Nevertheless, in response to the commenters' concerns, the Department has recalculated the receipts reflected in the NPRM to attempt to best account only for those filings by aliens and the resulting costs to the taxpayers.
9

9
The Department notes that the numbers do include jointly filed motions, though those types of filings do not incur a fee to the alien. In addition, the Department notes that the fee collection amounts in columns 6, 7, and 8 of this chart are over-inclusive as they do not include fee waivers that were approved. As indicated in the proposed rule, approximately 36 percent of these fees were not received in 2018 due to fee waivers. 85 FR at 11869 n.11.

ER18DE20.021

The Department also

disagrees that the lack of a set fee for DHS incentivizes DHS to file non-meritorious forms or motions any more than the relatively low fees currently in place incentivize respondents to file non-meritorious forms or motions. DHS is represented before EOIR by attorneys from U.S. Immigration and Customs Enforcement (“ICE”), Office of the Principal Legal Advisor, in Field Offices around the country. DHS attorneys are bound by the same standards of professional conduct as private attorneys, and the Department expects all EOIR practitioners to behave in a professional manner consistent with such obligations, including by not filing knowingly unmeritorious appeals or other applications or motions.
See, e.g.,
Model Rules of Prof'l Conduct R. 3.1 (2019),
https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_1_meritorious_claims_contentions/
(“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”).

10
These numbers include both motions to reopen and motions to reconsider filed at the immigration court level.

11
These numbers include both motions to reopen and motions to reconsider filed at the BIA level.

Comment:
Commenters noted that the fees in the NPRM are higher than fees charged in various Federal courts. Some commenters opined that EOIR's fees should be lower than Federal court fees due to the breadth of issues covered in some Federal courts, as well as their structural complexity. Additionally, commenters stated that the proposed fees are higher than the fees charged by several other agency bodies that perform adjudicative functions. In light of these comparisons, commenters asserted that the fees in the NPRM are unreasonable. One commenter stated that the BIA appeal fee would be the highest appeal fee charged by any court.

Response:
The immigration court system is distinct from the Federal court system. Immigration judges are appointed as administrative judges by the Attorney General to conduct specified proceedings under the Act and by regulation, and the BIA is an administrative tribunal that primarily decides appeals from immigration judges.
See
8 CFR 1003.10(a); 8 CFR 1003.1(b). In contrast, Federal courts are established under Article III of the U.S. Constitution, and Article III judges are appointed by the President and confirmed by the Senate.
See
U.S. Const. art. III, sec. 1.

The Department is authorized to charge fees for immigration adjudication and naturalization services and to set those fees at a level that ensures full recovery of providing such services. INA 286(m), 8 U.S.C. 1356(m);
see also
31 U.S.C. 9701(a) (explaining that “each service or thing of value provided by an agency . . . to a person . . . is to be self-sustaining to the extent possible”). In contrast, the Federal court system is not explicitly required by statute to focus on cost recovery and burdens to taxpayers when setting fee schedules.
See generally
28 U.S.C. ch. 123.

Moreover, Article III courts pass along additional costs to litigants that EOIR does not, making a simple comparison of appeal fees misleading.
12

For example, appellants in civil cases in Article III courts may be required to post an appellate bond to ensure payment of costs on appeal, which is not a requirement for an appeal within EOIR.
See
Fed. R. App. P. 7. Similarly, the appellant in an Article III case is generally required to pay for the cost of the transcript of the proceeding below, whereas the BIA provides a transcript to both parties at no cost.
See
Fed. R. App. P. 10(b)(4). Once these additional costs are factored into the cost of an appeal in Federal court, it is not clear that the cost of a Federal appeal from a district court decision is lower than the cost of an appeal from an immigration judge to the BIA.

12
Commenters appear to draw a comparison between appeals of immigration judge decisions to the BIA and petitions for review of BIA decisions filed in Federal court, but that comparison mixes appeals from a trial level to an appellate level with petitions for review from a final agency decision filed directly at the appellate level. A more appropriate comparison would be comparing only appeals from a trial level to an appellate level and, thus, comparing appeals from an immigration court to the BIA with appeals from a Federal district court to a circuit court of appeals.

Regarding commenters' assertions about Federal courts dealing with more complex and wider-ranging issues, the IOAA sets out a list of factors for consideration when setting fee amounts: Fairness, “the costs to the Government,” “the value of the service or thing to the recipient,” the “public policy or interest served,” and “other relevant facts.” 31 U.S.C. 9701(b). Even if the “breadth of issues” before a court or the issues' “structural complexity” could be considered an “other relevant fact” under the IOAA, the Department disputes that either of those factors could even be quantified, as suggested

by the commenters. Moreover, courts have determined that fees “need only bear a reasonable relationship to the cost of services rendered by the agency.”
Ayuda I,
661 F. Supp. at 36 (quoting
Nat'l Cable Television Ass'n,
554 F.2d at 1108).

The Department also disagrees with commenters' comparisons of EOIR's fees with fees charged by other agencies and the conclusion that EOIR's fees are consequently unreasonable. First, the
Ayuda
court succinctly resolved the first argument: “Plaintiffs' final challenge to the amount of the fees involves the assertion that they are excessive compared with certain court fees and emphasizes that other agencies are not charging for similar services within the purview of the statutes they administer. None of these observations are relevant. Each agency is entitled to set its own fees as it chooses and make its own decisions. Additionally, the missions of other agencies do not exclusively focus on handling matters of those without lawful status in the United States. The acts of one are not controlling on another.”
Ayuda I,
661 F. Supp. at 36. Second, as previously explained, the court found that fees must be reasonably related to the cost of the service provided.
See id.
Accordingly, the Department finds comments to the contrary unsupported by case law and retains the updated fee amounts as proposed in the NPRM.
13

13
The Department does note that even if comparisons to other agencies were relevant, the fees charged by other agencies adjudicating immigration-related applications have been substantially higher than fees charged by EOIR for many years. For example, the current fee for an appeal or motion charged by USCIS is $675, which is well above EOIR's current $110 fee and will remain significantly higher than EOIR's new fee for a motion to reopen filed with an immigration court.

Comment:
Commenters opposed the NPRM because they believed that the proposed increases in fees, which would establish fees three to eight times higher than existing fees, would result in many more applications for fee waivers. Commenters asserted that the Department did not account for the fact that this increased number of fee waiver requests would add costs and divert judges' time from substantive claims. Commenters opined that this was particularly true with respect to the costs recouped from the $50 fee for asylum applications, and one commenter noted that EOIR should be making it more efficient to apply for asylum rather than requiring additional hurdles.

Commenters also predicted that because more people would request fee waivers for the increased fees, EOIR would likely lose revenue, rather than make revenue.

Additionally, commenters stated that in DHS's proposed fee schedule, USCIS would exclude asylum seekers from eligibility for a fee waiver, and commenters expressed concern that the Department would similarly do so. Another commenter expressed concerns about the fee waiver process for USCIS.

Commenters asserted that if the Department were to impose a filing fee for asylum applications, the fee waiver process should be clear, reviewable, and robust. One commenter recommended that a one-page fee waiver form specifically for asylum applications be made available in several languages. The commenter explained that it would be comparable to proceeding in forma pauperis, common in the Federal court system.

One commenter noted that Federal courts give a party 21 days to pay the fee or file a renewed fee waiver request following a denied fee waiver request. That commenter noted that while a fee waiver is available for individuals before EOIR, it is not comparable to the policies in the Federal court system.

Second, commenters alleged that the fee waiver process is an insufficient remedy for low-income individuals because determinations are inconsistent. Commenters explained that, in their experience, some immigration courts granted fee waivers as a matter of course, while other immigration courts rarely granted fee waivers at all. Some commenters noted that, while USCIS provides criteria for fee waivers, it was impossible to know the criteria by which EOIR adjudicates fee waiver requests and that the lack of standards could be considered arbitrary and capricious under the APA. 5 U.S.C. 706(2)(A). Commenters suggested that criteria could include specific documentation to file with the request and qualification guidelines, such as income thresholds, for eligibility. Commenters also noted that relevant information about fee waivers is not provided by immigration judge advisals or the Practice Manuals, and, when information is provided (
e.g.,
chapter 3.4(d) of the Immigration Court Practice Manual), such information is inconsistent among various sources.
See Immigration Court Practice Manual,
Exec. Office for Immigration Rev.,
https://www.justice.gov/eoir/page/file/1258536/download
(last updated Nov. 18, 2020);
Board of Immigration Appeals Practice Manual,
Exec. Office for Immigration Rev.,
https://www.justice.gov/eoir/page/file/1250701/download
(last updated Oct. 5, 2020). Commenters were also concerned that fee waivers, if granted, constitute a negative factor in a public charge determination.

Third, commenters opposed fee waivers as a viable solution because of the discretionary nature of fee waiver determinations. One organization opposed the rule, stating that the “possibility of a discretionary fee waiver does not serve the same function as a reasonable fee that most individuals subject to EOIR proceedings can afford.” The organization explained that requesting a fee waiver under the current fee waiver process does not equate to paying the associated fee with an application because paying the fee provides, as a matter of right, an opportunity to have such application adjudicated by the agency while requesting a fee waiver “simply provides the adjudicator with the option of granting a fee waiver and then considering the merits of the underlying filing. . . . Although immigration judges
may
grant a fee waiver if individuals establish that they are unable to pay, the regulations do not require them to grant fee waivers even to an individual who has provided proof of inability to pay.” Relatedly, commenters expressed skepticism of such discretion, stating that immigration judges are not independent and are instead subject to the Attorney General's guidance and orders. For aliens who file a Form EOIR-26A and lack work authorization, another commenter suggested that the Department institute a rebuttable presumption that the alien is unable to pay the fee.

Some commenters stated that it was proper for the Department to rely on taxpayers to subsidize adjudication costs, rather than rely on fee increases and fee waivers, stating, for example, “[t]he burden of correcting for unjust outcomes SHOULD be bourne [sic] by society (
e.g.
the `taxpayers') not by the affected person alone.”

One commenter was also concerned that the proposed high fees would deter individuals from even considering filing the applications.

One commenter explained that the lack of guaranteed representation in immigration proceedings exacerbated concerns regarding fee waivers, and an organization explained several other aspects about the current fee waiver process that are problematic, including the signature requirement and procurement of income documentation.

Overall, commenters recommended that the Department make fee waivers more “broadly available.”

Response:
While the Department agrees that it is possible—and perhaps even probable—that the increased fees

may lead more aliens to seek a fee waiver than would without this rule, specific concerns regarding the effects of such fee waivers on adjudications or the ultimate total volume of fee waiver applications that EOIR will receive are speculative. Respondents' financial information submitted in support of fee waiver requests has not been tracked or universally evaluated to provide any indication that an increase in fees, regardless of amount, will necessarily result in an increase in fee waiver applications. Moreover, for most of the proposed fees, respondents' general ability to obtain work authorization while an application is pending, their access to financial resources allowing them to travel to the United States in the first instance, their access to financial resources in the United States for a sufficient period of time necessary to even trigger the need for a filing that requires a fee, their general ability to obtain representation, their general ability to pay existing fees for applications or for ancillary applications, and the ultimate importance of the benefit they seek (
i.e.,
legal status or being able to remain in the United States indefinitely) are all potential countervailing considerations that would not necessarily support the conclusion that the proposed fee increases will inevitably lead to more fee waiver applications. Put more simply, a respondent who could not afford a lesser amount will presumably not be able to afford the new, higher amount, but it is speculative to assert that all who could afford the lower amount will necessarily not be able to pay the higher fee. Rather, a particular subset of those who can afford the current fees currently may not be able to after the increases, but the precise size of that subset, though potentially not as large as commenters suggested for the reasons given above, is not estimated.

EOIR has adjudicated fee waivers for many decades, and both Board members and immigration judges are experienced in adjudicating such requests. Although differences in adjudicatory outcomes are inherent in any system rooted in adjudicator discretion, there is no evidence that Board members or immigration judges would be unable or unwilling to adjudicate fee waiver requests consistent with applicable law and their respective independent judgment and discretion.
See
8 CFR 1003.1(d)(1)(ii), 1003.10(b). Commenters have not presented any evidence that EOIR would not continue to grant appropriate fee waivers.
See Ayuda II,
848 F.2d at 1299 n.4 (“Appellants intimate that the waiver provision, 8 CFR 103.7(c)(1) (1986), does not in fact mitigate the deterrent effect of the increased fees because the Attorney General retains discretion to decline to waive the fees even after an applicant has demonstrated his or her inability to pay. We have been directed to no evidence, however, that the Attorney General has in fact exercised his discretion in this manner.”). Any calculations attempted by the Department to “account for” the effects of fee waiver adjudications in light of the updated fees would be unreliable because fee waivers are discretionary by nature and the updated fees have not been in force. Accordingly, while the Department acknowledges that it did not include in the NPRM projected costs related to adjudication of fee waivers resulting from the rule, the Department disagrees that inclusion of such costs is necessary or beneficial. Moreover, including such costs would have likely led to a greater fee increase. Further, because concerns regarding lost revenue are “purely speculative,” the Department is unable to respond.
14

In addition, the agency is committed to ongoing review and, as necessary, updating of its fees. If the new fees lead to unanticipated results, the agency can evaluate those results upon its next biennial review.

14

Home Box Office, Inc.
v.
FCC,
567 F.2d 9, 35 n.58 (D.C. Cir. 1977) (per curiam). “In determining what points are significant, the `arbitrary and capricious' standard of review must be kept in mind. Thus only comments which, if true, raise points relevant to the agency's decision and which, if adopted, would require a change in an agency's proposed rule cast doubt on the reasonableness of a position taken by the agency. Moreover, comments which themselves are purely speculative and do not disclose the factual or policy basis on which they rest require no response. There must be some basis for thinking a position taken in opposition to the agency is true.”
Id.
The purpose of updating the fees is to better align the fees with the agency's current processing and adjudication costs following an over 30-year period in which the fees were not updated, not to subsidize the Department's, including EOIR's, congressional appropriations. As a result, the number of fee waivers requested does not directly correlate with the Department's total revenue. Accordingly, even if the number of fee waiver requests increased, the Department's conclusions in the rulemaking would still be reasonable: Processing costs would continue to exceed the assessed fees, hence the decision to update the fees to more accurately reflect and recover EOIR's adjudication costs. Further, commenters' concerns on this point provide no factual or policy bases to which the Department may provide a response; thus, the Department finds such concerns to be mere speculation and is unable to provide a response.

Regarding commenters' concerns with USCIS's proposed fee waiver regulations regarding the Form I-589 application or USCIS's fee waiver process in general, the Department notes that USCIS is a component of DHS, which is a separate agency from DOJ, of which EOIR is a component.
See Operational and Support Components,
Department of Homeland Security,
https://www.dhs.gov/operational-and-support-components
(last updated Nov. 17, 2018). Further, this rulemaking specifically involves EOIR fees, and the USCIS fees and applications referenced by the commenters pertain to a separate USCIS-specific rulemaking.
See
U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 84 FR 62280 (Nov. 14, 2019) (proposed rule); 85 FR 46788 (Aug. 3, 2020) (final rule).
15

15
The final rule related to fees charged by DHS was preliminarily enjoined by two federal district courts prior to its effective date.
Immigrant Legal Resource Ctr.
v.
Wolf,
No. 20-cv-05883-JSW, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020);
Nw. Immigrants Rights Proj.
v.
U.S. Citizenship & Immigration Servs.,
No. 19-3283 (RDM), 2020 WL 5995206 (Oct. 8, 2020). Although this final rule updates cross-references in EOIR's regulations to DHS's regulations to account for the DHS rule's amendments of DHS's regulations, the DHS fees remain governed by DHS's previous regulations while the aforementioned injunctions remain in effect. Because the ultimate resolution of the litigation challenging the DHS fee rule is unknown, this final rule amends EOIR's regulations to include cross-references to both the previous DHS regulations and the new regulations to ensure that the cross-references do not become inaccurate regardless of how the litigation is resolved.

Further, this rule does not amend the current procedure regarding how DHS forms are treated in immigration court. Accordingly, this rule does not change the practice that neither the BIA nor the immigration judge may grant a fee waiver “with respect to the fee prescribed for a Department of Homeland Security form or action that is identified as non-waivable in regulations of the Department of Homeland Security.” 8 CFR 1103.7(c). Accordingly, the waivability of the fee for the Form I-589 filed with USCIS is ultimately determined by DHS's regulations and the waivability of the fee for the Form I-589 filed with EOIR is determined by the DOJ regulation that, in turn, cross-references DHS regulations.
16

16
The Department notes that DHS's 2019 fee NPRM proposed reorganizing its regulations regarding fee waivers.
Compare
8 CFR 103.7(c),
with
84 FR 62363 (proposed 8 CFR 106.3 (Fee waivers and exemptions)). That reorganization was adopted by a final rule, 85 FR at 46920, but that rule was subsequently enjoined before it took effect.
See
note 16,
supra.
To the extent that DHS's regulations allow a fee waiver for a DHS form, the Department would continue to apply that same fee waiver eligibility for the form when it is submitted to EOIR.

The rule makes no substantive amendments to EOIR's asylum regulations located at 8 CFR part 1208 or DHS's fee schedule.
See
8 CFR 1103.7(b)(4)(ii). Further, the Department

continues to apply USCIS fees in accordance with the regulation at 8 CFR 1103.7(b)(4)(ii). For these reasons, comments related to USCIS's asylum application and the corresponding $50 fee are outside the scope of this rulemaking.

Regarding comments referencing USCIS's criteria for fee waivers and the Department's lack of similar, consistent criteria and information dissemination, the Department appreciates this feedback. At present, USCIS adjudicates 22 applications eligible for a fee waiver, 8 CFR 103.7(c)(3)-(4),
17

including many that are not adjudicated by EOIR, such as applications for naturalization. Thus, USCIS receives many more fee waiver requests than EOIR.
18

Further, fee waivers directly impact USCIS's budget and, thus, its operations as a generally fee-funded agency. For example, USCIS recently estimated that it would forgo over $900 million due to fee waivers and exemptions, which is significantly more than EOIR's total budget.
See
84 FR at 62298. Consequently, it is appropriate for USCIS to have more defined criteria for fee waivers than EOIR because the two agencies are not similarly situated in terms of the impact of such waivers. Nevertheless, the Department may consider the issue further in a future rulemaking should a need for additional clarifications regarding adjudication of fee waivers arise following this rule's implementation. Moreover, the Department also notes that nothing precludes the Board, which receives most fee waiver requests and has extensive experience adjudicating them, from issuing a precedential decision regarding the appropriate criteria for a fee waiver, consistent with its authority to “provide clear and uniform guidance to [DHS], the immigration judges, and the general public on the proper interpretation and administration of the [INA] and its implementing regulations.” 8 CFR 1003.1(d)(1).

17
If the current injunctions against the DHS fee rule are lifted, DHS's fee waiver provisions will be located in 8 CFR 106.3.

18
USCIS estimates receipt of approximately 1.5 million applications in FY 2019/2020 without a fee payment, which is significantly higher than EOIR's receipt of all applications and higher than EOIR's total pending caseload.
See
84 FR at 62288.

Despite commenters' allegations that fee waivers are inconsistent around the country, the Department has no evidence or data, and none was provided by commenters, regarding the specific adjudications of fee waivers that would support such statements.

The Department disagrees with commenters that the discretionary nature of fee waivers is problematic. Fee waiver determinations are a matter of discretionary authority and are based upon the unique facts of each case.
See
8 CFR 1003.8(a)(3), 1003.24(d), 1103.7(c). When evaluating such requests, EOIR adjudicators, including immigration judges and Board members, exercise independent judgment and discretion.
See
8 CFR 1003.1(d)(1)(ii), 1003.10(b). The appropriate regulations, 8 CFR 1003.8(a)(3), 1003.24(d), 1103.7(c), clearly delineate the requirements for fee waivers, and the Department expects its adjudicators to issue fee waiver determinations in a fair manner and consistent with the regulations. The Attorney General does not mandate a specific outcome for fee waiver determinations.

Given this discretionary nature, filing a fee waiver request does not automatically render the request granted. Moreover, the Department has determined, and courts agree, that the fee waiver process is a proper, viable solution for aliens who may be unable to pay updated fees.
See Ayuda II,
848 F.2d at 1299 & n.4 (holding, in part, that the alleged deterrent effects of increased fees are “mitigated by the provision for waiver of fees for aliens who certify their inability to pay”).

The Department agrees with commenters that some taxpayer subsidization for the costs of processing and adjudicating these EOIR applications and motions is appropriate; however, the Department disagrees with the extent of the commenters' recommended subsidization. As stated in the NPRM, the updated fees do not cover the full adjudication costs.
See
85 FR at 11868-69. Some costs—such as overhead costs, cost of non-salary benefits, or costs related to corresponding applications or documents accompanying items for which the Department updated fees—were not included in the Department's calculations and are subsequently covered by congressional appropriation, which is funded, in part, by taxpayer dollars.
See id.
Accordingly, individuals who pay the updated fees will not bear the full adjudication costs, but taxpayers will also not bear a disproportionate share of the costs.
See
85 FR at 11870.

The Department acknowledges commenters' concerns that fees may affect an individual's decision to file an application, but there is no evidence that filing fees discourage individuals from filing for lawful immigration status to which they believe they are entitled.
19

The Department also emphasizes that an EOIR fee waiver remains available for those individuals who aver that they cannot pay the fee, and individuals should utilize the fee waiver process if they are concerned about the ability to pay fees.
See
8 CFR 1003.8(a)(3), 1003.24(d), 1103.7(c).

19
To the extent that increased filing fees may discourage individuals without valid claims from pursuing non-meritorious applications for dilatory purposes, the Department does not believe that possible consequence is sufficiently compelling to warrant not changing the fees to the levels proposed in the NPRM.

The remaining concerns likewise exceed the bounds of this rulemaking. The rule does not change the regulations regarding representation, or, as repeatedly mentioned, eligibility for fee waivers, which includes the signature requirement and income documentation.
See
8 CFR 1003.8(a)(3), 1003.24(d), 1103.7(c);
see generally
8 CFR part 1292; 8 CFR 1003.16(b).

5. Concerns With Fee Increases for Filing Appeals With the BIA

Comment:
Commenters' primary concerns regarding the proposed fee ($975) for appeals to the BIA were that the fee is too high and too expensive for aliens in proceedings to afford and that, as a result, the fee will foreclose aliens' access to due process via administrative and, in turn, Federal appellate review of the immigration judge's decision(s). Commenters indicated a belief that this concern is exacerbated by the proposal to increase the fee by such a significant amount in the context of the COVID-19 pandemic. Many commenters highlighted that the proposed fee is an 800 percent increase (or a multiple of 8.6) from the $110 fee currently attached to appeals.

Commenters highlighted particular classes of aliens who commenters believe would have a particularly difficult time paying the proposed fee, including individuals in immigration detention, asylum seekers, and “working class” respondents.

One commenter argued that the proposed fee is particularly unreasonable due to the number of BIA decisions issued as AWO, which the commenter says are “little more than a stepping-stone on the way to actual review by a circuit court.”
See
8 CFR 1003.1(e)(4).

Commenters compared the fee increase for filing an appeal to the BIA to other government programs that were struck down for conditioning access to services based on an individual's ability to pay and discriminating between indigent and non-indigent individuals.
See, e.g., Boddie
v.
Connecticut,
401 U.S. 371, 380-82 (1971) (holding that due process of law prohibits a State from denying individuals access to the

courts for the purposes of divorce proceedings based solely on an ability to pay);
Burns
v.
Ohio,
360 U.S. 252, 257-58 (1959) (“There is no rational basis for assuming that indigents' motions for leave to appeal will be less meritorious than those of other defendants. Indigents must, therefore, have the same opportunities to invoke the discretion of the Supreme Court of Ohio.”);
Griffin
v.
Illinois,
351 U.S. 12, 19 (1956) (holding that a State cannot condition access to a trial transcript on the ability to pay and explaining that “[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has. Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.”).

Commenters expressed concerns that the proposed rule would effectively render immigration judge decisions as final orders because the proposed fee increases would make it financially impossible for aliens to afford to pursue appeals before the BIA.
See
8 CFR 1003.39 (“Except when certified to the Board, the decision of the Immigration Judge becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken whichever occurs first.”). Commenters suggested that it is particularly important for aliens to have access to appeals because immigration judges do not have sufficient time to devote to each case and because “it is not uncommon for immigration judges to make errors.” Commenters stated that appellate review was necessary to correct errors that resulted in significant variations in grant rates of applications between immigration courts. Commenters also stated that criticism of EOIR by the circuit courts demonstrated the necessity of BIA appeals for aliens who seek to assert their rights.

Commenters stated that recent administrative changes to immigration procedures make an alien's access to appeals and motions more important than ever. Specifically, commenters cited the following: The implementation of performance metrics for immigration judges; the implementation of a special docket for families who have arrived recently in the United States; docket shuffling; inaccurate court dates in Notices to Appear and Notices of Hearing; recent guidance on administrative closure determinations; recent guidance on continuance determinations; recent case-processing requirements for the BIA; and recent guidance on termination and dismissal determinations. Commenters also asserted that EOIR has become politicized by instituting an Office of Policy and appointing sitting immigration judges with asylum-denial rates of over 90 percent as permanent members of the BIA who could participate in precedential decision making. Commenters asserted that, because of these practices and policies, immigration judges are incentivized to issue removal orders and aliens face an increased likelihood of wanting to file appeals with the BIA. In support of these concerns with the immigration court system, commenters noted that the courts of appeals have at times similarly criticized the immigration courts.
See, e.g., Benslimane
v.
Gonzales,
430 F.3d 828, 830 (7th Cir. 2005) (“[T]he adjudication of [immigration] cases at the administrative level has fallen below the minimum standards of legal justice.”) Commenters further asserted that it was disingenuous for the Department to argue that increased appeals have become such a burden as to necessitate the promulgation of this rule when the increase in appeals has been a direct result of these Department actions.

Commenters further asserted that the increase in fees would prevent noncitizens from accessing Federal court review because they would be unable to afford the fees to appeal to the BIA, which is required for a decision to be administratively final for judicial review.
See
INA 242(a), 8 U.S.C. 1252(a) (allowing for judicial review of a “final order of removal”);
see also, e.g., J.E.F.M.
v.
Lynch,
837 F.3d 1026, 1029 (9th Cir. 2016) (“Despite the gravity of their claims, the minors cannot bypass the immigration courts and proceed directly to district court. Instead, they must exhaust the administrative process before they can access the federal courts.”). Commenters averred that the proposed rule demonstrates the Department's attempt to avoid oversight from the Federal courts by making appeals inaccessible. One commenter noted that the proposed fee for an appeal will increase the total cost for adjudication for aliens who go on to file a petition for review in Federal court to $1,475. Commenters characterized this effect of the rule as allowing “the administration to both set immigration policy and adjudicate it without meaningful review by an independent judiciary,” noting that the Seventh Circuit recently criticized the BIA for failing to abide by its instructions.
See Baez-Sanchez
v.
Barr,
947 F.3d 1033, 1035-36 (7th Cir. 2020) (“In sum, the Board flatly refused to implement our decision. . . . We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt . . . .”).

Commenters indicated a belief that the proposed fee for an appeal is purposefully designed to limit aliens' access to due process or to dissuade aliens from filing an appeal. Commenters characterized the proposal as an intentional barrier to filing an appeal.

Commenters noted that appeals have secondary benefits beyond those which accrue to the appealing party alone. For example, appeals are the vehicle for the BIA to publish precedential decisions, which help the development of case law to properly implement the law in different and evolving circumstances and which help ensure consistency across the country. Commenters explained that this development of case law benefits the Nation generally by ensuring that the immigration laws are accurately and consistently applied.

Commenters noted that the proposed fee will be particularly difficult for aliens to raise in the 30 days allowed for an alien to file an appeal from an immigration judge's final decision.

Commenters explained that the rule is particularly harsh because the Department will not refund fees even when the noncitizen prevails on his or her appeal. Commenters asserted that when the BIA determines that an immigration judge erred it necessarily means that the noncitizen was treated unfairly by the immigration judge. While recognizing that the Equal Access to Justice Act does not directly apply in removal proceedings, commenters asserted that the Department could nonetheless refund appeal fees when noncitizen litigants are successful.

Response:
First, the Department rejects commenters' allegations that the proposed rule is purposefully designed to limit access to appeals or impede aliens' due process rights. As explained in the NPRM, the rule is designed to ensure that the Department exercises its authorities under the IOAA, section 286(m) of the Act (8 U.S.C. 1356(m)), and OMB's Circular No. A-25 Revised.
See
85 FR at 11866-67. Although the rule changes the amount that would be charged for filing an appeal, the Department has been careful through the entire process to ensure that it does not affect the availability of a fee waiver.
20

20
For further discussion of the availability of fee waivers, see section II.C.4.

As explained in the NPRM, the proposed fee for an appeal was determined following a comprehensive

activity-based cost study that determined the cost incurred by EOIR to process those applications, appeals, and motions for which EOIR levies a fee.
See
85 FR at 11868-70. The Department proposed the $975 fee for filing an appeal with the BIA only after (1) determining the appropriate staff levels and time required to process and adjudicate each appeal and the average salary rates for applicable staff levels, based on data from the Office of Personnel Management (“OPM”) and the General Services Administration (“GSA”); (2) developing step-by-step process maps, with assigned times and staff levels, for how the BIA processes each appeal; and (3) allocating the salary costs from the GSA and OPM data to each step in the process, based on the time the step takes, the average salary of the responsible staff, and the percentage of total cases in which the step occurs. 85 FR at 11869. The Department acknowledges that $975 is an increase from the $110 fee that has been levied since 1986, though it amounts to an average annual increase of only slightly more than $25 per year. Nevertheless, that is the amount that in fact represents the agency's best estimate of the current processing costs for appeals, which are complex adjudications that require significant staffing input.

In response to the commenter who argued that the proposed fee is unreasonable due to the BIA's issuance of AWO decisions, the Department notes that $975 is an average processing cost. Some appeals, such as those that raise multiple issues on appeal or that involve a particularly complex set of facts, take more time to adjudicate than others. By regulation, Board members are to issue an AWO for certain less complex cases. 8 CFR 1003.1(e)(4). Because the determination of whether a case is appropriate for an AWO is a matter of legal judgment for the Board member after the initial review of the appeal, it would not be possible to charge one, possibly lower, fee for appeals in which the immigration judge order is ultimately affirmed without an opinion and a different fee for appeals that result in a written BIA decision. Instead, the Department believes it is reasonable to charge a single average processing cost for all appeals.

Fees cannot be based upon the reason for appeal or the result of the appeal. Fees are levied based on averages; this is common practice throughout government. For example, DHS charges a flat filing fee that is based on the average complexity of that filing's adjudications.
See, e.g.,
84 FR at 62309 (proposing fee changes to H-2A and H-2B visas based on average adjudication times estimated by USCIS). To illustrate, DHS charges the same filing fee for an N-400, Application for Naturalization, regardless of whether the applicant is an 18-year-old who has not traveled outside of the United States since entry or an 80-year-old who has traveled back to his or her country of origin once a year for several decades. Adjudicating eligibility for the latter is likely to be far more complex and time-consuming.

In response to comments suggesting that variations in grant rates and circuit court criticism demonstrate the necessity for appellate review, the Department reiterates that nothing in this rule forecloses appellate review by the Board. Further, discussions of grant rate disparities often do not account for the unique factors of each case or the relevant applicable law, including variations in circuit law. Moreover, they frequently also do not account for ecological inference problems by attempting to draw conclusions about individual adjudicators based solely on aggregate data.

The Department also notes that criticism is to be expected at times for any adjudicatory body, and that the vast majority of cases go without such critique.
21

See Exec. Office for Immigration Rev. Adjudication Statistics: Circuit Court Remands Filed,
Exec. Office for Immigration Rev., July 14, 2020,
https://www.justice.gov/eoir/page/file/1199211/download
(showing drop in circuit court remands filed from 1,081 in 2010 to 602 in 2019, and 134 in the first quarter of 2020). Moreover, as only the alien can appeal a case to Federal court, assertions based on circuit court decisions present only part of the overall picture of adjudications. Further, the Department states again that it does not believe that this rulemaking will limit an alien's right to seek appellate review.

21
The Department unequivocally rejects comments impugning the integrity or competence of its adjudicators and the suggestion that they behave incompetently or unethically solely because they do not grant every request for relief that the commenters believe should be granted.

As stated in the NPRM, this rule does not foreclose or limit the ability of aliens to seek a fee waiver for the appeal fee.
See
8 CFR 1003.8(a)(3) (“The Board has the discretion to waive a fee for an appeal, motion to reconsider, or motion to reopen upon a showing that the filing party is unable to pay the fee.”); 85 FR at 11871. To the extent that an individual in immigration proceedings is concerned about his or her ability to pay the fee for an appeal, the Department expects that such an alien would file the Form EOIR-26A, Fee Waiver Request, and proceed with his or her case in the same manner as before the change in the fee.

Accordingly, the Department disagrees that the appeal fee is akin to other court fees cited by commenters that have been struck down for conditioning access on the ability to pay.
See, e.g., Boddie,
401 U.S. 371;
Burns,
360 U.S. 252;
Griffin,
351 U.S. 12. In those cases there was no allowance made for individuals who were unable to pay the state-imposed fee.
See, e.g., Griffin,
351 U.S. at 14 (“Indigent defendants sentenced to death are provided with a free transcript at the expense of the county where convicted. In all other criminal cases defendants needing a transcript, whether indigent or not, must themselves buy it.” (footnote omitted)). Here, however, the proposed fee does not prevent indigent individuals from accessing the BIA's administrative review, and in turn the Federal courts, because a fee waiver remains available for those who are unable to pay the fee. 8 CFR 1003.8(a)(3).

In addition, because fee waivers remain available and the rule will not prevent aliens from filing an appeal with the BIA, the Department also disagrees with commenters that the increased fee for filing a BIA appeal will render immigration judge decisions final orders or foreclose Federal judicial review of EOIR decisions through alien-initiated petitions for review.
22

To the extent that commenters believe that EOIR policies or procedures have increased the frequency or need for filing an appeal from an immigration judge to the BIA and, in turn, from the BIA to a circuit court, the Department believes that aliens' access to appeals is protected through the fee waiver allowance as explained above.
23

22
To the extent that commenters argued that the fee for an appeal is too high when considered together with the cost for filing a petition for review at the circuit court, the Department notes that consideration of any possible Federal court costs is unrelated to the expenses incurred by EOIR to process the appeal and outside the scope of this rule. Moreover, this comment presumes that the alien's appeal at the BIA will be unsuccessful, which is not necessarily the case, or that the BIA's decision is somehow legally deficient, which is a presumption the Department declines to make. Nevertheless, EOIR notes that other court systems also provide for fee waivers in recognition of the fact that some parties will be unable to pay fees relevant to their cases. Further discussion of the comparison of this rule's fees with the costs of other court systems is contained at Section II.C.4 of this preamble.

23
In addition, despite commenters' concerns that recent Department and EOIR policies and procedures have resulted in greater error rates or other problematic decisions, the Department notes that in fact remands from the circuit courts to the BIA have decreased in recent years even as EOIR's total adjudication volume has increased.

See Exec. Office for Immigration Rev. Adjudication Statistics:

Circuit Court Remands Filed,

Exec. Office for Immigration Rev., July 14, 2020,
https://www.justice.gov/eoir/page/file/1199211/download; Exec. Office for Immigration Rev. Adjudication Statistics: New Cases and Total Completions,
Exec. Office for Immigration Rev., Jan. 23, 2020,
https://www.justice.gov/eoir/page/file/1238741/download.

As explained above, commenters argued that BIA appeals have benefits beyond the individual direct benefits related to an alien's particular personal interest in his or her case and that, as a result, the appeal fee is too high. First, the Department believes that the overarching purpose of each individual appeal is the individual benefit for the appealing party who seeks to correct an alleged error of law. At the same time, however, the Department agrees that administrative and appellate review can, at times, provide national benefits for immigration adjudications, such as providing clarity on complex topics that in turn creates efficiencies for immigration judges.
See, e.g., Amicus Invitation No. 20-24-02,
Board of Immigration Appeals, Feb. 24, 2020,
available at https://www.justice.gov/eoir/page/file/1251526/download
(welcoming amicus curiae briefs regarding selected issues involving Notices to Appear). The Department believes that this public interest is balanced against the need to recover EOIR's costs for providing an individual service and benefit for the appealing party by the Department's choice not to set the fees at amounts that would account for full cost recovery by including (1) overhead costs, (2) cost of non-salary benefits, and (3) costs that stem from processing corresponding applications or documents that may be filed in conjunction with those items for which EOIR charges a fee.
See
85 FR at 11869. Had these items been included in the analysis, the fee required to align with EOIR's processing costs would assumedly have been higher than $975.

Regarding commenters' concerns that the appeal fee will be difficult to raise in the time period allowed for filing an appeal with the BIA,
see
8 CFR 1003.38(b) (instructing that appeals must be filed with the BIA within 30 calendar days after the immigration judge decision), the Department notes that the public will be on notice about the new fee amount as of this rule's publication. The new fee will be stated in the regulations at 8 CFR 1103.7(b)(1), published in the instructions to the EOIR-26 appeal form, and published on the EOIR website where EOIR forms are made available. Moreover, immigration judges are required in every removal case to ascertain that an alien has received a copy of the alien's appeal rights, which typically includes the appeal form and instructions that will provide information on both the fee and the fee waiver process. 8 CFR 1240.10(a)(3). An alien who is concerned that he or she may wish to appeal the immigration judge's decision should, accordingly, use that time between the initiation of the proceeding and the immigration judge's issuance of a final decision to begin arranging funds for the future payment of the appeal.

Finally, the Department disagrees with commenters that the Department should refund appeal fees when the alien succeeds on the merits. This argument misses the Department's purpose to more accurately reflect the Department's costs in processing and adjudicating the appeal.
See
85 FR at 11870. EOIR's costs for the adjudication of an appeal are the same regardless of which party prevails on the merits, and the fact that the alien may ultimately demonstrate error by the immigration judge does not lessen the cost incurred by the BIA staff, attorneys, and Board members who were involved in the determination of the alien's success.

6. Concerns With Fee Increases for Cancellation of Removal Forms

Comment:
Commenters expressed concern regarding the increased fees for applications for cancellation of removal (Forms EOIR-42A and -42B). Some commenters noted that applicants for these forms of relief have remained in the United States for many years, creating ties between applicants and their communities. Commenters explained that because applicants would likely be unable to afford the NPRM's increased fees for cancellation of removal, these communities would be negatively impacted by the severance of those ties.

Specifically regarding the Form EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents, commenters noted that successful applicants must demonstrate exceptional and extremely unusual hardship to a qualifying relative who is either a United States citizen or a lawful permanent resident.
See
INA 240A(b)(1)(D), 8 U.S.C. 1229b(b)(1)(D). According to commenters, this level of hardship often additionally results in economic hardship for the applicant. For example, commenters pointed to economic hardship that results from the applicant's qualifying relatives suffering severe medical issues.

Further, some commenters noted that applicants for cancellation of removal are unable to procure employment authorization until after the application is filed. Thus, some commenters opined that some applicants for cancellation of removal would be unable to generate the necessary income to pay the increased fees.

As to those applicants for cancellation of removal under the Violence Against Women Act (“VAWA”),
see
INA 240A(b)(2) (8 U.S.C. 1229b(b)(2)), commenters asserted that the increase in fees would run “contrary to congressional intent to strengthen protections for victims of intra-familial violence.” In support of this, some commenters noted that affirmative applications to USCIS for relief under VAWA have no filing fees.

Response:
Whether communities in the United States will suffer greater harm due to an increased number of unlawful aliens departing the country rather than filing applications for cancellation of removal is both speculative and beyond the scope of this rulemaking. To the extent that commenters are concerned that eligible aliens will not file applications for cancellation of removal due to the increased cost, the Department notes that both immigration judges and the BIA would continue to entertain requests from aliens for fee waivers and retain the discretionary authority to grant such waivers upon a showing that the alien is unable to pay.
See
8 CFR 1003.8(a)(3), 1003.24(d), 1103.7(c). Moreover, the Department does not expect that individuals who have resided in the United States for at least seven or ten years before being placed in immigration proceedings will generally be destitute, and there is no evidence that the filing fee will dissuade an alien with a valid claim—as opposed to one filing an application for dilatory purposes—from pursuing that claim.

As to the comments regarding the economic hardship faced by aliens filing Form EOIR-42B, the Department again notes the availability of requests for fee waivers. Although some aliens may be unable to afford the fee for an application based on the timing of work authorization, the Department notes that this will vary by case, and for those aliens for whom it is true, the Department refers commenters to its prior discussion of fee waivers. Further, the Department disagrees that evidence an alien's removal would cause his or her qualifying family member an exceptional and extremely unusual hardship is related to the alien's hypothetical ability to pay the application fee. Instead, it misplaces the analysis, which focuses on the future harm to the family without the alien's presence rather than a current consideration of the alien's financial

picture with his or her residence in the United States.

To the extent commenters expressed concern that applicants for cancellation of removal may not be able to afford the new fee because they lack employment authorization documents, the Department first notes that such an assumption is not true for all cancellation applicants. Instead, all applicants who would submit the Form EOIR-42A, Application for Cancellation of Removal for Certain Permanent Residents, are lawful permanent residents who must have had that status for at least five years. INA 240A(a)(1), 8 U.S.C. 1229b(a)(1). All lawful permanent residents are entitled to employment authorization.
See
8 CFR 274a.12(a)(1). Second, eligibility for cancellation of removal for nonpermanent residents requires the alien to demonstrate certain levels of harm to a qualifying family member, demonstrating that the alien has other individuals from whom they may be able to seek assistance in paying the fee.
See
INA 240A(b)(1)(D), 8 U.S.C. 1229b(b)(1)(D); INA 240A(b)(2)(A)(v), 8 U.S.C. 1229b(b)(2)(A)(v). Further, all such applicants must have resided in the United States for at least ten years prior to being placed in removal proceedings, indicating that they do possess access to available resources to live in the United States and that such resources would presumably assist them in paying the application fee. Finally, the Department again emphasizes that a fee waiver remains available for a cancellation applicant, such as possibly an applicant without employment authorization, who is unable to pay the fee.
See
8 CFR 1003.8(a)(3), 1003.24(d), 1103.7(c).

The Department disagrees that an increase in the fee for applications for cancellation of removal runs contrary to congressional intent. Congress's stated intent in enacting VAWA was to combat violence and crimes against women.
See
H.R. Rep. No. 103-395, at 25-27 (1993); S. Rep. No. 103-138, at 37-38, 41 (1993). The original act, and its subsequent reauthorizations, provided various protections for victims of domestic and sexual violence. 159 Cong. Rec. S44-01 (Jan. 22, 2013) (statement of Sen. Reid). One such protection is the unique avenue of cancellation of removal available to certain victims of domestic violence.
See
INA 240A(b)(2)(A), 8 U.S.C. 1229b(b)(2)(A). Congress instructed only that aliens seeking, inter alia, VAWA cancellation of removal must be permitted “to apply for a waiver of any fees”—not that no fee apply in all cases. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), Public Law 110-457, 122 Stat. 5044, 5054 (adding paragraph (7) to section 245(
l
) of the Act (8 U.S.C. 1255(
l
))). Accordingly, the increased fee, in conjunction with the fee waiver, does not obstruct the availability of such discretionary relief, just as the previous $100 fee did not impede the availability of VAWA cancellation of removal.

7. Concerns With Fee Increases for Motions To Reopen or Reconsider

Comment:
Some commenters also expressed concerns specifically with the proposed fee increases that would apply to motions to reopen or motions to reconsider.
See
85 FR at 11870.
24

As with comments regarding the fees generally, commenters expressed a belief that the proposed fee increase for these motions, particularly for motions before the BIA, is too high. Commenters expressed concern that although the INA provides a statutory right to file a motion to reopen as well as a motion to reconsider,
see
INA 240(c)(6)-(7) (8 U.S.C. 1229a(c)(6)-(7)), the proposed fees will prevent aliens from being able to access these procedural options or discourage aliens from filing available motions.

24
To the extent commenters conflated the fees for motions to reopen with the fees for an appeal, the Department notes that fees for appeals are discussed above in Section II.C.5 of this preamble.

Commenters stated that recent EOIR procedures and policies have also resulted in increased numbers of in absentia removal orders, necessitating the filing of motions to reopen and rescind such orders. Commenters described motions to reopen and reconsider as essential tools for the protection of due process, noting their usage to, for example, seek redress for ineffective assistance of counsel and demonstrate changed country conditions in the country of removal. Other commenters noted that motions to reopen allow children who are granted Special Immigrant Juvenile (“SIJ”) visas (INA 101(a)(27)(J) (8 U.S.C. 1101(a)(27)(J))), trafficking survivors who are granted T nonimmigrant visas (INA 101(a)(15)(T) (8 U.S.C. 1101(a)(15)(T))), and crime victims who are granted U nonimmigrant visas (INA 101(a)(15)(U) (8 U.S.C. 1101(a)(15)(U))) to reopen their prior proceedings and gain long-term stability for their immigration status. Accordingly, commenters argue that these individuals would remain at risk of removal despite qualifying for special forms of protection. In other words, commenters argued that the proposed fees will prevent individuals from getting a “second chance.”

Response:
The Department disagrees that this rule will prevent aliens from accessing their statutory right to file a motion to reopen or a motion to reconsider
25

or leave aliens without access to these procedural options.

25
To the extent commenters may have implied that the Department cannot charge a fee for a motion to reopen or reconsider because the INA generally affords aliens the right to file such a motion, the Department disagrees. Other forms of relief for which the Department and DHS charge fees are included in the INA,
see, e.g.,
INA 240B (8 U.S.C. 1229b) (cancellation of removal), but there has never been any indication that a fee is inappropriate simply because the relief is in the INA. In fact, such logic is contradicted by section 286(m) of the Act (8 U.S.C. 1356(m)), which provides rules for the imposition of fees for “adjudication and naturalization services”—services that are directly guided by the INA's provisions.

As noted by the commenters, the increase for the fee for a motion to reopen or reconsider when the proceeding is before the BIA is a notable increase, from $110 to $895. However, as explained in the NPRM, the new fees represent EOIR's cost to adjudicate motions to reopen and reconsider, less the overhead costs, cost of non-salary benefits, or costs stemming from processing documents that correspond with those for which a fee applies.
See
85 FR at 11869-71. This analysis is consistent with the Department's obligations under section 286(m) of the Act (8 U.S.C. 1356(m)) and the IOAA, 31 U.S.C. 9701(a).
26

26
Further discussion of the proposed fee amounts in general is contained above in Section II.C.4 of this preamble.

Although some aliens will be required to pay a greater amount to file a motion to reopen or reconsider under this rule than without its implementation, the Department disagrees that aliens will be prevented from filing a motion to reopen or reconsider simply due to an inability to pay the higher fee.
27

Consistent with longstanding practice, a fee waiver remains available for motions to reopen and motions to reconsider.
See
8 CFR 1003.8(a)(3) (“The Board has the discretion to waive a fee for an appeal, motion to reconsider, or motion to reopen upon a showing that the filing party is unable to pay the fee.”); 8 CFR 1003.24(d) (“The immigration judge has the discretion to waive a fee for a motion or application for relief upon a showing that the filing party is unable to pay the fee.”). EOIR adjudicators act with independent discretion when making all legal determinations, and the Department expects adjudicators to adjudicate fee waivers fairly and consistent with the regulations. In

addition, the Department notes that the rule does not change the exceptions to the otherwise applicable fee for a motion to reopen or reconsider.
See
8 CFR 1003.8(a)(2)(i)-(viii); 8 CFR 1003.24(b)(2)(i)-(viii). Thus, filing a motion to reopen an in absentia order of removal premised on a lack of notice will continue to not require a filing fee. 8 CFR 1003.24(b)(2)(v). Further, the filing fee for a motion to reopen would not apply if, inter alia, the “motion is agreed upon by all parties and is jointly filed.” 8 CFR 1003.8(a)(2)(vii); 8 CFR 1003.24(b)(2)(vii). Accordingly, joint motions to reopen following the approval of U or T nonimmigrant visas will also continue to not require a filing fee. 8 CFR 214.14(c)(5)(i); 8 CFR 214.11(d)(9)(ii); 8 CFR 1003.24(b)(2)(vii).
28

27
Further discussion of fee waiver availability is contained above in Section II.C.5 of this preamble.

28
The approval of an SIJ visa, if the priority date is current, may allow an alien to seek reopening in order to apply for adjustment of status. 8 U.S.C. 1255(a), (h). The fee for the Form I-485, Application for Adjustment of Status, is either $750 or $1140, depending on the age of the applicant and whether the applicant is filing the application with a parent. Thus, the Department expects that an individual with an approved, current SIJ visa who is able to pay this underlying application fee would, in many cases, also be able to pay the fee for a motion to reopen.

8. Concerns With Imposing $50 Fee for Asylum Applications

Comment:
Commenters objected to the NPRM because they claimed that it would result in a $50 filing fee for asylum applications. Commenters asserted that such a fee would be immoral. A commenter stated that the fee would establish a “pay for play” system for those fleeing persecution. Commenters stated that a fee for asylum relief was akin to applicants having to pay a price for their survival. Commenters also stated that an asylum-application fee would be unprecedented. Commenters stated that in the past, “the process of seeking asylum has been subsidized entirely by surcharges on other fee applications.” Many commenters who are legal service providers stated that a large number of their clients would be negatively impacted by the proposed rule but did not provide specific data to support this assertion. Many commenters suggested that asylum applications should be free while other commenters stated that the Department should provide a better justification for imposing a fee on asylum applications.

Some commenters stated that the NPRM misstated that the proposed rule would not add any new fees because, commenters stated, a $50 filing fee for asylum applications would be new. Commenters stated that the NPRM did not reference an asylum fee in the charts that the Department used to discuss other fee increases.
29

See
85 FR at 11871.

29
Commenters did not comment specifically regarding fee increases proposed by DHS for other DHS applications adjudicated by EOIR—
e.g.,
I-485, I-601, I-751, I-821, I-881—which were also not included in the chart of fees for EOIR applications.

Commenters asserted that asylum protection is an internationally guaranteed human right and stated that denying protection for asylum seekers based on their ability to pay the filing fee would violate the United States' treaty obligations, as a signatory to the Protocol Relating to the Status of Refugees (“Protocol” or “1967 Protocol”), which incorporates Articles 2 to 34 of the 1951 Convention Relating to the Status of Refugees (“Refugee Convention”); domestic laws, such as the Refugee Act of 1980; international principles of non-refoulement; and regulations. Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223; Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6233, 6259-6276; Refugee Act of 1980, Public Law 96-212, 94 Stat. 102. Commenters cited Article 29(1) of the Refugee Convention, which commenters asserted prohibits any physical charges “whatsoever” other than those that may be “levied on [signatories'] nationals in similar situations,” for example by requiring asylum seekers in the United States to pay income taxes.

Commenters stated that a large majority of signatories to the Refugee Convention or 1967 Protocol do not charge a fee for asylum applications. A commenter stated that if the United States were to charge a filing fee for asylum applications, it would be joining “an adversary on which [the United States] imposes sanctions (Iran), a small island nation (Fiji), and one that has been condemned by an independent body of the United Nations Human Rights Council for its mistreatment of asylum seekers (Australia).” Commenters asserted that, of those three countries, Australia's fee is half of the proposed fee, Fiji offers a fee waiver, and Iran's fee applies only to families of five or more and allows exemptions.

Commenters expressed concern that if the United States began charging filing fees for asylum applications, other countries might follow suit. Commenters stated that such a pattern could have detrimental effects on refugee resettlement at a time when the number of refugees and displaced people “are at historic highs.” Commenters stated that charging a fee for asylum applications could render the entire international framework to safeguard humanitarian protections for asylum seekers vulnerable because it would undermine longstanding international agreements that asylum is intended to provide relief and support. Commenters suggested that charging a fee for asylum applications, but not for withholding of removal or Convention Against Torture (“CAT”) applications, suggested that the Department recognized that it would run afoul of international law to deny protection to individuals who could not afford it and indicated an attempt to keep people from accessing “full protection as they should under our Constitution.”

Commenters expressed concern that the fee would prevent asylum seekers who cannot afford the fee from applying for asylum altogether in the event that their requests for a fee waiver are also denied.

Commenters explained that sometimes it is best practice for each member of a family to file an individual asylum claim because long-standing precedent upon which a lead applicant's claim is based could be overturned. If asylum applicants would be required to pay a filing fee for each member of their family, and possibly all dependents, the actual financial burden would then be much greater than $50. Commenters suggested that the rule, if issued, should clarify that there is no fee for dependents' asylum applications. Commenters stated that to not do so might result in hundreds of dollars of fees for asylum applicants. Commenters offered the example that a family of five—two parents and three children—might have five primary asylum applications, as well as each spouse listed as a dependent on the other spouse's application and each child listed as a dependent on each parent's Form I-589 for a total of 10 separate dependent applications and 15 applications altogether. Commenters expressed concerns that if the Department did not make such an exception, family units of asylum seekers would be forced to choose to only file one asylum application in order to save money.

Commenters stated that the $50 fee would pose an even heavier burden in cases where asylum seekers had to pay for counsel, which, commenters stated, is critical in an asylum case.

Commenters stated that they believe asylum-seekers face unique vulnerabilities that could hinder them from being able to afford a $50 filing fee for asylum applications. For example, commenters stated that asylum seekers often use all of their savings to travel to the United States such that even a $50 additional expense would pose a significant burden. Additionally,

commenters stated, asylum applicants often arrive to the United States financially indebted to those who assisted them with their journey. Commenters expressed concerns that establishing filing fees for asylum applications could provide smugglers and traffickers with additional opportunities to exploit asylum seekers. Commenters also noted that, because asylum-seekers must file their applications for asylum within one year of their arrival to the United States, they may not have the time to accrue the resources to pay the filing fee for their applications.

Commenters also stated that asylum seekers must wait until 150 days after they file their applications to apply for an employment authorization document (“EAD”) and that the EAD would not be issued until after the application has been pending for 180 days.
See
8 CFR 208.7(a)(1). Accordingly, commenters asserted, asylum seekers cannot begin to financially stabilize themselves until six months after their applications have been filed. Commenters noted that proposed DHS rules, if implemented, would eliminate the requirement that USCIS process EAD applications within 30 days of filing and would lengthen the amount of time that asylum seekers would have to wait to file their EAD applications to 365 days after their asylum applications have been filed.
See
Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications, 84 FR 47148 (Sep. 9, 2019);
see also
Asylum Application, Interview, and Employment Authorization for Applicants, 84 FR 62374, 62377 (Nov. 14, 2019).
30

Commenters suggested that the combined effect of DHS's rules and EOIR's policies would encourage asylum seekers to engage in unauthorized employment. Commenters asserted that it would be unreasonable to require an asylum seeker who is not lawfully permitted to work to pay a fee for filing his or her asylum application.

30
DHS has subsequently published both of these rules as final. Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications, 85 FR 37502 (June 22, 2020);
see also
Asylum Application, Interview, and Employment Authorization for Applicants, 85 FR 38532 (June 26, 2020).

Commenters also noted that asylum seekers are generally prohibited from receiving public benefits and thus do not have access to a “safety net.” Commenters also stated that asylum-seekers often have few, if any, contacts in the United States on whom they can rely. Commenters stated that when asylum-seekers first arrive in the United States, they may not be able to open a bank account, have access to a credit card, or have any prior experience with money orders.

Commenters stated that “[t]echnical glitches” regularly lead to rejections of applications to USCIS but did not specify further the sort of glitches t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2020-27506. Public record. Not legal advice.